HomeMy WebLinkAboutResolution - 2005-118 - Authorizing Issuance, Awarding Sale, Prescribing the Formand Details and Providing for the Payment of $2,690,000 General Obligation Permanent Improvement Revolving Fund Bonds, Series 2005B - 10/04/2005 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2005-118
RESOLUTION AUTHORIZING ISSUANCE,AWARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR
THE PAYMENT OF$2,690,000 GENERAL OBLIGATION PERMANENT
IMPROVEMENT REVOLVING FUND BONDS, SERIES 2005B
BE IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota(the City),
as follows:
SECTION 1. AUTHORIZATION AND SALE.
1.01. Authorization. On May 3, 2005, the City Council approved a Development
Agreement (the Agreement) with Eden Bluff Holdings LLC (the Owner). The Owner is the sole
owner of real property abutting upon the streets named as the locations for the public
improvements related to Trunk Highway 212 and Charlson Road in the City(the Projects). The
City Council hereby finds that the Agreement, in which the Owner petitions the City Council to
construct the Projects and to assess their entire cost against its property, constitutes a sufficient
petition,pursuant to Minnesota Statutes, Section 429.031, Subdivision 3. The Projects are
hereby ordered to be constructed. The City Council hereby determines that it is in the best
interest of the City to issue its $2,690,000 principal amount of General Obligation Permanent
Improvement Revolving Fund Bonds, Series 2005B (the Bonds) to finance the Projects from the
Permanent Improvement Revolving Fund.
1.02. Sale. Pursuant to the Official Statement prepared on behalf of the City by Northland
Securities, Inc., financial advisor to the City, sealed proposals for the purchase of the Bonds were
received at or before the time specified for receipt of proposals. The proposals have been
opened,publicly read and considered and the purchase price, interest rates and net interest cost
under the terms of each proposal have been determined. The most favorable proposal received is
that of
in , and
associates (the Purchaser), to purchase the Bonds at a price of$ plus
accrued interest on all Bonds to the day of delivery and payment, on the further terms and
conditions hereinafter set forth.
SECTION 2. BOND TERMS; REGISTRATION; EXECUTION AND DELIVERY.
2.01. Issuance of Bonds. All acts, conditions and things which are required by the
Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be
performed precedent to and in the valid issuance of the Bonds having been done,now existing,
having happened and having been performed, it is now necessary for the City Council to
establish the form and terms of the Bonds, to provide security therefor and to issue the Bonds
forthwith.
2.02. Maturities; Interest Rates;Denominations and Payment. The Bonds shall be
originally dated as of October 1, 2005, shall be in the denomination of$5,000 each, or any
integral multiple thereof, of single maturities, shall mature on December 1 in the years and
amounts stated below, and shall bear interest from date of issue until paid or duly called for
redemption, at the annual rates set forth opposite such years and amounts, as follows:
Year Amount Rate Year Amount Rate
2006 $ % 2016 $ %
2007 2017
2008 2018
2009 2019
2010 2020
2011 2021
2012 2022
2013 2023
2014 2024
2015 2025
[REVISE MATURITY SCHEDULE FOR ANY TERM BONDS]
The Bonds shall be issuable only in fully registered form. The interest thereon and, upon
surrender of each Bond, the principal amount thereof shall be payable by check or draft issued by
the Registrar described herein; provided that, so long as the Bonds are registered in the name of a
securities depository, or a nominee thereof, in accordance with Section 2.08 hereof,principal and
interest shall be payable in accordance with the operational arrangements of the securities
depository.
2.03. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to
Section 2.07 and upon any subsequent transfer or exchange pursuant to Section 2.06, the date of
authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on
the Bonds shall be payable on June 1 and December 1 in each year, commencing June 1, 2006,
each such date being referred to herein as an Interest Payment Date, to the persons in whose
names the Bonds are registered on the Bond Register, as hereinafter defined, at the Registrar's
close of business on the fifteenth day of the month immediately preceding the Interest Payment
Date, whether or not such day is a business day. Interest shall be computed on the basis of a
360-day year composed of twelve 30-day months.
