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HomeMy WebLinkAboutResolution No. 2009-094 Authorizing the Execution of a Ground Lease and a Lease Agreement Providing for the Construction of a Public Works Facility and the Lease Thereof by the City, and Approving the Form of a Resolution and an Official Statement • CERTIFICATION OF MINUTES RELATING TO PUBLIC PROJECT REVENUE BONDS, SERIES 2009A (CITY OF EDINA ANNUAL APPROPRIATION LEASE OBLIGATIONS) AND TAXABLE PUBLIC PROJECT REVENUE BONDS (CITY OF EDINA ANNUAL APPROPRIATION LEASE OBLIGATIONS) (BUILD AMERICA BONDS—DIRECT PAYMENT) HOUSING AND REDEVELOPMENT AUTHORITY Municipality: City of Edina Governing Body: City Council Kind, date, time and place of meeting: A regular meeting, held on November 2, 2009, at 7:00 o'clock p.m., at the City Hall, Edina, Minnesota. Members present: Bennett, Brindle, Housh, Swenson and Mayor Hovland Members absent: none Documents Attached: Minutes of said meeting, including: • RESOLUTION NO. 2009-94 RESOLUTION AUTHORIZING THE EXECUTION OF A GROUND LEASE AND A LEASE AGREEMENT PROVIDING FOR THE CONSTRUCTION OF A PUBLIC WORKS FACILITY AND THE LEASE THEREOF BY THE CITY, AND APPROVING THE FORM OF A RESOLUTION AND AN OFFICIAL STATEMENT I,the undersigned, being the duly qualified and acting recording officer of the public corporation issuing the bonds referred to in the title of this certificate, certify that the documents attached hereto, as described above, have been carefully compared with the original records of the corporation in my legal custody, from which they have been transcribed; that the documents are a correct and complete transcript of the minutes of a meeting of the governing body of the corporation, and correct and complete copies of all resolutions and other actions taken and of all documents approved by the governing body at the meeting, insofar as they relate to the bonds; and that the meeting was duly held by the governing body at the time and place and was attended throughout by the members indicated above,pursuant to call and notice of such meeting given as required by law. (� WITNESS my hand officially as such recording on November ,'2009. • City Clerk Councilmember Bennett introduced the following resolution and moved its adoption, which motion was seconded by Councilmember Housh: RESOLUTION NO. 2009-94 RESOLUTION AUTHORIZING THE EXECUTION OF A GROUND LEASE AND LEASE AGREEMENT PROVIDING FOR THE CONSTRUCTION OF A PUBLIC WORKS FACILITY AND THE LEASE THEREOF BY THE CITY, AND APPROVING THE FORM OF A RESOLUTION AND AN OFFICIAL STATEMENT WHEREAS,the City of Edina(the "City") desires to provide adequate facilities for maintenance and public safety; and, WHEREAS, pursuant to Minnesota Statutes, Sections 465.71 and 471.64,the City is authorized to enter into leases of real property, with an option to purchase, provided that the City retains the right to cancel said lease-purchase contract at the end of any fiscal year during its term; and, WHEREAS, pursuant to said statutory authority,the City proposes to enter into a Lease Agreement, dated as of November 1, 2009 (the "Lease"),with the Edina Housing and • Redevelopment Authority (the "Authority"), as lessor, and the City, as lessee, pursuant to which the Authority will acquire, construct and furnish a portion of a public works facility (the "Facility"), and the City will lease a portion of the Facility from the Authority; and, WHEREAS, the Authority (a) authorized the sale of its $2,595,000 Public Project Revenue Bonds, Series 2009A(City of Edina Annual Appropriation Lease Obligations) and its $6,125,000 Taxable Public Project Revenue Bonds, Series 2009B (City of Edina Annual Appropriation Lease Obligations) (Build America Bonds —Direct Payment) (together the "Bonds"), to finance a portion of the cost of acquiring, remodeling, renovating and furnishing the Facility and (b) proposes to adopt resolutions awarding the sale of the Bonds on November 2, 2009 (the "Bond Resolutions); WHEREAS, a form of the Lease and the Bond Resolutions have been submitted to and reviewed by this Council; WHEREAS, a form of the Lease and the Bond Resolutions have been submitted to and, along with the form of a proposed Ground Lease, to be dated as of November 1, 2009 (the "Ground Lease"), between the City, as lessor, and the Authority, as lessee, pursuant to which the City will ground lease to the Authority the real estate upon which the portion of the Facility subject to the Lease is located (as permitted by Minnesota Statutes, Section 465.035). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Edina that the City hereby approves the form of the Lease and Ground Lease and the Mayor and City • Manager are authorized and directed to execute, attest and deliver the Lease and Ground Lease on behalf of the City. All of the provisions of the Lease and Ground Lease, 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 Lease and Ground Lease shall be substantially in the form submitted to this Council with such necessary and appropriate variations, omissions and insertions as permitted or required, or as the Mayor, in his discretion, shall determine, and the execution thereof by the Mayor shall be conclusive evidence of such determination. BE IT FURTHER RESOLVED that the City Council hereby approves the form of the Official Statement, relating to the Bonds (the "Official Statement"), a draft of which has been submitted to and received by this Council, and hereby ratifies and confirms its use and distribution to potential purchasers of the Bonds. BE IT FURTHER RESOLVED that the City hereby approves the terms of the Bond Resolutions and the sale of the Bonds pursuant thereto, and approves the terms of the Bonds as set forth in said Bond Resolutions and the Indenture (as defined in the Bond Resolutions). BE IT FURTHER RESOLVED AS FOLLOWS: (a) Purpose and Beneficiaries. To provide for the public availability of certain information relating to the Bonds and the security therefor and to permit the original purchaser and other participating underwriters in the primary offering of the Bonds to comply with • amendments to Rule 15c2-12 promulgated by the Securities and Exchange Commission (the "SEC") under the Securities Exchange Act of 1934 (17 C.F.R. § 240.15c2-12), relating to continuing disclosure (as in effect and interpreted from time to time, the "Rule"), which will enhance the marketability of the Bonds, the City hereby makes the following covenants and agreements for the benefit of the Owners (as hereinafter defined) from time to time of the Outstanding Bonds (as hereinafter defined). The City is the only "obligated person" in respect of the Bonds within the meaning of the Rule for purposes of identifying the entities in respect of which continuing disclosure must be made. If the City fails to comply with any provisions hereof, any person aggrieved thereby, including the Owners of any Outstanding Bonds, may take whatever action at law or in equity may appear necessary or appropriate to enforce performance and observance of any agreement or covenant contained herein, including an action for a writ of mandamus or specific performance. Direct, indirect, consequential and punitive damages shall not be recoverable for any default hereunder to the extent permitted by law. Notwithstanding anything to the contrary contained herein, in no event shall a default hereunder constitute a default under the Bonds or under any other provision of this resolution. As used herein, "Owner" or"Bondowner"means, in respect of a Bond, the registered owner or owners thereof appearing in the bond register maintained by the Registrar or any `Beneficial Owner" (as hereinafter defined)thereof, if such Beneficial Owner provides to the Registrar evidence of such beneficial ownership in form and substance reasonably • satisfactory to the Registrar. As used herein, `Beneficial Owner"means, in respect of a Bond, -2- any person or entity which(i) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, such Bond(including persons or entities holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of the Bond for federal income tax purposes. As used herein, "Outstanding"means when used with reference to Bonds means all Bonds which have been issued and authenticated by the Registrar except(i) Bonds which have been paid in full (ii) Bonds which have been cancelled by the Registrar or surrendered to the Registrar for cancellation and (iii) Bonds which have been discharged as provided in the Indenture. (b) Information To Be Disclosed. The City will provide, in the manner set forth in subsection (c) hereof, either directly or indirectly through an agent designated by the City, the following information at the following times: (1) on or before 365 days after the end of each fiscal year of the City, commencing with the fiscal year ending December 31, 2010 the following financial information and operating data in respect of the City (the "Disclosure Information"): (A) the audited financial statements of the City for such fiscal year, prepared in accordance with generally accepted accounting principles promulgated by the Financial Accounting Standards Board as modified in accordance with the governmental accounting standards promulgated by the Governmental Accounting Standards Board or as otherwise provided under • Minnesota law, as in effect from time to time, or, if and to