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HomeMy WebLinkAbout12.26.85 SM MINUTESOF MAPLEWOOD CITY COUNCIL 7100 P.M., Thursday, December 26, 1985 - Council Chambers, Municipal Bailding Meeting No. 85-30 A. CALL TO ORDER A special meeting of the City Co-~ncil of Maplewood, Minnesota, was held in the Council Chambers, Municipal Building and was called to order at 7:04 P.M. by Mayor Greavu. B. ROLL CALL John C. Greavu, Mayor Present Norman G. Anderson, Councilmember Present Gary W. Bastian, ComYCilmember Present Mary:,ee Maida, Councilmember Present Charlotte Wasiluk, Councilmember Present - C. UNFINISHED BUSINESS 1. Tax-Exempt Financing Approval - Silver Ridge Apartments a. City Attorney John Hannigan presented Council his opinion regarding liability if the City were to refuse to approve the tax-exempt financing for Silver Ridge Apartments at this time. b. Councilmember Bastian introduced the following resolution and moved its adoption: BS - 12 - 209 RESOLUTION AUTHORIZING A PROJECT AND HOUSING PROGRAM UNDER MINNESOTA STATUTES, CHAPTER 462C(MU27ICIPAL HOUSING PROGRAMS) AND AUTHORIZING THE ISSUANCE OF MTJLTIFAMILY HOUSING REVENUE BONDS TO FINANCE THE PROJECT AND FROGRAM AND AUTHORIZING THE EXECUTION GF VARIOUS DOCUMENTS IN CONNECTION THEREWITH BE IT RESOLVED BY THE COUNCIL OF THE CITY OFMAPLEWOOD, 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 a undertake to finance a certain Project and multifamily rental housing program for such Project as herein described, pursuant to Chapter 462C, Minnesota 5ta- lutes (the "Act"), through the issuance by the City of its $4,800,000 Multi- family 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 Incor- porated or designee (the "Bond Purchaser'°). 12/26 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 above will facilitate the development of rental housing within the oonu-nunity; encourage the develop- ment of affordable 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 ob~l-aining 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 o£ 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, affirined and approved. 3. It is proposed that, pursuant to a Loan Agreement dated as of Decem- ber 1, 1985, between the City a5 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 tc be made by the Com- pany 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 Indenture of Trust dated as of December 1, 1985 (the "Indenture") be- tween the City and the Trustee. To further secure the payment o£ the Bords and the interest thereon and of the purchase price of any Bonds required to be pur- chased 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 "Reiinburse- ment Agreement") with the Bank. Payments under the Loan Purchase Agreement and payments on the Bonds will be further secured by collateral pledged to the Trustee by the Bankpursuant to a Collateral Agreement dated as of Decem- ber 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 Com- pany 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 will conform to the terms and conditions of a Regulatory Agreement (the "Regulatory Agreement") dated as of December 1,.1985, between the City, the Company and the Trustee and a Declaratior. 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. i d. 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 7, 1985, the Minnesota Housing Finance Agency gave approval to the proposed financing program for the Project. - 2 - 12/26 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 executed by the City) (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 the Act and the financing pro- gram 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 moderateincome within the City to obtain decent, safe and sanitary - housing at rentals they can afford; (c) the acquisition, construction and installation bf the Project, the issuance andsale of the Borrds, the execution and delivery by the City of the Loan Agreement, the Indenture, the Band Purchase Agreement, the Regulatory Agreement and the Servicing Agreement (collectively the "Agreements"), and the performance cf 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 subject to the terms and conditions set forth in the Loan Agreement, Regulatory Agreement, Servicing Agreement and Declara- tion, which terms and conditions the City determines to be necessary, desirable and proper, to acquire and install the Project by such means as shall be avail- able 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, prernium, - if any, and interest on the Bonds issued under the Indenture when due, and a 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, adeauate 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; - 3 - 12/26 (g) as provided in theLOan Agreement and Indenture, the Bonds are not to be payable from or chargedupon 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 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 Agree- ment which have been assignedto the Trustee under the Indenture; the Bonds shall constitute a charge, lien or encumbrance, legal or equitable, upon any property of theCity except the interests of the City in the Loan Agree- . ment which have been assigned to theTrustee 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 pay- . ment thereof and that the bonds shall not constitute a debt of theCity within the meaning of any ccnstitutional or statutory limitation; and (h) a public hearing on theProject 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, theforms of the Agreements and exhibits thereto are approved substantially in theform submitted and on file in the office of the City Clerk. TheAgreements, in substantially the form submitted, are di- rected to be executed in thename and on behalf of the City by the Mayor and the City Clerk. Any othe documents and certificates necessary to the trans- action described above shall be executed by the appropriate City officers. Copies of all of thedocuments necessary to the transaction herein described shall be delivered, filed and recorded as provided herein and in said Loan Agreement aizd Indenture. 