Loading...
HomeMy WebLinkAboutResolution - 2001-123 - Refunding of Park at City West Apartments Housing Revenue Bonds - 08/07/2001 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,NIINNESOTA RESOLUTION NO. 2001-123 RESOLUTION APPROVING REFINANCING OF PARK AT CITY WEST APARTMENTS PROJECT AND AUTHORIZING AND APPROVING ALL DOCUMENTS, INSTRUMENTS, ACTIONS AND MATTERS NECESSARY OR APPROPRIATE FOR OR PERTAINING TO THE ISSUANCE, SALE AND DELIVERY BY THE CITY OF EDEN PRAIRIE, NIINNESOTA OF ITS MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (PARK AT CITY WEST APARTMENTS PROJECT) SERIES 2001 IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $14,905,000 AND THE CURRENT REFUNDING AND REDEMPTION OF ITS MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (PARK AT CITY WEST APARTMENTS PROJECT) SERIES 1990 ISSUED IN THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT OF$14,905,000. WHEREAS, The City of Eden Prairie, Minnesota (the "Issuer") is a municipal corporation and a political subdivision of the State of Minnesota, authorized by the provisions of Minnesota Statutes, Chapter 462C, as amended (the "Act") to, among other things, issue its revenue bonds pursuant to the provisions of the Act for the purpose of carrying out any of its powers, and, as security for the payment of the principal of, and interest on, any such bonds so issued, to pledge the revenues and receipts therefrom; WHEREAS, at the request of Park at City West Limited Partnership (the `Borrower"), a Minnesota limited partnership, the Issuer has heretofore issued $14,905,000 in aggregate principal amount of its Multifamily Housing Revenue Refunding Bonds (Park at City West Apartments Project) Series 1990 (the "1990 Bonds"), the proceeds of which were applied to refinance certain prior bonds which were issued to finance the costs of acquiring, constructing and equipping a 288-unit multifamily housing facility(the "Project"), a portion of such facilities to be used by persons of low and/or moderate income and to be located in the City of Eden Prairie,Minnesota; WHEREAS, the Borrower has requested and the Issuer desires now to authorize and approve (i)the issuance, execution, sale and delivery of its Multifamily Housing Revenue Refunding Bonds (Park at City West Apartments Project) Series 2001 (the `Bonds") in the aggregate principal amount not to exceed $14,905,000 for the purpose of refunding the 1990 Bonds and(ii)the redemption of the 1990 Bonds; WHEREAS, the Issuer has held a public hearing with respect to the Project more than 14 days after published notice thereof; WHEREAS, the Bonds are to be issued under and secured by a Trust Indenture (the "Indenture"), to be dated as of August 1,2001 from the Issuer to a trustee named therein, as such trustee shall be approved by the officers of the Issuer executing the Indenture(the"Trustee"); WHEREAS, the proceeds of the Bonds are to be loaned to the Borrower pursuant to a Financing Agreement (the "Financing Agreement"), to be dated of even date with the Indenture, between the Issuer and the Borrower, for the purpose of and in order to assist the Borrower in paying the costs of the redemption of the 1990 Bonds; WHEREAS, contemporaneously with the execution of the Indenture, the Issuer, the Trustee and the Borrower will enter into a Second Amended and Restated Land Use Restriction Agreement (the "Land Use Restriction Agreement'), dated as of the date of the Indenture, in which the Borrower will covenant to comply with the provisions of Section 103(b)(4)(A) of the Internal Revenue Code of 1954, as amended; WHEREAS, the principal, redemption price and purchase price of and interest on the Bonds will be payable solely and exclusively from(i)loan payments to be made by the Borrower under the provisions of the Financing Agreement and Note with respect thereto and (ii) funds held by the Trustee pursuant to the Indenture and available for such purpose, including funds drawn under credit enhancement to be issued by the Federal Home Loan Mortgage Corporation ("Freddie Mac"), in respect of the Bonds; WHEREAS, in connection with the credit enhancement provided by Freddie Mac, the Issuer, the Trustee and Freddie Mac will in enter to an Intercreditor Agreement dated as of the date of the Indenture (the "Intercreditor Agreement") with respect to the exercise of rights and remedies by Freddie Mac,the Issuer and the Trustee; WHEREAS,Dougherty& Company LLC (the"Underwriter")has agreed to purchase the Bonds in accordance with the provisions of a bond purchase agreement (the `Bond Purchase Agreement") among the Issuer,the Borrower and the Underwriter; WHEREAS, the following documents have been presented to the Issuer for approval in connection with the issuance, sale and delivery of the Bonds: (1) The proposed form of the Indenture, including the proposed form of the Bonds; (2) The proposed form of Financing Agreement; (3) The proposed form of the Land Use Restriction Agreement; (4) The proposed form of the Bond Purchase Agreement; (5) The proposed form of the Intercreditor Agreement; and (6) The proposed form of the preliminary official statement(the"Preliminary Official Statement")relating to the Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA,AS FOLLOWS: Section 1. Findings of the Issuer. (a) The Issuer hereby finds with respect to the Project that the refinancing thereof by means of the issuance of the Bonds would be in the best interests of the Issuer and its inhabitants, and would further the housing policies and goals set forth in the Housing Plan of the Issuer and the Multifamily Housing Program of the Issuer adopted thereunder. 