Loading...
HomeMy WebLinkAboutResolution No. 184-17 - RiverGlenApartments.ConduitFinancing RESOLUTION NO. ____ CITY OF ROCHESTER COUNTY OF OLMSTED STATE OF MINNESOTA AUTHORIZING THE ISSUANCE, SALE, AND DELIVERY OF A MULTIFAMILY HOUSING REVENUE NOTE UNDER MINNESOTA STATUTES, CHAPTER 462C; AUTHORIZING THE LOAN OF THE PROCEEDS OF THE REVENUE NOTE TO RIVER GLEN APARTMENTS, L.P.; AND APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE NOTE AND RELATED DOCUMENTS WHEREAS, the City of Rochesteris a home rule charter city duly organized and existing under its Charter and the Constitution and laws of the State of Minnesota; and City is authorized to carry out the public purposes described in the Act by issuing revenue bonds to finance or refinance multifamily housing developments located within the City, and as a condition to the issuance of such revenue bonds, adopt a housing program providing the information required by Section 462C.03, subdivision 1a, of the Act; and WHEREAS, in the issuance of the City multifamily housing development the City may exercise, within the corporate limits of the City, any of the powers that the Minnesota Housing Finance Agency may exercise under Minnesota Statutes, Chapter 462A, as amended, without limitation under the provisions of Minnesota Statutes, Chapter 475, as amended; and WHEREAS, the City has received a proposal that it issue its Multifamily Housing Revenue Note (River Glen Apartments Project), Series 2017, in one or more series, in an aggregate amount not to exceed $10,874,201 to provide funds to be loaned to River Glen Apartments, L.P., an Indiana limited partnership , to finance the acquisition, construction, and equipping of an approximately 128-unit multifamily rental housing development consisting of 8 two-story garden style apartments buildings with access to functionally related facilities on an adjacent property (including without limitation a clubhouse with a fitness center, community room, full kitchen, leasing offices, a playground, and a pool) to be located on a portion of an approximately 23.55 acre parcel of land located at the southwest quadrant of the intersection of 37th Street NE and East River Road in the City (the WHEREAS, the City issuance by the City of revenue bonds in the maximum principal amount of $24,000,000 to finance the acquisition, construction, and equipping of the Project, and the acquisition, construction, and equipping of an approximately 80-unit multifamily rental housing development consisting of 5 two-story garden style apartment buildings and functionally related facilities (including without limitation a clubhouse with a fitness center, community room, full kitchen, leasing offices, a playground, and a pool) ; and WHEREAS, a notice of public hearing was published in accordance with the , with respect 497479v3 JSB RC110-71 to: (i) the required public hearing under the Code; (ii) the required public hearing under Section 462C.04, subdivision 2, of the Act; (iii) the Housing Program; and (iv) approval of the issuance of the Note; and WHEREAS, the Public Notice was published at least 15 days before the regularly scheduled meeting of the Common Common Counciland on this same date, the Common Council conducted a public hearing at which a reasonable opportunity was provided for interested individuals to express their views, both orally and in writing; and WHEREAS, on July 18, 2016, the Common Council adopted a preliminary resolution (the issuance of multifamily housing revenue obligations under the terms of the Act to finance the Project; (ii) authorized the submission of an application to the Minnesota Department of Management and Budget 22,000,000; and (iii) acknowledged the preparation of the Housing Program in accordance with the requirements of the Act; and WHEREAS, the Preliminary Resolution constitutes a reimbursement resolution and an official intent of the City to reimburse expenditures with respect to the Project from the proceeds of tax-exempt revenue bonds in accordance with the provisions of Treasury Regulations, Section 1.150-2; and WHEREAS, sufficient details of the revenue note and other aspects of the financing have been agreed to that this final bond resolution should be adopted on this date accepting a proposal for issuance of the revenue Note. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Rochester, Minnesota, as follows: SECTION 1. LEGAL AUTHORIZATION AND FINDINGS. 1.1 Findings. The City hereby finds, determines and declares as follows: (a) 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 Merchants Bank of Indiana or another bank selected by the Borrower (the Construction Lender). The City will loan the proceeds of the Note (the Loan) to the Borrower in order to finance the Project. To provide permanent financing for the Project, the Borrower proposes to select a and, to purchase the Note from the Construction Lender following completion of construction of the Project and satisfaction of certain other conditions. (b) Pursuant to a Financing Agreement (the Financing Agreement) to be entered into between the City, Borrower and the Construction Lender, the City will loan to the Borrower the proceeds of the Note as set forth therein and the Borrower will agree to repay the Loan 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 Financing Agreement contains provisions relating to the construction, 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, Borrower and the Construction Lender deem necessary or desirable for the financing of the Project. Pursuant to the Financing Agreement, the City will pledge and grant a security interest in all of its rights, title, and interest in the Financing Agreement (except for certain rights of indemnification and to reimbursement for certain costs and expenses) to the Construction Lender who will subsequently assign its interest in the Financing Agreement to the Permanent Lender. 