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HomeMy WebLinkAbout11A Multifamily Housing Revenue Bonds City Council Action Request Form Meeting Date 9/7/2016 Department Finance Agenda Category Regular Agenda Title Multifamily Housing Revenue Bonds Staff Recommendation Adopt Resolution 2016-XXX authorizing the issuance, sale, and delivery of multifamily housing revenue bonds. Budget Implication Attachments Memo from Julie Eddington Draft Resolution Offices in 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis Minneapolis, MN 55402 (612) 337-9300 telephone Saint Paul (612) 337-9310 fax www.kennedy-graven.com St. Cloud Affirmative Action, Equal Opportunity Employer JA. E ULIE DDINGTON Attorney at Law Direct Dial (612) 337-9213 Email: jeddington@kennedy-graven.com August 29, 2016 Robin Roland Finance Director City of Cottage Grove 12800 Ravine Parkway South Cottage Grove, MN 55016 Re: Resolution approving the issuance of multifamily housing revenue obligations by the City of Cottage Grove Dear Robin, As you know, Cottage Grove Leased Housing Associates I, LLLP, a Minnesota limited liability limited partnership, or any of its affiliates (collectively, the “Borrower”), is working with the City of Cottage Grove (the “City”) to finance the acquisition, construction, and equipping of an approximately 184-unit housing facility and functionally related facilities with underground parking to be located on East Point th Douglas Road South near the intersection of Highway 61 and 80 Street in the City (the “Project”). The Project will be owned and operated by the Borrower. To finance this Project, the Borrower is requesting that the City issue multifamily housing revenue obligations, in one or more series, as taxable or tax-exempt obligations (the “Notes”), in the estimated aggregate principal amount not to exceed $25,000,000. The Notes, if issued, will be considered “housing bonds” issued pursuant to Minnesota Statutes, Chapter 462C, as amended (the “Act”). On May 4, 2016, the City Council conducted a public hearing with respect to the issuance of the Notes for the benefit of the Borrower and approved a housing program (the “Housing Program”) with respect to the Project in accordance with the Act. The Borrower initially intended for all units within the Project to be restricted to persons at least 55 years of age. Since the adoption of the Housing Program, the Borrower decided to instead reserve eighty percent (80%) of the units within the Project for occupation by at least one person age 55 and older. The remaining twenty percent (20%) of the units will not be subject to age restrictions. Section 146 of the Internal Revenue Code of 1986, as amended (the “Code”), requires that this type of housing bond receive an allocation of bonding authority of the State of Minnesota. On August 1, 2016, the Notes received an allocation of bonding authority of the State of Minnesota in the amount of $18,422,674. The City Council is being asked to consider the enclosed resolution at its meeting on September 7, 2016, which provides final approval to the issuance of the Notes and the execution of loan documents and related documents. This resolution also approves an amendment to the Housing Program to include the proposed change in age restrictions for the units of the Project. 485524v1 JAE CT160-166 If the City agrees to issue the Notes, the Notes will be conduit revenue bonds, which are currently expected to be issued in a taxable series and a tax-exempt series. The principal amount of the tax-exempt series will not exceed $18,422,674 (the amount of bonding authority allocated to the Notes). The Borrower is required to pay all debt service on the proposed Notes and any other fees or expenses of the City incurred in relation to the Notes, including but not limited to legal expenditures, publication costs, the City’s administrative fee, costs of future modifications, and costs related to any audits by the State of Minnesota or the Internal Revenue Service. The Notes will be secured solely by the revenues derived from one or more loan agreements to be executed by the Borrower and from other security provided by the Borrower and its affiliates. The Notes will not constitute a general or moral obligation of the City and will not be secured by or payable from any property or assets of the City (other than the interests of the City in the loan agreement) and will not be secured by any taxing power of the City. The Notes will not be subject to any debt limitation imposed on the City, and the issuance of the Notes will not have any adverse impact on the credit rating of the City, even in the event that the Borrower encounters financial difficulties with respect to the Project to be financed with the proceeds of the Notes. The Notes, if issued, will be “private activity bonds” within the meaning of Section 141(a) of the Code but will be “exempt facility bonds” the net proceeds of which are to be