2 (b) The execution and delivery of the Bonds and the Indenture, the Financing Agreement, and the Land Use Restriction Agreement, the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions or provisions of the Bonds and the Indenture, the Financing Agreement and the Land Use Restriction Agreement do not conflict with or result in the breach of any of the terms, conditions or provisions of any agreement or instrument or judgment, order or decree to which the Issuer is now a parry or by which it is bound,nor do they constitute a default under any of the foregoing or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature upon any property or assets or the Issuer under the terms of any instrument or agreement. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution and delivery by the Issuer of, and performance by the Issuer of its obligations under, any of the Indenture, the Financing Agreement and the Land Use Restriction Agreement. (d) The Issuer hereby finds that it is required to comply with Section 148 of the Internal Revenue Code of 1986, as amended (the "Code") and as such that: (i) it shall neither make nor direct the Trustee to make any investment or other use of the proceeds of the Bonds that would cause the Bonds to be "arbitrage bonds" as that term is defined in Section 148(a) of the Code and that it shall comply with the requirements of the Code throughout the term of the Bonds; (ii) it (a) shall take, or use its best efforts to require to be taken, all actions that may be required of the Issuer for the interest on the Bonds to be and remain not included in gross income for federal income tax purposes and (b) shall not take or authorize to be taken any actions within its control that would adversely affect that status under the provisions of the Code; (iii) it shall enforce or cause to be enforced all obligations of the Borrower under the Land Use Restriction Agreement in accordance with its terms and seek to cause the Borrower to correct any violation of the Land Use Restriction Agreement within a reasonable period after any such violation is first discovered; and (iv) in furtherance of these findings, the Issuer shall execute, deliver and comply with the provisions of the Tax Certificate (as defined in the Indenture). (e) The Issuer hereby finds that the information contained in the Preliminary Official Statement concerning the Issuer under the captions "THE ISSUER' and "LITIGATION" is true and correct in all material respects as of the date hereof and will be upon the distribution of the Preliminary Official Statement in its final form and the information contained in the Preliminary Official Statement concerning the Issuer under the captions "THE ISSUER" and "LITIGATION" does not, and at the date of the distribution of the Preliminary Official Statement and the date of issuance of the Bonds will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made,not misleading. (f) The Issuer hereby finds that, except as disclosed in the Preliminary Official Statement, there is no action, suit,proceeding, inquiry or investigation at law or in equity,before or by any court, regulatory agency, public board or body pending or, to the Issuer's knowledge, threatened against or affecting the Issuer or its property (or, to the Issuer's knowledge, any basis therefore (i) in any way affecting the existence of the Issuer or challenging or affecting the titles of any officers of the Issuer to their respective positions, (ii) in any way contesting the legality of the Bonds or the proceedings of the Issuer taken with respect to the issuance and sale thereof, 3 (iii) to restrain or enjoin the issuance, sale, execution or delivery of the Bonds, (iv) in any way contesting or affecting the validity or enforceability of the Issuer Documents, (v) contesting in any way the completeness or accuracy of the Preliminary Official Statement, or (vi) contesting the powers or authority of the Issuer or its officers with respect to the execution, delivery and performance of the Issuer Documents. (g) The Issuer hereby finds that in order to facilitate the issuance of the Bonds it is necessary to, and the Issuer will, as so necessary, promptly advise the Underwriter of any matter arising or discovered after the date hereof and prior to the date of the Purchase Agreement(i.e. in connection with the preparation of the Preliminary Official Statement in its final form and pricing of the Bonds) and after the date of the Purchase Agreement and prior to the issuance of the Bonds (i.e. in