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2002-087 CITY OF HOPKINS Hennepin County RESOLUTION NO. 2002-87 A RESOLUTION AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF MULTIFAMILY HOUSING REVENUE BONDS (GNMA COLLATERALIZED MORTGAGE LOAN - ST. THERESE SOUTHWEST ASSISTED LIVING PROJECT), SERIES 2002; PRESCRIBING THE FORM OF AND AUTHORIZING THE EXECUTION OF RELATED DOCUMENTS; AUTHORIZING THE USE OF AN OFFICIAL STATEMENT; AND PROVIDING FOR THE SECURITY, RIGHTS, AND REMEDIES OF THE HOLDERS OF SAID REVENUE BONDS. WHEREAS, the City of Hopkins, Minnesota (the "Issuer" or the "City") is a municipal corporation and political subdivision 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 Issuer is authorized to carry out the public purposes described therein and contemplated thereby in the financing of housing within its jurisdiction, by issuing revenue bonds to defray, in whole or in part, the development costs of a rental housing development, and by entering into any agreements made in connection therewith and by pledging any such agreements as security for the payment of the principal of and interest on any such revenue bonds; and WHEREAS, The Terraces Assisted Living, LLC (the "Borrower") has submitted an application to the City requesting revenue bond financing for a project (the "Project") generally described as the acquisition and construction of an 86 unit assisted living multifamily housing facility for elderly persons, to be constructed adjacent to the St. Therese Southwest independent living facility at lOll Feltl Court in the City of Hopkins; and WHEREAS, the Issuer has adopted Resolution No. 2002-78 giving preliminary approval to the issuance of revenue bonds to finance the Project; and WHEREAS, the Issuer has on this date conducted a public hearing on a housing program (the "Program") for the issuance of revenue bonds to finance the Project, after due publication of notice thereof in a newspaper of general circulation in the City; and WHEREAS, as required by the Act, the Program has been submitted to the Metropolitan Council for its review and comment, and the Metropolitan Council has commented favorably; and WHEREAS, the bonds shall be payable solely from amounts pledged therefore under the Indenture hereinafter referred to, and neither the Issuer (except to the extent of the trust estate pledged in the Indenture), Hennepin County (the "County") nor the State of Minnesota nor any political subdivision thereof shall be liable on the Bonds, and the Bonds shall not be a debt of the Issuer (except to the extent of the trust estate pledged in the Indenture), the County or the State of Minnesota or any political subdivision thereof, and in any event shall not give rise to a charge against the credit or taxing power of the Issuer, the County, the State of Minnesota, or any political subdivision thereof; NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF HOPKINS, MINNESOTA THAT: Section 1. The Issuer acknowledges, finds, detemlines, and declares that the preservation of the quality of life in the City is dependent upon the maintenance, provision, and preservation of an adequate housing stock, which is affordable to elderly persons and families of low or moderate income, and that accomplishing this is a public purpose, and the Program is hereby adopted. Section 2. For the purpose of financing a portion of the costs of acquisition, construction and equipping of the Proj ect, but subj ect to the provisions of Section l5 of this Resolution, there is hereby authorized the issuance of Multifamily Housing Revenue Bonds (GNMA Collateralized Mortgage Loan - St. Therese Southwest Assisted Living Project) Series 2002 (the "Bonds") the Bonds, in an aggregate principal amount not to exceed $11,500,000. The Bonds shall bear interest at such rates, not to exceed 6.75% per annum, shall be in such denominations, shall be numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity, shall be in such form, and shall have such other details and provisions as are prescribed by the Indenture described herein. The final principal amount and interest rate shall be determined by the Mayor, in his discretion; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 3. The Bonds shall be special obligations of the Issuer payable solely from the revenues of the Project, in the manner provided in the Indenture. The Bonds do not constitute indebtedness, liability, general or moral obligation (except to the extent of the trust estate pledged under the Indenture) or a pledge of the faith and credit or any taxing power of the Issuer, the County, the State of Mimlesota, or any political subdivision thereof. The Issuer hereby authorizes and directs the Mayor of the Issuer (the " Mayor") and the City Manager of the Issuer (the "City Manager") to execute the Indenture of Trust (the "Indenture") between the Issuer and U.S. Bank National Association (the "Trustee"), and hereby authorizes and directs the execution of the Bonds in accordance with the Indenture, and hereby provides that the Indenture shall provide the terms and conditions, covenants, rights, obligations, duties, and agreements of the bondholders, the Issuer, and the Trustee as set forth therein. All of the provisions of the Indenture, when executed as authorized herein, shall be in full force and effect from the date of execution and delivery thereof. The Indenture shall be substantially in the form on file with the Issuer on the date hereof, and is hereby approved, with such necessary and appropriate variations, onlissions, and inseliions as are not materially inconsistent with such form and as the Mayor, in his discretion, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such detennination. Section 4. The Mayor and the City Manager are hereby designated as the representatives of the Issuer with respect to the issuance of the Bonds and the transactions related thereto and are hereby authorized and directed to accept and execute the Bond Purchase Agreement (the "Bond Purchase Agreement") from U.S. Bancorp Piper Jaffray Inc. (the "Underwriter"). All of the provisions of the Bond Purchase Agreement, when executed and delivered as authorized herein, shall be in full force and effect from the date of execution and delivery thereof. The Bond Purchase Agreement shall be substantially in the form on file with the Issuer on the date hereof, and is hereby approved, with such necessary and appropriate variations, omissions, and insertions as are not materially inconsistent with such form as the Mayor, in his discretion, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 5. The Mayor and the City Manager are hereby authorized and directed to execute the Financing Agreement, among the Issuer, the Trustee, the Lender (as defined therein) and the Borrower (the "Financing Agreement"), and when executed and delivered as authorized herein, the Financing Agreement shall be in full force and effect fi.-om the date of execution and delivery thereof. The Financing Agreement shall be substantially in the form on file with the Issuer on the date hereof, which is hereby approved, with such necessary variations, omissions, and insertions as are not materially inconsistent with such form and as the Mayor, in his discretion, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such detemlination. Section 6. The Mayor and the City Manager are hereby authorized and directed to accept and execute the Tax Regulatory Agreement (the "Tax Regulatory Agreement") with the Borrower and the Trustee and, when executed and delivered as authorized herein, the Tax Regulatory Agreement and shall be in full force and effect from the date of execution and delivery thereof. The Tax Regulatory Agreement shall be substantially in the form on file with the Issuer on the date hereof, which are hereby approved, with such necessary variations, omissions, and insertions as are not materially inconsistent with such fOilll and as the Mayor, in his discretion, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 7. Except as otherwise provided in this resolution, all rights, powers, and privileges conferred, and duties and liabilities imposed, upon the Issuer by the provisions of this resolution or of the Indenture or other documents authorized hereby shall be exercised or performed by the Issuer, or by such officers, board, body, or agency as may be required or authorized by law to exercise such powers and to perfOlm such duties. No covenant, stipulation, obligation, representation, or agreement herein contained or contained in the Indenture or other documents authorized hereby shall be deemed to be a covenant, stipulation, obligation, representation, or agreement of any officer, agent, or employee of the Issuer in that person's individual capacity, and neither the members of this City Council nor any officer or employee executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. Section 8. Except as herein otherwise expressly provided, nothing in this resolution or in the Indenture, expressed or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the Issuer, and the Trustee, as fiduciary for owners of the Bonds, any right, remedy, or claim, legal or equitable, under and by reason of this resolution or any provision hereof or of the Indenture or any provision thereof; this resolution, the Indenture and all of their provisions being intended to be and being for the sole and exclusive benefit of the Issuer and the Trustee as fiduciary for owners of the Bonds issued under the provisions of this resolution and the Indenture, and the Borrower to the extent expressly provided in the Indenture. Section 9. In case anyone or more of the provisions of this resolution or of the Indenture or of the Bonds 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 Indenture or of the Bonds, but