2.04. Redemption. Bonds maturing in 2014 and later years shall be subject to
redemption and prepayment at the option of the City, in whole or in part, in such order of
maturity dates as the City may select and, within a maturity,by lot as selected by the Registrar
(or, if applicable,by the securities depository in accordance with its customary procedures) in
multiples of$5,000, on December 1, 2013, and on any date thereafter, at a price equal to the
principal amount thereof and accrued interest to the date of redemption. The City Manager shall
cause notice of the call for redemption thereof to be published as required by law, and at least
thirty days prior to the designated redemption date, shall cause notice of call for redemption to be
mailed,by first class mail, to the registered holders of any Bonds to be redeemed at their
addresses as they appear on the bond register described in Section 2.06 hereof. No defect in or
failure to give such mailed notice of redemption shall affect the validity of proceedings for the
redemption of any Bond not affected by such defect or failure. Official notice of redemption
having been given as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the
redemption date, become due and payable at the redemption price therein specified and from and
after such date (unless the City shall default in the payment of the redemption price) such Bonds
or portions of Bonds shall cease to bear interest. Upon partial redemption of any Bond, a new
Bond or Bonds will be delivered to the owner without charge, representing the remaining
principal amount outstanding.
[COMPLETE THE FOLLOWING PROVISIONS IF THERE ARE TERM BONDS-
ADD ADDITIONAL PROVISIONS IF THERE ARE MORE THAN TWO TERM BONDS]
[Bonds maturing on December 1, 20 and 20 (the Term Bonds) shall be subject
to mandatory redemption prior to maturity pursuant to the sinking fund requirements of this
Section 2.04 at a redemption price equal to the stated principal amount thereof plus interest
accrued thereon to the redemption date, without premium. The Registrar shall select for
redemption, by lot or other manner deemed fair, on December 1 in each of the following years
the following stated principal amounts of such Bonds:
Year Principal Amount
The remaining$ stated principal amount of such Bonds shall be paid at
maturity on December 1, 20
Year Principal Amount
The remaining$ stated principal amount of such Bonds shall be paid at
maturity on December 1, 20
Notice of redemption shall be given as provided in the preceding paragraph.]
2.05. Appointment of Initial Re isg tray. The City hereby appoints
in , as the initial bond registrar, transfer agent and paying agent(the
Registrar). The Mayor and City Manager are authorized to execute and deliver, on behalf of the
City, a contract with the Registrar. Upon merger or consolidation of the Registrar with another
corporation, if the resulting corporation is a bank or trust company organized under the laws of
the United States or one of the states of the United States and authorized by law to conduct such
business, such corporation shall be authorized to act as successor Registrar. The City agrees to
pay the reasonable and customary charges of the Registrar for the services performed. The City
reserves the right to remove the Registrar, effective upon not less than thirty days' written notice
and upon the appointment and acceptance of a successor Registrar, in which event the
predecessor Registrar shall deliver all cash and Bonds in its possession to the successor Registrar
and shall deliver the Bond Register to the successor Registrar.
2.06. Registration. The effect of registration and the rights and duties of the City and the
Registrar with respect thereto shall be as follows:
(a) Re ister. The Registrar shall keep at its principal corporate trust office a
register(the Bond Register) in which the Registrar shall provide for the registration of
ownership of Bonds and the registration of transfers and exchanges of Bonds entitled to
be registered, transferred or exchanged. The term Holder or Bondholder as used herein
shall mean the person(whether a natural person, corporation, association,partnership,
trust, governmental unit, or other legal entity) in whose name a Bond is registered in the
Bond Register.
(b) Transfer of Bonds. Upon surrender for transfer of any Bond duly endorsed by
the Holder thereof or accompanied by a written instrument of transfer, in form
satisfactory to the Registrar, duly executed by the Holder thereof or by an attorney duly
authorized by the Holder in writing, the Registrar shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Bonds of a like
aggregate principal amount and maturity, as requested by the transferor.
(c) Exchange of Bonds. At the option of the Holder of any Bond in a
denomination greater than$5,000, such Bond may be exchanged for other Bonds of
authorized denominations, of the same maturity and a like aggregate principal amount,
upon surrender of the Bond to be exchanged at the office of the Registrar. Whenever any
Bond is so surrendered for exchange the City shall execute and the Registrar shall
authenticate and deliver the Bonds which the Bondholder making the exchange is entitled
to receive.
(d) Cancellation. All Bonds surrendered for payment, transfer or exchange shall
be promptly canceled by the Registrar and thereafter disposed of. The Registrar shall
furnish the City at least once each year a certificate setting forth the principal amounts
and numbers of Bonds canceled and destroyed.
