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2004-28 .. e CITY OF CHANHASSEN, MINNESOTA Resolution No. 2004-28 A RESOLUTION OF THE CITY OF CHANHASSEN, MINNESOTA APPROVING SUPPLEMENT NUMBER ONE TO INDENTURE OF TRUST AND AUTHORIZING ITS EXECUTION AND DELIVERY AND THE EXECUTION AND DELIVERY OF RELATED DOCUMENTS WITH RESPECT TO ITS MULTIFAMILY HOUSING REVENUE BONDS (VILLAGE ON THE PONDS PROJECT) SERIES 2003, ISSUED IN THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT OF $5,530,000 WHEREAS, the City of Chanhassen, Minnesota (the "Issuer") is duly organized and existing under 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 Issuer 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 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 e WHEREAS, pursuant to the Act, the Issuer has issued its Multifamily Housing Revenue Bonds (Village on the Ponds Project) Series 2003, in the original aggregate principal amount of $5,530,000 (the "Bonds"), for the purpose of financing the acquisition and construction of a qualified residential rental project known as the Village on the Ponds (the "Project") by VOP I, LLC, a Minnesota limited liability company (the "Company"), which Bonds are payable solely from the amounts pledged therefor under the Indenture of Trust, dated as of May I, 2003 (the "Indenture"), between the Issuer and Wells Fargo Bank, National Association, as successor to Wells Fargo Bank Minnesota, National Association (the ''Trustee''); and WHEREAS, due to unforeseen events, the Company has not yet acquired the Project, and the proceeds of the Bonds continue to be invested pending their application to acquisition and construction of the Project, but are scheduled to be used to redeem and retire the Bonds on May I, 2004; and WHEREAS, the Company has advised the Issuer that it will proceed with the acquisition and construction of the Project and requests the extension of the availability of the Bonds for such purpose as contemplated hereby; and e 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 1 .. pledged in the Indenture) are 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), and in any event shall not give rise to a charge against the credit or taxing power of the Issuer, the State of Minnesota, or any political subdivision thereof; NOW, THEREFORE, BE IT RESOL YED BY THE CITY COUNCIL OF THE CITY OF CHANHASSEN, MINNESOTA THAT: Section 1. In order to facilitate the tax-exempt financing of the Project, the Company has requested that the Issuer approve Supplement Number One to Indenture of Trust, dated May 1, 2004, (the "Supplement"), between the Issuer and the Trustee, substantially in the form now on file with the Issuer. Section 2. The City Council of the Issuer finds, determines, and declares that the Supplement will further the purposes of the Project and is in the interests of the Issuer. The Issuer hereby authorizes and directs the Mayor of the Issuer (the "Mayor") and the City Manager of the Issuer (the "City Manager") to execute the Supplement, and to deliver the Supplement to the Trustee, the Company, and the Owner for their respective signatures. All of the provisions of the Supplement, 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 e thereof. The Supplement shall be substantially in the form on file with the Issuer 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 3. The Mayor and the City Manager are hereby authorized and directed to execute Amendment Number One to Loan Agreement, dated as of May 1, 2004 (the "Amendment"), between the Issuer and the Company, substantially in the form now on file with the Issuer. When executed and delivered as authorized herein, the Amendment 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 Amendment 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 his discretion, shall determine; provided that the execution thereof by the Mayor shall be conclusive evidence of such determination. Section 4. The Mayor and the City Manager are hereby designated as the representatives of the Issuer with respect to the Supplement, the Amendment, and the Bonds e and the transactions related thereto. As a condition to the execution and delivery of the 2 e e e Supplement and the Amendment by the Issuer, the Company shall pay to the Issuer any expenses paid or incurred by the Issuer with respect to the execution and delivery of the Supplement and the Amendment. Section 5. All covenants, stipulations, obligations, representations, and agreements of the Issuer contained in this resolution or contained in the Supplement,. the Amendment, 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 Supplement, the Amendment, 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 Supplement, the Amendment, 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. ' Section 6. Except as herein otherwise expressly provided, nothing in this resolution or in the Supplement or the Amendment, expressed or implied, is intended or shall be construed to confer upon any person, fIrm, or corporation other than the Issuer, 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 Supplement or the Amendment; this resolution, the Supplement, the Amendment, and all of their provisions being intended to be and being for the sole and exclusive benefIt of the Issuer and the Trustee as fIduciary for owners of the Bonds and the Company to the extent expressly provided in the Indenture. Section 7. In case anyone or more of the provisions of this resolution or of the Supplement, the Amendment, or the Bonds 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 Supplement, the Amendment, or the Bonds, but this resolution, the Supplement, the Amendment, 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 Supplement, the pledge of revenues derived from the Project referred to in the Indenture, the Supplement, and the Amendment, the pledge of collateral derived from the Project referred to in the Indenture, the Supplement, and the Amendment, and the creation of the funds provided for in the Indenture are all commitments, obligations, and agreements on the part of the Issuer contained in the Indenture, the Supplement, and the Amendment, and the invalidity of the Indenture, the Supplement, or the Amendment shall not affect the commitments, obligations, and 3 " agreements on the part of the Issuer, 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, the Supplement, and the Amendment. Section 8. All acts, conditions, and things required by the laws of the State of Minnesota, relating to the adoption of this resolution and to the execution of the Supplement, the Amendment, 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 execution of the Supplement, the Amendment, and the other documents referred to above have happened, exist, and have been performed as so required by law. Section 9. 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 Supplement, the Amendment, 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, the Supplement, the Amendment, and the other documents referred to above, and this resolution. Section 10. The Mayor and the City Manager of the Issuer are authorized and directed to execute and deliver any and all certificates, agreements or other documents which are required or deemed necessary by bond counsel to evidence the validity or enforceability ,. of the Bonds, the Indenture, the Supplement, the Amendment, or the other documents ,., referred to in this resolution, or to evidence compliance with Section 142(d) of the Internal Revenue Code of 1986, as amended; and all such agreements or representations when made shall be deemed to be agreements or representations, as the case may be, of the Issuer. Section 11. If for any reason the Mayor of the Issuer 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 of the Issuer 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 Councilor the Assistant City Manager with the same force and effect as if such documents were executed . and delivered by the City Manager. Section 12. This resolution shall be in full force and effect from and after its passage. e 4 * .. e PASSED AND APPROVED this 26th day of April, 2004. CITY OF CHANHASSEN, MINNESOTA Mayor ATTEST: _'l4 ~ J;t;(- City Clerk MI:I094083.01 YES NO ABSENT Furlong None None e Ayotte Labatt Lundquist Peterson e 5