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04-9459r 59 RESOLUTION NO. 9459 RESOLUTION APPROVING AMENDMENTS TO ITS EDUCATIONAL FACILITIES REVENUE NOTE (ACADEMY OF HOLY ANGELS PROJECT), SERIES 2002, AND ITS EDUCATIONAL FACILITIES REVENUE NOTE (ACADEMY OF HOLY ANGELS PROJECT), SERIES 2003, APPROVING THE FORM OF THE AMENDED NOTES AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE AMENDED NOTES AND RELATED DOCUMENTS WHEREAS, under the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Sections 469.152 through 469.165, as amended (the "Act"), each municipality and redevelopment agency of the State of Minnesota (as defined in the Act), including the City of Richfield, Minnesota (the "City"), is authorized to issue revenue obligations to finance improvements to land and buildings and capital equipment for the benefit of a revenue producing enterprise to be owned by a contracting party (as defined in the Act); and WHEREAS, pursuant to Section 469.155, subdivision 3, of the Act, the City is authorized to issue revenue bonds or other revenue obligations to: (i) finance, in whole or in part, the costs of the acquisition, construction, reconstruction, improvement, betterment, or extension of any properties, real or personal, used or useful in connection with a revenue producing enterprise; and (ii) pay, purchase, or discharge all or any part of the outstanding indebtedness incurred in the acquisition or betterment of the existing facilities of an organization primarily engaged in educational activities as an elementary, secondary, or post-secondary school; and WHEREAS, for the benefit of Academy of Holy Angels, a Minnesota nonprofit organization (the "Borrower"), the City issued its: (i) Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2002 (the "Series 2002 Note"), in the original aggregate principal amount of $8,540,000 on December 30, 2002; and (ii) Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003 (the "Series 2003 Note"), in the original aggregate principal amount of $1 ,460,000 on December 12, 2003; WHEREAS, the Series 2002 Note and the Series 2003 Note (collectively, the "Notes") were purchased by Wells Fargo Bank, National Association, a national banking association (the "Lender"), and the proceeds derived from the sale of the Notes were loaned to the Borrower and applied to finance and refinance a project comprised of: (i) the renovation of, and the construction of additions to, the Academy of Holy Angels High School (the "Facility") owned by the Borrower and located at 6600 Nicollet Avenue South in the City; (ii) the acquisition and installation of equipment in the Facility; and (iii) the refunding of outstanding indebtedness of the Borrower previously incurred to finance the acquisition and betterment of the Facility (collectively, the "Project"); and WHEREAS, the Borrower and the Lender have requested that the City amend the Notes by adjusting the principal amounts of the Notes payable on the payment dates under the Notes; and WHEREAS, the Notes, as amended, will continue to constitute revenue obligations of the City secured solely by the revenues expressly pledged to the payment thereof and other security provided by the Borrower and the Notes shall not constitute general or moral 04272004Holy Angels Revenue Notes obligations of the City and shall not be secured by the full faith and credit or taxing powers of the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF RICHFIELD, MINNESOTA, THAT: 1. The City Council of the City hereby approves the amendments to the Series 2002 Note as such amendments are set forth in the form of the Series 2002 Note, No. R-2 (the "Amended Series 2002 Note") now on file with the City. The Mayor and City Manager of the City (the "Mayor" and "City Manager," respectively) are hereby authorized to execute the Amended Series 2002 Note and deliver the Amended Series 2002 Note to the Lender in exchange for the Series 2002 Note, No. R-1 (the "Original Series 2002 Note") previously purchased by the Lender. The Original Series 2002 Note shall be canceled by the City. 2. The City Council of the City hereby approves the amendments to the Series 2003 Note as such amendments are set forth in the form of the Series 2003 Note, No. R-2 (the "Amended Series 2003 Note") now on file with the City. The Mayor and City Manager of the City (the "Mayor" and "City Manager," respectively) are hereby authorized to execute the Amended Series 2003 Note and deliver the Amended Series 2003 Note to the Lender in exchange for the Series 2003 Note, No. R-1 (the "Original Series 2003 Note") previously purchased by the Lender. The Original Series 2003 Note shall be canceled by the City. 3. All of the provisions of the Amended Series 2002 Note and the Amended Series 2003 Note, when executed and delivered as authorized in this resolution, 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 Amended Series 2002 Note and the Amended Series 2003 Note shall be substantially in the forms on file with the City, which are hereby approved, with such necessary and appropriate variations, omissions and insertions as the Mayor and City Manager of the City, in their discretion, shall determine. The execution of the Amended Series 2002 Note and the Amended Series 2003 Note with the manual or facsimile signatures of the Mayor and the City Manager and the delivery of the Amended Series 2002 Note and the Amended Series 2003 Note by the City shall be conclusive evidence of such determination. 4. The Amended Series 2002 Note and the Amended Series 2003 Note shall not be general or moral obligations of the City, but shall be a special, limited obligations of the City payable by the City solely from the revenues derived by the City from the Borrower pursuant to the terms of the loan agreements executed by the City and the Borrower in connection with the issuance of the Original Series 2002 Note and the Original Series , 2003 Note (the "Loan Agreements"), assigned to the Lender pursuant to certain pledge agreements, and from other security provided by the Borrower. 