HomeMy WebLinkAbout1985 12-26 Special MeetingAGENDA
MAPLEWOOD CITY COUNCIL
7:00 P.M., Thursday, December 26, 1985
`Council Chambers, Municipal Building
Meeting 85-30
(A) CALL TO ORDER
(B) ROLL CALL
(C) UNFINISHED BUSINESS
1. Tax -Exempt Financing Approval —Silver Ridge Apartments
2. I.R.B. Final Approval — R L & D Associates— Edina Realty
(D) VISITOR PRESENTATION
(E) ADJOURNMENT
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521AA
RESOLUTION NO.
RESOLUTION AUTHORIZING A PROJECT AND HOUSING
PROGRAM UNDER MINNESOTA STATUTES,
CHAPTER 46 2 C (MUNICIPAL HOUSING PROGRAMS)
AND AUTHORIZING THE ISSUANCE OF
MULTIFAMILY HOUSING REVENUE. BONDS TO FINANCE.
THE PROJECT AND PROGRAM AND AUTHORIZING THE
EXECUTION OF VARIOUS DOCUMENTS IN
CONNECTION THEREWITH
BE IT. RESOLVED by the Council of the City of
Maplewood, Minnesota., as follows
1. The Council has received a proposal from Tri-
State Maple Ridge Limited Partnership, a Minnesota limited
partnership, (the "Company") that the City undertake to finance
a certain Project and multifamily rental housing program for.
such Project as herein described, pursuant to Chapter 4b2C,
Minnesota Statutes.(the "Act"), through the issuance by the
City of its $4, 800, 000 Multifamily Housing Revenue Bonds,
Series 1985 (Silver Ridge Apartments Project) (the "Bonds"),
and in accordance with a Bond Purchase Agreement (the "Bond
Purchase Agreement") between the City, the Company, and Dain
Bosworth Incorporated or designee (the "Bond Purchaser").
2. The Company desires to acquire and construct a
multifamily housing development consisting- of approximately six
buildings containing 186 units and related improvements
including parking facilities (hereinafter referred to as the
"Project") in . the City. The Project as described abovewill
facilitate the development of rental housing within the
community; encourage the development of of fordable housing
opportunities for residents of the City, encourage the
development of housing facilities designed for occupancy by
_persons of low or moderate income and assist such persons in
obtaining decent, safe and sanitary housing at rentals they can
afford; encourage the development of blighted or underutilized
land within- -the- boundaries of the City; and will otherwise
further the policies and purposes of the Act; and the findings
made in . the Preliminary Resolution adopted by this Council on
July 22, 1985 with respect to the Project are hereby ratified,
affirmed and approved.
3. It is proposed that, pursuant to a Loan Agreement
dated as of December 1, 198 5, between the City as Lender and
the . Company as Borrower (the "Loan Agreement"), the City loan
the proceeds of the Bonds to the Company to partially finance
the costs of the Project. The Loan Repayments to be made by
the Company under the Loan Agreement are fixed so as to produce
revenue sufficient to pay the principal of, premium, if. any,
and interest on the Bonds when due. It is further proposed
that the City assign its rights to the Loan Repayments and
certain other rights under the Loan Agreement to First
Wisconsin Trust Company, in Milwaukee, Wisconsin (the
"Trustee") as security for payment of the Bonds under an
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Indenture of Trust dated as of December 1, 1985 ( the
"Indenture") between the City and the Trustee.. To further
secure the payment of the Bonds and the interest thereon and of
tthe. purchase price of any Bonds required to be purchased under
the provisions of the Indenture, the Company will provide for a
Loan Purchase Agreement (the "Loan Purchase Agreement") to be
executed by First Financial Savings Association (the "Bank")
and in connection therewith, enter into a Reimbursement
Agreement dated as of December 1, 1985 (the Reimbursement
Agreement") with the Bank . Payments under the Loan Purchas e
Agreement and payments on the Bonds will be further secured by
collateral pledged to the Trustee by the Bank pursuant to a
Collateral Agreement dated as of December 1, 1985 by and
between the Bank and the Trustee. Payment of the principal and
interest on the Bonds is also secured by a Mortgage, Assignment
of Rents and Leases, (the "Mortgage") dated as of December 1,
1985 executed. by the Company in favor of the Trustee. The loan
pursuant to the Loan Agreement will be disbursed and serviced
pursuant to a Construction Loan and Permanent Mortgage
Servicing Agreement (the "Servicing Agreement") dated as of
December 1, 1985, by and among the Trustee, the City, the Bank
and the Company. The acquisition, construction, operation and
occupancy of the Project wi.l 1 conform to the terms and
conditions of a Regulatory Agreement (the "Regulatory
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Agreement") dated as of December 11 1985 between the City, the
Company and the Trustee and a Declaration of Restrictive
Covenants (the "Declaration") dated as of December 1, 1985
executed by the Company and recorded as a covenant and
restriction running with the land on which the Project is
located.
