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Resolution 5322 - Authorizing Issuance and Sale - Multifamily Housing Revenue BondsRESOLUTION NO.5322 RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF A MULTIFAMILY HOUSING REVENUE BOND (GLACIER STATE APARTMENTS PROJECT) SERIES 2008, IN THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $5,000,000; AUTHORIZING THE EXECUTION OF CERTAIN DOCUMENTS AND DIRECTING DELIVERY THEREOF; AND PROVIDING FOR THE SECURITY, RIGHTS, AND REMEDIES OF THE LENDERS OF SAID MULTIFAMILY HOUSING REVENUE BOND WHEREAS, the City of Kalispell, Montana (the "City") is a City and political subdivision of the State of Montana (the "State"). Pursuant to the Constitution and laws of the State, particularly Montana Code Annotated, Title 90, Chapter 5, Part 1, as amended (the "Act"), the Act authorizes the City to issue revenue bonds that are special, limited obligations of the City for the purpose of defraying the cost of acquiring or improving any land, building, other improvement, and real or personal property considered necessary in connection with an improvement that is suitable for: commercial, manufacturing, agricultural, or industrial enterprises; recreation or tourist facilities; local, state, and federal governmental facilities; multifamily housing; hospitals; long-term care facilities; community -based facilities for individuals who are persons with developmental disabilities as defined in Montana Code Annotated Title 53, Chapter 20, Part 102, as amended; medical facilities; higher education facilities; electric energy generation facilities; family service provider facilities; the production of energy using an alternative renewable energy source as defined in Montana Code Annotated, Title 90, Chapter 4, Part 102, as amended; and any combination of these projects; and WHEREAS, the City has received a proposal from the Glacier State Associates, LP, a Montana limited partnership (the "Borrower"), that the City issue its Multifamily Housing Revenue Bond (Glacier State Apartments Project), Series 2008, in a principal amount not to exceed $5,000,000 (the "Bond"), and loan the proceeds of the Bond to the Borrower to finance: (i) the costs of the acquisition, rehabilitation, and equipping of (a) a 61-unit multifamily housing development known as "Glacier Manor" located at 506 1" Avenue West, Kalispell, Montana and (b) a 38-unit multifamily housing development known as "Treasure State Plaza Apartments" located at 600 Liberty Street, Kalispell, Montana (collectively, the "Project"); (ii) the funding of certain reserves for the Bond, and (iii) the payment of certain costs related to the issuance of the Bond (including the City's administrative fee related to the original issuance of the Bond). The debt service on the Bond is payable solely from revenues and resources of the Borrower. The portion of the proceeds of the Bond applied to the payment of costs of issuance of the Bond may not exceed two percent of the principal amount of the Bond; and WHEREAS, pursuant to the Act and Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), the City Council (the "City Council") conducted a public hearing on the Project and the issuance of the Bond on October 6, 2008. Notice of the public hearing (the "Public Notice"), was published as required by Section 147(f) of the Code and the Act. The Public Notice provided a general, functional description of the Project, as well as the maximum aggregate face amount of the Bond and the locations of the Project. The Public Notice was published in the Daily Inter Lake, a newspaper circulating generally in the City, for three consecutive weeks before the October 6, 2008 meeting of the City Council. At the public hearing a reasonable opportunity was provided for interested individuals to express their views, both orally and in writing, on the Project and the proposed issuance of such revenue obligations. At the public hearing, no public spoke with respect to or expressed an opinion in opposition of the issuance of the Bond by the City; and WHEREAS, under Section 146 of the Code, the City must receive an allocation of volume cap bonding authority from. the Department of Administration of the State of Montana (the "State") prior to issuance of the Bond. An application for volume cap allocation with respect to the Bond was previously made by the City to the Department of Administration pursuant to the requirements of Montana Code Section 17-5-1301 to 1323, as amended (the "Allocation Act"). On October 22, 2008, the Department of Administration approved and allocated $5,000,000 in volume cap to the City for the issuance of the Bond; and WHEREAS, It is proposed, pursuant to a Loan Agreement, dated on or after December 1, 2008 (the "Loan Agreement"), between the City and the Borrower, that the City lend the proceeds derived from the sale of the Bond to the Borrower to finance (i) the Project, (ii) certain reserves for the Bond, and (iii) certain costs related to the issuance of the Bond (including the City's administrative fee related to the original issuance of the Bond). The loan repayments to be made by the Borrower under the Loan Agreement are fixed so as to produce revenues sufficient to pay the principal of, premium, if any, and interest on the Bond when due. It is further proposed that the City assign its rights to the loan repayments and certain other rights under the Loan Agreement to Glacier Bank, a Montana banking corporation (the "Lender"), as security for payment of the Bond under an Assignment of Loan Agreement, dated on or after December 1, 2008 (the "Assignment of Loan Agreement"), between the City, the Lender, and the Borrower; and WHEREAS, as further security for the repayment of the principal and interest of the Bond, the Borrower will also execute a Deed of Trust, dated on or after December 1., 2008 (the "Mortgage"), for the benefit of the Lender. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: L The issuance and sale of the Bond to the Lender is hereby authorized for the purposes of financing (i) the Project, (ii) certain reserves for the Bond, and (iii) certain costs related to the issuance of the Bond (including the City's administrative fee related to the original issuance of the Bond). The Bond shall bear interest at such rate, shall be in such denomination, shall be numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity, shall be in such form, and shall have such other details and provisions as are prescribed by the form of the Bond attached hereto as Exhibit A. The Bond shall be a special, limited obligation of the City payable solely from revenues of the Project, in the manner provided in this resolution and the Loan Agreement. The Bond does not constitute an indebtedness, liability, general or moral obligation, or a pledge of the faith and credit or any taxing power of the City, the State, or any political subdivision thereof. The City hereby authorizes and directs the Mayor of the City (the "Mayor") and the Interim City Manager (the "City Manager") of the City (collectively, the "City officials") to execute and deliver the Bond to the Lender in accordance with its terms and the terms of this resolution. 2. The proceeds derived from the sale of the Bond shall be loaned by the City to the Borrower pursuant to the Loan Agreement. The loan repayments to be made by the Borrower under the 2 Loan Agreement are to be fixed so as to produce revenues sufficient to pay the principal of, premium, if any, and interest on the Bond when due. The loan made by the City to the Borrower pursuant to the Loan Agreement (the "Loan"), and the City's rights to the Loan repayments by the Borrower and certain other rights under the Loan Agreement shall be assigned to the Lender as security for payment of the Bond pursuant to the Assignment of Loan Agreement. The Bond, the Loan Agreement, and the Assignment of Loan Agreement shall be substantially in the forms on file with the City, and are hereby approved, with such necessary and appropriate variations, omissions and insertions as do not materially change the substance thereof, or as the City officials, in their discretion, shall determine, and the execution and delivery thereof by the City officials shall be conclusive evidence of such determination. The Bond, the Loan Agreement, and the Assignment of Loan Agreement are directed to be executed in the name and on behalf of the City by the City officials. In all events, it is understood, however, that the Bond shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City except the City's interest in the loan or revenue agreement with respect to the Bond and the Project, and the Bond, when, as, and if issued, shall recite in substance that the Bond, including interest thereon, are payable solely from the revenues received from the Project, the property pledged to the payment thereof and other sources of security for the Bond, and shall not constitute a pecuniary liability of, or a general or moral obligation of the City, within the meaning of any constitutional or statutory limitation. The full faith, credit and taxing power of the City are not pledged to the payment of the Bond. 3. The offer of the Lender to purchase the Bond is hereby accepted. The City officials are authorized and directed to prepare and execute the Bond and deliver the Bond to the Lender. The City Manager is hereby authorized to approve the initial interest rate on the Bond, approve changes to the maturity schedules, optional and mandatory redemption terms, mandatory sinking fund payment schedules, and other terms and provisions of the Bond; provided that the maturity date for the Bond shall not be later than 30 years. The debt service on the Bond is payable solely from revenues and resources of the Borrower. 4. The City officials and other officers of the City are authorized and directed to prepare and furnish to the Lender and to Kennedy & Graven, Chartered, P.C., bond counsel to the City ("Bond Counsel") certified copies of all proceedings and records of the City relating to the Bond, and such other affidavits and certificates as may be required to show the facts relating to the legality of the Bond as such facts appear from the books and records in the officers' custody and control or as otherwise known to them; and all such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute representations of the City as to the truth of all statements contained therein. 5. The approval hereby given to the various documents referred to above includes approval of 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 the officials authorized herein to execute said documents, which approval shall be conclusively evidenced by the execution thereof. The City officials and other officers of the City are hereby authorized to execute and deliver, on behalf of the City, all other certificates, instruments, and other written documents that may be requested by Bond Counsel, the Lender, or other persons or entities in conjunction with the issuance of the Bond and the expenditure of the proceeds of the Bond. Without imposing any limitations on the scope of the preceding sentence, such officers are specifically authorized to execute and deliver a certificate relating to federal tax matters including matters relating to arbitrage and arbitrage rebate, a receipt for the proceeds derived from the sale of the Bond, a general certificate of the City, and an Information Return for Tax -Exempt Private Activity Bond Issues, Form 8038 (Rev. September, 2007). 