8. The City shall proceed forthwith to issue its-Borids, in the form and upon the termsset forthin theIndenture 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 960 of theprincipal amountof the Bonds. The offer of the Bond Purchaser to so purchase theBOnds is hereby accepted. The t9ayor and City Clerk areauthorizedand directed to prepare and execute the bonds as prescribed in the Indenture and to deliver them to the Trustee for authenti- cation and delivery to the Bond Purchaser. 9o The Mayor and City Clerk and other officers of the City are authorized and directed to prepare and furnish to theBond Purchaser certified copies of all proceedings and records of theCity relating to theBOnds, and such other affidavits and certificates as may be required to show the facts relating to li the legality of the~BOndsas°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, certificates and affidavits, including any heretofore fur- nished, shall constitute representations of the City as to the truth of all statements containedtherein. - 4 - 12/26 10. The approval hereby given to the various documents referred 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 by the City Attorney and the City officials authorized herein to execute said documents prior to their execution and said City Attorney and City officials are hereby au~thor- ized to approve said changes on behalf of the City. The execution of any in- strument 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 Yierein to execute any of the documents herein referred to, the documents may be exe- cuted by any officer or member of the City acting in their behalf. _ Passed: December 26, 1985 Mayor ATTEST: City Clerk Seconded by Councilmember Maida. Ayes - all. c. Councilmember Bastian moved a moratorium on Tax-Exempt financing for six (6) months effective January 1, 1986, and that a group consisting of repre- sentatives of the Staff Planning Commission, trades people and developers be formed to create criteria for this type of financing. Seconded by Councilmember Anderson. Ayes - all. 2. I.R.B. Final Approval -~R L & D Associates - Edina Realty a. Acting Manager Haider presented the Staff report. b. Counoilmember Bastian introduced the following resolution and moved its adoption: 85 - 12 - 210 NOTE RESOLUTION BE IT RESOLVED BY THE CITY OF MAPLEWOOD, MINNESOTA, as follows: ':y ~ ARTICLE ONE DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS 1-l. 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. - 5 - 1226 Act: the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter 474, as amended; Assignment of Leases and Rents: L-he 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 Ncte 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, aMinnesota general partnership, its successors, assigns, and any surviving, resulting or transferee business en- tity 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: tree agreement to be executed by the City, the 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 tobe 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 aid the loan of the pro- ceeds thereof ~to the Borrower, including any amendments or supplements thereto made in accordance with its provisions; Mortgage: the Mortgage, Security Agreement and Fixture Financing State- ment to be executed by the Borrower, as tnortgag~or, to the Lender, as mortgagee, securing payrnent of. the Note and interest thereon;: _ 1 d. Note: the $1,500,000 Commercial Development Revenue Note of 1955, {R. L. & D. Associates Project), to be issued by the City pursuant to this Resolution and the Loan Agreement; Note Register: the records kept by ~l-he City Clerk to provide for the registration of transfer of ownership of the Note; Plans and Specifications: the plans and specifications for the con- struction and installation o£ the Improvements on the Land, which are approved by the Lender, together with such modifications thereof and additions thereto - 6 - 12/26 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: tkte 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 26, 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 sub- divisions of.this instrument as originally executed. The words "herein," "hereof" and "hereunder" and other words of similar import refer to this Resolution as a whole not to any particular Article, Section or subdivision. 1-2. Legal Authorization. The City is apolitical 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; (2) The City has made tkte necessary arrangements with the Borrower for the establishment within the City of a Project consisting of certain property all as more fully described in 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 executicn of the Loan Agreement, the Pledge Agreement, the Note and the ConstructionLOan Agreement, which documents specify the terms and conditions of the acquisition and financing of the Project; i (3) in authorizing the Project the City's purpose is, and in its judgment the effect thereof will be, to promote the public welfare bg: the attraction, encouragement and development of economically sound industry and commerce so as to prevent, so far as possible, the emergence of blighted and marginal lands and areas of chronic unemployment; the development of revenue- . ,producing enterprises to, use the available resources of the community, in - 7 - 12/26 order tp retain the benefit of the Community!