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04-9434r RESOLUTION NO. 9434 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RICHFIELD, MINNESOTA, AUTHORIZING THE ISSUANCE OF ITS VARIABLE RATE DEMAND MULTIFAMILY HOUSING REVENUE REFUNDING BONDS (VILLAGE SHORES APARTMENTS PROJECT), SERIES 2004, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $7,610,000, WHICH BONDS AND THE INTEREST AND PREMIUM THEREON, IF ANY, SHALL BE PAYABLE SOLELY FROM THE REVENUES OF THE PROJECT; PRESCRIBING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS IN CONNECTION WITH THE ISSUANCE OF THE BONDS. WHEREAS, the City of Richfield, Minnesota (the "City"), is a municipal corporation and a home rule city duly organized and existing under its charter and 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 City is authorized to carry out the public purposes described therein and contemplated thereby in the financing of housing within its boundaries, by issuing revenue bonds to defray, in whole or in part, the development costs of a rental housing development, and by issuing bonds for the purpose of refunding any outstanding bonds issued by the City pursuant to the Act, 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, following a public hearing for which notice was published in a newspaper of general circulation in the City, Resolution No. 7073 was adopted by the City Council of the City on September 23, 1985, that approved a housing program for the issuance of revenue bonds (the "Program") to finance the construction of a 166-unit multifamily housing development located at 6501 Wood lake Drive in the City (the "Project") pursuant to the Act and gave approval to the issuance of the City's Multifamily Housing Revenue Bonds, Series 1985 (Market Plaza Housing Project) (the "Series 1985 Bonds"), in the original aggregate principal amount of $8,250,000, dated September 1, 1985; and WHEREAS, the proceeds derived from the sale of the Series 1985 Bonds were loaned to Market Plaza Housing Limited Partnership, a Minnesota limited partnership (the "Owner"), pursuant to the terms of a Loan Agreement, dated September 1, 1985, between the Owner and the City, and the proceeds of such loan were applied to finance the acquisition, construction, and equipping of the Project; and WHEREAS, following the publication of a notice of public hearing on June 5, 1996, in a newspaper of general circulation in the City, a public hearing was held by the City Council of the City on June 24, 1996, relating to the proposal to issue bonds of the City to refund the Series 1985 Bonds and refinance the Project; and WHEREAS, by Resolution No. 8354, adopted by the City Council of the City on June 24, 1996, the City authorized the issuance of its Multifamily Housing Revenue Refunding Bonds, Series 1996 (Village Shores Project) (the "Series 1996 Bonds"), in the original aggregate principal amount of $8,010,000, pursuant to the terms of an Indenture of Trust, dated as of August 1, 1996, between the City and First Trust National Association, a national banking association (now known as U.S. Bank National Association), and loaned the proceeds derived from the sale of the Series 1996 Bonds to the Owner pursuant to the terms of a Loan Agreement, dated as of August 1, 1996, and the proceeds of such loan were applied to the redemption and prepayment of the outstanding principal of the Series 1985 Bonds; and WHEREAS, following the publication of a notice of public hearing on January 22, 2004, in the Sun-Current, a newspaper of general circulation in the City, a public hearing was held by the City 1 34 Council of the City on February 10,2004, relating to the proposal to issue bonds of the City to refund the Series 1996 Bonds and refinance the Project, and on such date the City Council of the City adopted a resolution granting preliminary approval to the issuance of such refunding bonds; and WHEREAS, to provide for the redemption and prepayment of the outstanding Series 1996 Bonds, the Owner has proposed that the City issue its Variable Rate Demand Multifamily Housing Revenue Refunding Bonds (Village Shores Apartments Proj€ot), Series 2004 (the "Series 2004 Bonds" or the "Bonds"), in the original aggregate principal amount of $7,610,000; and WHEREAS, the Series 2004 Bonds are proposed to be issued pursuant to the terms of a Trust Indenture, dated as of March 1,2004 (the "Indenture"), between the City and U.S. Bank National Association, a national banking association, as trustee (the "Trustee"); and WHEREAS the proceeds derived from the sale of the Series 2004 Bonds will be applied to fund a loan (the "Loan") to the Owner pursuant to the terms of a Financing Agreement, dated as of March 1,2004 (the "Financing Agreement") between the City, the Owner, and the Trustee, and the proceeds of the Loan will be applied to the redemption and prepayment of the outstanding principal of the Series 1996 Bonds; and WHEREAS, the Series 2004 Bonds are proposed to be secured by a direct pay Credit Enhancement Agreement, dated as of March 1,2004 (the "Credit Enhancement Agreement"), between the Federal Home Loan Mortgage