connection with the preparation and distribution of the final official statement and the sale of the Bonds) that if existing or known at the date thereof would render any of its representations or warranties set forth herein to be untrue or misleading or might adversely affect the correctness or completeness of any statement of a material fact contained in the Preliminary Official Statement or the final official statement concerning the Issuer under the captions "THE ISSUER" and"LITIGATION". Section 2. Authorization of the Project and Issuance of the Bonds. The undersigned, as the applicable elected representative of the Issuer,hereby approves of the Project for purposes of Section 147(f) of the Code. Under and pursuant to the provisions of the Act, the Issuer hereby authorizes the execution, issuance, sale and delivery to the Underwriter in consideration of payment therefor, of the Bonds, the proceeds of the sale thereof to be used for the purpose of refunding the 1990 Bonds. Section 3. Approval of the Forms of Documents. The form, content and provisions of the Indenture, the Financing Agreement, the Land Use Restriction Agreement, the Intercreditor Agreement and the Bond Purchase Agreement presented to this meeting of the City Council of the Issuer, are approved; and the Mayor and the City Manager of the Issuer are hereby authorized, empowered and directed to execute, acknowledge and deliver said documents in the name, and on behalf, of the Issuer. Said documents are to be in substantially the form now before this meeting of the City Council of the Issuer, or with such changes therein as shall be approved by the officers of the Issuer executing the same, their execution thereof to constitute conclusive evidence of their approval of any and all such changes or revisions. The officers of the Issuer are hereby authorized, empowered and directed, from and after the execution and delivery of said documents, to do all acts and things, and execute all documents, as may be necessary or convenient to carry out, and comply with, the provision of said documents, as executed and delivered. Section 4. Approval of the Bonds. The form, content and provisions of the Bonds, as set forth in the Indenture and as presented to this meeting of the City Council of the Issuer, subject to appropriate insertions and revisions, are hereby approved, and the appropriate officers of the Issuer are hereby authorized, empowered and directed to execute, by manual or facsimile signature, attest and deliver to the Trustee for authentication, and thereafter,to deliver or cause to be delivered to the Underwriter, the Bonds in consideration of payment therefor in the name and 4 on behalf of the Issuer. The Bonds are to be substantially the form now before this meeting of the City Council of the Issuer, or with such changes therein as shall be approved by the officers of the Issuer executing the same (provided that the final maturity of the Bonds shall not be later than September 30, 2031 and the initial interest rate on the Bonds shall be the rate determined as set forth in the form of the Indenture and approved by the officers of the Issuer executing the Bond Purchase Agreement), their execution thereof to constitute conclusive evidence of their approval of any and all such changes or revisions. When the Bonds shall be executed, attested, authenticated and delivered in the manner contemplated herein, in the aggregate principal amount not to exceed Fourteen Million Nine Hundred Five Thousand ($14,905,000), they shall conclusively be the approved form of the Bonds. Section 5. Approval of Underwriting and the Preliminary Official Statement and the Official Statement. The selection of Dougherty & Company LLC as Underwriter by the Borrower is acknowledged, approved and accepted and the form, content and provisions of the proposed form of Preliminary Official Statement, as presented to this meeting of the Issuer, relating the Bonds and the distribution of the Preliminary Official Statement and a final Official Statement in substantially the form of the Preliminary Official Statement (the "Official Statement") by the Underwriter are hereby approved, provided, however, that the Issuer makes no representations as to statements and information contained therein not furnished by the Issuer. The Mayor and the City Manager of the Issuer is hereby authorized, empowered, and directed to execute the Official Statement in the name, and on behalf, of the Issuer, and the Issuer hereby consent to the lawful use of the Official Statement by the Underwriter. Said Preliminary Official Statement and said Official Statement are to be in substantially the form now before this meeting of the Issuer, or with such changes therein as shall be approved by the officers of the Issuer,their execution of the Official Statement and the Bond Purchase Agreement to constitute conclusive evidence of their approval of any and all such changes or revisions. Section 6. Redemption of 1990 Bonds. The redemption of the 1990 Bonds is hereby approved and the delivery by the trustee