4. This Council by action taken on July 22, 1985,
adopted a resolution giving preliminary approval to a proposal
to .finance a project substantially the same as the Project; and
on or about December ? , 1985 the Minnesota Housing Finance
Agency gave approval to the proposed financing program for the
Project.
5. Pursuant to the preliminary, approval of the
Council, forms of the following documents have been submitted
to the Council for approval:
(a) The Loan Agreement.
(b) The Indenture.
(c) The Bond Purchase Agreement.
(d) The Regulatory Agreement.
e) The Declaration(not.executedy 'ty1)
(f). The Servicing Agreement.
6. It is hereby found, determined and declared that
(a) the Project described in the Loan Agreement and
Indenture referred to above constitutes a Project authorized by
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the Act and the financing program for the Project is authorized
by the Act;
(b) the purpose of the Project and the program for
the Project is, and the effect thereof will be, to promote the
public welfare by the acquisition, construction and equipping
of rental housing facilities for assisting persons of low and
moderate .income within the City to obtain decent, safe and
sanitary housing at rentals they can afford;
(c) the acquisition, construction and. installation
of the Project, the issuance and sale. of the Bonds, the
execution and delivery by the City of the Loan Agreement, the
Indenture, the Bond Purchase Agreement, the Regulatory.
Agreement and the Servicing Agreement (collectively the
"Agreements") , and the performance of all covenants and
agreements of the City contained in the Agreements, and of all
other acts and things required under the constitution and laws
of the State of Minnesota and City Charter to make the
Agreements valid and binding obligations of the City in
accordance with their terms, are authorized by the Act;
(d) it. is desirable that the Company be authorized,
in accordance with the provisions of the Act and subj ect to the
terms and conditions set forth in the Loan Agreement,
Regulatory Agreement, Servicing Agreement and Declaration,
which terms and conditions the City determines to be necessary,
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desirable and proper, to acquire and install the Proj ect by
such means as shall be available to the Company and in the
manner determined by the Company, subject to the terms of the
aforesaid agreements;
(e) it is desirable. that the Bonds be issued by the
City upon the terms set forth in the Indenture;
(f).,the loan repayments under the Loan Agreement are
fixed to produce revenue. sufficient to provide for the prompt
payment of principal . of, premium, if any,. and interest on the
Bonds issued under the Indenture when due, and the Loan
Agreement, Indenture and Regulatory Agreement. also provide that
the Company is 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 operation thereof and all taxes and special assessments
levied upon or with respect to the Project and payable during
the term of the Loan Agreement, Indenture and Regulatory
Agreement;
(g) as provided in the Loan Agreement and Indenture,
the Bonds are not to be payable from or charged upon any funds
other than the revenues pledged to the payment thereof; the
City is not subject to any liability thereon; no holder of any
Bonds shall ever have the right to compel any exercise by - the
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City of its taxing powers to pay any of the Bonds or the
interest or premium, if any, thereon, or to enforce payment
thereof against any property of the City except the interests
of the City in the Loan Agreement which have been assigned to
the Trustee under the Indenture; the Bonds shall constitute a
charge, lien or encumbrance, legal or equitable, upon any
property of the City except the interests of the City in the
Loan Agreement which have been assigned to the Trustee under
the Indenture; the Bonds shall recite that the Bonds are issued
without moral obligation on the part of the state or its
political subdivisions, and that the Bonds, including interest
thereon, are payable solely from . the revenues pledged to the
payment thereof and that the bonds shall not constitute a debt
of the City within the meaning of any constitutional or
statutory limitation; and
Ch) a public hearing on the Project was duly held by
the City Council on July 22, 1985.