3 6. All covenants, stipulations, obligations, representations, and agreements of the City contained in this resolution or contained in the Loan Agreement or other documents referred to above shall be deemed to be the covenants, stipulations, obligations, representatives, and agreements of the City to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations, representations, and agreements shall be binding upon the City. Except as otherwise provided in this resolution, all rights, powers, and privileges conferred, and duties and liabilities imposed, upon the City by the provisions of this resolution or of the respective Loan Agreement or other documents referred to above shall be exercised or performed by the City, 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 Loan Agreement or other documents referred to above shall be deemed to be a covenant, stipulation, obligation, representation, or agreement of any elected official, officer, agent, or employee of the City in that person's individual capacity, and neither the members of the City Council nor any officer or employee executing the Bond shall be liable personally on the Bond or be subject to any personal liability or accountability by reason of the issuance thereof. 7. Except as herein otherwise expressly provided, nothing in this resolution or in the Bond or the Loan Agreement, expressed or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the City and the registered and beneficial owners of the Bond, any right, remedy, or claim, legal or equitable, under and by reason of this resolution or any provision hereof or of the Loan Agreement or any provision thereof; this resolution, the Loan Agreement and all of their provisions being intended to be, and being for the sole and exclusive benefit of the City and the registered and beneficial owners of the Bond issued under the provisions of this resolution and the Loan Agreement, and the Borrower to the extent expressly provided in the Loan Agreement. S. In case any one or more of the provisions of this resolution, or of the documents mentioned herein, or of the Bond 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 Bond, but this resolution, the aforementioned documents, and the Bond shall be construed and endorsed as if such illegal or invalid provisions had not been contained therein. 9. All acts, conditions, and things required by the laws of the State, relating to the adoption of this resolution, to the issuance of the Bond, and to the execution of the Loan Agreement 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 Bond, and precedent to the execution of the Loan Agreement and the other documents referred to above have happened, exist, and have been performed as so required by law. 10. The City officials, members of the City Council, officers of the City, and attorneys and other agents or employees of the City are hereby authorized to do all acts and things required by them by or in connection with this resolution and the Loan Agreement and the other documents referred to above for the full, punctual, and complete performance of all the terms, covenants, and agreements contained in the Bond, the Loan Agreement, and the other documents referred to above, and this resolution. 11. 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, or any officer of the City duly delegated to act on behalf of the Mayor, 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 the City Clerk, any member of the City Council, or any officer of the City duly delegated to act on behalf of the City Manager, with the same force and effect as if such documents were executed and delivered by the City Manager. 12. All commitments of the City expressed herein to issue the Bond are subject to the condition that by December 31, 2008, the City, the Borrower and the Lender will have agreed to mutually acceptable terms and conditions of the Loan agreement, the Bond and of the other instruments and proceedings relating to the Bond and its issuance and sale. If the events set forth herein do not take place within the time set forth above, or any extension thereof, and the Bond is not sold within such time, this Resolution will expire and be of no further effect. 13. This resolution shall be in full force and effect from and after its passage. (The remainder of this page is intentionally left blank.) E PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL THIS 17TH DAY OF NOVEMBER, 2008. ATTEST: Theresa White City Clerk 0 EXHIBIT A R-1 $ Interest Rate UNITED STATES OF AMERICA STATE of MONTANA COUNTY OF FLATHEAD City of Kalispell, Montana Multifamily Housing Revenue Bond (Glacier State Apartments Project) Series 200E Maturity Date Date of original Issue 5.75 to , 2025 December , 2008 FOR VALUE RECEIVED, the CITY OF KALISPELL, MONTANA (the "Issuer"), is a City and political subdivision of the State of Montana (the "State"), hereby promises to pay to GLACIER STATE, a Montana commercial banking corporation (the "Lender"), or registered assigns (the Lender and any subsequent registered owner of this Bond being also hereinafter referred to as the "Holder"), at the principal office of the Lender in Kalispell, Montana, as shown in the Bond Register maintained by the City Clerk of the Issuer or at such other place as the Lender may designate in writing, solely, from the source and in the manner hereinafter provided, the principal amount of THOUSAND AND 00/ 100 DOLLARS ($ }, with interest