5. The Mayor and the City Manager are hereby authorized to execute and deliver, on behalf of the City, such other instruments, certificates, and documents as are necessary or appropriate in connection with the execution and delivery of the Amended Series 2002 Note and the Amended Series 2003 Note, including: (i) a City Tax Certificate; (ii) an Information Return for Tax-Exempt Private Activity Bond Issues, Form 8038; and (iii) all other instruments, certificates, and documents which are requested by the Borrower or the Lender to be executed and delivered by the City in connection with the execution and delivery of the Amended Series 2a02'~Note and the Amended Series 2003 Note and which Kennedy & Graven, Chartered, as bond counsel, deems necessary or appropriate. The City hereby authorizes Kennedy & Graven, Chartered, as bond counsel of the City, to prepare, execute, and deliver its approving legal opinion with respect to the Amended Series 2002 Note and the Amended Series 2003 Note. 6. All covenants, stipulations, obligations, and agreements of the City contained in this resolution and the aforementioned documents shall be deemed to be the covenants, stipulations, obligations, and agreements of the City to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations, 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 or the City Council of the City by the provisions of this resolution or of the aforementioned documents shall be exercised or performed by the City or by such members of the City Council, or such officers, board, body or agency thereof as may be required or authorized by law to exercise such powers and to perform such duties. No covenant, stipulation, obligation, or agreement contained in this resolution or contained in the aforementioned documents shall be deemed to be a covenant, stipulation, obligation, or agreement of any member of the City Council of the City, or any officer, agent, or employee of the City in that person's individual capacity, and neither the City Council nor any officer or employee of the City executing the Amended Series 2002 Note or the Amended Series 2003 Note shall be liable personally on the Amended Series 2002 Note or the Amended Series 2003 Note or be subject to any personal liability or accountability by reason of the issuance thereof. No provision, covenant, or agreement contained in the aforementioned documents, the Amended Series 2002 Note and the Amended Series 2003 Note or in any other document relating to the Amended Series 2002 Note and the Amended Series 2003 Note, and no obligation therein or herein imposed upon the City or the breach thereof, shall constitute or give rise to any pecuniary liability of the City or any charge upon its general credit or taxing powers. In making the agreements, provisions, covenants, and representations set forth in such documents, the City has not obligated itself to payor remit any funds or revenues, other than funds and revenues derived from the Loan Agreements. 7. Except as otherwise expressly provided in this resolution, nothing in this resolution or in the aforementioned documents expressed or implied, is intended or shall be construed to confer upon any person or firm, other than the City, the Borrower, and the Lender, or any other holder of the Amended Series 2002 Note and the Amended Series 2003 Note issued under the provisions of this resolution, any right, remedy or claim, legal or equitable, under and by reason of this resolution or any provisions hereof; this resolution, the aforementioned documents and all of their provisions being intended to be and being for the sole and exclusive benefit of the City, the Borrower, the Lender, and any other holder from time to time of the Amended Series 2002 Note and the Amended Series 2003 Note executed and delivered under the provisions of this resolution. 8. In case anyone or more of the provisions of this resolution, or of the aforementioned documents, or of the Amended Series 2002 Note or the Amended Series 2003 Note issued under this resolution 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 Amended Series 2002 Note or the Amended Series 2003 Note, but this resolution, the aforementioned documents, and the Amended Series 2002 Note and the Amended Series 2003 Note shall be construed and endorsed as if such illegal or invalid provisions had not been contained therein. 9. The officers of the City, Kennedy & Graven, Chartered as bond counsel of the City and other attorneys, and other agents or employees of the City are hereby authorized to do all acts and things required of them by or in connection with this resolution, the aforementioned documents, and the Amended Series 2002 Note and the Amended Series 2003 Note for the full, punctual, and complete performance of all the terms, covenants, and agreements contained in the Amended Series 2002 Note and the Amended Series 2003 Note, the aforementioned documents and this resolution. In the event that for any reason the Mayor is unable to carry out the execution of any of the documents or other acts provided in this resolution, any person delegated the authority to execute documents in the absence or incapacity of the Mayor is hereby authorized to act in the capacity of the Mayor and undertake such execution or acts on behalf of the City with full force and effect, which execution or acts shall be valid and binding on the City. If for any reason the City Manager is unable to execute and deliver the documents referred to in this resolution, such documents may be executed by any person delegated the authority to execute documents in the absence or incapacity of the City Manager, with the same force and effect as if such documents were executed and delivered by the City Manager. 10. The Borrower will continue to pay the administrative fees of the City as set forth in the Loan Agreements and will pay, or upon demand, reimburse the City for payment of, any and all costs and expenses paid or incurred by the City in connection with the Project and the Amended Series 2002 Note and the Amended Series 2003 Note. 11. This resolution shall be in full force and effect from and after its passage. Adopted by the City of Richfield, Minnesota, this 27th day of April, 2004. CITY OF RICHFIELD, MINNESOTA ~&JW Martin J. KI h Mayor Attest: ~V\~ ~ Nancy Gibbs:(!2ity Clerk