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RES 05-022 . . . RESOLUTION NO. ~-22 RESOLUTION APPROVING THE ISSUANCE AND SALE OF THE CITY OF ELK RIVER, MINNESOTA EDUCATIONAL FACILITIES REVENUE NOTE, SERIES 2005A (ST. ANDREW SCHOOL PROJECT) AND AUTHORIZING THE EXECUTION OF DOCUMENTS RELATING THERETO BE IT RESOLVED by the City Council (the "City Council") of the City of Elk River, Minnesota (the "City"), as follows: SECTION 1. LEGAL AUTHORIZATION AND FINDINGS. 1.1 Findings. The City hereby finds, determines and declares as follows: (a) The City is authorized under Minnesota Statutes, Section 469.152 to 469.1651, as amended (the "Act") to assist the revenue producing proj ect herein referred to, and to issue and sell the City's Educational Facilities Revenue Note, Series 2005A (St Andrew School Project) (the "Note") as hereinafter defined, for the purpose, in the manner and upon the terms and conditions set forth in the Act and in this Resolution. (b) The City has received a proposal that it issue its revenue Note in the aggregate principal amount of up to $2,500,000 to provide funds to be loaned to The Church of St. Andrew, a religious corporation organized under the laws of the State of Minnesota (the "Borrower") to finance or refinance the completion of the non-religious portions of the renovation and equipping of, and construction of additions to, a school for grades preschool through 6th grade known as St. Andrew School, owned and operated by the Borrower and located at 428 Irving Avenue in the City (the "Project"). (c) As required by the Act and Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), the City has, on Tuesday, February 22, 2005, and Monday, March 21,2005 held public hearings on the issuance of the Note to finance the Project. (d) The issuance and sale of the Note by the City, pursuant to the Act, is in the best interest of the City, and the City hereby determines to issue the Note and to sell the Note to The Bank of Elk River, a Minnesota corporation (the "Lender"), as provided herein. The City will loan the proceeds of the Note (the "Loan") to the Borrower to finance the Project. (e) Pursuant to a Loan Agreement (the "Loan Agreement") to be entered into between the City and the Borrower, the Borrower has agreed to repay the Note in specified amounts and at specified times sufficient to pay in full when due the principal of, premium, if any, and interest on the Note. In addition, the Loan Agreement contains provisions relating to the completion, maintenance and operation of the Project, indemnification, insurance, and other agreements and covenants which are required or permitted by the Act and which the City and the Borrower deem necessary or desirable 1743229v4 . . . for the financing of the Project. A draft of the Loan Agreement has been submitted to the City Council. (f) Pursuant to a Pledge Agreement (the "Pledge Agreement") to be entered into between the City and the Lender, the City has pledged and granted a security interest in all of its rights, title, and interest in the Loan Agreement to the Lender (except for certain rights of indemnification and to reimbursement for certain costs and expenses). A draft of the Pledge Agreement has been submitted to the City Council. (g) Pursuant to a Disbursing Agreement dated as of March 1, 2005, (the "Disbursing Agreement") by and between the Borrower, the City, the Lender and a disbursing agent, if other than the Lender, selected by the Lender, the parties thereto have provided certain terms for the disbursement ofthe proceeds of the Note. (h) The Note will be a special limited obligation of the City. The Note shall not be payable from or charged upon any funds other than the revenues pledged to the payment thereof, nor shall the City be subject to any liability thereon. 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, nor to enforce payment thereof against any property of the City. The Note shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation. (i) It is desirable, feasible and consistent with the objects and purposes of the Act to issue the Note, for the purpose of financing the costs of the Project. 1.2 Authorization and Ratification of Proiect. The City has heretofore and does hereby authorize the Borrower, in accordance with the provisions of the Act and subject to the terms and conditions imposed by the Lender, to provide for the construction and equipping of the Project 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 other 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. SECTION 2. THE NOTE. 2.1 Authorized Amount and Form of Note. The Note issued pursuant to this Resolution shall be in substantially the form submitted to the City Council on the date hereof, and shall bear interest at the rates, mature in the years and amounts and be subject to redemption as therein specified, as such may be modified by agreement of the Lender, the Borrower and the City. The total aggregate principal amount of the Note that may be outstanding hereunder is expressly limited to $2,500,000, unless a duplicate Note is issued pursuant to Section 2.7; provided, however, the Note may be initially issued in a lesser maximum principal amount by agreement of the Borrower and the Lender. The offer of the Lender to purchase the Note at an aggregate purchase price of such amount as is actually disbursed thereunder is hereby accepted. 2.2 The Note The Note shall be dated for convenience of reference as of March 1, 2005, 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. 1743229v4 2 . . . 2.3 Execution. The Note shall be executed on behalf of the City by the manual or facsimile signatures of its Mayor and City Administrator and shall be sealed with the seal of the City; provided that the seal may be intentionally omitted as provided by law. 