on the unpaid principal amount at the rate set forth, in paragraph 1(a) hereof in any coin or currency which at the time or times of payment is legal tender for the payment of public or private debts in the United States of America, in accordance with the terms hereinafter set forth: 1. This Bond shall bear interest and be payable as follows: (a) Interest shall accrue on the unpaid principal balance of this Bond from and after the date of this Bond to and including the maturity date set forth above at the interest rate set forth above per annum, and shall be payable on the first day of each month commencing January 1, 2009 (each a "Payment Date"), and in the amounts set forth in Exhibit A attached to this Bond (which is hereby incorporated herein and made a part of this Bond). The principal of this Bond shall be payable in equal monthly installments, commencing June 1. , 2010. Principal shall be payable on the dates and in the amounts shown on Exhibit A attached to this Bond (which is hereby incorporated herein and made a part of this Bond) on each Payment Date. The unpaid principal and accrued interest of this Bond is due and payable on the maturity date set forth above. (b) In the event the Borrower shall fail to make when due any principal or interest payments required under this Bond, the principal or interest payment so in default shall continue as an obligation of the Borrower until the interest payment or principal and interest payment in default shall have been fully paid, and the Borrower agrees to pay interest thereon (including to the extent permitted by law, interest on overdue installments of interest) at the rate of interest per annum borne by this Bond. If any principal or interest payment required under this Bond is not made when due, and such payment has not been made on the fifteenth (15th) day following the A-1 date on which such payment is due, then, in addition, to all other sums due hereunder, the Lender, in its sole discretion, shall be entitled to receive a late charge equal to the greater of (i) $15.00 or (ii) five percent (5.00%) of the regularly scheduled principal and interest payment due on such Payment Date. (c) Upon a Default by the Borrower under the terms of the Loan Agreement, interest on this Bond shall accrue on the unpaid principal balance of this Bond from and after the date of this Default to and including the such date as the Default or the Default Condition is remedied by the Borrower at the rate of fourteen percent (14.00%) per annum (d) Capitalized terms used in this Bond, but not defined herein shall have the meanings given to them in the Loan Agreement. 2. All payments of principal and interest shall be applied first to interest due on the outstanding; principal amount hereof and thereafter in reduction of the principal amount hereof. All interest on this Bond shall be computed on the basis of a year of actual number of days elapsed based upon a 365/366 day year. If any Payment Date is not a Business Day, such payment shall be payable on the next succeeding Business Day. 3. This Bond is subject to prepayment in whole but not in part, at the option of the Borrower, on any Payment Date at least eighteen (18) months after issuance of the Bond, upon at least thirty (30) days prior written notice to the Lender (or such shorter period of notice as may be acceptable to the Lender) at a prepayment price for each such Payment Date as shown on Exhibit A (the "After Payment Termination Value"). To effect any such prepayment, the Issuer shall pay or cause to be paid to the Lender an amount equal to the After Payment Termination Value, in addition to paying the principal maturing on this Bond on such Payment Date and accrued interest on this Bond to the date of such prepayment. 4. This Bond constitutes an issue in the maximum authorized face amount of $ This Bond is issued by the Issuer pursuant to the authority granted by Montana Code Annotated, Title 90, Chapter 5, Part 1, as amended (the "Act"), for the purpose of financing: (i) the costs of the acquisition, rehabilitation, and equipping of (a) a 61-unit multifamily housing development known as "Glacier Manor" located at 506 I't Avenue west, Kalispell, Montana and (b) a 38-unit multifamily housing development known as "Treasure State Plaza Apartments" located at 600 Liberty Street, Kalispell, Montana (collectively, the "Project"); (ii) certain reserves for the Bond, and (iii) certain costs related to the issuance of the Bond (including the City's administrative fee related to the original issuance of the Bond). Pursuant to the Loan Agreement, the Borrower has agreed to repay the loan of the proceeds of this Bond with Loan Payments. This Bond is further secured by the Assignment of Loan Agreement and the Mortgage, and other security documents required by the Lender. 