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HomeMy WebLinkAbout2001-066 CCRMember Kay Lasman moved its adoption: introduced the following resolution and RESOLUTION NO. 2001-66 RESOLUTION OF THE CITY OF BROOKLYN CENTER, MINNESOTA AUTHORIZING THE ISSUANCE OF ITS VARIABLE RATE DEMAND REVENUE REFUNDING BONDS (BROOKDALE CORPORATE CENTER III PROJECT), SERIES 2001 IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,100,000; PRESCRIBING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN INDENTURE OF TRUST, A LOAN AGREEMENT AND CERTAIN RELATED DOCUMENTS; AUTHORIZING THE EXECUTION AND SALE OF THE BONDS AND DIRECTING DELIVERY THEREOF; CONSENTING TO THE DISTRIBUTION OF THE OFFICIAL STATEMENT; AND PROVIDING FOR THE SECURITY, RIGHTS, AND REMEDIES OF THE OWNERS OF SAID REVENUE BONDS WHEREAS, the City of Brooklyn Center, Minnesota (the "Issuer") is a municipal corporation 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 Sections 469.152 through 469.165, as amended (together, the "Act"), the Issuer is authorized to issue its revenue bonds, including revenue refunding bonds, with respect to projects as described in the Act; and WHEREAS, Sections 469.152 to 469.165 of the Act provides for the issuance by the Issuer of revenue refunding bonds, the proceeds from the sale of which will be used to refund and refinance the entire outstanding principal balance of the Issuer's $5,100,000 Commercial Development Refunding Revenue Bonds (Brookdale Associates Limited Partnership Project), Series 1991 (the "Prior Bonds"), on behalf of BCC Associates LLC (the "Borrower"); and WHEREAS, the Borrower proposes and requests that the Issuer finance the refunding of the Prior Bonds by issuance of its Variable Rate Demand Revenue Refunding Bonds (Brookdale Corporate Center III Project) Series 2001 in an aggregate principal amount of $5,100,000 (the "Bonds") under the Act; and WHEREAS, the Issuer is authorized by the Act to enter into a revenue agreement with any person in such manner that payments required thereby to be made by the contracting party shall be fixed, and revised from time to time as necessary, so as to produce income and revenue sufficient to provide for the prompt payment of principal of and interest on all bonds issued under the Act when due, and the revenue agreement shall also provide that the contracting party shall be 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 RESOLUTION NO. 2001-66 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 revenue agreement; and WHEREAS, pursuant to the Act and the Indenture of Trust (the "Indenture") dated as of June 1, 2001 between the Issuer and U.S. Bank Trust National Association (the "Trustee"), the Issuer proposes to authorize, issue and sell the Bonds in an aggregate principal amount of $5,100,000, payable solely from the amounts pledged therefor under the Indenture; and WHEREAS, pursuant to a Loan Agreement ("Loan Agreement"), dated as of June 1, 2001, between the Issuer and the Borrower, the Issuer proposes to loan the proceeds of the Bonds to the Borrower, which the Borrower will agree to repay in installments in amounts and at times sufficient to pay the principal of, premium, if any, and interest on the Bonds when due, and which proceeds the Borrower will agree to use to redeem and prepay the outstanding principal balance of the Prior Bonds; and WHEREAS, neither the Issuer nor the State of Minnesota nor any political subdivision thereof (other than the Issuer and then only to the extent of the trust estate pledged in the Indenture, which consists of the payments to be made by the Borrower in accordance with the Loan Agreement), shall be liable on the Bonds, and the Bonds shall not be a debt of the Issuer or the State of Minnesota or any political subdivision thereof (other than the Issuer and then only to the extent of the trust estate pledged in the Indenture, which consists of the payments to be made by the Borrower in accordance with the Loan Agreement), and in any event shall not give rise to a charge against the credit or taxing power of the Issuer, Hennepin County (the "County"), the State of Minnesota, or any political subdivision thereof; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER, MINNESOTA AS FOLLOWS: Section 1. On the basis of the information given the Issuer to date, it appears that it would be desirable for the Issuer to issue its revenue refunding bonds under the provisions of the Act to finance the refunding of the Prior Bonds in the aggregate face amount of $5,100,000 from the proceeds of the Bonds. It is hereby determined to proceed with the refunding of the Prior Bonds and this Council hereby authorizes the issuance of the Bonds in order to refund the Prior Bonds pursuant to the Indenture. The Bonds shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the Issuer, except the revenues specifically pledged to the payment thereof, and each Bond, when, as and if issued, shall recite in substance that the Bond, including interest thereon, is payable solely from the revenues and property specifically pledged to the payment thereof, and shall not constitute a debt of the Issuer within the meaning of any constitutional or statutory limitation. RESOLUTION NO. 2001-66 Section 2. The Issuer will enter into a loan agreement or similar agreement satisfying the requirements of the Act (the "Loan Agreement") with the Borrower. The