Corporation, a shareholder-owned government-sponsored enterprise organized and existing under the laws of the United States ("Freddie Mac") and the Trustee; and WHEREAS, pursuant to the terms of a Reimbursement and Security Agreement, dated as of March 1,2004 (the "Reimbursement Agreement"), to be entered into between Freddie Mac and the Owner, the Owner is obligated to reimburse Freddie Mac for any payments made by Freddie Mac under the Credit Enhancement Agreement; and WHEREAS, to secure the Owner's reimbursement obligations to Freddie Mac under the Reimbursement Agreement, the Owner will execute and deliver to Freddie Mac a Multifamily Mortgage, Assignment of Rents, Security Agreement and Fixture Financing Statement, dated as of March l, 2004 (the "Reimbursement Mortgage"), with respect to the Project; and WHEREAS, the obligations of the Owner under the Loan are to be evidenced by a Multifamily Note, to be dated as of March 1, 2004 or as of the date of issuance of the Bonds (the "Note"), executed by the Owner in favor of the City (and assigned by the City to the Trustee pursuant to the terms of the Indenture for the benefit of the owners of the Series 2004 Bonds); and WHEREAS, the Bonds and the interest thereon are not general or moral obligations of the Issuer but are limited obligations of the Issuer, payable solely from the trust estate expressly pledged to the Bonds under the Indenture, including, without limitation, its interest in the Note, the Financing Agreement, and the Credit Enham~ement Agreement, and none of the United States of America, the State of Minnesota, nor any other political subdivision of the State (except the Issuer and then only to the limited extent provided in the Indenture) shall in any event be liable for the payment of the principal of, premium, if any, or interest on the Bonds or for the performance of any pledge, obligation, or agreement of any kind whatsoever of the City, and neither the Bonds nor any of the City's agreements or obligations shall be construed to constitute an indebtedness of the United States of America, the State, or any other political subdivision of the State, or the City within the meaning of any constitutional or statutory proVISIOn; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF RICHFIELD, MINNESOTA THAT: Section 1. The City acknowledges, finds, determines, and declares that the preservation of the quality of life in the City is dependent upon the maintenance, provision, and preservation of an adequate 2 housing stock which is affordable to ,p,e[;;qrrs,and families. of low or moderate income and that accomplishing this is a public purpose. . 'The City also hereby finds, determines, and declares that the Project has been designed to be affordable by persons and families of low and moderate incomes and that the Owner has agreed to meet the occupancy limitations and adjusted gross income limitations set forth in Section 103(b)(4)(A) of the Internal Revenue Code of 1954, as amended, and applicable Treasury Regulations promulgated thereunder. Section 2. An Amended and Restated Housing Program, dated March 1, 2004 (the "Housing Program"), has been prepared to amend and restate the original Program. The Housing Program reflects the issuance of the Series 2004 Bonds to refund the Series 1996 Bonds and to refinance the Project. The Housing Program, in the form on file with the City, is hereby approved. The City Council of the City further finds, determines, and declares that the purpose of the Housing Program is to finance and refinance the Project. At the request of the Owner, to accomplish the purposes of the Housing Program, the City proposes to issue the Series 2004 Bonds and loan the proceeds derived from the sale of the Series 2004 Bonds to the Owner in order to finance the redemption and prepayment of the Series 1996 Bonds. Section 3. For the purpose of refinancing the Project there is hereby authorized the issuance of the Series 2004 Bonds. The Series 2004 Bonds shall bear interest at such rates, 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. The City hereby authorizes the Series 2004 Bonds to be issued as "tax-exempt bonds" the interest on which is not includable in gross income for federal and State of Minnesota income tax purposes. Section 4. The Bonds and the interest thereon are not general or moral obligations of the Issuer. The Bonds and the interest thereon are limited obligations of the Issuer, payable solely from the Trust Estate pledged therefor under this Indenture, including, without limitation, its interest in payments received under the Note and the Credit Enhancement Agreement. The City hereby authorizes and directs the Mayor of the City (the "Mayor") and the City Manager of the City (the "City Manager") to execute the Indenture and to deliver the Indenture to 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 City, and the Trustee as set forth therein. The Mayor is hereby authorized to approve changes to the maturity schedules, optional and mandatory redemption terms, mandatory sinking fund payment schedules, and other terms and provisions of the respective Bonds