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City Council Resolution 2002-60RESOLUTION NO. 2002-60 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MONTICELLO, MINNESOTA APPROVING AND AUTHORIZING THE ISSUANCE OF ITS SENIOR HOUSING REFUNDING REVENUE BOND (MISSISSIPPI SHORES PROJECT), SERIES 2002 (THE "BONDS"), UNDER MINNESOTA STATUTES, CHAPTER 462C, AS AMENDED; APPROVING THE FORM AND AUTHORIZING THE EXECUTION OF THE BOND AND RELATED DOCUMENTS; AND PROVIDING FOR THE SECURITY, RIGHTS AND REMEDIES WITH RESPECT TO THE BOND WHEREAS, the City of Monticello, Minnesota (the "City"), is a statutory city duly organized and existing under the Constitution and laws of the State of Minnesota; and WHEREAS, pursuant to the Constitution and laws of the State of Minnesota, particularly Minnesota Statutes, Chapter 462C, as amended (the "Act"), the City is authorized to carry out the public purposes described therein and contemplated thereby by issuing its revenue bonds to provide funds to finance the cost of refunding bonds previously issued pursuant to the Act, and is authorized to enter into revenue agreements made in connection therewith and pledge those agreements as security for the payment of the principal of and interest on any such revenue bonds; and WHEREAS, the City desires to assist nonprofit owners and operators of senior housing in the City lower their borrowing costs; and WHEREAS, the City is authorized by the Act to enter into a revenue agreement with any person in such manner that payments required thereby produce income and revenue sufficient to provide for the prompt payments of principal of, premium, if any, and interest on all bonds issued under the Act when due, and the revenue agreement shall also provide that the borrower shall be required to pay all expenses of the operation and maintenance of the project including, but without limitation, adequate insurance thereon and insurance against all liability for injury to persons or property arising from the operations thereof, and all taxes and special assessments levied upon or with respect to the project and payable funding the term of the revenue agreement; and WHEREAS, the City received on behalf of Wedum/PHM Affordable Housing, Inc., a Minnesota nonprofit corporation (the "Borrower"), a proposal that the City finance a project for purposes consistent with the Act, consisting of redemption and prepayment of the remaining outstanding principal amount of City's Senior Housing Revenue Bond (Mississippi Shores Project) Series 1995 originally issued by the City to finance the acquisition, construction and equipping of a 48 -unit multifamily rental facility intended primarily for elderly persons and commonly referred to as Mississippi Shores and owned by the Borrower and located in the City (the "Project"). The Project is located at 1215 Hart Boulevard in the City and will is owned and operated by the Borrower; and WHEREAS, the City has proposed to issue the Bond, as hereinafter defined, and loan the proceeds derived from the issuance of the Bond to the Borrower to finance the Project; and WHEREAS, the Bond is proposed to be purchased by American Bank (the "Bank") and the proceeds derived from the sale of the Bond will be loaned to the Borrower pursuant to the terms of a Loan Agreement, dated as of September 1, 2002 (the "Loan Agreement"), by and between the City and the Borrower; and WHERAS, the City will assign its rights in the Loan Agreement, except for the rights to certain fees and expenses and indemnification, to Bank pursuant to an Assignment of Loan Agreement, dated as of September 1, 2002 (the "Assignment"), by and between the City, the Bank and the Borrower; and WHEREAS, the payment of the principal of, premium, if any, and interest on the Bond will be secured by: (i) the revenues derived from the Loan Agreement; (ii) a Mortgage, Security Agreement, Assignment of Leases and Rents, and Financing Statement dated as of September _, 2002 (the "Mortgage") from the Borrower to the City, assigned by the City to the Bank by an Assignment of Mortgage dated as of September _, 2002 (the "Assignment of Mortgage"), and (iii) a Guaranty Agreement dated as of September 1, 2002 (the "Guaranty") from Presbyterian Homes and Services, Inc. (the "Guarantor") to the Bank. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MONTICELLO, MINNESOTA, AS FOLLOWS: 1. The City acknowledges, finds, determines, and declares that the issuance of the Bond is authorized by the Act and is consistent with the purposes of the Act and that the issuance of the Bond and the other actions of the City under the Agreements and this resolution constitute a public purpose and are in the best interests of the City. 2. For the purposes set forth above, there is hereby authorized the issuance, sale and delivery of the Bond in the aggregate principal amount not to exceed $3,000,000. The Bond shall bear interest, shall be numbered, shall be dated, shall mature, shall be in such form, and shall have such other terms, details, and provisions as are prescribed in substantially the form of the Bond attached to the Loan Agreement now on file with the City. The City hereby authorizes the execution of the Bond with the manual or facsimile signatures of the Mayor and the Administrator. The City hereby authorizes the Bond to be issued as a "tax-exempt bond" the interest on which is not includable in gross income for federal and State of Minnesota income tax purposes for individuals, trusts and estates. Without limiting the generality of the foregoing, the Mayor is authorized to approve changes in the original aggregate principal amount of the Bond, the terms of redemption, the principal amounts subject to redemption, and the dates of redemption of the Bond, and the other terms of the Bond. The issuance and delivery of the Bond shall be conclusive evidence that the Mayor has approved any changes to the forms of the Bond on file with the City on the date hereof. The proceeds derived from the sale of the Bond shall be held, transferred, expended, and invested in accordance with the terms of the Bond and the Loan Agreement and the earnings SJB-219891vl 2 MN 190-104 from all investments of the proceeds of the Bond shall be held, transferred, expended, and invested in accordance with the terms of the Bond and the Loan Agreement. 3. The proceeds derived from the sale of the Bond shall be loaned to the Borrower pursuant to the terms and conditions of the Loan Agreement. Pursuant to the terms of the Loan Agreement, the Borrower shall apply the proceeds derived from the loan under the Loan Agreement (the "Loan") to the costs of refinancing the outstanding indebtedness with respect to the Project. The Loan repayments to be made by the Borrower under the Loan Agreement are fixed so as to produce revenue sufficient to pay the principal of and interest on the Bond when due. Pursuant to the terms of the Assignment, the City shall assign its rights to the Loan repayments and certain other rights under the Loan Agreement to the Bank as security for payment of the Bond. Payment of the Bond shall be additionally secured by the Mortgage. The Mortgage shall grant a first mortgage lien on the Project to secure the payment of the principal of and interest on the Bond, and shall also assign all leases and rents for the Project to the mortgagee. Payment of the Bond is additionally secured by the Guaranty. 4. Substantially final forms of the following documents have been submitted to the City for approval and are on file with the City: (a) the Loan Agreement; (b) the Assignment; (c) the Mortgage; (d) the Assignment of Mortgage; and (e) the Guaranty (referred to collectively herein as the "Loan Documents"). The Loan Agreement, the Assignment, and the Assignment of Mortgage are directed to be executed in the name and on behalf of the City by the signatures of the Mayor and the City Administrator. The Loan Documents are approved in substantially the forms now on file with the City, subject to such changes that are approved by the Mayor and that are not inconsistent with this Resolution and applicable law. The execution and delivery of the Loan Documents by the City shall be conclusive evidence that the Mayor has approved any changes to the forms of the Bonds on file with the City on the date hereof. 5. The Mayor and City Administrator of the City are hereby authorized to execute and deliver, on behalf of the City, such other documents as are necessary or appropriate in connection with the issuance, sale, and delivery of the Bond, including the Information Return for Tax -Exempt Private Activity Bond Issues, and all other documents and certificates as shall be necessary and appropriate in connection with the issuance, sale, and delivery of the Bond. The City hereby authorizes Kennedy & Graven, Chartered, as bond counsel of the City, to prepare, execute, and deliver its approving legal opinion with respect to the Bond. 6. All covenants, stipulations, obligations, and agreements of the City contained in this resolution and the aforementioned documents shall be deemed to be the covenants, stipulations, obligations, and agreements of the City to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations, and agreements shall be binding upon the City. Except as otherwise provided in this resolution, all rights, powers and privileges conferred and duties and liabilities imposed upon the City or the City Council by the provisions of this resolution or of the aforementioned documents shall be exercised or performed by the City or by such members of the City Council, or such officers, board, body or agency thereof as may be required or authorized by law to exercise such powers and to perform