Loading...
RES 02-04 RESOLUTION 02-04 EXTRACT OF MINUTES OF A MEETING OF THE • BOARD OF COMMISSIONERS OF THE ELK RIVER ECONOMIC DEVELOPMENT AUTHORITY Pursuant to due call and notice thereof, a regular or special meeting of the Board of Commissioners of the Elk River Economic Development Authority was duly called and held at the Elk River City Hall on August 12, 2002, commencing at approximately 6:00 o'clock P.M. The following Commissioners were present: Dwyer, Tveite,Kuester, Motin, and Klinzing and the following were absent: Gongoll and Koenig Commissioner Motin introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING THE ISSUANCE OF PUBLIC SAFETY BUILDING LEASE REVENUE BONDS, SERIES 2002A (CITY OF ELK RIVER, MINNESOTA LEASE OBLIGATION) AND THE EXECUTION AND DELIVERY OF A LEASE AGREEMENT, A MORTGAGE AND SECURITY AGREEMENT AND INDENTURE OF TRUST AND OTHER DOCUMENTS IN CONNECTION THEREWITH WHEREAS, applicable provisions of Minnesota Statutes, Chapter 469 (the "Act"), • authorize the Elk River Economic Development Authority(the "Authority")to issue revenue bonds, in anticipation of the collection of revenues of a project, to finance, in whole or in part, the cost of acquisition, construction, reconstruction, improvement, betterment or extension of a project; WHEREAS,the Authority proposes to finance the construction of a public safety facility in the City(the "Project"), to be used by the City of Elk River, Minnesota(the "City"), and to provide funds for such purposes by the issuance of certain of its revenue bonds (the "Bonds") pursuant to the Indenture, as hereinafter further defined; WHEREAS,the Bonds will be secured by a pledge and assignment of certain rights of the Authority under a certain Lease Agreement (as hereinafter defined) and of the revenues derived by the Authority therefrom, and the Authority will grant to the Trustee (as hereinafter defined) a mortgage interest in the Project, with certain reservations; WHEREAS,the Bonds shall be payable solely from the revenues pledged therefor and shall not constitute a debt of the Authority within the meaning of any constitutional or statutory limitation nor shall they constitute or give rise to a pecuniary liability of the Authority or a charge against its general credit or taxing powers, nor constitute a charge, lien, or encumbrance, Iegal or equitable, upon any property of the Authority, other than its interest in the Project; and WHEREAS, in order to carry out the transaction,the Authority will lease the Project to the City pursuant to the Lease: 1431807v1 NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Elk River Economic Development Authority as follows: 1. Findings. The Board of Commissioners acknowledges, finds, determines and declares that the Project will promote the welfare of the City and satisfies the purposes stated in the Act. 2. Authorization of Financing. Pursuant to the Lease Agreement between the Authority and the City, dated as of September 1, 2002 (the "Lease"), the financing by the Authority of the acquisition, construction and installation of the Project is hereby authorized and approved. 3. Acceptance of Offer to Purchase Bonds. The offer of U.S. Bancorp Piper Jaffray (the "Purchaser")to purchase the Authority's Public Safety Building Lease Revenue Bonds, Series 2002A (City of Elk River, Minnesota Lease Obligation), dated as of September 1, 2002 (the "Bonds", or individually a "Bond"), in accordance with the terms and at the rates of interest set forth in the Indenture, and to pay therefor the sum of$7,923,753.30, plus interest accrued to settlement, is hereby accepted. The Bonds shall bear interest at the rates, be in such amount and denominations,be numbered, be dated, mature,be subject to redemption prior to maturity, be in such form and have such other details and provisions as are prescribed by the Mortgage and Security Agreement and Indenture of Trust between the Authority and U.S. Bank National Association in St. Paul, Minnesota, as Trustee (the "Trustee"), dated as of September 1, 2002 (the "Indenture"). Each capitalized term which is used but not otherwise defined in this • • resolution shall have the meaning given to that term pursuant to the Indenture. 4. Special Obligations; Security; Authorization to Execute and Deliver Indenture and Bonds. The Bonds shall be special obligations of the Authority payable solely from the revenues derived by the Authority from the Project, in the manner provided in the Indenture. As security for the payment of the principal of,premium, if any, and interest on the Bonds, pro rata and without preference of any one Bond over any other Bonds, the Board of Commissioners hereby authorizes the President and Secretary to execute the Indenture between the Authority and the Trustee in substantially the form on file and to deliver the Indenture to the Trustee, and hereby authorizes the execution of the Bonds, and hereby provides that the Indenture shall provide the terms and conditions, covenants, rights, obligations, duties and agreements of the Holders (as defined in the Indenture and hereinafter referred to as "Holders") of the Bonds, the Authority and the Trustee as set forth therein. 