loan payments or other amounts payable by the Borrower to the Issuer under the Loan Agreement shall be sufficient to pay the principal of, and interest and redemption premium, if any, on the Bonds as and when the same shall become due and payable. The Borrower has agreed and it is hereby determined that any and all direct and indirect costs incurred by the Issuer in connection with the refinancing of the Project will be paid by the Borrower upon request. Section 3. The Issuer finds, determines, and declares that the purpose of the Bonds is to provide financing for the refunding of the Prior Bonds, the proceeds of which will be loaned to the Borrower for such purpose, meeting the general purposes contemplated and described in the Act. Section 4. The Issuer further finds that the Bonds are payable solely from the trust estate including the Issuer's interest in the Loan Agreement and secured by a letter of credit issued pursuant to a Reimbursement Agreement, dated as of November 29, 2000 between the Borrower and Firstar Bank, National Association (the "Credit Bank"), as amended by the First Amendment to the Brookdale III Reimbursement Agreement, dated as of June 1, 2001, between the Company and the Credit Bank. Section 5. The Issuer further finds, determines, and declares that it is in the best interests of the Issuer to (1) provide for the issuance of the Bonds, the disbursement of the proceeds and the security therefor pursuant to the terms of the Indenture; and (2) loan the proceeds of the Bonds to the Borrower in accordance with the provisions of the Loan Agreement. Section 6. The Issuer further finds, determines and declares that, to the best of its knowledge, no member of the governing body or other officer or employee of the Issuer is directly or indirectly interested in the Loan Agreement or the Bond Purchase Agreement (as defined below), the issuance and sale of the Bonds, the Project or any contract, agreement or job contemplated to be undertaken thereunder or with respect thereto which would violate Minnesota Statutes, Sections 10A.07 or 471.88. Section 7. The issuance of the Bonds for the purpose of refunding the Prior Bonds is hereby authorized. The Bonds shall bear interest at a variable rate pursuant to the terms of the Indenture (said rate not to exceed ten percent (10%) per annum, subject to final determination and subsequent adjustments as set forth in the Indenture), shall be in such denomination and form, be numbered and dated, shall mature and be subject to redemption prior to maturity, and shall have such other details and provisions as are prescribed by the Indenture. RESOLUTION NO. 2001-66 Section 8. The Bonds shall be special limited obligations of the Issuer payable solely from and secured by a pledge of the trust estate under the Indenture, including the Issuer's interest in the Loan Agreement, in the manner provided in the Indenture. The Bonds do not constitute an indebtedness, liability, general or moral obligation (except to the extent of the trust estate pledged under the Indenture) or a pledge of the faith and credit or any taxing power of the Issuer, the County, the State of Minnesota, or any political subdivision thereof. The Issuer hereby authorizes and directs the Mayor and the City Manager to execute the Indenture, and to deliver to said Trustee the Indenture, and hereby authorizes and directs the execution and delivery 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 Issuer and the Trustee as set forth therein. 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 Issuer on the date hereof, and is hereby approved with such necessary and appropriate variations, omissions, and insertions as are not materially inconsistent with such form and as the Mayor, in the Mayor's discretion with advice of the city attorney, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 9. The Mayor and the City Manager are hereby designated as the representatives of the Issuer with respect to the issuance of the Bonds and the transactions related thereto and the Mayor is hereby authorized and directed to accept, execute and deliver the Bond Purchase Agreement (the "Bond Purchase Agreement") among the Issuer, the Borrower and U.S. Bancorp Piper Jaffray Inc. (the "Underwriter"). 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 Issuer on the date hereof, and is hereby approved with such necessary and appropriate variations, omissions, and insertions as are not materially inconsistent with such form as the Mayor, in the Mayor's discretion with advice of the city attorney, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 10. The Mayor and the City Manager are hereby authorized and directed to execute and deliver the Loan Agreement with the Borrower, and when executed and delivered as authorized herein, the Loan Agreement shall be deemed to be a part of RESOLUTION NO. 2001-66 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 Loan Agreement shall be substantially in the form on file with the Issuer on the date hereof, which is hereby approved, with such necessary variations, omissions, and insertions as are not materially inconsistent with such form and as the Mayor, in the Mayor's discretion with advice of the city attorney, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 11. All covenants, stipulations, obligations, representations, and agreements of the Issuer