497479v3 JSB RC110-71 2 (c) The obligations of the Borrower under the Financing Agreement and payment of amounts due under the Note (i) will be secured initially by a Real Estate Mortgage, Security Agreement and Assignment of Leases and Fixture Filing (the Mortgage) to be executed by the Borrower in favor of the City, and assigned pursuant to an Assignment of Mortgage to be executed by the City (the Assignment) in favor of the Construction Lender, and (ii) upon conversion of the Note to a fixed rate and assignment to the Permanent Lender, will be secured a mortgage-backed security guaranteed as to timely payment of principal and interest, by Government National Mortgage Association pursuant to the National Housing Act, and (iii) will be further secured by certain other security agreements and guaranty agreements in favor of the Lenders Collateral Documents. (d) Certain rental and occupancy requirements of federal and state law are set forth in a Regulatory Agreement (the Regulatory Agreement) by and among the City, Borrower and the Lenders. (e) The Note will be a special, limited obligation of the City. 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 and the interest thereon: (i) shall be payable solely from the revenues pledged therefor under the Financing Agreement; (ii) shall not constitute a debt of the City within the meaning of any constitutional, charter or statutory limitation; (iii) shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers; (iv) shall not constitute a charge, lien, or encumbrance, legal or Financing Agreement, which will be assigned to the Lenders under the Financing Agreement; and (v) shall not constitute a general or moral obligation of the City. (f) 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. (g) The Project constitutes a qualified residential rental project within the meaning of Section 142(d) of the Code, and a multifamily housing development authorized by the Act, and furthers the purposes of the Act. (h) The purpose of the Project is, and the effect thereof will be, to promote the public welfare by the acquisition and construction of a facility for use as a multifamily housing development designed primarily for occupancy by persons of low and moderate income. (i) The Act authorizes (i) the acquisition and construction of the Project, (ii) the issuance and sale of the Note, (iii) the execution and delivery by the City of the Financing Agreement, the Regulatory Agreement, and the Assignment , (iv) the performance of all covenants and agreements of the City contained in the City Agreements and any other documents reasonably necessary to effectuate the intent of this resolution, and (v) the performance of all other acts and things required under the constitution and laws of the State of Minnesota to make the City Agreements and the Note valid and binding special, limited obligations of the City in accordance with its terms. (j) It is desirable that the Borrower be authorized, subject to the terms and conditions set forth in the Financing Agreement, which terms and conditions the City determines, based on representations of the Borrower, to be necessary, desirable and proper to complete the acquisition, construction and installation of the Project by such means as shall be available to the Borrower and in the manner determined by the Borrower, and with or without advertisement for bids as required for the acquisition and installation of municipal facilities. 497479v3 JSB RC110-71 3 (k) The payments under the Financing Agreement are fixed to produce revenue sufficient to provide for the prompt payment of principal of, premium, if any, and interest on the Note when due, and the Financing Agreement also provides that the Borrower is required to pay all expenses of the operation and maintenance of the Project, including, but without limitation, adequate insurance thereon and insurance against all liability for injury to persons or property arising from the operation thereof, and all taxes and special assessments levied upon or with respect to the Project and payable during the term of the Financing Agreement. (l) To the actual knowledge of the City there is no litigation pending or threatened against the City questioning the Citys execution or delivery of the Note or the City Agreements or questioning the due organization of the City, or the powers or authority of the City to issue the Note and undertake the transactions contemplated hereby. (m) The execution, delivery and performance of the Citys obligations under the Note and the City Agreements do not and will not violate any order against the City of any court or other agency of government, or any indenture, agreement or other instrument to which the City is a party or by which it or any of its property is bound, or be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument. (n) The City hereby finds, determines and declares, based on representations of the Borrower, that it is in the public interest of the residents of the City that the Project be undertaken in order to further the public purpose by providing multifamily housing developments for low or moderate income senior residents of the City and otherwise further the purposes and policies of the Act. 1.2 Authorization and Ratification of Project. 