7 . Subject to the approval of the City Attorney and
the provisions. of Section 10 of this Resolution, the forms of
the Agreements and exhibits thereto are approved substantially
in the form submitted and on file in the office of the City
Clerk* The Agreements, in substantially the form submitted,
are directed to be executed in the name and on behalf of the
City by the Mayor and the City Clerk. Any other documents and
certificates necessary to the transaction described above
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shall be executed by the appropriate City officers. .,Copies of
all of the documents necessary to the transaction herein
described shall be delivered, filed and recorded as provided
herein and in said: Loan Agreement and Indenture*
8. The City shall proceed forthwith to issue its.
Bonds in the form and upon the terms set forth in the.
Indenture and this Resolution. The bonds shall initially bear
interest at a rate of not greater than eleven percent (11%) per
annum. The Bond Purchaser shall purchase the Bonds for an
amount not less than 96% of the. principal amount of the Bonds
The offer of the Bond Purchaser to so purchase the. Bonds is
hereby accepted. The Mayor and City Clerk are authorized and
directed to prepare and execute the bonds as prescribed in the
Indenture and to deliver them to the Trustee for authentication
and delivery to the Bond Purchaser.
9. The Mayor and City Clerk and other officers of
the City are authorized and directed to prepare and furnish to
the Bond Purchaser certified copies of all proceedings and
records of the City relating to the Bonds, and such other
affidavits and certificates as may be required to 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; and all such certified
copies, certif icates and of f idavits , including any heretofore
furnished, shall constitute representations of the City as to
the truth of all statements contained therein.
lo. The aPP roval.hereby given to the various
documents ref erred to above includes approval of such
additional details therein as may be necessary and appropriate
and such modifications thereof, deletions therefrom and
additions thereto as may be necessary and appropriate .and
approved b the City Attorney and the City officials authorized
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herein to execute said documents prior to their execution; and
said City Y Attorne and City officials are hereby authorized to
approve said changes on behalf of the City. The execution of
any instrument by the appropriate officer or officers of the
City herein authorized shall be conclusive evidence of the
approval of such documents in accordance with the terms hereof .
In the absence (or inability) of the officials
authorized herein to execute any of the documents herein
.referred to, the documents may be executed by any officer or
member of the City acting in their behalf.
Passed: December 26., 1985
Mayor
Attest
City Clerk
(SEAL)
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NOTE RESOLUTION
BE IT RESOLVED by the City of Maplewood, Minnesota,
as follows:
ARTICLE ONE
DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS
1-1. Definitions.
The ' terms used herein, unless the context hereof
shall require otherwise shall have the following meanings, and
any other terms defined in the Loan Agreement shall have the
same meanings when used herein as assigned to them in the Loan
Agreement unless the context or use thereof indicates another
or different meaning or intent.