(e) Improper or Unauthorized Transfer. When any Bond is presented to the
Registrar for transfer, the Registrar may refuse to transfer the same until it is satisfied that
the endorsement on such Bond or separate instrument of transfer is valid and genuine and
that the requested transfer is legally authorized. The Registrar shall incur no liability for
the refusal, in good faith, to make transfers which it, in its judgment, deems improper or
unauthorized.
(f) Persons Deemed Owners. The City and the Registrar may treat the person in
whose name any Bond is at any time registered in the Bond Register as the absolute
owner of the Bond,whether the Bond shall be overdue or not, for the purpose of
receiving payment of or on account of, the principal of and interest on the Bond and for
all other purposes; and all payments made to or upon the order of such Holder shall be
valid and effectual to satisfy and discharge the liability upon such Bond to the extent of
the sum or sums so paid.
(g) Taxes,Fees and Charges. For every transfer or exchange of Bonds (except
for an exchange upon a partial redemption of a Bond), the Registrar may impose a charge
upon the owner thereof sufficient to reimburse the Registrar for any tax, fee or other
governmental charge required to be paid with respect to such transfer or exchange.
(h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become
mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like
amount,number,maturity date and tenor in exchange and substitution for and upon
cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond
destroyed, stolen or lost, upon the payment of the reasonable expenses and charges of the
Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost,
upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed,
stolen or lost, and of the ownership thereof, and upon furnishing to the Registrar of an
appropriate bond or indemnity in form, substance and amount satisfactory to it, in which
both the City and the Registrar shall be named as obligees. All Bonds so surrendered to
the Registrar shall be canceled by it and evidence of such cancellation shall be given to
the City. If the mutilated, destroyed, stolen or lost Bond has already matured or been
called for redemption in accordance with its terms it shall not be necessary to issue a new
Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating
agent for the Bonds, within the meaning of Minnesota Statutes, Section 475.55,
Subdivision 1, as amended.
0) Valid Obligations. All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the City, evidencing the same debt, and entitled to the
same benefits under this Resolution as the Bonds surrendered upon such transfer or
exchange.
2.07. Execution, Authentication and Delivery. The Bonds shall be prepared under the
direction of the City Manager and shall be executed on behalf of the City by the signatures of the
Mayor and the City Manager,provided that the signatures may be printed, engraved or
lithographed facsimiles of the originals. In case any officer whose signature or a facsimile of
whose signature shall appear on any Bond shall cease to be such officer before the delivery of
such Bond, such signature or facsimile shall nevertheless be valid and sufficient for all purposes,
the same as if such officer had remained in office until the date of delivery of such Bond.
Notwithstanding such execution, no Bond shall be valid or obligatory for any purpose or entitled
to any security or benefit under this Resolution unless and until a certificate of authentication on
the Bond, substantially in the form provided in Section 2.09,has been executed by the manual
signature of an authorized representative of the Registrar. Certificates of authentication on
different Bonds need not be signed by the same representative. The executed certificate of
authentication on any Bond shall be conclusive evidence that it has been duly authenticated and
delivered under this Resolution. When the Bonds have been prepared, executed and
authenticated,the City Manager shall deliver them to the Purchaser upon payment of the
purchase price in accordance with the contract of sale heretofore executed, and the Purchaser
shall not be obligated to see to the application of the purchase price.
2.08. Securities Depository. (a) For purposes of this section the following terms shall
have the following meanings:
"Beneficial Owner" shall mean, whenever used with respect to a Bond, the person in
whose name such Bond is recorded as the beneficial owner of such Bond by a Participant on the
records of such Participant, or such person's subrogee.
"Cede & Co." shall mean Cede & Co., the nominee of DTC, and any successor nominee
of DTC with respect to the Bonds.
DTC shall mean The Depository Trust Company of New York,New York.
"Participant" shall mean any broker-dealer,bank or other financial institution for which
DTC holds Bonds as securities depository.
"Representation Letter" shall mean the Representation Letter pursuant to which the City
agrees to comply with DTC's Operational Arrangements.
(b) The Bonds shall be initially issued as separately authenticated fully registered bonds,
and one Bond shall be issued in the principal amount of each stated maturity of the Bonds. Upon
initial issuance, the ownership of such Bonds shall be registered in the bond register in the name
of Cede & Co., as nominee of DTC. The Registrar and the City may treat DTC (or its nominee)
as the sole and exclusive owner of the Bonds registered in its name for the purposes of payment
of the principal of or interest on the Bonds, selecting the Bonds or portions thereof to be
redeemed, if any, giving any notice permitted or required to be given to registered owners of
Bonds under this resolution, registering the transfer of Bonds, and for all other purposes
whatsoever; and neither the Registrar nor the City shall be affected by any notice to the contrary.