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 Lenders, to provide for the acquisition and construction 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 Maximum Amount and Form of Note and Interest Rate. The Note is hereby approved and shall be issued pursuant to this Resolution in substantially the form on file with the City with such appropriate variations, omissions and insertions as are necessary and appropriate and are permitted or required by this Resolution, and in accordance with the further provisions thereof; and the principal amount of the Note that may be outstanding hereunder is expressly limited to $10,874,201, unless a duplicate Note is issued pursuant to Section 2.6. The actual amount of the Note shall be determined by the agreement of the Lenders and the Borrower and any of the officers specified in Section 2.3 prior to the issuance of the Note. The Note will bear interest at the rates, mature in the years and amounts and be subject to redemption on the date determined by the Borrower and the Lenders and set forth in the Note executed by the Authorized Officers. The sale of the Note to the Construction Lender at a purchase price equal to its stated amount is hereby accepted. 2.2 The Note. The Note shall be dated as of the date of delivery to the Construction Lender, shall be payable at the time and in the manner and shall be subject to such other terms and conditions as are set forth therein. 497479v3 JSB RC110-71 4 2.3 Execution of Note. The Note shall be executed on behalf of the City by the Mayor and the City Clerk (the Authorized Officers). In case any Authorized 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 Authorized Officer, 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 City execute and deliver the Note. 2.4 Disposition of Note Proceeds. Upon delivery of the Note to the Construction Lender, the Construction Lender shall, on behalf of the City, disburse the purchase price thereof for payment of Project Costs in accordance with the terms of a Disbursing Agreement or the Construction Lender shall advance the proceeds of the Note to the Borrower, on behalf of the City, pursuant to the terms of a Disbursing Agreement. 2.5 Registration of Transfer. The City will cause to be kept at the office of the City Finance Director of the City 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 Construction Lender and shall be transferable upon the Note Register for such Note by the holder thereof in person or by its agent duly authorized in writing, upon surrender of such Note together with a written instrument of transfer satisfactory to the City Finance Director, duly executed by the then holder thereof or its duly authorized agent. The City may require, as a precondition to any transfer, that the transferee provide evidence satisfactory to the City that the transferee is a financial institution or other accredited investor under the securities laws. The following form of assignment shall be sufficient for said purpose. For value received ___________ hereby sells, assigns and transfers unto ________________ the attached Note of the City of Rochester, Minnesota, and does hereby irrevocably constitute and appoint ___________________ attorney to transfer said 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 Sections 2.5 and 2.8 of the Resolution authorizing the issuance of the Note. Dated:__________________ Registered Owner Upon such transfer the City Finance Director shall note the date of registration and the name and address of the successor holder in the Note Register and in the registration blank appearing on the Note. 2.6 Mutilated, Lost or Destroyed Note. In case the Note 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 payment by the registered holder thereof of 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 shall not be necessary to issue a new Note prior to payment. 497479v3 JSB RC110-71 5 2.7 Ownership of Note. The City may deem and treat the person in whose name the Note is last registered in the Note Register and by notation on the 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. 2.8 Limitation on Note Transfers. The Note has 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 to a financial institution or other accredited investor and as an exempt security or as an exempt transaction and in principal amounts of at least $100,000. 