this resolution, the Indenture, and the Bonds shall be construed as if such illegal or invalid provision had not been contained therein. The terms and conditions set forth in the Indenture, the pledge of revenues derived from the Project referred to in the Indenture, the pledge of collateral derived from the Project referred to in the Indenture, the creation of the funds provided for in the Indenture, the provisions relating to the application of the proceeds derived from the sale of the Bonds pursuant to and under the Indenture, and the application of said revenues, collateral, and other monies are all commitments, obligations, and agreements on the part of the Issuer contained in the Indenture, and the invalidity of the Indenture shall not affect the conunitments, obligations, and agreements on the part of the Issuer to create such funds and to apply said revenues, other monies, and proceeds of the Bonds for the purposes, in the manner, and according to the terms and conditions fixed in the Indenture, it being the intention hereof that such commitments on the part of the Issuer are as binding as if contained in this resolution separate and apart from the Indenture. Section 10. The Mayor and City Manager of the Issuer, officers of the Issuer, and attomeys and other agents or employees of the Issuer are hereby authorized to do all acts and things required by them by or in connection with this resolution and the Indenture and the other documents referred to above for the full, punctual, and complete performance of all the terms, covenants, and agreements contained in the Bonds, the Indenture and the other documents referred to above, and this resolution. Section ll. The Issuer hereby authorizes the use by the Underwriter in connection with the sale of the Bonds, of a preliminary and final Official Statement, in substantially the form of the Preliminary Official Statement on file with the Issuer as of the date hereof. The Official Statement is the sole material authorized by the Issuer for use in connection with the offer and sale of the Bonds. The Issuer has not made any independent investigation of the information contained in the Official Statement, makes no representations or warranties as to the information contained therein and shall have no liability in cOlmection with the contents of or use of such offering materials. Section 12. The Mayor and the City Manager are hereby designated and authorized to take such administrative action as is permitted or required in connection with the issuance of the Bonds by the terms of the Indenture, the Financing Agreement, the Tax Regulatory Agreement and the Bond Purchase Agreement. Section l3. The Mayor and the City Manager of the Issuer are authorized and directed to execute and deliver any and all certificates, agreements or other documents which are required by the Indenture, the Financing Agreement, the Bond Purchase Agreement, the Tax Regulatory Agreement, or any other agreements, certificates or documents which are deemed necessary or appropriate by bond counsel to evidence the validity or enforceability of the Bonds, the Indenture or the other documents referred to in this Resolution, and all such agreements or representations when made shall be deemed to be agreements or representations, as the case may be, ofthe Issuer. Section 14. If for any reason the Mayor or City Manager of the Issuer is unable to execute and deliver those documents referred to in this Resolution, any member of the City Council of the Issuer may execute and deliver such documents with the same force and effect as if such documents were executed by the Mayor or the City Manager. Section 15. Not later than November 1, 2002, the Borrower shall advise the Development Director of the City if it intends to request the issuance of the Bonds in calendar year 2002. In such event, the Borrower shall deposit $18,000 with the Issuer within ten days of the date of such notification, to be applied towards any additional interest cost incurred by the Issuer with respect to its bonds as a result of unavailability of designation as bank qualified obligations. The Borrower shall pay to the Issuer any additional interest cost in excess of $18,000 upon determination of the actual amount, which determination shall be made as of the date of sale of Issuer bonds otherwise eligible for designation as bank qualified obligations, and the Issuer shall refund to the Borrower the amount, if any, by which the Issuer's additional interest cost as so determined is less than $l8,000. If the Borrower does not make any of the payments required by this Section 15, the Issuer will not issue the Bonds approved hereby until January l, 2003, or thereafter. Section 16. This resolution shall be in full force and effect from and after its passage. PASSED AND APPROVED this 151'!> day of October 2002. THE CITY OF HOPKINS, MINNESOTA ~/~ Ma or Ml:918259.03