contained in this resolution or contained in the Indenture or other documents referred to above shall be deemed to be the covenants, stipulations, obligations, representations, and agreements of the Issuer to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations, representations, and agreements shall be binding upon the Issuer. Except as otherwise provided in this resolution, all rights, powers, and privileges conferred, and duties and liabilities imposed, upon the Issuer by the provisions of this resolution or of the Indenture or other documents referred to above shall be exercised or performed by the Issuer, 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 officer, agent, or employee of the Issuer in that person's individual capacity, and neither the members of the City Council of the Issuer 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. No provision, covenant or agreement contained in the Indenture, the Loan Agreement, the Bond Purchase Agreement, the Bonds or in any other document relating to the Bonds, and no obligation therein or herein imposed upon the Issuer or the breach thereof, shall constitute or give rise to a general obligation of the Issuer or any charge upon its general credit or taxing powers. In making the agreements, provisions, covenants and representations set forth in the Indenture, the Loan Agreement, the Bond Purchase Agreement, the Bonds or in any other document relating to the Bonds, the Issuer has not obligated itself to pay or remit any funds or revenues other than the trust estate described in the Indenture. 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, other than the Issuer, the owners of the Bonds, and the Trustee, as fiduciary for owners of the Bonds, to the extent expressly provided in the Indenture, 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 RESOLUTION NO. 2001-66 and exclusive benefit of the Issuer, the owners of the Bonds, and the Trustee as fiduciary for owners of the Bonds issued under the provisions of this resolution and the Indenture, and the Borrower to the extent expressly provided in the Indenture. Section 13. In case any one or more of the provisions of this resolution or of the Indenture 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 Indenture or of the Bonds, but this resolution, the Indenture, and the Bonds shall be construed as if such illegal or invalid provision had not been contained therein. The terms and conditions set forth in the Indenture, the pledge of revenues derived from the Loan Agreement 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 moneys are all commitments, obligations, and agreements on the part of the Issuer contained in the Indenture, and the invalidity of the Indenture shall not affect the commitments, obligations, and agreements on the part of the Issuer to create such funds and to apply said revenues, other moneys, 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 Issuer 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 Issuer, officers of the Issuer, and attorneys and other agents or employees of the Issuer 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 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 Issuer hereby consents to the distribution of the Official Statement in connection with the sale of the Bonds, in substantially the form of the Official Statement on file with the Issuer as of the date hereof, and ratifies the distribution thereof by the Underwriter; provided that the City Manager may approve such variations, omissions, and insertions as are not materially inconsistent with the form approved by this City Council on the date hereof and with such changes as shall be necessary, in the opinion of legal counsel, to comply with applicable securities laws. RESOLUTION NO. 2001-66 The Official Statement is the sole material authorized by the Issuer for use in connection with the offer and sale of the Bonds, except that copies of the documents referenced above may be provided upon request. Section 17. The Mayor and the City Manager are authorized and directed to execute and deliver any and all certificates, agreements or other documents which are required by the Indenture, the Loan Agreement, the Bond Purchase Agreement or any other 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 148 of the Internal Revenue Code of 1986, as amended; and to take such other administrative action as is permitted or required by the Indenture, the Loan Agreement and the Bond Purchase Agreement. All such agreements or representations when made shall be deemed to be agreements or representations, as the case may be, of the Issuer. 1 Section 18. If for any reason the Mayor is unable to execute and deliver those documents referred to in this resolution, any other member of the City Council of the Issuer 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 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 with the same force and effect as if such documents were executed and delivered by the City Manager. May 14, 2001 Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution and was duly seconded by member Ed Nelson and upon vote being taken thereon, the following voted in favor thereof: Myrna Kragness, Kay Lasman, Ed Nelson, Bob Peppe and Tim Ricker; and the following voted against the same: none; whereupon said resolution was declared duly passed and adopted.