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 contained herein invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses or paragraphs contained in this Resolution shall not affect the remaining portions of this Resolution or any part 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 City Agreements are hereby approved in substantially the forms on file with the City, 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 prior to the execution of the documents, and the Authorized Officers are authorized to execute the Note and the City Agreements in the name of and on behalf of the City, together with such other documents as Bond Counsel considers appropriate in connection with the issuance of the Note (collectivel . In the event of the absence or disability of any of the Authorized Officers, such officers of the City as, in the opinion of the City Attorney for the City, may act in their behalf shall without further act or authorization of the Common Council of the City 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 Future Amendments. The authority to approve, execute and deliver future amendments to financing documents entered into by the City in connection with the issuance of the Note and consents required under the financing documents is hereby delegated to the Authorized Officers, subject to the following conditions: (a) such amendments or consents to not materially adversely affect the interests of the City; (b) such amendments or consents do not contravene or violate any policy of the City; (c) such amendments do not require the consent of the holder of the Note or such consent has been obtained; and (d) such amendments or consents are acceptable in form and substance to the counsel retained by the City to review such amendments. The authorization hereby given shall be further construed as authorization 497479v3 JSB RC110-71 6 for the execution and delivery of such certificates and related items as may be required to demonstrate compliance with the agreements being amended and the terms of this Resolution. The execution of any instrument by the Authorized Officers shall be conclusive evidence of the approval of such instruments in accordance with the terms hereof. In the event of the absence or disability of either of the Authorized Officers, such officers of the City as, in the opinion of the City Attorney for the City, may act in their behalf shall without further act or authorization of the City Council of the City 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. 3.5 Costs; Indemnification by Borrower. The Borrower has agreed and it is hereby determined that any and all costs incurred by the City in connection with the financing of the Project whether or not the Project is carried to completion will be paid by the Borrower. In addition, the Borrower will pay the City an administrative fee as provided in the Financing Agreement. It is understood and agreed that the Borrower shall indemnify the City against all liabilities, losses, damages, City) arising with respect to the Project or the Note, as further provided for and agreed to by and between the Borrower and the City in the Financing Agreement. 3.6 Headings; Terms. Paragraph headings in this resolution are for convenience of reference only and are not a part hereof, and shall not limit or define the meaning of any provision hereof. Capitalized terms used, but not defined, herein shall have the meanings given them in, or pursuant to, the Financing Agreement. SECTION 4. EFFECTIVE DATE. This resolution shall be in full force and effect from and after its passage. PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER, TH MINNESOTA, THIS 17 DAY OF APRIL, 2017. _________________________________________ PRESIDENT OF SAID COMMON COUNCIL ATTEST: _________________________ CITY CLERK th Approved this 17 day of April, 2017. (Seal of the City of Rochester, Minnesota) MAYOR OF SAID CITY 497479v3 JSB RC110-71 7 C E R T I F I C A T I O N I, the undersigned City Clerk of the City of Rochester, Minnesota, do hereby certify the following: The foregoing is true and correct and a copy of the Resolution is on file and of record in the offices of the City, which Resolution relates to the issuance of a multifamily housing revenue note and said Resolution was duly adopted by the Rochester Common Council at a regular or special meeting of the Council held on the date therein indicated. Said meeting was duly called and regularly held and was open to the public and was held at the place at which meetings of the Council are regularly held, a quorum of the Council being present and acting throughout. Councilmember ______________________ moved the adoption of the Resolution, which motion was seconded by Councilmember __________________________. A vote being taken on the motion, the following members of the Council voted in favor of the Resolution: and the following voted against the same: Whereupon said Resolution was declared duly passed and adopted. The Resolution is in full force and effect and no action has been taken by the Council which would in any way alter or amend the Resolution. WITNESS MY HAND officially as the City Clerk of the City of Rochester, Minnesota, this _____ day of April, 2017. _________________________________________ City Clerk City of Rochester, Minnesota 497479v3 JSB RC110-71