Act: the Minnesota Municipal Industrial Development Act,
Minnesota Statutes, Chapter 474, as amended;
Assignment of Leases and Rents: the agreement to be
executed by the Borrower assigning all the rents, issues and
profits derived from the Project to the Lender to secure the
repayment of the Note and interest thereon;
Bond Counsel: the firm of Briggs and Morgan, Professional
Association, of St. .Paul and Minneapolis, Minnesota, and any
opinion of Bond Counsel shall be a written opinion signed by
such Counsel;
Borrower: R. L. & D. Associates, a Minnesota general
partnership, its successors, assigns, and any surviving,
resulting or transferee business entity which may assume its
obligations under the Loan Agreement;
City: the City of Maplewood, Minnesota, its successors
and assigns;
Construction Fund: the fund established by the City
pursuant to this Resolution and into which the proceeds of the
Note will be deposited;
Disbursing Agreement: the agreement to be executed b the
City,the � a Borrower and the Lender, relating to the disbursement
and payment of Project Costs out of the Construction Fund for
the acquisition of the Project;
Guaranty: the guaranty to be executed by Ronald Peltier,
Richard Olson and Lawrence Davis, in favor of the Lender;
Improvements: the structures and other improvements,
including any tangible personal property, to be constructed or
.installed by the Borrower on the Land.in accordance with the
Plans and Specifications;
Land: the real property and any other easements and
rights described in Exhibit A attached to the Loan Agreement;
Lender: Town & Country Bank, Maplewood, Minnesota, its
successors and assigns;
Loan Agreement: the agreement to be executed by the City
and. the Borrower, providing for the issuance of the Note and
the loan of the proceeds thereof to the Borrower, including any
amendments or supplements thereto made in accordance with its
provisions;
Mort the Mortgage, Security Agreement and Fixture
Financing Statement to be executed by the Borrower, as
mortgagor, to the Lender, as mortgagee, securing payment of the
Note and interest thereon;
Note: the $1,500, 000 Commercial Development Revenue Note
of 1985, (Re L • & D• Associates Project) , to be issued by the
City pursuant to this Resolution and the Loan Agreement.:
Note Register: the records kept by the City Clerk to
provide for the registration of transfer of ownership of the
Note;
Plans and Specifications: the plans and specifications
for the construction and installation of the Improvements on
the Land, which are approved by the Lender, together with such
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modifications thereof and additions thereto as are reasonably
determined by the Borrower to be necessary or desirable for the
completion of the Improvements and are approved by the Lender;
Pledge Agreement: the agreement to 'be executed by the
City and the Lender pledging and assigning the Loan Agreement
to the . Lender ;
Principal Balance: so much of the principal sum on the
Note as remains unpaid at any time;
Project: the Land and Improvements as they may at. any
time exist;
Project Costs: the total of all "Construction Costs" and
."Loan and . Carrying Charges," as those terms are defined in the
.Loan Agreement;
Resolution: this Resolution of the City adopted December
2.6 , 1985, together with any supplement or . amendment thereto.
All references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and subdivisions of this
instrument as originally executed. The words "herein,"
"hereof" and "hereunder" and other words of similar import
refer to this Resolution asa whole not to any particular
Article, Section or subdivision.
1-2. Legal Authorization.
The City is a political subdivision of the State of
Minnesota, and is authorized under the Act to initiate the
revenue producing project herein referred to, and to issue and
sell the Note for the purpose, in the manner and upon the terms
and conditions set forth in the .Act and in this Resolution.
1-3. Findings.
The City Council has heretofore determined, and does
hereby determine, as follows:
(1) The City is authorized by the Act to enter into a
Loan Agreement for the public purposes expressed in the Act;
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(2). The City has made the necessaryarrangements ' r angements with the
Borrower for the establishment within the City of a Project
consisting of certain property all as more full described i
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the Loan Agreement and which will be of the character and
accomplish the purposes provided .by the Act, and the City has
by this Resolution authorized the Project and execution of the
Loan Agreement, the Pledge Agreement , the Note and the
Construction .Loan Agreement, which documents specify the terms
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and conditions: of the acquisition and financing of the Project;
(3) in authorizing the Project --the purpose ose an
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' in its judgment the effect thereof will be , to promote the
public welfare by: the attraction, encouragement and
development.of economically sound industry and commerce so as
to prevent, so far as possible, the emergence of blighted and
marginYrn P
al lands and areas of chronic unemplo ent; the develop
-
menu of revenue -producing entererises to use the available
resources of the community, in order to retain the benefit of
the community's existing.investment in educational and public
service facilities; the halting of the movement of talented
educated personnel of all ages to other areas thus preserving
-the economic and human resources needed as a base for providing
governmental services and facilities; the.provision of acces
Bible employment opportunities for residents in the area; the
expansion of an adequate tax base to finance the cost of.
