Res 2004- 17 Sale of School Facility Refund Note Series 2004Extract of Minutes of a Meeting of the
City Council of the City of Mendota Heights
Pursuant to due call and notice thereof, a regular meeting of the City Council of
the City of Mendota Heights, Minnesota was duly held in the City on Tuesday, March 16, 2004,
at 7:30 o'clock P.M.
The following members were present: Huber, Krebsbach, Vitelli,
and Schneeman
and the following were absent: Duggan
its adoption:
During said meeting Vitell± introduced the following resolution and moved
RESOLUTION NO. 0 4 -1 7
RESOLUTION APPROVING THE ISSUANCE AND SALE OF THE
SCHOOL PAC-II-HY REVENUE REFUNDING NOTE, SERIES 2004 AND
AUTHORIZING THE EXECUTION OF DOCUMENTS RELATING THERETO
(ACADEMY OF THE VISITATION PROJECT)
The motion for the adoption of the foregoing resolution was duly seconded by
Member • • • • • , and after full discussion thereof and upon vote being
taken thereon, the following voted in favor thereof:
Huber, Krebsbach, Vitelli and Schneeman
and the following voted against the same: None
whereupon said resolution was declared duly passed and adopted.
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RESOLUTION APPROVING THE ISSUANCE AND SALE OF THE
SCHOOL FACILITY REVENUE REFUNDING NOTE, SERIES 2004
AND AUTHORIZING THE EXECUTION OF DOCUMENTS RELATING THERETO
(ACADEMY OF THE VISITATION PROJECT)
WHEREAS,
(a) Minnesota Statutes, Chapter 469.152 to 469.1651 (the "Act ") as found and
determined by the legislature is to promote the welfare of the state by the active attraction and
encouragement and development of economically sound industry and commerce to prevent so far
as possible the emergence of blighted and marginal lands and areas of chronic unemployment;
(b) Factors necessitating the active promotion and development of
economically sound industry and commerce are the increasing concentration of population in the
metropolitan areas and the rapidly rising increase in the amount and cost of governmental
services required to meet the needs of the increased population and the need for development of
land use which will provide an adequate tax base to finance these increased costs and access to
education and employment opportunities for such population;
(c) The City of Mendota Heights, Minnesota (the "City ") issued its
$3,000,000 School Facility Revenue Note, Series 2002 (Academy of the Visitation Project) (the
"Prior Note ") to assist in financing the acquisition, construction and equipping of an
approximately 30,000 square foot middle school and high school addition to an existing
education facility located at 2455 Visitation Drive (collectively, the "Project ") for the Convent
and Academy of the Visitation, a Minnesota nonprofit corporation organized under the laws of
the State of Minnesota (the "Borrower ").
(d) The Borrower desires to refund the Prior Note through the City's issuance
of the School Facility Revenue Refunding Note, Series 2004 (the "Note ") and extend the
repayment term.
BE IT RESOLVED by the City Council of the City of Mendota Heights,
Minnesota (the "City "), as follows:
SECTION 1. LEGAL AUTHORIZATION AND FINDINGS.
1.1 Findings. The City hereby finds, determines and declares as follows:
(a) The City is a political subdivision of the State of Minnesota and is
authorized under the Act to assist the revenue producing project herein referred to, and to
issue and sell the Note, as hereinafter defined, for the purpose, in the manner and upon
the terms and conditions set forth in the Act and in this Resolution.
(b) 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 Wells Fargo Brokerage Services, LLC (the "Lender "), as provided herein. The
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City will loan the proceeds of the Note (the "Loan ") to the Borrower in order to refinance
the Prior Note.
(c) Pursuant to a Loan Agreement (the "Loan Agreement ") to be entered into
between the City and the Borrower, the Borrower has agreed to repay the Note 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 Loan Agreement contains
provisions relating to the Project, indemnification, insurance, and other agreements and
covenants which are required or permitted by the Act and which the City and the
Borrower deem necessary or desirable for the refinancing of the Prior Note. A draft of
the Loan Agreement has been submitted to the City Council.
(d) Pursuant to a Pledge Agreement to be entered into between the City and
the Lender, the City has pledged and granted a security interest in all of its rights, title,
and interest in the Loan Agreement to the Lender (except for certain rights of
indemnification and to reimbursement for certain costs and expenses). A draft of the
Pledge Agreement has been submitted to the City Council.
(e) The Note will be a special limited obligation of the City. The Note shall
not be payable from or charged upon any funds other than the revenues pledged to the
payment thereof, nor shall the City be subject to any liability thereon. 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 shall not constitute a debt of the City within the meaning of any
constitutional or statutory limitation.
(f) It is desirable, feasible and consistent with the objects and purposes of the
Act to issue the Note, for the purpose of refinancing the Prior Note.
SECTION 2. THE NOTE.
2.1 Authorized Amount and Form of Note. The Note issued pursuant to this
Resolution shall be in substantially the form submitted to the City with such appropriate
variations, omissions and insertions as are permitted or required by this Resolution, and in
accordance with the further provisions hereof; and the total aggregate principal amount of the
Note that may be outstanding hereunder is expressly limited to $1,975,000, unless a duplicate
Note is issued pursuant to Section 2.7. The Note shall bear interest at a rate not to exceed 5% per
annum.
2.2 The Note. The Note shall be dated as of the date of delivery to the Lender, shall
be payable at the times and in the manner, shall bear interest at the rate, and shall be subject to
such other terms and conditions as are set forth therein.
2.3 Execution. The Note shall be executed on behalf of the City by the signatures of
its Mayor and Finance Director and shall be sealed with the seal of the City; provided that the
seal may be intentionally omitted as provided by law. In case any 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 had remained in office
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until delivery. In the event of the absence or disability of the Mayor or the Finance Director 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 Council execute and deliver the Note.