5. Authorization to Execute and Deliver the Bond Documents; Bond Insurance. The President and the Secretary are hereby authorized to execute, attest and deliver the Lease, including the short form thereof(together with the Indenture and the other documents authorized by this resolution to be executed by the Authority, collectively, the "Bond Documents"), in substantially the forms on file with the Secretary. All of the provisions of the Bond Documents, when executed and delivered as authorized herein, shall be deemed to be part of this resolution as fully and to the same extent as if incorporated herein and shall be in full force and effect according to the terms thereof from the date of execution and delivery thereof • 1431807v1 2 It is anticipated that the Bonds will be insured by MBIA or other suitable bond insurer • and that the necessary debt service reserve fund for the Bonds will be funded pursuant to a certain Surety Bond and related Financial Guaranty Agreement in favor of and/or between the Authority and the insurer. The Bond Documents shall specifically include the Financial Guaranty Agreement, and that Agreement, together with such other documents and certificates as may be required in order to obtain the bond insurance and the Surety Bond, are hereby authorized for execution and delivery by the President and Secretary of the Authority. 6. Termination upon Payment or Discharge. Upon payment or discharge of the Bonds (and any Additional Bonds)in accordance with the terms of the Bond Documents the Authority's interest in the Project and real estate on which the Project is located shall terminate. 7. Binding Obligations;No Personal Liability. All covenants, stipulations, obligations and agreements of the Authority contained in this resolution and contained in the Bond Documents shall be deemed to be the covenants, stipulations, obligations and agreements of the Authority to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations and agreements shall be binding upon the Authority. Except as otherwise provided in this resolution, all rights, powers and privileges conferred and duties and liabilities imposed upon the Authority or the Board of Commissioners thereof by the provisions of this resolution or by the Bond Documents shall be exercised or performed by the Authority by such members of the Board of Commissioners, or such officers, board, body or agency thereof as may be required by law to exercise such powers and to perform such duties. IDNo covenant, stipulation, obligation or agreement herein contained or contained in the Bond Documents shall be deemed to be a covenant, stipulation, obligation or agreement of any member of the Board of Commissioners, or any officer, agent or employee of the Authority in that person's individual capacity, and neither the Board of Commissioners of the Authority nor any officer 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. 8. Sole and Exclusive Benefit. 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 or firm or corporation, other than the Authority or the Trustee, 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 provisions thereof,this resolution,the Indenture and all of their provisions being intended to be and being for the sole and exclusive benefit of the Authority and the Holders from time to time of the Bonds issued under the provisions of this resolution and the Indenture. 9. Provisions Held Separate and Apart; Binding Contracts. In case any one or more of the provisions of the Bonds,this resolution, the Bond Documents shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this resolution, the Bond Documents, or the Bonds, but this resolution, the Bond Documents and the Bonds shall be construed and endorsed as if such illegal or invalid provision had not been contained therein. The terms and conditions set forth in the Bond Documents, the pledge of revenues derived from the Project, the creation of the funds provided for in the Indenture,the • provisions relating to the handling of the proceeds derived from the sale of Bonds pursuant to the 1431807v1 3 Indenture and the handling of said revenues and other monies are all commitments, obligations • and agreements on the part of the Authority contained in the Indenture, or the invalidity of the Bond Documents, shall not affect the commitments, obligations and agreements on the part of the Authority to create such funds and to handle 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 Authority are as binding as if contained in this resolution separate and apart from the Indenture or the Lease. 10. Bond Recital. The Bonds shall contain a recital that they are issued pursuant to the Act, and such recital shall be conclusive evidence of the validity of the Bonds 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 Bonds and to the execution of the Bond Documents to happen, exist and be performed precedent to and in the enactment of this resolution, and precedent to the Bonds, the execution of the Bond Documents have happened, exist and have been performed as so required by law. 11. Performance. The officers, attorneys, engineers and other agents or employees of the Authority are hereby authorized to do all acts and things required of them by or in connection with this resolution, the Bond Documents, for the full,punctual and complete performance of all the terms, covenants and agreements contained in the Bonds,the Bond Documents and this resolution. 12. Furnishing of Certificates and Proceedings. The President and the Secretary and • other officers of the Authority are authorized and directed to prepare and furnish to the Purchaser certified copies of all proceedings and records of the Authority 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, certificates and affidavits, including any heretofore furnished, shall constitute representations of the Authority as to the truth of all statements contained therein. 