the extent such financial statements have not been prepared in accordance with such generally accepted accounting principles for reasons beyond the reasonable control of the City, noting the discrepancies therefrom and the effect thereof, and certified as to accuracy and completeness in all material respects by the fiscal officer of the City; and (B) To the extent not included in the financial statements referred to in paragraph (A)hereof, the information for such fiscal year or for the period most recently available of the type set forth below, which information may be unaudited, but is to be certified as to accuracy and completeness in all material respects by the fiscal officer of the City, to the best of his or her knowledge, which certification may be based on the reliability of information obtained from governmental or other third party sources: Current Property Valuations; Direct Debt; Tax Levies and Collections; Population Trend; Employment/Unemployment. Notwithstanding the foregoing paragraph, if the audited financial statements are not available by the date specified, the City shall provide on or before such date unaudited financial statements in the format required for the audited financial statements as part of the Disclosure Information and,within 10 days after the receipt thereof,the City shall provide the • audited financial statements. -3- Any or all of the Disclosure Information may be incorporated by reference, if it is updated as required hereby, from other documents, including official statements, which have been submitted to each of the repositories hereinafter referred to under subsection (b) or the SEC. If the document incorporated by reference is a final official statement, it must be available from the Municipal Securities Rulemaking Board ("MSRB"). The City shall clearly identify in the Disclosure Information each document so incorporated by reference. If any part of the Disclosure Information can no longer be generated because the operations of the City have materially changed or been discontinued, such Disclosure Information need no longer be provided if the City includes in the Disclosure Information a statement to such effect; provided, however, if such operations have been replaced by other City operations in respect of which data is not included in the Disclosure Information and the City determines that certain specified data regarding such replacement operations would be a Material Fact (as defined in paragraph(2) of this subsection (b)),then, from and after such determination, the Disclosure Information shall include such additional specified data regarding the replacement operations. If the Disclosure Information is changed or resolution is amended as permitted by this paragraph (1) or subsection (d)hereafter,then the City shall include in the next Disclosure Information to be delivered hereunder,to the extent necessary, an explanation of the reasons for the amendment and the effect of any change in the type of financial information or operating data provided. (2) In a timely manner, notice of the occurrence of any of the following events which is a Material Fact (as hereinafter defined): (A) Principal and interest payment delinquencies; (B) Non-payment related defaults; (C) Unscheduled draws on debt service reserves reflecting financial difficulties; (D) Unscheduled draws on credit enhancements reflecting financial difficulties; (E) Substitution of credit or liquidity providers, or their failure to perform; (F) Adverse tax opinions or events affecting the tax-exempt status of the security; (G) Modifications to rights of security holders; (H) Bond calls; (1) Defeasances; (J) Release, substitution, or sale of property securing repayment of the securities; and (K) Rating changes. As used herein, a"Material Fact" is a fact as to which a substantial likelihood exists that a reasonably prudent investor would attach importance thereto in deciding to buy, • hold or sell a Bond or, if not disclosed,would significantly alter the total information otherwise -4- available to an investor from the Official Statement, information disclosed hereunder or information generally available to the public. Notwithstanding the foregoing sentence, a "Material Fact" is also an event that would be deemed "material" for purposes of the purchase, holding or sale of a Bond within the meaning of applicable federal securities laws, as interpreted at the time of discovery of the occurrence of the event. (3) In a timely manner, notice of the occurrence of any of the following events or conditions: (A) the failure of the City to provide the Disclosure Information required under paragraph (1) of this subsection (b) at the