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HomeMy WebLinkAboutResolution - 2009-15 - Relating to Lease Revenue Refunding Bonds - 01/20/2009 CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2009-15 RESOLUTION RELATING TO LEASE REVENUE REFUNDING BONDS (CITY HALL AND COMMUNITY CENTER PROJECTS), SERIES 2009A OF THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF EDEN PRAIRIE, MINNESOTA; AUTHORIZING THE EXECUTION AND DELIVERY OF A LEASE-PURCHASE AGREEMENT WHEREAS, the Housing and Redevelopment Authority(the "Authority") in and for the City of Eden Prairie, Minnesota(the"City")has undertaken projects under the Housing and Redevelopment Act,Minnesota Statutes, Sections 469.001 through 469.047 (the"Act"), consisting of(a)the construction of improvements to a community center facility(the "Community Center Project") and(b)the acquisition of certain real property in the City of Eden Prairie, Minnesota and the acquisition and rehabilitation of an existing building located thereon, a portion of which is being used as a city hall and city offices (the"City Hall Project,"together with the Community Center Project, the"Project"); and WHEREAS, the Authority has financed the cost of the Community Center Project by the issuance of its Lease Revenue Bonds (Community Center Project), Series 1992A and the cost of the City Hall Project by the issuance of its Lease Revenue Bonds(City Hall Project), Series 1992E and Lease Revenue Bonds(City Hall Project), Series 1993A; and WHEREAS,the Authority has issued its revenue bonds pursuant to the Act, denominated Lease Revenue Refunding Bonds(City Hall and Community Center Projects), Series 2002A(the "Series 2002 Bonds")to refund in advance of maturity the outstanding Series 1992A Bonds and the Series 1992B Bonds(collectively, the"Series 1992 Refunded Bonds") pursuant to a Trust Indenture, dated as of February 1, 2002; and WHEREAS, the Authority proposes to issue its revenue bonds pursuant to the Act,to be denominated Lease Revenue Refunding Bonds(City Hall and Community Center Projects), Series 2009A(the"Bonds") for purposes of refunding in advance of maturity the outstanding Series 2002A Bonds having stated maturities in the years 2010 through 2012 (the"Refunded Bonds"); and WHEREAS, the Bonds will be issued pursuant to a resolution(the"Resolution") to be adopted by the Authority on January 20, 2009; and WHEREAS, all bonds issued under the Resolution will be secured by a pledge and assignment of the Lease-Purchase Agreement, dated as of February 1, 2009(the"Lease") between the Authority and the City, and of the revenues derived by the Authority from the Project, and the bonds and the interest thereon shall be payable solely from the revenues pledged -1- thereto and no bonds shall constitute a debt of the Authority within the meaning of any constitutional or statutory limitation nor shall the full faith,credit and taxing powers of the Authority be pledged thereto; and WHEREAS, the Authority has received a proposal for the purchase of the Bonds from Northland Securities, Inc. (the"Purchaser"), and the Purchaser proposes to re-offer the Bonds by means of a Preliminary Official Statement,dated January 15, 2009(together with a Final Official Statement to be prepared and distributed prior to delivery of the Bonds, the"Official Statement"); and WHEREAS, a form of the Preliminary Official Statement has been presented to this Council and is hereby ordered to be placed on file in the office of the City Finance Director. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota, as follows: 1. Approval and Execution of Lease. The Lease,dated as of February 1, 2009,between the City and the Authority, substantially in the form presented to this Council, is hereby approved. The Mayor and the City Manager(or, in the event of their absence or disability, the acting Mayor or the acting City Manager,respectively) are hereby authorized and directed to execute and deliver the Lease in the name of and on behalf of the City. All of the provisions of the Lease, when executed and delivered as authorized herein, shall be deemed to be part of this resolution as fully and to the same extent as if incorporated herein. The Lease shall be substantially in the form now on file in the office of the City Finance Director, with such necessary and appropriate variations, omissions and insertions as the City Attorney shall determine to be necessary or appropriate, and the execution thereof by the Mayor and the City Manager shall be conclusive evidence of such determination. 2. Approval of Official Statement. The Official Statement is approved and it is hereby determined that the information contained therein regarding the City is accurate and complete. The officers of the City are hereby authorized and directed to execute such certificates as may be appropriate concerning the accuracy,completeness and sufficiency of the Official Statement insofar as it contains information describing the Lease. 3. Execution of Other Documents. Officers of the City are hereby authorized and directed to execute such other certificates and documents as may be necessary and appropriate to effectuate the transactions contemplated by the Lease and the Official Statement. 