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 such signatory had remained in office until delivery. In the event of the absence or disability of the Mayor and City Administrator such officers of the City as, in the opinion of the City Attorney or Special Counsel to the City, may act in their behalf, shall without further act or authorization ofthe City Council execute and deliver the Note. 2.4 Delivery of Initial Note. Before delivery of the Note there shall be filed with the Lender (except to the extent waived by the Lender) the following items: (a) an executed copy of each of the following documents: (i) the Loan Agreement; (ii) the Disbursing Agreement; and (iii) the Pledge Agreement; (b) an opinion of Counsel for the Borrower as prescribed by the Lender and Bond Counsel; (c) the opinion of Bond Counsel as to the validity and tax exempt status of the Note; (d) evidence that the Borrower is an organization described in Section 501(c)(3) of the Code and is exempt from income taxation under Section 501(c)(3) of the Code; (e) approval of the Project from the Minnesota Department of Employment and Economic Development; and (t) such other documents and opmlOns as Bond Counsel may reasonably require for purposes of rendering its opinion required in subsection (c) above or that the Lender may reasonably require for the closing. 2.5 Disposition of Note Proceeds. Upon delivery of the Note to Lender, the Lender shall, on behalf of the City, disburse the proceeds of the Note for payment, or to reimburse the Borrower for payment, of Project Costs in accordance with the terms of the Loan Agreement and the Disbursing Agreement. 2.6 Registration of Transfer. The City will cause to be kept at the office of the City Administrator 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 initially registered in the name of the Lender and shall be transferable upon the Note Register by the Lender in person or by its agent duly authorized in writing, upon surrender 1743229v4 3 . . . of such Note together with a written instrument of transfer satisfactory to the Administrator, duly executed by the Lender or its duly authorized agent. The following form of assignment shall be sufficient for said purpose: For value received hereby sells, assigns and transfers unto the within Note ofthe City of Elk River, Minnesota, and does hereby irrevocably constitute and appoint attorney to transfer the Note on the books of said City with full power of substitution in the premises. The undersigned certifies that the transfer is made in accordance with the provisions of Section 2.9 of the Resolution authorizing the issuance of the Note. ~~J$:~ a~".~;";.) ,~~...t, Dated: Registered Owner Upon such transfer the City Administrator 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 oil such 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 with indemnity satisfactory to it. If the mutilated, destroyed or lost Note has already matured or. been called for redemption in accordance with its terms it sha11 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 a Note is last registered in the Note Register and by notation on such 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 have 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 as an exempt security or as an exempt transaction. 2.10 Issuance of New Notes. Subject to the provisions of Section 2.9, the City shall, at the request and expense of the Lender, issue a new note, in aggregate outstanding principal amount equal to that of the Note surrendered, and of like tenor except as to number, principal 1743229v4 4 . . . amount, and the amount of the monthly installments payable thereunder, and registered in the name of the Lender or such transferee as may be designated by the Lender. SECTION 3. MISCELLANEOUS 3.1 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 p~rt thereof. 3.2 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. 3.3 Authorization to Execute Agreements. The forms of the proposed Note, Loan Agreement, the Pledge Agreement, and the Disbursing 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 approved by Bond Counsel and the City Attorney prior to the execution of the documents, and the Mayor and City Administrator are authorized to execute the Note, the Loan Agreement, the Disbursing Agreement and the Pledge 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. In the event of the absence or disability of the Mayor or the City Administrator 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 Board 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 the approval of such documents in accordance with the terms hereof. 3.4 Oualified Tax Exempt Obligation. In order to qualify the Note as a "qualified tax- exempt obligation" within the me aping of Section 265(b )(3) of the Internal Revenue Code of 1986, as amended (the "Code"), the City hereby makes the following factual statements and representations: (a) the Note is nottreated as a "private activity bond" under Section 265(b)(3) of the Code; 1743229v4 5 . . . (b) the City hereby designates the Note as a qualified tax-exempt obligation for purposes of Section 265(b)(3) of the Code; (c) the reasonably anticipated amount of tax-exempt obligations (other than obligations described in clause (ii) of Section 265(b)(3)(C) of the Code) which will be issued by the City (and all entities whose obligations will be aggregated with those of the City) during the calendar year 2005 will not exceed $10,000;000; and (d) not more than $10,000,000 of obligations issued by the City during the calendar year 2005 have been designated for purposes of Section 265(b )(3) of the Code. 3.5 Effective Date. This resolution shall take effect immediately upon adoption. Adopted by the City Council of City of Elk River, Minnesota, this 21 st day of March, 2005. ~~ Attest: . ~,J~ City Cf6r~1 - / \J 1743229v4 6