used to provide a “qualified residential rental project” within the meaning of Sections 142(a)(7) and 143(d) of the Code and will not affect the City’s ability to designate up to $10,000,000 in tax-exempt bonds as “qualified tax-exempt obligations” (or “bank-qualified bonds”) for calendar year 2016. The Borrower will agree to pay the out-of-pocket expenses of the City with respect to this transaction as well as the City’s administrative fee. I will attend the City Council meeting on September 7, 2016 and can answer any questions that may arise during the meeting. Please contact me with any questions you may have prior to the City Council meeting. Sincerely, Julie A. Eddington 485524v1 JAE CT160-166 CITY OF COTTAGE GROVE, MINNESOTA RESOLUTION NO. _________ RESOLUTION AUTHORIZING THE ISSUANCE, SALE, AND DELIVERY OF MULTIFAMILY HOUSING REVENUE NOTES; APPROVING AN AMENDED HOUSING PROGRAM; AND APPROVING THE FORMS OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE NOTES AND RELATED DOCUMENTS BE IT RESOLVED by the City Council (the “Council”) of the City of Cottage Grove, Minnesota (the “City”) as follows: Section 1. Recitals. 1.01. Pursuant to Minnesota Statutes, Chapter 462C, as amended (the “Act”), the City is authorized to carry out the public purposes described in the Act by providing for the issuance of revenue obligations to provide funds to finance multifamily housing developments located within the City. 1.02. Cottage Grove Leased Housing Associates I, LLLP, a Minnesota limited liability limited partnership, or any of its affiliates (collectively, the “Borrower”), has proposed that the City issue its revenue obligations, in one or more series, as taxable or tax-exempt obligations (the “Notes”), in an estimated aggregate principal amount not to exceed $25,000,000, for the benefit of the Borrower for the purposes of (i) financing the acquisition, construction, and equipping of an approximately 184-unit housing facility and functionally related facilities with underground parking to be located on East Point th Douglas Road South near the intersection of Highway 61 and 80 Street in the City (the “Project”); (ii) funding one or more reserve funds to secure the timely payment of the Notes, if necessary; (iii) financing capitalized interest during the construction of the Project, if necessary; and (iv) paying the costs of issuance of the Notes. The Project will be owned and operated by the Borrower. 1.03. On May 4, 2016, the Council conducted a duly noticed public hearing pursuant to Section 147(f) of the Internal Revenue Code of 1986, as amended (the “Code”), and Section 462C.04, subdivision 2 of the Act. Following the public hearing, the Council adopted Resolution No. 2016-096, which approved the housing program providing the information required by Section 462C.03, subdivision 1a of the Act (the “Housing Program”). The Housing Program was submitted to Metropolitan Council for its review and comment in accordance with Section 462C.04, subdivision 2 of the Act. 1.04. As described in the Housing Program, the Borrower initially intended for all housing units in the Project to be occupied by at least one person who is 55 years of age or older at the time of initial occupancy. However, subsequent to the approval of the Housing Program by the Council, the Borrower has proposed to instead reserve eighty percent (80%) of the units within the Project for occupation by at least one person age 55 and older. The remaining twenty percent (20%) of the units within the Project will be not subject to age restrictions. 1.05. On August 1, 2016, the Notes received an allocation of bonding authority of the State of Minnesota in the amount of $18,422,674. Such allocation was made pursuant to the requirements of Minnesota Statutes, Chapter 474A, as amended. 484702v3 JAE CT160-166 Section 2. Amended Housing Program. Section C(5) of the Housing Program, as previously approved by the Council, is hereby amended to state the following: “From the commencement of the Qualified Project Period, eighty percent (80%) of the Housing Units within the Project shall be occupied by at least one person who is at least 55 years of age at the time of initial occupancy.” This amendment to the Housing Program has been submitted to Metropolitan Council in accordance with Section 462C.04, subdivision 2 of the Act, in the form of an Amended and Restated Housing Program for a Multifamily Housing Development. Section 3. The Notes. 3.01. The Borrower has requested that the City issue, sell, and deliver the Notes, in one or more series, as taxable or tax-exempt obligations, in an aggregate principal amount not to exceed $25,000,000. In accordance with the allocation of bonding authority received from the State of Minnesota, any of the Notes issued on a tax-exempt basis (the “Tax-Exempt Notes”) shall be in an aggregate principal amount not to exceed $18,422,674. 