as set forth in the Indenture; provided that the maturity date for any Bond shall not be later than the latest date set forth in the respective form of the Indenture. All of the provisions of the Indenture, when executed as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and 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 City on the date hereof, and is hereby approved, with such changes as shall be approved by the Mayor pursuant to this section, and with such necessary and appropriate 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 determination. Section 5. The Mayor and the City Manager are hereby designated as the representatives of the City 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"), between Piper Jaffray & Co. (the "Underwriter"), the City, and the Owner. All of the provisions of the Bond Purchase Agreement, when executed and delivered as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and 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 City on the date hereof, and is hereby 3 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 6. The Mayor and the City Managyr are hereby authorized and directed to execute the Financing Agreement with the Owner, and when executed and delivered as authorized herein, the Financing Agreement shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Financing Agreement shall be substantially in the form on file with the City on the date hereof, which is hereby approved, with such necessary variations, omissions, and insertions as are not materially inconsistent with such forms 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. The Mayor and the City Manager are hereby authorized and directed to accept and execute the Amended and Restated Regulatory Agreement, dated as of March 1, 2004 (the "Regulatory Agreement"), between the City, the Owner, and the Trustee and, when executed and delivered as authorized herein, the Regulatory Agreement shall be deemed to be a part of this resolution as fully and to the. same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Regulatory Agreement shall be substantially in the form on file with the City on the dat~ h~reof, whiGh 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 tQ~r~of by the Mayor shall be conclusive evidence of such determination. Section 8. The Mayor and the City Manager are hereby authorized and directed to endorse the Note to the Trustee, without recourse, and to execute and deliver the Uniform Commercial Code financing statements (with respect to the assignment of its interests in the Financing Agreement, the Note, aHd the other Loan documents, other than the Unassigned Rights (as defined in the Indenture), to the Trustee, for the benefit of the owners of the Series 2004 Bonds), and to execute and deliver all other instruments and documents necessary to accomplish the purposes for which the Bonds are to be issued and the Indenture, the Financing Agreement, the Regulatory Agreement, and the Bond Purchase Agreement are to be executed and delivered. Section 9. The City hereby consents to the preparation and distribution of an Official Statement with respect to the offer and sale of the Series 2004 Bonds (the "Official Statement") as requested by the Underwriter and the Owner; provided that it is understood that the City has not been requested to participate in the preparation of or to review the Official Statement and has not done so. The City has made no independent investigation of the facts and statements set forth in the Official Statement; accordingly, the City assumes no responsibility with respect thereto including, without limitation, as to matters relating to the accuracy, fairness, completeness or sufficiency of the Official Statement, except any information specifically relating to the City under the heading "THE ISSUER" and "NO LITIGA TION- The Issuer" in the Official Statement. Section 10. The Mayor, the City Manager, and other officers of the City are authorized upon request to furnish 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 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 City as to the truth of all statements contained herein. Such officers, employees, and agents of the City are hereby authorized to execute and deliver, on behalf of the City, all other certificates, instruments, and other written documents that may be requested by bond counsel, the Underwriter, the Trustee, Freddie Mac, or other persons or entities in conjunction with the issuance of the Bonds and the expenditure of the proceeds of the Bonds. Without imposing any limitations on the scope of the preceding sentence, such officers and employees are specifically authorized to execute and deliver a certificate relating to federal tax matters including matters relating to arbitrage and arbitrage rebate, a receipt for the proceeds derived from the sale of the Bonds, an order to the Trustee, a general 4 certificate of the City, and an Informajipn Return for Tax-Exempt Private Activity Bond Issues, ,;~it"";;i{ "'; ,-. Form 8038 (Rev. January, 2002). Section 11. All covenants, stipulations, obligations, representations, and