13. Negative Covenant as to Use of Proceeds and Project. The Authority hereby covenants not to use the Project or to cause or permit the Project to be used, or to enter into any deferred payment arrangements for the cost of the Project, in such a manner as (or to take any action or permit any other circumstance to exist or any action to be taken,the effect to which would be) to cause the Bonds to be "private activity bonds" within the meaning of Sections 103 and 141 through 150 of the Code. In particular,but without limitation,the Authority covenants to forebear the implementation, effectuation or enforcement of any and all contracts or other agreements respecting the Project or any property benefitted thereby or assessed with respect thereto, which it may now or in the future have with developers, contractors, owners or any other person or parties to the extent that such implementation, effectuation or enforcement would (individually or in the aggregate) cause the Bonds to become such "private activity bonds," and to said limited extent the Authority would and hereby does (solely for the benefit of the owners of the Bonds) disavow any and all such provisions, entitlements and enforcements which would or could become so offending. 0 1431807v1 4 Without limitation of the foregoing,the Authority does not currently have and shall not • enter into any lease,use agreement, management or operation contract or other agreement respecting the Project which would adversely affect the exemption from federal income tax of the interest of the Bonds, taking into account and observing the requirements of Revenue Procedure 97-13 of the Internal Revenue Service and any similar or other applicable revenue procedures or guidelines relating to leases, management contracts and service contracts involving facilities financed with tax-exempt obligations. 14. Rebate; Tax Exempt Status of the Bonds. The Authority shall comply with requirements necessary under the Code to establish and maintain the exclusion from gross income under Section 103 of the Code of the interest on the Bonds, including without limitation (1)requirements relating to temporary periods for investments, (2) limitations on amounts invested at a yield greater than the yield on the Bonds, and (3)the rebate of excess investment earnings to the United States. The Authority may avail itself of such other arbitrage rebate exceptions as may apply, in whole or in part, to the Bonds. 15. Designation of Qualified Tax-Exempt Obligations. The Authority hereby designates the Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the Code and hereby finds and determines that: (a) the reasonably anticipated amount of tax-exempt obligations (other than private activity bonds, treating qualified 501(c)(3) bonds as not being private activity bonds) which will be issued by the Authority(and all entities treated as one issuer with • the Authority, and all subordinate entities whose obligations are treated as issued by the Authority) during this calendar year 2002 will not exceed $10,000,000; and (b) not more than $10,000,000 of obligations issued by the Authority during this calendar year 2002 have been designated for purposes of Section 265(b)(3) of the Code. The Authority shall use its best efforts to comply with any federal procedural requirements which may apply in order to effectuate the designation made by this paragraph. 16. Modifications to Documents. The approval hereby given to the various documents referred to herein 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 Authority officials authorized herein to execute said documents prior to their execution; and said Authority officials are hereby authorized to approve said changes on behalf of the Authority. The execution of any instrument by the appropriate officer or officers of the Authority herein authorized shall be conclusive evidence of the approval of such documents in accordance with the terms hereof. In the absence of the President or Secretary any of the documents authorized by this resolution to be executed by the Acting President or the Acting Secretary, respectively. Adopted by the Board of Commissioners of the Elk River Economic Development Authority on August 12, 2002. • 1431807v1 5 The motion for the adoption of the foregoing resolution was duly seconded by Commissioner Tveite, and upon vote being taken thereon the following Commissioner voted in favor thereof: Dwyer, Tveite, Kuester, Motin, and Klinzing and the following voted against the same: None Whereupon the resolution was declared to be duly passed and adopted. S • 1431807v1 6 SECRETARY'S CERTIFICATE S I, the undersigned, being the duly qualified and acting Secretary of the Elk River Economic Development Authority, DO HEREBY CERTIFY that I have carefully compared the attached and foregoing extract of minutes of a duly called and regularly held meeting of the Board of Commissioners of the EDA held on the date therein indicated with the original minutes thereof on file in my office and that the same is a full,true,and correct transcript thereof insofar as said minutes relate to the actions referenced therein with respect to authorizing the EDA's Public Safety Building Lease Revenue Bonds, Series 2002A. WITNESS my hand officially this 12thday o August , 2002. ecretary Elk River Economic • Development Authority 1111 1431807v1