3.02. The Notes will be issued pursuant to a Funding Loan Agreement (the “Funding Loan Agreement”), between the City, BMO Harris Bank, N.A., a national banking association, or another financial institution selected by the Borrower (the “Funding Lender”), and U.S. Bank National Association, a national banking association, or another financial institution selected by the Borrower (the “Fiscal Agent”). The proceeds derived from the sale of the Notes (the “Funding Loan”) will be loaned by the City to the Borrower (the “Project Loan”) pursuant to the terms of a Project Loan Agreement (the “Project Loan Agreement”), between the City, the Fiscal Agent, and the Borrower. 3.03. The principal of and interest on the Project Loan will be paid from loan repayments to be made by the Borrower under the terms of the Project Loan Agreement, and as security for the repayment of principal of and interest on the Project Loan, the Borrower will execute and deliver to the City a mortgage agreement (the “Mortgage”) to be assigned by the City to the Fiscal Agent pursuant to an assignment of mortgage (the “Mortgage Assignment”). Additionally, the Borrower will issue one or more project notes (the “Project Notes”) to the City to be endorsed by the City to the Fiscal Agent as security for the Funding Loan. 3.04. The Notes will be issued pursuant to this resolution and the Act, and the Notes and the interest thereon (i) shall be payable solely from the revenues pledged therefor under the Funding Loan Agreement and the Project Loan Agreement and additional sources of revenues provided by or on behalf of the Borrower; (ii) shall not constitute a debt of the City within the meaning of any constitutional 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 equitable, upon any property of the City other than the City’s interest in the Funding Loan Agreement and the Project Loan Agreement; and (v) shall not constitute a general or moral obligation of the City. 3.05. The loan repayments to be made by the Borrower under the Funding Loan Agreement and the Project Loan Agreement will be fixed so as to produce revenue sufficient to pay the principal of, premium, if any, and interest on the Notes when due. Pursuant to the Funding Loan Agreement, the City will assign its rights to the basic payments and certain other rights under the Project Loan Agreement, the Project Loan, the Project Notes, the Mortgage, and certain moneys and securities held by the Fiscal Agent in the funds and accounts established under the Funding Loan Agreement to the Fiscal Agent. 3.06. The City acknowledges, finds, determines, and declares that the issuance of the Notes is authorized by the Act and is consistent with the purposes of the Act and that the issuance of the Notes, and the other actions of the City under the Funding Loan Agreement and the Project Loan Agreement and 2 484702v3 JAE CT160-166 this resolution constitute a public purpose and are in the interests of the City. In authorizing the issuance of the Notes for the financing of the Project and the related costs, the City’s purpose is and the effect thereof will be to promote the public welfare of the City and its residents by providing multifamily housing developments for seniors and residents of the City of low or moderate income and otherwise furthering the purposes and policies of the Act. 3.07. For the purposes set forth above, there is hereby authorized the issuance, sale, and delivery of the Notes in the approximate aggregate principal amount of $25,000,000. The Notes shall bear interest at the rates, shall be designated, shall be numbered, shall be dated, shall mature, shall be in the aggregate principal amount, shall be subject to redemption prior to maturity, shall be in such form, and shall have such other terms, details, and provisions as are prescribed in the form of Notes now on file with the City, with the amendments referenced herein. The City hereby authorizes the Tax-Exempt Notes be issued, in whole or in part, as “tax-exempt bonds,” the interest on which is not includable in gross income for federal and State of Minnesota income tax purposes. All of the provisions of the Notes, 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 Notes shall be substantially in the forms on file with the City, which forms are hereby approved, with such necessary and appropriate variations, omissions, and insertions (including changes to the aggregate principal amount of the Notes, the stated maturities of the Notes, the interest rates on the Notes and the terms of redemption of the Notes) as the Mayor and the City Administrator, in their discretion, shall determine. The execution of the Notes with the manual or facsimile signatures of the Mayor and the City Administrator and the delivery of the Notes by the City shall be conclusive evidence of such determination. 