4. Continuing Disclosure. (a) Pumyse and Beneficiaries. To provide for the public availability of certain information relating to the Bonds and the security therefor and to permit the Purchaser and other participating underwriters in the primary offering of the Bonds to comply with amendments to Rule 15c2-12 promulgated by the SEC under the Securities Exchange Act of 1934(17 C.F.R. § 244.15c2-12), relating to continuing disclosure(as in effect and interpreted from time to time,the Rule), which will enhance the marketability of the Bonds, the City hereby makes the following covenants and agreements for the benefit of the Owners(as -2- hereinafter defined) from time to time of the outstanding Bonds. The City is the only obligated person in respect of the Bonds within the meaning of the Rule for purposes of identifying the entities in respect of which continuing disclosure must be made. The City has complied in all material respects with any undertaking previously entered into by it under the Rule. If the City fails to comply with any provisions of this section, any person aggrieved thereby, including the Owners of any outstanding Bonds,may take whatever action at law or in equity may appear necessary or appropriate to enforce performance and observance of any agreement or covenant contained in this section, including an action for a writ of mandamus or specific performance. Direct, indirect,consequential and punitive damages shall not be recoverable for any default hereunder to the extent permitted by law. Notwithstanding anything to the contrary contained herein, in no event shall a default under this section constitute a default under the Bonds or under any other provision of this resolution. As used in this section, Owner or Bondowner means, in respect of a Bond, the registered owner or owners thereof appearing in the bond register maintained by the Registrar or any Beneficial Owner(as hereinafter defined)thereof, if such Beneficial Owner provides to the Registrar evidence of such beneficial ownership in form and substance reasonably satisfactory to the Registrar. As used herein, Beneficial Owner means, in respect of a Bond, any person or entity which(i) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, such Bond (including persons or entities holding Bonds through nominees, depositories or other intermediaries), or(b) is treated as the owner of the Bond for federal income tax purposes. (b) Information To Be Disclosed. The City will provide, in the manner set forth in subsection (c) hereof, either directly or indirectly through an agent designated by the City, the following information at the following times: (1) on or before 365 days after the end of each fiscal year of the City, commencing with the fiscal year ending December 31, 2008, the following financial information and operating data in respect of the City(the Disclosure Information): (A) the audited financial statements of the City for such fiscal year, containing balance sheets as of the end of such fiscal year and a statement of operations, changes in fund balances and cash flows for the fiscal year then ended, showing in comparative form such figures for the preceding fiscal year of the City, prepared in accordance with generally accepted accounting principles promulgated by the Financial Accounting Standards Board as modified in accordance with the governmental accounting standards promulgated by the Governmental Accounting Standards Board or as otherwise provided under Minnesota law,as in effect from time to time, or, if and to the extent such financial statements have not been prepared in accordance with such generally accepted accounting principles for reasons beyond the reasonable control of the City, noting the discrepancies therefrom and the effect thereof, and certified as to accuracy and completeness in all material respects by the fiscal officer of the City; and -3- (B) to the extent not included in the financial statements referred to in paragraph(A) hereof, an update of the operating and financial data of the type of information contained in the Official Statement under the captions ECONOMIC AND FINANCIAL INFORMATION; SUMMARY OF DEBT AND DEBT STATISTICS; GENERAL INFORMATION- "Major Employers" and "Building Permits." Notwithstanding the foregoing paragraph, if the audited financial statements are not available by the date specified, the City shall provide on or before such date unaudited financial statements in the format required for the audited financial statements as part of the Disclosure Information and, within 14 days after the receipt thereof, the City shall provide the audited financial statements. Any or all of the Disclosure Information may be incorporated by reference, if it is updated as required hereby, from other documents, including official statements,which have been submitted to each of the repositories hereinafter referred to under subsection(c) or the SEC. If the document incorporated by reference is a final official statement, it must be available from the Municipal Securities Rulemaking Board. The City shall clearly identify in the Disclosure Information each document so incorporated by reference. If any part of the Disclosure Information can no longer be generated because the operations of the City have materially changed or been discontinued, such Disclosure Information need no longer be provided if the City includes in the Disclosure Information a statement to such effect; provided, however, if such operations have been replaced by other City operations in respect of which data is not included in the Disclosure Information and the City determines that certain specified data regarding such replacement operations would be a Material Fact(as defined in paragraph(2)hereof), then, from and after such determination,the Disclosure Information shall include such additional specified data regarding the replacement operations. If the Disclosure Information is changed or this section is amended as permitted by this paragraph (b)(1) or subsection(d), then the City shall include in the next Disclosure Information to be delivered hereunder, to the extent necessary, an explanation of the reasons for the amendment and the effect of any change in the type of financial information or operating data provided. (2) In a timely manner, notice of the occurrence of any of the following events which is a Material Fact(as hereinafter defined): (A) Principal and interest payment delinquencies; (B) Non-payment