governmental services, including educational services for the
school district serving the community in which the Pro ' ect is
situated;
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(4) the amount. estimated to be necessaryto partially
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finance the Project Costs, including the costs and estimated
costs permitted by Section 474.05 of the Act, will require the
issuance of the Note in the principal amount of $1,500,000 as
hereinafter provided;
(5) it is desirable, feasible and consistent with the
objects and purposes of the Act to issue the Note, for the
purpose of partially .financing the Project;
(6) the Note and the interest accruing thereon do not
constitute. an indebtedness of the City within the meaning of
any constitutional or statutory limitation and do not
constitute or give rise to a pecuniary liabilityor a charge
against the general g
.g, g 1 credit or taxing powers of the City and
neither the full faith, and credit nor the taxing powers of the
City is pledged for the payment of the Note or interest
thereon; and
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(7) The Note is an. industrial development bond within the
meaning of Section 103 (b) of the Internal Revenue Code and is
to be issued within the exemption provided under subparagraph
(D) of Section 103 (b) (6) of the Code with respect to an issue
of $10,000,000 or less.: provided that nothing herein shall
prevent the City from hereafter qualifying the Note under a
different exemption i f , and to the extent, such exemption is
permitted by law and consistent with the objects and purposes
of the Project.
1--4. Authorization and Ratification of Project.
The City has heretofore and does hereby authorize the
Borrower, in accordance with the provisions of Section
474.03 (7) of the Act and subject to . the terms and conditions
set forth in the Construction Loan Agreement., to provide -for
the construction and installation of the Improvements to be
included in the Project pursuant to the Plans and Spec--
f ications by such means as shall be available to the Borrower
and in the manner determined by the Borrower, and . without
advertisement for bids as may be required for the construction
and ,acquisition of municipal facilities; and the City hereby
ratifies, affirms, and approves all actions heretofore taken by
the Borrower consistent with and in anticipation of such
authority and in compliance with the Plans and Specifications.
ARTICLE Two
NOTE
2-1, Authorized Amount and Form of Note.
The Note issued pursuant to this Resolution shall be
in substantially the form set forth on Exhibit A hereto, with
such appropriate variations, omissions and insertions as are
permitted or required by this Resolution, and in accordance
with the further provisions hereof,- and the total principal
amount of the Note that may be outstanding hereunder is
expressly limited to $1,500,000 unless a duplicate Note is
issued pursuant to Section 2-7.
2-2.. The.Note.
The Note shall be dated as of the date of delivery,
shall be payable at the times and in the manner, shall bear
interest at the rate., and shall be subject to such other terms
and conditions as are set forth therein.
2-3 . Execution.
The Note shall be executed on behalf of the City by
the signatures of its Mayor and. City Clerk and shall be sealed
.with the seal of the City. In case any officer whose signature
shall appear on the Note shall cease to be such officer before
the delivery of the Note, such signature shall nevertheless be
valid and sufficient for all purposes, the same as if had
remained in office until delivery. In the event of the absence
or disability of the Mayor or City Clerk, such officers of the
City as, in the opinion of the City Attorney, may act in their
behalf, shall without further act or authorization of the City
Council execute and deliver the Note.
2-4. Delivery of Note.