5. This Bond shall be registered and shall be transferable upon the books of the Issuer at the office of the City Clerk, by the Lender hereof in person or by its attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer satisfactory to the City Clerk, duly executed by the Lender or its duly authorized attorney. Upon such transfer the City Clerk will note the date of registration and the name and address of the new holder upon the books of the Issuer and in the registration blank appearing below. Alternatively, the Issuer will, at the request and expense of the Lender, issue a new note in the principal amount equal to the unpaid principal balance of this Bond, and of like tenor except as to number, and registered in the name of the Lender or such transferee as maybe designated by the Lender. The Issuer may deem and treat the person in whose name this Bond is last registered upon the books of the Issuer, as the absolute owner hereof, whether or not this Bond is overdue, A W-2 for the purpose of receiving payment of or on account of the principal balance, prepayment price, late charges or interest and for all other purposes, and all such payments so made to the Lender or upon its order shall be valid and effectual to satisfy and discharge the liability upon this Bond to the extent of the sum or sums so paid, and the Issuer shall not be affected by any notice to the contrary. d. Time is of the essence under this Bond. If default occurs under this Bond, or an Event of Default occurs under the Loan Agreement or the Mortgage, or if any other event occurs which entitles the Lender to accelerate payment under the Loan Agreement or the Mortgage, then the Lender may at its right and option (subject, however, to such notice as may be required under the Loan Agreement or the Mortgage) declare immediately due and payable the principal balance of this .Bond and interest accrued thereon to the date of declaration of such default, together with any reasonable attorneys' fees incurred by the Lender in collecting or enforcing payment thereof, whether suit be brought or not, and all other sums due under this Bond. 7. This Bond is not a general or moral obligation of the Issuer, but rather a special, limited obligation of the Issuer and shall not be payable from nor charged upon any funds of the Issuer other than the revenues under the Loan Agreement pledged to the payment thereof, nor shall the Issuer be subject to any pecuniary liability thereon. No Holder of this Bond shall ever have the right to compel any exercise of the taxing power of the Issuer to pay this Bond or the interest or any late charges thereon, nor to enforce payment thereof against any property of the Issuer except revenues under the Loan Agreement pledged to the payment thereof. This Bond shall not constitute a charge, lien, or encumbrance, legal or equitable, against the general credit of the Issuer or upon any property of the Issuer, except the revenues under the Loan Agreement pledged to the payment thereof. This Bond, including interest, premium, if any, and late charges, if any, hereon is payable solely from the revenues under the Loan Agreement pledged to the payment thereof. This Bond shall not constitute a debt of the Issuer within the meaning of any constitutional or statutory limitation. The Issuer, State of Montana or any other political subdivision of the State of Montana shall in no event be liable for the payment of the principal of, premium, if any, interest or late charges on the Bond or for the performance of any agreement of any kind whatsoever that may be undertaken by the Issuer. Neither the Bond nor any of the agreements or obligations of the Issuer contained herein or in the Loan Agreement shall be construed to constitute an indebtedness of the Issuer within the meaning of any constitutional or statutory provisions whatsoever, nor to constitute or give rise to a pecuniary liability or be a charge against the general creditor taxing power of the Issuer. No failure of the Issuer or any party to comply with any term, condition, covenant or agreement in the Bond or the Loan Agreement shall subject the Issuer to liability for any claim for damages, costs or other financial or pecuniary charge, and no execution on any claim, demand, cause of action or judgment shall be levied upon or collect from the general credit, general funds or taxing powers of the Issuer. S. The Lender or any subsequent holder of this Bond shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Lender and then only to the extent specifically set forth in the writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. 9. It is intended that this Bond is made with reference to and shall be construed as a Montana contract and governed by the laws of the State of Montana, without giving effect to the conflicts -of -law principles thereof. 10. This Bond may not be amended, modified or changed nor shall any waiver of any provision hereof be effective, except only by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change, modification or discharge is sought. No A-3 modification of the terms and conditions of this Bond shall be effective without the written consent of the Issuer. 11. If any term of this Bond, or the application thereof to any person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Bond, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Bond shall be valid and enforceable to the fullest extent permitted by law. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts and things required to exist, happen, and be performed precedent to or in the issuance of this Bond do exist, have happened and have been performed in regular and due time, form and manner as required by law. (The remainder of this page is intentionally left blank.) IN WITNESS WHEREOF, the Issuer has caused this Bond to be duly executed by its duly authorized officers as of December , 2008. KALISPELL COUNTY, MONTANA By: Its: Mayor By: Its: City Manager A-5 PROVISIONS AS TO REGISTRATION The ownership of the unpaid principal balance of this Bond and the interest accruing thereon is registered on the books of the City of Kalispell, Montana, in the name of the registered holder last noted below. Signature of Name and Address of City Clerk, Date of Registration Registered Holder as Re istrar Glacier State (Mailing Address): PO Box 4667 Missoula, MT 59806-9945 December , 2008 (Physical Address): 125 East Front Street Missoula, MT 59802 KA225-9 (B'WWJ) 342824v. I EXHIBIT A AYMENT SCHEDULE _7