time specified thereunder; (B) the amendment or supplementing the provisions hereof pursuant to subsection (d),together with a copy of such amendment or supplement and any explanation provided by the City under paragraph (2) of subsection (d); (C) the termination of the obligations of the City hereunder pursuant to subsection (d); (D) any change in the accounting principles pursuant to which the financial statements constituting a portion of the Disclosure Information are prepared; and (E) any change in the fiscal year of the City. (c) Manner of Disclosure. The City agrees to make available the information described in subsection (b)to the following entities by telecopy, overnight delivery, mail or other means, as appropriate: (1) The City agrees to make available to the MSRB, in an electronic format as prescribed by the MSRB from time to time, the information described in subsection(b). (2) The City further agrees to make available, by electronic transmission, overnight delivery, mail or other means, as appropriate, the information described in subsection (b)to any rating agency then maintaining a rating of the Bonds at the request of the City and, at the expense of such Bondowner, to any Bondowner who requests in writing such information, at the time of transmission under paragraph (1) of this subsection (c), or, if such information is transmitted with a subsequent time of release, at the time such information is to be released. (3) All documents provided to the MSRB pursuant to this subsection (c) shall be accompanied by identifying information as prescribed by the MSRB from time to time. (d) Term; Amendments; Interpretation. (1) The covenants of the City herein shall remain in effect so long as any Bonds • are Outstanding. Notwithstanding the preceding sentence, however,the obligations of the City -5- hereunder shall terminate and be without further effect as of any date on which the City delivers to the Trustee, as defined in the Bond Resolution, an opinion of Bond Counsel to the effect that, because of legislative action or final judicial or administrative actions or proceedings, the failure of the City to comply with the requirements hereof will not cause participating underwriters in the primary offering of the Bonds to be in violation of the Rule or other applicable requirements of the Securities Exchange Act of 1934, as amended, or any statutes or laws successory thereto or amendatory thereof. (2) This resolution (and the form and requirements of the Disclosure Information) may be amended or supplemented by the City from time to time,without notice to (except as provided in paragraph (3) of subsection (b)) or the consent of the Owners of any Bonds, by a resolution of this Council filed in the office of the recording officer of the City accompanied by an opinion of Bond Counsel,who may rely on certificates of the City and others and the opinion may be subject to customary qualifications, to the effect that: (i) such amendment or supplement (a) is made in connection with a change in circumstances that arises from a change in law or regulation or a change in the identity, nature or status of the City or the type of operations conducted by the City, or (b) is required by, or better complies with,the provisions of paragraph (b)(5) of the Rule; (ii) this resolution as so amended or supplemented would have complied with the requirements of paragraph (b)(5) of the Rule at the time of the primary offering of the Bonds, giving effect to any change in circumstances applicable under clause (i)(a) and assuming that the Rule as in effect and interpreted at the time of the amendment or supplement was in effect at the time of the primary offering; and (iii) such amendment or supplement does not materially impair the interests of the Bondowners under the Rule. If the Disclosure Information is so amended,the City agrees to provide, contemporaneously with the effectiveness of such amendment, an explanation of the reasons for the amendment and the effect, if any, of the change in the type of financial information or operating data being provided hereunder. (3) This resolution is entered into to comply with the continuing disclosure provisions of the Rule and should be construed so as to satisfy the requirements of paragraph (b)(5) of the Rule. BE IT FINALLY RESOLVED that this resolution shall be in full force and effect from and after its passage and that a certified copy hereof be provided to the Authority. Upon vote being taken thereon,the following voted in favor thereof: Hovland, Housh, Swenson, Bennett, Brindle and the following voted against the same: None • whereupon the resolution was declared duly passed and adopted. -6-