Neither the Registrar nor the City shall have any responsibility or obligation to any Participant,
any person claiming a beneficial ownership interest in the Bonds under or through DTC or any
Participant, or any other person which is not shown on the bond register as being a registered
owner of any Bonds, with respect to the accuracy of any records maintained by DTC or any
Participant, with respect to the payment by DTC or any Participant of any amount with respect to
the principal of or interest on the Bonds,with respect to any notice which is permitted or
required to be given to owners of Bonds under this resolution,with respect to the selection by
DTC or any Participant of any person to receive payment in the event of a partial redemption of
the Bonds, or with respect to any consent given or other action taken by DTC as registered owner
of the Bonds. So long as any Bond is registered in the name of Cede & Co., as nominee of DTC,
the Registrar shall pay all principal of and interest on such Bond, and shall give all notices with
respect to such Bond, only to Cede &Co. in accordance with DTC's Operational Arrangements,
and all such payments shall be valid and effective to fully satisfy and discharge the City's
obligations with respect to the principal of and interest on the Bonds to the extent of the sum or
sums so paid. No person other than DTC shall receive an authenticated Bond for each separate
stated maturity evidencing the obligation of the City to make payments of principal and interest.
Upon delivery by DTC to the Registrar of written notice to the effect that DTC has determined to
substitute a new nominee in place of Cede & Co., the Bonds will be transferable to such new
nominee in accordance with paragraph (e)hereof.
(c) In the event the City determines that it is in the best interest of the Beneficial Owners
that they be able to obtain Bonds in the form of bond certificates,the City may notify DTC and
the Registrar, whereupon DTC shall notify the Participants of the availability through DTC of
Bonds in the form of certificates. In such event, the Bonds will be transferable in accordance
with paragraph(e) hereof. DTC may determine to discontinue providing its services with respect
to the Bonds at any time by giving notice to the City and the Registrar and discharging its
responsibilities with respect thereto under applicable law. In such event the Bonds will be
transferable in accordance with paragraph(e)hereof.
(d) The execution and delivery of the Representation Letter to DTC, if not previously
filed with DTC,by the Mayor or City Manager is hereby authorized and directed.
(e) In the event that any transfer or exchange of Bonds is permitted under paragraph(b)
or(c) hereof, such transfer or exchange shall be accomplished upon receipt by the Registrar of
the Bonds to be transferred or exchanged and appropriate instruments of transfer to the permitted
transferee in accordance with the provisions of this resolution. In the event Bonds in the form of
certificates are issued to owners other than Cede & Co., its successor as nominee for DTC as
owner of all the Bonds, or another securities depository as owner of all the Bonds, the provisions
of this resolution shall also apply to all matters relating thereto, including, without limitation, the
printing of such Bonds in the form of bond certificates and the method of payment of principal of
and interest on such Bonds in the form of bond certificates.
2.09. Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
CITY OF EDEN PRAIRIE
GENERAL OBLIGATION PERMANENT IMPROVEMENT
REVOLVING FUND BOND, SERIES 2005B
Interest Rate Maturity Date Date of Original Issue CUSIP No.
% December 1, 20 October 1, 2005
REGISTERED OWNER: CEDE &CO.
PRINCIPAL AMOUNT: THOUSAND DOLLARS
THE CITY OF EDEN PRAIRIE, Minnesota(the City) acknowledges itself to be
indebted and for value received hereby promises to pay to the registered owner specified above,
or registered assigns, the principal amount specified above on the maturity date specified above
and promises to pay interest thereon from the date of original issue specified above or from the
most recent Interest Payment Date(as hereinafter defined) to which interest has been paid or
duly provided for, at the annual interest rate specified above,payable on June 1 and December 1
in each year, commencing June 1, 2006 (each such date, an Interest Payment Date), all subject to
the provisions referred to herein with respect to the redemption of the principal of this Bond
before maturity. The interest so payable on any Interest Payment Date shall be paid to the person
in whose name this Bond is registered at the close of business on the fifteenth day(whether or
not a business day) of the calendar month immediately preceding the Interest Payment Date.