agreements of the City contained in this resolution or contained in the Indenture or other documents referred to above shall be deemed to be the covenants, stipulations, obligations, representatives, and agreements of the City to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations, representations, and agreements shall be binding upon the City. Except as otherwise provided in this resolution, all rights, powers, and privileges conferred, and duties and liabilities imposed, upon the City by the provisions of this resolution or of the respective Indenture or other documents referred to above shall be exercised or performed by the City, or by such officers, board, body, or agency as may be required or authorized by law to exercise such powers and to perform such duties. No covenant, stipulation, obligation, representation, or agreement herein contained or contained in the Indenture or other documents referred to above shall be deemed to be a covenant, stipulation, obligation, representation, or agreement of any elected official, officer, agent, or employee of the City in that person's individual capacity, and neither the members of the City Council of the City 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 12. 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 City, 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 City and the Trustee as fiduciary for owners of the Bonds issued under the provisions of this resolution and the Indenture, and the Owner to the extent expressly provided in the Indenture. Section 13. In case anyone or more of the provisions of this resolution, or of the documents mentioned herein, 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 aforementioned documents, or of the Bonds, but this resolution, the aforementioned documents, and the Bonds shall be construed and endorsed as if such illegal or invalid provisions 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 money are all commitments, obligations, and agreements on the part of the City contained in the Indenture, and the invalidity of the Indenture shall not affect the commitments, obligations, and agreements on the part of the City to create such funds and to apply said revenues, other money, 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 City are as binding as if contained in this resolution separate and apart from the Indenture. Section 14. 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 Indenture and the other documents referred to above to happen, exist, and be performed precedent to and in the enactment of this resolution, and precedent to the issuance of the Bonds, and precedent to the execution of the Indenture and the other documents referred to above have happened, exist, and have been performed as so required by law. Section 15. The members of the City Council of the City, officers of the City, and attorneys and other agents or employees of the City 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 5 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 16. The Mayor and the City Manager are hereby designated and authorized to take such administrative actions as are permitted or required in connection with the issuance of the Bonds and pursuant to the Indenture, the Financing Agreement, the Regulatory Agreement and the Bond Purchase Agreement. . Section 17. The Mayor and the City Manager of the City 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 Regulatory Agreement or any other agreements, certificates or documents which are deemed necessary by bond counsel to evidence the validity or enforceability of the Bonds, the Indenture or the other documents referred to in this resolution, or to evidence compliance with Section 103(b)(4)(A) of the Internal Revenue Code of 1954, as amended, and applicable Treasury Regulations promulgated thereunder, and Section 103 and applicable provisions of Sections 141-150 of the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations promulgated thereunder; and all such agreements or representations when made shall be deemed to be agreements or representation~, as the case may be, of the City. Section 18. If for any reason the Mayor of the City is unable to execute and deliver those documents referred to in this Resolution, any other member of the City Council of the City, or any officer of the City duly delegated to act on behalf ofthe Mayor, may execute and deliver such documents with the same force and effect as if such documents were executed by the Mayor. If for any reason the City Manager of the City is unable to execute and deliver the documents referred to in this Resolution, such documents may be executed and delivered by any member of the City Council, the Assistant City Manager, or any officer of the City duly delegated to act on behalf of the City Manager, with the same force and effect as if such documents were execute,d and delivered by the City Manager. Section 19. This resolution shall be in full force and effect from and after its passage. PASSED AND APPROVED this February 24,2004. /?;.~ Iw Martin J. Kirsch M ~or ATTEST: YVA/Vt ,(~/)jdr(fi Nancy Gibbs, Ci Clerk 6