~s existing investment in educational and public service facilities; the-halting of the movement of talented, edu- Gated personnel of all ages to other areas thus preserving the economic and human resources neededas a base for providing governmental services and fapi- lities; the provision~of accessible emplpyment opportunities for residents in the area; the expansion of an adequate tax base to finance the cost of govern mental services, including educational services for the school district serving the Community in which theProject is situated; (4) the amount estimated to be necessary to partially finance the Project Costs, including thecosts and estimated costs permitted by Section 474.05 of the Act, will require the_.issuance of theNOte in the principal amount of $1,500,000 as hereinafter-provided; (5) it is desirable, feasible acid consistent with the objects and pur- Apses 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 theCity within themeaning of any constitutional or statutory limitation and do not constitute or give rise to a pecuniary liability or a charge against thegeneral credit or taxing powers of the City and neither the full faith and credit nor thetaxing powers of the City is pledged 'for the payment of the Note or interest thereon; and (7) The Note is an industrial development bond within the meaning of Section 103-(b) of theIntex;ial Revenue Code and is to be issued within the exemption provided undersubparagraph (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 Nate under a different exemption if, and to the extent, such exemption is permitted by law and con- . sistent with the objects and purposesof theProject. 1-4. AuthorzationandRatification-of Project. The City has heretofore and does hereby authorize the Borrower, in actor- dnace with theprovisions of Section 474.03(7) of the Act and subject to the terms and cpnditions set forth in theConstruction Loan Agreement, to provide for the construction and installation of theImprovements to be includedin the Project pursuant to the Plans and Specifications by such means as shall be available to theBOrrower and in themannerdetermined 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. - 8 - 12/26 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 ar required by this Resolution, and in accordance with the further provisions hereof; and the total princi- pal 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 ha3 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 tklere 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; - (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; li (H) the lease between the Borrower and Edina Realty, Inc., and any other between the Borrower and subtenants now existing; (2) axi opinion of Counsel far 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; - 9 - 12/26 (4) such other documents and opinions as Bond Counsel may reasonably require for puzposes of rendering its opinion required in subsection (3) above or that the Lender may reasonably require for the closing. 2°5. Disposition o£ 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 Con° struction 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 tirne the entire principal amount of the Note shall be deemed 'advanced, and the Lender shall, on behalf of the City, dis° burse funds from the Construction Fund for payment of Project Costs upon re- ceipt 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. - 2-6. Registration of Transfer. - The City will cause to be kept at the office o£ 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. Theidote 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 saitsfactory to the City Clerk, duly executed by the Lender or its 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 IQote of like outstanding principal amount, number and tenor in exchange and substitution for and upon cancellation ofsuch 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 connec- tion 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, de- stroyed 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 a prior 'to payment. 2-8. Ownership of Note. - The City may deem and treat the person in whose name the Note is Iast registered in the Note Register and by notation on the Note whether or not such Note shall be ovardue, as the absolute owner of such Note for the pur- - 'pose of receiving payment of or on account of the Principal Balance, redemp- tion price or interest and for all other purposes whatsoever, and the City shall not be affected by any notice to the contrary. - 10 - 12j 26 2-9. Limitation on Note Transfers. The Note has been issued without registration under State or other securities laws, pursuant to an exemption for such issuance; and accordingly the Note may not be assigned or transferred in whole or part, nor may a - participation interest in the Note be given pursuant to any participation agreement, except in accordance with an applicable exemption from such regis- tration