Interest hereon shall be computed on the basis of a 360-day year composed of twelve 30-day
months. The interest hereon and, upon presentation and surrender hereof at the principal office
of the agent of the Registrar described below, the principal hereof are payable in lawful money
of the United t in U ted States of America by check or draft drawn on ,
, as bond registrar, transfer agent and paying agent, or its successor designated
under the Resolution described herein(the Registrar). For the prompt and full payment of such
principal and interest as the same respectively become due, the full faith and credit and taxing
powers of the City have been and are hereby irrevocably pledged.
This Bond is one of an issue (the Bonds) in the aggregate principal amount of$2,690,000
issued pursuant to a resolution adopted by the City Council on October 4, 2005 (the Resolution),
to provide funds to be deposited to the Permanent Improvement Revolving Fund of the City, a
permanent fund established for the financing of local improvements for which special
assessments may be levied against property specially benefited thereby, and is issued pursuant to
and in full conformity with the Constitution and laws of the State of Minnesota thereunto
enabling, including Minnesota Statutes, Chapters 429 and 475. The Bonds are issuable only in
fully registered form, in the denomination of$5,000 or any integral multiple thereof, of single
maturities.
Bonds maturing in 2014 and later years shall be subject to redemption and prepayment at
the option of the City, in whole or in part, in such order of maturity dates as the City may select
and, within a maturity,by lot as selected by the Registrar(or, if applicable,by the bond
depository in accordance with its customary procedures) in multiples of$5,000, on December 1,
2013, and on any date thereafter, at a price equal to the principal amount thereof and accrued
interest to the date of redemption. The City shall cause notice of the call for redemption thereof
to be published as required by law, and at least thirty days prior to the designated redemption
date, shall cause notice of call for redemption to be mailed, by first class mail, to the registered
holders of any Bonds, at the holders' addresses as they appear on the bond register maintained by
the Bond Registrar. No defect in or failure to give such mailed notice of redemption shall affect
the validity of proceedings for the redemption of any Bond not affected by such defect or failure.
Official notice of redemption having been given as aforesaid, the Bonds or portions of Bonds so
to be redeemed shall, on the redemption date,become due and payable at the redemption price
therein specified and from and after such date (unless the City shall default in the payment of the
redemption price) such Bonds or portions of Bonds shall cease to bear interest. Upon partial
redemption of any Bond, a new Bond or Bonds will be delivered to the owner without charge,
representing the remaining principal amount outstanding.
[COMPLETE THE FOLLOWING PROVISIONS IF THERE ARE TERM BONDS-
ADD ADDITIONAL PROVISIONS IF THERE ARE MORE THAN TWO TERM BONDS]
[Bonds maturing in the year 20 and 20 shall be subject to mandatory
redemption, at a redemption price equal to their principal amount plus interest accrued thereon to
the redemption date, without premium, on December 1 in each of the years shown below, in an
amount equal to the following principal amounts:
Term Bonds Maturing in 20-- Term Bonds Maturingin 20--
Sinking Fund Aggregate Sinking Fund Aggregate
Payment Date Principal Amount Payment Date Principal Amount
Notice of redemption shall be given as provided in the preceding paragraph.]
As provided in the Resolution and subject to certain limitations set forth therein,this
Bond is transferable upon the books of the City at the principal office of the agent of the
Registrar, by the registered owner hereof in person or by the owner's attorney duly authorized in
writing upon surrender hereof together with a written instrument of transfer satisfactory to the
Registrar, duly executed by the registered owner or the owner's attorney; and may also be
surrendered in exchange for Bonds of other authorized denominations. Upon such transfer or
exchange the City will cause a new Bond or Bonds to be issued in the name of the designated
transferee or registered owner, of the same aggregate principal amount,bearing interest at the
same rate and maturing on the same date; subject to reimbursement for any tax, fee or
governmental charge required to be paid with respect to any such transfer or exchange.
The Bonds have been designated by the City as "qualified tax-exempt obligations"
pursuant to Section 265(b)(3) of the Internal Revenue Code of 1986.
The City and the Registrar may deem and treat the person in whose name this Bond is
registered as the absolute owner hereof, whether this Bond is overdue or not, for the purpose of
receiving payment as herein provided and for all other purposes, and neither the City nor the
Registrar shall be affected by any notice to the contrary.