such duties. SJB-219891v1 3 MN 190-104 No covenant, stipulation, obligation or agreement herein contained or contained in the aforementioned documents shall be deemed to be a covenant, stipulation, obligation or agreement of any member of the City Council of the City, or any officer, agent or employee of the City in that person's individual capacity, and neither the City Council of the City nor any officer or employee executing the Bond shall be liable personally on the Bond or be subject to any personal liability or accountability by reason of the issuance thereof. The Bond shall not constitute a general or moral obligation of the City, and no provision, covenant or agreement contained in the aforementioned documents, the Bond or in any other document relating to the Bond, and no obligation therein or herein imposed upon the City or the breach thereof, shall constitute or give rise to any pecuniary liability of the City or any charge upon its general credit or taxing powers. In making the agreements, provisions, covenants and representations set forth in such documents, the City has not obligated itself to pay or remit any funds or revenues, other than funds and revenues derived from the Agreements which are to be applied to the payment of the Bond. 7. Except as herein otherwise expressly provided, nothing in this resolution or in the aforementioned documents expressed or implied, is intended or shall be construed to confer upon any person or firm, other than the City or any holder of the Bond issued under the provisions of this resolution, any right, remedy or claim, legal or equitable, under and by reason of this resolution or any provisions hereof, this resolution, the aforementioned documents and all of their provisions being intended to be and being for the sole and exclusive benefit of the City and any holder from time to time of the Bond issued under the provisions of this resolution. 8. In case any one or more of the provisions of this resolution, or of the aforementioned documents, or of the Bond issued hereunder shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this resolution, or of the aforementioned documents, or of the Bond, but this resolution, the aforementioned documents, and the Bond shall be construed and endorsed as if such illegal or invalid provisions had not been contained therein. 9. The Loan Agreement and the Bond, when executed and delivered, shall contain a recital that the Bond is issued pursuant to the Act, and such recital shall be conclusive evidence of the validity of the Bond and the regularity of the issuance thereof, and that all acts, conditions, and things required by the laws of the State of Minnesota relating to the adoption of this resolution, to the issuance of the Bond, and to the execution of the aforementioned documents to happen, exist and be performed precedent to the execution of the aforementioned documents have happened, exist and have been performed as so required by law. 10. The officers of the City, bond counsel, other attorneys, engineers, and other agents or employees of the City are hereby authorized to do all acts and things required of them by or in connection with this resolution, the aforementioned documents, and the Bond for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Bond, the aforementioned documents and this resolution. In the event that for any reason the Mayor of the City is unable to carry out the execution of any of the documents or other acts provided herein, any other member of the City Council of the City shall be authorized to act in SJB-219891v1 4 MN190-104 his capacity and undertake such execution or acts on behalf of the City with full force and effect, which execution or acts shall be valid and binding on the City. If for any reason the Administrator of the City is unable to execute and deliver the documents referred to in this Resolution, such documents may be executed by any member of the City Council or any officer of the City delegated the duties of the Administrator, with the same force and effect as if such documents were executed and delivered by the Administrator. 10. The Bond is hereby designated as a "qualified tax-exempt obligation" for purposes of Section 265(b) of the Internal Revenue Code of 1986, as amended. The aggregate amount of tax-exempt obligations, other than private activity bonds that are not qualified 501(c)(3) bonds, to be issued by the City during 2002 is not expected to exceed $10,000,000, and no more than $10,000,000 of bonds have been designated by the City as "qualified tax-exempt obligations" during 2002. 11. This resolution shall be in full force and effect from and after its passage. SJB-219891v1 5 MN 190-104 Adopted by the City Council of the City of Monticello, Minnesota on the 9th day of September, 2002. 4 Mayor Attest: City Administrator SJB-219891v1 MN 190-104