Before delivery of the Note there shall be filed with
the Lender (except.to the extent waived by the Lender) the
following items:
(1). an. executed copy of each of the following documents:
(A) the Loan Agreement;
(B) the Pledge Agreement f
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(C) the Mortgage;
(D) the Assignment of Leases and Rents .
(E) the. Construction Loan Agreement ;
(F) the Guaranty;
(G) a Cost Certificate signed by the Borrower
certifying the use of the proceeds of the Note;
(H) the lease between the Borrower and Edina Realty,
Inc., and any other between the Borrower and subtenants now
existing;
(2)' an opinion. of Counsel for the Borrower and Guarantors
as prescribed by Bond Counsel and Lender's Counsel;
(3) the opinion of Bond Counsel as to the validity and
tax-exempt status of the Note;
(4) such other documents and opinions as Bond Counsel may
reasonably require for purposes of rendering its opinion
required in subsection (3) above or that the .Lender may
reasonably require for the closing.
2-5 . . Disposition of Note Proceeds.
There is hereby established with the Lender a
Construction. Fund to be held by the Lender as a separate
account of the City as provided in the Construction Loan
Agreement* Upon delivery of the Note to Lender, the proceeds.
of such Note shall be credited to the Construction Fund held by
the Lender on behalf of the City, at which time the entire
principal amount of the Note shall be deemed advanced, and the
Lender shall, on behalf of the City, disburse funds from the
Construction Fund for payment of Project Costs upon receipt of
such supporting documentation as the Lender may deem reasonably
necessary, including compliance with the provisions of the
Construction Loan Agreement. The Borrower shall provide the
City with a full accounting of all funds disbursed for Project
Costs.
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2-6. Registration of Transfer.
The City will cause to be kept at the of f ice of the
City Clerk a Note Register in which, subject to such reasonable
regulations as it may prescribe, the City shall provide for the
registration of transfers of ownership of the Note. The Note
shall be transferable upon .the Note Register by the Lender in
person or by its agent duly.authorized in writing, upon
surrender of the Note together with a written instrument of
..transfer satisfactory to the City
Clerk, duly executed by the
Lenderorits duly authorized agent. Upon such transfer the
City Clerk shall note the date of registration, and the name and
address of the new Lender in the Note Register and in the
registration blank appearing on the Note.
2-7.. Mutilated, Lost or Destroyed Note.
In case any Note issued hereunder'shall become
mutilated or be destroyed or lost, the City shall*, if not then
prohibited by law, cause to be executed and delivered, a new
Note of like outstanding principal amount,, number and tenor in
exchange and substitution for and upon cancellation of such
mutilated Note, or in lieu of and in substitution for such Note
destroyed or lost, upon the Lender's paying the reasonable
expenses and charges of the City in connection therewith, and
in the case of a.Note destroyed or lost, the filing with.the
City of evidence satisfactory to the City that such Note was
destroyed or lost, and furnishing the City with indemnity .
satisfactory to it, all in conformance with Minnesota Statutes,
Sections 475*70 and 475-69. If the mutilated, destroyed or
lost Note has already matured or been called for redemption in
accordance with its terms it shall not be necessary to issue a
new Note prior to payment.
2-8. Ownership of Note.
The City may deem and treat the person in whose name
the Note is last registered in the Note Register and by
notation on the Note whether.or not such Note shall be overdue,
as the absolute owner of such Note for the purpose of. receiving
payment of or on account of the Principal Balance*, redemption
price or interest and for all other purposes whatsoever, and
the City shall not be affected by any notice to the contrary.
2-9. Limitation on Note Transfers.
The Note has been issued without registration under
41.
state or other securities laws, pursuant to an exemption for
such issuance; and accordingly the Note may not be assigned or
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ARTICLE THREE
GENERAL COVENANTS
3-1. Payment of Principal and Interest.