3.08. The Notes shall be special, limited obligations of the City payable solely from the revenues provided by the Borrower pursuant to the Project Loan Agreement, including revenues derived from the Project. The Council hereby authorizes and directs the Mayor and the City Administrator to execute the Notes in accordance with the terms thereof. 3.09. The Mayor and the City Administrator are hereby authorized and directed to execute and deliver the Funding Loan Agreement and the Project Loan Agreement. All of the provisions of the Funding Loan Agreement and the Project Loan 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 Funding Loan Agreement and the Project Loan Agreement shall be substantially in the form on file with the City which is hereby approved, with such omissions and insertions as do not materially change the substance thereof, and as the Mayor and the City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and the City Administrator shall be conclusive evidence of such determinations. 3.10. To ensure compliance with certain rental and occupancy restrictions imposed by the Act and Section 142(d) of the Code, and to ensure compliance with certain restrictions imposed by the City, the Mayor and City Administrator are also hereby authorized and directed to execute and deliver a Regulatory Agreement (the “Regulatory Agreement”) between the City, the Borrower, and the Fiscal Agent. All of the provisions of the Regulatory 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 Regulatory Agreement shall be substantially in the form on file with the City which is hereby approved, with such omissions and insertions as do not materially change the substance thereof, or as the Mayor and 3 484702v3 JAE CT160-166 the City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and the City Administrator shall be conclusive evidence of such determination. 3.11. The Mayor and the City Administrator are hereby authorized to execute and deliver, on behalf of the City, such other documents and certificates as are necessary or appropriate in connection with the issuance, sale, and delivery of the Notes, including the Mortgage Assignment, the endorsement of the Project Notes to the Fiscal Agent, various certificates of the City, an Information Return for Tax-Exempt Private Activity Bond Issues, Form 8038 (Rev. April 2011), with respect to the Tax-Exempt Notes, an endorsement of the City to the tax certificate of the Borrower, and similar documents, and all other documents and certificates as shall be necessary and appropriate in connection with the issuance, sale, and delivery of the Notes. The City hereby authorizes Kennedy & Graven, Chartered, as bond counsel (“Bond Counsel”), to prepare, execute, and deliver its approving legal opinions with respect to the Notes. 3.12. The City hereby authorizes the Borrower to provide such security for payment of its obligations under the Funding Loan Agreement and the Project Loan Agreement and for payment of the Notes, including the Mortgage, one or more guaranties, or any other security agreed upon by the Borrower, Fiscal Agent, and the Funding Lender, and the City hereby approves the execution and delivery of such security. Section 4. Development Agreements. On June 15, 2016, the Council approved the execution and delivery of a Contract for Private Development (the “Contract”), between the City, the Cottage Grove Economic Development Authority (the “Authority”), and the Borrower, as developer, relating to the development of the Project. There have been presented before this Council forms of the following documents (collectively, the “Development Agreements”): (i) a Subordination Agreement (Governmental Entity) (the “Subordination”), proposed to be entered into between the City, the Authority, and the Fiscal Agent, subordinating certain of the City’s and Authority’s rights in the Contract to the rights of the Fiscal Agent under the Mortgage; (ii) a Collateral Assignment and Subordination of Development Agreement (the “Assignment of the Development Agreement”), proposed to be entered into by the Borrower in favor of the Funding Lender and consented to by the City and the Authority; and (iii) a Collateral Assignment of Tax Increment Financing Note and Available Tax Increment (the “Assignment of TIF Note”), proposed to be entered into by the Borrower in favor of the Fiscal Agent and consented to by the City and the Authority. The Mayor and the City Administrator are hereby authorized and directed to execute and deliver, on behalf of the City, the Development Agreements in substantially the forms on file with the City which are hereby approved, with such omissions and insertions as do not materially change the substance thereof, and as the Mayor and the City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and the City Administrator shall be conclusive evidence of such determinations. Section 5. Additional Findings and Certifications. 5.01. The Notes are authorized to be issued in an amount not to exceed $25,000,000. The Tax-Exempt Notes are expected to be issued in the maximum principal amount of $18,422,674. 