related defaults; (C) Unscheduled draws on debt service reserves reflecting financial difficulties; (D) Unscheduled draws on credit enhancements reflecting financial difficulties; (E) Substitution of credit or liquidity providers,or their failure to perform; (F) Adverse tax opinions or events affecting the tax-exempt status of the security; (G) Modifications to rights of security holders; (H) Bond calls; (I) Defeasances; (3) Release, substitution, or sale of property securing repayment of the securities; and (K) Rating changes. -4- As used herein, a Material Fact is a fact as to which a substantial likelihood exists that a reasonably prudent investor would attach importance thereto in deciding to buy, hold or sell a Bond or, if not disclosed,would significantly alter the total information otherwise available to an investor from the Official Statement, information disclosed hereunder or information generally available to the public. Notwithstanding the foregoing sentence,a Material Fact is also an event that would be deemed material for purposes of the purchase,holding or sale of a Bond within the meaning of applicable federal securities laws, as interpreted at the time of discovery of the occurrence of the event. (3) In a timely manner, notice of the occurrence of any of the following events or conditions: (A) the failure of the City to provide the Disclosure Information required under paragraph (b)(1)at the time specified thereunder; (B) the amendment or supplementing of this section pursuant to subsection (d), together with a copy of such amendment or supplement and any explanation provided by the City under subsection (d)(2); (C) the termination of the obligations of the City under this section pursuant to subsection(d); (D) any change in the accounting principles pursuant to which the financial statements constituting a portion of the Disclosure Information are prepared; and (E) any change in the fiscal year of the City. (c) Manner of Disclosure. The City agrees to make available the information described in subsection(b)to the following entities by telecopy, overnight delivery, mail or other means, as appropriate: (1) the information described in paragraph(1)of subsection(b), to each then nationally recognized municipal securities information repository under the Rule and to any state information depository then designated or operated by the State of Minnesota as contemplated by the Rule(the State Depository), if any; (2) the information described in paragraphs(2) and(3) of subsection(b), to the Municipal Securities Rulemaking Board and to the State Depository, if any; and (3) the information described in subsection(b), to any rating agency then maintaining a rating of the Bonds at the request of the City and, at the expense of such Bondowner, to any Bondowner who requests in writing such information, at the time of transmission under paragraphs (1) or(2)of this subsection(c), as the case may be, or, if such information is transmitted with a subsequent time of release, at the time such information is to be released. -5- (d) Term, Amendments,Interpretation. (1) The covenants of the City in this section shall remain in effect so long as any Bonds are outstanding. Notwithstanding the preceding sentence, however, the obligations of the City under this section shall terminate and be without further effect as of any date on which the City delivers to the Registrar an opinion of Bond Counsel to the effect that, because of legislative action or final judicial or administrative actions or proceedings, the failure of the City to comply with the requirements of this section will not cause participating underwriters in the primary offering of the Bonds to be in violation of the Rule or other applicable requirements of the Securities Exchange Act of 1934, as amended, or any statutes or laws successory thereto or amendatory thereof. (2) This section(and the form and requirements of the Disclosure Information) may be amended or supplemented by the City from time to time, without notice to(except as provided in paragraph (c)(3) hereof) or the consent of the Owners of any Bonds, by a resolution of this Council filed in the office of the recording officer of the City accompanied by an opinion of Bond Counsel,who may rely on certificates of the City and others and the opinion may be subject to customary qualifications, to the effect that: (i) such amendment or supplement(a) is made in connection with a change in circumstances that arises from a change in law or regulation or a change in the identity,nature or status of the City or the type of operations conducted by the City, or(b) is required by,or better complies with, the provisions of paragraph(b)(5) of the Rule; (ii) this section as so amended or supplemented would have complied with the requirements of paragraph(b)(5)of the Rule at the time of the primary offering of the Bonds, giving effect to any change in circumstances applicable under clause(i)(a) and assuming that the Rule as in effect and interpreted at the time of the amendment or supplement was in effect at the time of the primary offering; and (iii) such amendment or supplement does not materially impair the interests of the Bondowners under the Rule. If the Disclosure Information is so amended, the City agrees to provide, contemporaneously with the effectiveness of such amendment, an explanation of the reasons for the amendment and the effect, if any, of the change in the type of financial information or operating data being provided hereunder. (3) This section is entered into to comply with the continuing disclosure provisions of the Rule and should be construed so as to satisfy the requirements of paragraph (b)(5) of the Rule. -6- ADOPTED by the Eden Prairie City Council this 20th day of January, 2009. Q Ll"� ' Young, Maya ATTEST: (/ Kathleen Porta,City Clerk -7-