The City covenants that it will promptly pay or cause
to be paid the principal of and interest on the Note at the
place, on the dates, solely from the source and in the manner
provided herein and . in the Note. The principal and interest
are payable solely from and secured by revenues and proceeds
derived from the Loan Agreement, the Pledge Agreement, the
Mortgage, the Construction Loan Agreement, the Guaranty and the
...Assignment of Leases and Rents, which revenues.and proceeds are
:hereby specifically pledged to the payment thereof in the
manner and to the extent specified in the Note, the Loan
Agreement, the Pledge Agreement, the Mortgage, ' the Construction
Loan Agreement, the. Guaranty and the Assignment of Leases and
...Rents; and nothing in the Note or in this Resolution shall be
considered as assigning, pledging or otherwise encumbering any
other funds or assets of the . City .
3-20 Performance of and Authority for Covenants*
The City covenants that it will faithfully perform at
all times any and all covenants, undertakings, stipulations and
..provisions contained in this. Resolution, in the Note executed,
authenticated and delivered hereunder and in all proceedings of
the City Council pertaining thereto; that it is duly authorized
under the Constitution and laws of the State of Minnesota
including particularly and without limitation the Act, to issue
the Note authorized hereby, pledge the revenues and assign the
Loan Agreement in the manner and to the extent set forth in
this Resolution, the Note, the Loan Agreement and the Pledge
Agreement; that all action on its part for the issuance of the
Note and for the execution and delivery thereof has been duly
and effectively taken; and that the Note in the hands of the
Lender is and will be a valid and enforceable special limited
.obligation of the City according to the terms thereof.
3-3 . Enforcement and Performance of Covenants.
The City agrees to enforce all covenants and
obligations of the Borrower under the Loan Agreement and
Construction Loan Agreement, and to perform all covenants and
other provisions pertaining to the City contained in the Note,
the.Loan Agreement and the Construction Loan Agreement and
subject to Section 3-4.
3-4. Nature of Security.
Notwithstanding anything contained in the Note, the
Mortgage, the Assignment of Leases and Rents, the Loan
Agreement, the Pledge Agreement or.any other document referred
to in Section 2-4 to the contrary, under the provisions of the
Act the Note may not be payable from or be a charge upon.any
funds of the City other than the revenues and proceeds pledged
to the payment thereof, nor shall the City be subject to any
liability thereon, nor shall the Note otherwise contribute or
give rise to a pecuniary liability of the City or, to the
extent permitted by law, any of the City' s officers, employees
and agents. No holder of the Note shall ever have the right to
compel any exercise of the taxing power of the City to pay the
Note or the interest thereon, or to enforce payment thereof
against any property of the City other than the revenues
.. pledged ' under the Pledge Agreement; and the Note shall not
constitute a charge, lien or encumbrance, legal or equitable,
upon any property of the City; and the Note shall not
constitute a debt of the City within the meaning of any
constitutional or statutory Limitation; but nothing in the Act
impairs .the rights of the Lender to enforce the covenants made
for the security thereof as provided in this Resolution, the
Loan Agreement, the Pledge Agreement, the Mortgage, the
Assignment of Leases and Rents, the Construction Loan
Agreement, the Guaranty and in the Act, and by authority of the
Act the City has made the covenants and agreements herein for
the benefit of the Lender; provided that in any event, the
agreement of the City to perform or enforce the covenants and
other provisions contained in the Note, the Loan Agreement, the
Pledge Agreement and the Construction Loan Agreement shall be
subject at all times to the availability of revenues under the
Loan Agreement sufficient to pay all costs of such performance
or the. enforcement thereof,. and the City shall not be subject
'to any personal or pecuniary liability thereon.
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3-5.. Preservation of Tax Exempt Status of the Note.
(1) In order to preserve the tax exempt status of the
Note the City covenants that it shall take such actions as are
required and within its reasonable control to prevent the
interest on the Note . from becoming taxable for federal income
tax purposes for the owners thereof (other than any owner who
is a "substantial user" or "related person thereto" within the
meaning of Section 103 (b) of the Code) including but not
limited to taking all actions required of it under Section
1.03(c)(6) of the Code. To this end, the City shall.