2.4 Delivery of Initial Note. Before delivery of the Note there shall be filed with the
Lender (except to the extent waived by the Lender) the following items:
(1) an executed copy of each of the following documents:
(a) the Loan Agreement;
(b) the Pledge Agreement;
(2) an opinion of Counsel for the Borrower as prescribed by the Lender and
Bond Counsel;
(3)
Note;
the opinion of Bond Counsel as to the validity and tax exempt status of the
(4) a 501(c)(3) determination letter from the Internal Revenue Service
evidencing that the Borrower is exempt from income taxation under Section 501(c)(3) of
the Code;
(5) such other documents and opinions as Bond Counsel may reasonably
require for purposes of rendering its opinion required in subsection (3) above or that the
Lender may reasonably require for the closing.
2.5 Disposition of Note Proceeds. Upon delivery of the Note to the Lender, the
Lender shall, on behalf of the City, advance the proceeds of the Note to the City to prepay the
Prior Note on the date the Note is issued (the "Refunding ").
2.6 Registration of Transfer. The City will cause to be kept at the office of the City
Finance Director 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 Lender and shall be transferable upon the
Note Register by the Lender in person or by its agent duly authorized in writing, upon surrender
of the Note together with a written instrument of transfer satisfactory to the City Finance
Director, duly executed by the Lender or its duly authorized agent. The following form of
assignment shall be sufficient for said purpose.
For value received hereby sells, assigns and transfers unto
the within Note of the City of Mendota Heights, 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 Section 2.9 of the Resolution authorizing the
issuance of the Note.
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Dated:
Registered Owner
Upon such transfer the City Finance Director shall note the date of registration and the name and
address of the new Lender in the Note Register and in the registration blank appearing on the
Note.
2.7 Mutilated, Lost or Destroyed Note. In case any Note issued hereunder 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 Lender's paying 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 te>_uis it shall not be necessary to issue a new Note prior to payment.
2.8 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.
2.9 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 (i) in amounts not less than
$100,000, (ii) to not more than 35 persons each of whom have knowledge and experience in
financial business matters and that are capable of evaluating the merits and rules of the
investment in the Note and are not purchasing for more than one account or with a view to
distributing the Note or their interest therein. Any such sale, assignment or participation shall
also be (i) in full good faith compliance with all securities registration, broker, anti -fraud and
other provisions of the applicable state and federal laws, (ii) with full and accurate disclosure of
all material facts to the prospective purchaser(s) or transferee(s), and (iii) under effective federal
and state registration statements (which neither the City nor the Borrower shall in any way be
obligated to provide) or under exemptions from such registrations.
2.10 Issuance of New Notes. Subject to the provisions of Section 2.9, the City shall, at
the request and expense of the Lender, issue new notes, in aggregate outstanding principal
amount equal to that of the Note surrendered, and of like tenor except as to number, principal
amount, and the amount of the monthly installments payable thereunder, and registered in the
name of the Lender or such transferee as may be designated by the Lender.
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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 herein
contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any
one or more phrases, sentences, clauses or paragraphs in this Resolution contained 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 Loan
Agreement and the Pledge Agreement are hereby approved in substantially the form heretofore
presented to the City Council, 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 and the City Attorney prior to the
execution of the documents, and the Mayor and Finance Director of the City are authorized to
execute the Loan Agreement and the Pledge Agreement in the name of and on behalf of the City
and such other documents as Bond Counsel consider appropriate in connection with the issuance
of the Note. In the event of the absence or disability of the Mayor or the Finance Director 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 Council 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 Qualified Tax Exempt Obligation. In order to qualify the Note as a "qualified tax -
exempt obligation" within the meaning of Section 265(b)(3) of the Internal Revenue Code of
1986, as amended (the "Code "), the City hereby makes the following factual statements and
representations;
(a) the Note is not treated as a "private activity bond" under Section 265(b)(3)
of the Code;
(b) the City hereby designates the Note as a qualified tax - exempt obligation
for purposes of Section 265(b)(3) of the Code;
(c) the reasonably anticipated amount of tax - exempt obligations (other than
obligations described in clause (ii) of Section 265(b)(3)(C) of the Code) which will be
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f(
issued by the City (and all entities whose obligations will be aggregated with those of the
City) during the calendar year 2004 will not exceed $10,000,000;
(d) not more than $10,000,000 of obligations issued by the City during the
calendar year 2004 have been designated for purposes of Section 265(b)(3) of the Code;
(e) the aggregate face amount of the Note does not exceed $10,000,000; and
(f) the Note is issued to refund, and not to "advance refund" the Prior Note
within the meaning of Section 149(d)(5) of the Code, and shall not be taken into account
under the $10,000,000 issuance limit to the extent the Note does not exceed the
outstanding amount of the Prior Note.
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Adopted by the City council of the City of Mendota Heights, Minnesota, this 16th
day of March, 2004.
ATTEST:
Ci y Clerk
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STATE OF MINNESOTA
COUNTY OF DAKOTA
CITY OF MENDOTA HEIGHTS
I, the undersigned, being the duly qualified and acting Clerk of the City of Mendota
Heights, DO HEREBY CERTIFY that I have compared the attached and foregoing extract of
minutes with the original thereof on file in my office, and that the same is a full, true and
complete transcript of the minutes of a meeting of the City Council duly called and held on the
date therein indicated, insofar as such minutes relate to a resolution authorizing the issuance of a
revenue refunding note.
WITNESS my hand this I %ay of March, 2004.
CYerk
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