requirements and in accordance with Section 7.11 of the Loan Agree- ment. ARTSCLE THREE GENERAL C04"ENANTS 3-1. Payment of Principal and Ii;terest. The City covenants that it will promptly pay or cause to be paid the principal of and interest on the Note at the plane, on the dates, solely from the source and in the manner provided herein and in the Note. The princi- pal and interest derived from the Loan Agreement, the Pledge Agreement, the tortgage, the Construction Loan Agreement, the Guaranty and the Assignment of Leases and Rents, whichrevenues 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 nothi..gin the Note or in this Resolution shall be considered as assigning, pledging or otherwise encumbering any other funds or assets of the City. 3-2. Ferformance of and Authority for Covenants: The City covenants that it will faithfully perform at all times any and alt covenants, uxidertakings, stipulations and provisions contained in this Resolution, in tl'ie Note executed, authenticated and delivered hereinnder and in all proceedings of the City Council pertaining thereto; that it is duly author- ized under the Constitution and laws of~the State of Minnesota including par- . ticularly 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 ex- tent set forth in this Resolution, the Note, the Loar. 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 wi1L be a valid and enforce- able special limited obligation of the City according to the terrns thereof. 3-3. Enforcement and Perforrnance of Covenants. -a The City agrees to enfo r.:e all covenants and obligations of the IIorrower 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 Assign- ment of Leases and Rents, the Loan Agreement, the Pledge Agreement or any other document referred to in Section 2-4to the contrary, under the provisions - 11 - 1226 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 exer- t vise 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 Sdote shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City; and the Note shall not contitute 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 Agree- . ment, 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; pro- vided that in any event, the agreement of the City to perform or enforcethe covenants and other provisions contained in the Note, the Loan Agreement, 'the Fledge 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. 3-5. Preservation of Tax Exempt Status of the Note. (1) In order to preserve L-he tax exempt status of the Note, the City _ covenants that it shall take such actions as are required and within its reasonable oontrol 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 103fc)(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 yeild at whicri such gross proceeds are invested, any arbitrage profit derived therefrom, and any earnings derived from the in- vestment of such arbitrage profit; (B) make and maintain on file all annual determinations 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 fulY; (D) not invest "gross proceeds" in any acquired nonpurpose obligations so as to deflect arbitrage otherwise payable to the United States as a "pro- - hibited payment" to the third party; - 12 - 12/26 (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`-a of the debt service requirements fcr the Note in that calendar year; and (F) retain on file all records of the annual determination of the rebate amount until six (E) years after the retirement of the Note; (2) the City hereby represented 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 obli- gations the yield on whicl-i exceeds the yield on the Note. ARTICLE FOUR MI5CELLANF.OUS 4-l. 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 cr 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 unenforce- able to any extent whatever. The invalidity of any one cr 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 evi- dence t]'ie 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 Reso- lution 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. a d. 4-4. Authorization to Execute Agreements. The forms of the proposed Loan Agreement, Pledge Agreement and Construc- tion Loan Agreement are hereby approved in substantially the form heretofore presented to the City Council together with 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 ap- proved 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 - 13 - 12/26 - Agreement and the-ConstructonLOan }agreement in the-name of and on behalf of theCity and such other documents as Bond Counsel consider appropriate in connection with theissuance ofthe Note upon approval by the City Attorney as to the form. In theevent of theabsence or disability of the Mayor and City Clerk such officers of theCity as, in the opinior. 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 re- quired to be done or executedby such absent or disabled officers. The _ execution of any instrument bythe appropriate officeror cfficers of the City herein authorized shall be conclusive evidence of the approval of such documents in accordance with the terms hereof. Adopted; December 26, 1485 Mayor ATTEST:........... City Clerk Seconded by Councilmembez~Maida. Ayes - all. D. VISITOR PRESENTATION _ 1. P9r. William R. Peterson a. Mr. Peterson,>:representingtheBUilders~ Trade Council, wished to commend the Council on the-difficult decision they were required to make regarding the- Silver Ridge Apartment financing. - E. ADJOURNMENT 7:22 P.M. City Clerk 3 i - 14 - 12126