(A) cause the Borrower to maintain records
identifying all "gross proceeds attributable to the Note, the
yield at which such gross proceeds are invested, any arbitrage
profit derived therefrom, and any earnings derived from the
.investment of such arbitrage profit
(13) make and maintain on file all annual determina-.
tions of the amount, . if any, of excess arbitrage required to be
rebated to the United States;
(C) rebate to the United States at least once every
five years the amount, if any, which is required to be rebated
to the United States, including the last installment which
shall be made no later than 30 days after the day on which the
Note is. paid in full;
(D) not invest "gross proceeds" in any acquired
nonpurpose obligations so as to deflect arbitrage otherwise
payable to the United States as a "prohibited payment" to the
third party;
(E) refrain from investing any "gross proceeds"
allocable to the Note in acquired nonpurpose obligations at a
yield in excess of the yield on the Note to the extent such
gross proceeds exceed in any calendar year more than 150% of
the debt service requirements for the Note in that calendar
year; and
(F) retain on file all records of the annual
determination of the rebate amount until six (6) years after
the retirement of the Note;
(2) the City hereby represents and covenants that any
fees received by it in connection with the issuance of the Note
shall be spent as quickly as practicable and until spent shall
not be invested in acquired nonpurpose obligations the yield on
which exceeds the yield on the Note.
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ARTICLE FOUR
MISCELLANEOUS
.4-1. Severability.
If any provision .of_ this Resolution shall be held or
deemed to be or shall, in fact., be inoperative or unenforceable
as applied in any particular case in any jurisdiction or
jurisdictions or in all jurisdictions or in all cases because
it conflicts with any provisions of any constitution or statute
or rule or public policy, or for any other reason, such
circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable in any other
case or circumstance,.or of rendering any other provision or
provisions herein contained invalid, inoperative, or
unenforceable. to any. extent. whatever* The. invalidity of any
one or more phrases sentences clauses or paragraphs in this
Resolution contained shall not affect the remaining portions of
this Resolution or any part thereof
4-2. Authentication of. Transcript.
The officers of the City are directed to furnish to
Bond Counsel certified copies of this Resolution and all
documents referred to herein, and affidavits or certificates as
to all other matters which are reasonably necessary to evidence
the validity of the Note. All such certified copies,
certificates and affidavits, including any heretofore
furnished, shall constitute recitals of the City as to the
correctness of all statements contained therein.
4-3. Registration of Resolution.
The City Clerk is authorized and directed to cause a
copy of this Resolution to be filed with the County Auditor of
Ramsey County, and to obtain from said County Auditor a
certificate that the Note as a bond of the City has been duly
entered upon his bond register.
4-4. Authorization to Execute Agreements.
The forms of the proposed Loan .Agreement, Pledge
Agreement and Construction Loan Agreement are hereby approved
in substantially the form heretofore.presented to the City
Council together with such additional details
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thereminas may be necessary and appropriate and such
.modifications thereof, deletions therefrom and additions
thereto as may be necessary and appropriate and approved by
Bond Counsel, prior to the execution of the documents, and the
Mayor and City Clerk are authorized to execute -the Loan
Agreement,, the Pledge Agreement and the Constructio n Loan
Agreement in the name of and on behalf of the City and such
other documents as Bond Counsel consider appropriate in
connection with the issuance of the Note upon approval by the
City Attorney as to the forme..In the event of the absence or
disability of the Mayor and City Clerk such officers of the
City as, in the opinion of the City Attorney,, may act in their
behalf, shall without further act or authorization of the City
Council do all things and execute all instruments and documents
required. to
be, done or executed by such absent or disabled
officers.. The execution of any instrument by the appropriate
officer or officers of the City herein authorized shall be
conclusive .evidence of-theapproval of such documents in
..accordance with the terms hereof.
Adopted: December. 26, 1985
Attest.
City Clerk
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Mayor