5.02. Except as otherwise provided in this resolution, all rights, powers, and privileges conferred and duties and liabilities imposed upon the City or the Council by the provisions of this resolution or of the aforementioned documents shall be exercised or performed by the City or by such members of the Council, or such officers, board, body or agency thereof as may be required or authorized by law to exercise such powers and to perform such duties. 4 484702v3 JAE CT160-166 No covenant, stipulation, obligation or agreement herein contained or contained in the aforementioned documents shall be deemed to be a covenant, stipulation, obligation or agreement of any member of the Council of the City, or any officer, agent or employee of the City in that person’s individual capacity, and neither the Council of the City nor any officer or employee executing the Notes shall be personally liable on the Notes or be subject to any personal liability or accountability by reason of the issuance thereof. No provision, covenant or agreement contained in the aforementioned documents, the Notes, or in any other document relating to the Notes, and no obligation therein or herein imposed upon the City or the breach thereof, shall constitute or give rise to a general or moral obligation of the City or any pecuniary liability of the City or any charge upon its general credit or taxing powers. In making the agreements, provisions, covenants, and representations set forth in such documents, the City has not obligated itself to pay or remit any funds or revenues, other than funds and revenues derived from the Funding Loan Agreement and the Project Loan Agreement which are to be applied to the payment of the Notes, as provided therein. 5.03. Except as herein otherwise expressly provided, nothing in this resolution or in the aforementioned documents expressed or implied is intended or shall be construed to confer upon any person or firm or corporation, other than the City, any holder of the Notes issued under the provisions of this resolution, any right, remedy or claim, legal or equitable, under and by reason of this resolution or any provisions hereof, this resolution, the aforementioned documents, and all of their provisions being intended to be and being for the sole and exclusive benefit of the City, and any holder from time to time of the Notes issued under the provisions of this resolution. 5.04. In case any one or more of the provisions of this resolution, other than the provisions contained in the first sentence of Section 3.08 hereof, or of the aforementioned documents, or of the Notes 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 aforementioned documents, or of the Notes, but this resolution, the aforementioned documents, and the Notes shall be construed and endorsed as if such illegal or invalid provisions had not been contained therein. 5.05. The Notes, when executed and delivered, shall contain a recital that they are issued pursuant to the Act, and such recital shall be conclusive evidence of the validity of the Notes and the regularity of the issuance thereof, and that 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 Notes, and to the execution of the aforementioned documents to happen, exist, and be performed precedent to the execution of the aforementioned documents have happened, exist, and have been performed as so required by law. 5.06. The officers of the City, Bond Counsel, other attorneys, engineers, and other agents or employees of the City are hereby authorized to do all acts and things required of them by or in connection with this resolution, the aforementioned documents, and the Notes, for the full, punctual, and complete performance of all the terms, covenants, and agreements contained in the Notes, the aforementioned documents, and this resolution. If for any reason the Mayor or the City Administrator is unable to execute and deliver the documents referred to in this resolution, such documents may be executed by any member of the Council or any officer of the City delegated the duties of the Mayor or the City Administrator with the same force and effect as if such documents were executed and delivered by the Mayor or the City Administrator. 5.07. The Borrower shall pay the administrative fee of the City for the issuance of conduit debt. The Borrower will also pay, or, upon demand, reimburse the City for payment of, any and all costs 5 484702v3 JAE CT160-166 incurred by the City in connection with the Project and the issuance of the Notes, whether or not the Notes are issued, including any costs for reasonable attorneys’ fees. 5.08. This resolution shall be in full force and effect from and after its approval. The approvals contained in the resolution are effective for one year after the date hereof. th Approved by the City Council of Cottage Grove, Minnesota this 7 day of September, 2016. Mayor Attest: City Clerk 6 484702v3 JAE CT160-166