for the holders of the 1990 Bonds of a conditional notice of redemption in accordance with the terms of the indenture under which the 1990 Bonds were issued is hereby ratified. Upon payment or provision for payment of the 1990 Bonds with the proceeds of the Bonds, the officers of the Issuer are hereby authorized and directed to request and direct the trustee for the holders of the 1990 Bonds to release, cancel and discharge the lien of the indenture under which the 1990 Bonds were issued and to do and cause to be done on behalf of and in the name of the Issuer all things requisite and necessary under such indenture to effect such release, cancellation and discharge of the lien of such indenture. The officers of the Issuer are authorized and directed to execute and deliver such other documents and to take such other action as may be necessary or proper to effect the refunding of the 1990 Bonds and the refinancing of the Project. Section 7. Incidental Action. The officers of the Issuer are hereby authorized and directed to execute in the name and behalf of the Issuer any other documents and certificates necessary to the transaction described above and copies of all of the documents necessary to the transaction herein described shall be delivered, filed and recorded as provided in the Financing Agreement, the Land Use Restriction Agreement and the Indenture. The Mayor, City Manager, City Clerk and other officers of the Issuer are further authorized and directed to prepare and furnish to the Underwriter and Bond Counsel certified copies of all proceedings and records of the Issuer relating to the Bonds, and such other affidavits and certificates as may be required to 5 show the facts relating to the legality of the Bonds as such facts appear from the books and records in the officers' custody and control or as otherwise known to them. Section 8. Limitation of the Issuer's Obligation. Notwithstanding anything contained in the Bonds or the documents referred to herein, the Bonds, interest thereon, and any penalty, charge, or premium or any amounts payable thereunder, or however designated are special limited obligations of the Issuer payable solely from the revenues and proceeds pledged thereto. The Bonds and the interest thereon do not constitute nor give rise to a pecuniary liability, general or moral obligation or a pledge of the full faith and credit or taxing power of the Issuer, the State of Minnesota, or any political subdivision of the State of Minnesota within the meaning of any constitutional or statutory limitations and are not payable from or a charge upon any funds of the Issuer other than the revenues and proceeds pledged by the Issuer to the payment thereof and do not give rise to a pecuniary liability of the Issuer nor of any of its officers, agents or employees and no holder of a Bond shall ever have the right to compel any exercise of the taxing power of the Issuer or the State or any of its political subdivisions to pay the Bonds or to enforce payment thereof against any property of the Issuer. The Bonds do not constitute a charge, lien or encumbrance, legal or equitable upon any property of the Issuer and the agreement of the Issuer to perform or cause the performance of the covenants and other provisions herein referred to shall be subject at all times to the availability of revenues or other funds furnished for such purpose in accordance with the Financing Agreement, sufficient to pay all costs of such performance or the enforcement thereof. Neither the State of Minnesota nor any political subdivision of the State of Minnesota nor the Issuer shall be obligated to pay the principal of the Bonds, the interest thereon or other costs incident thereto except from revenues pledged therefor under the Indenture, as more fully set forth in the Indenture. Neither the full faith and credit nor the taxing power, if any, of the Issuer, the State of Minnesota, nor any political subdivision thereof is pledged to the payment of the principal of the Bonds or the interest thereon or other costs incident thereto. The Bonds are not a debt of the United States of America, HUD, FHA, GNMA or any other agency thereof and are not guaranteed by the fall faith and credit of the United States of America. The Bonds are neither a moral nor an annual appropriation obligation of the Issuer, the State or any political subdivision thereof. The agreement of the Issuer to perform the covenants and other provisions contained in this resolution or the Bonds or the documents shall be subject at all times to the availability of the revenues furnished by the Developer sufficient to pay all costs of such performance or the enforcement thereof, and the Issuer shall not be subject to any personal or pecuniary liability thereon. Section 9. Captions. The captions or headings in this Resolution are for convenience only and shall in no way define, limit, or describe the scope or intent of any provision hereof. Approved and adopted this 7th day of August,2001. Man L.Harris,Mayor ATTEST: -46/-/&d 9&- Y.Atfileeln A. Porta, City Clerk 6