Notwithstanding any other provisions of this Bond, so long as this Bond is registered in
the name of Cede & Co., as nominee of The Depository Trust Company, or in the name of any
other nominee of The Depository Trust Company or other securities depository, the Registrar
shall pay all principal of and interest on this Bond, and shall give all notices with respect to this
Bond, only to Cede & Co. or other nominee in accordance with the operational arrangements of
The Depository Trust Company or other securities depository as agreed to by the City.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts,
conditions and things required by the Constitution and laws of the State of Minnesota to be done,
to exist,to happen and to be performed preliminary to and in the issuance of this Bond in order
to make it a valid and binding general obligation of the City in accordance with its terms,have
been done, do exist, have happened and have been performed as so required;that prior to the
issuance hereof the City has levied or agreed to levy special assessments on property specially
benefited by the improvements financed by the Bonds, collectible in the years and amounts
required to produce sums not less than five percent in excess of the principal of and interest on
the Bonds as such principal and interest respectively become due, and has appropriated such
special assessments to the Revenue Account(the Revenue Account) of its Permanent
Improvement Revolving Fund established by the Resolution; that, on or before each date the City
is obligated to pay principal of or interest on the Bonds, the City will transfer from its Revenue
Account to a separate General Obligation Permanent Improvement Revolving Fund Bonds,
Series 2005B Debt Service Account an amount sufficient for the payment of such principal and
interest on such date; that if necessary for payment of principal and interest, ad valorem taxes are
required to be levied upon all taxable property in the City, without limitation as to rate or
amount; and that the issuance of this Bond, together with all other indebtedness of the City
outstanding on the date hereof and on the date of its actual issuance and delivery, does not cause
the indebtedness of the City to exceed any constitutional, charter or statutory limitation of
indebtedness.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until the Certificate of Authentication hereon shall have
been executed by the Registrar by manual signature of one of its authorized representatives.
IN WITNESS WHEREOF, the City has caused this Bond to be executed on its behalf by
the facsimile signatures of its Mayor and City Manager.
CITY OF EDEN PRAIRIE, MINNESOTA
(facsimile signature—Mayor) (facsimile signature—City Manager)
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds delivered pursuant to the Resolution mentioned within.
Date of Authentication: ,
as Registrar
By
Authorized Representative
The following abbreviations, when used in the inscription on the face of this Bond, shall be
construed as though they were written out in full according to the applicable laws or regulations:
TEN COM - as tenants in common UTMA ................... as Custodian for .....................
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Transfers to Minors Act ..............
(State)
JT TEN - as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used.
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond and all rights thereunder, and does hereby irrevocably constitute and appoint
attorney to transfer the said Bond on the books kept for registration of the
within Bond, with full power of substitution in the premises.
Dated:
NOTICE: The assignor's signature to this assignment must
correspond with the name as it appears upon the face of the
within Bond in every particular, without alteration or
enlargement or any change whatsoever.
Signature Guaranteed:
Signature(s)must be guaranteed by an "eligible guarantor institution" meeting the requirements
of the Registrar, which requirements include membership or participation in STAMP or such
other "signature guaranty program" as may be determined by the Registrar in addition to or in
substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
[end of bond form]
SECTION 3. USE OF PROCEEDS. The proceeds of the Bonds received by the City, exclusive
of unused discount, pre-issuance accrued interest and capitalized interest, if any, shall be
deposited in the Construction Fund established in Section 4 hereof and used to pay costs of the
Projects or such other Improvements as the Council may designate.
SECTION 4. CONSTRUCTION FUND. The City hereby establishes the Permanent
Improvement Revolving Fund Series 2005B Construction Fund(the Construction Fund) as a
separate bookkeeping account on its books and records. There shall be deposited into the
Construction Fund, when and as received, the amount specified in Section 3 hereof. There shall
be established a separate account within the Construction Fund to record expenditures for each
Improvement. The moneys in the Construction Fund will be disbursed by the City, in
accordance with this Resolution and the City's normal procedures, to pay(or reimburse the City
for) the costs of the Projects, including also the issuance costs of the Bonds. At such time as the
Projects are completed the City shall transfer any remaining balance in the Construction Fund as
provided herein.
SECTION 5. GENERAL OBLIGATION PERMANENT IMPROVEMENT REVOLVING
FUND BONDS, SERIES 2005B BOND FUND. So long as any of the Bonds are outstanding
and any principal of or interest thereon unpaid, the City shall maintain a separate debt service
fund on its official books and records to be known as the General Obligation Permanent
Improvement Revolving Fund Bonds, Series 2005B Bond Fund(the Bond Fund)within the Debt
Service Account of the Permanent Improvement Revolving Fund(as described herein, the Debt
Service Account), and the principal of and interest on the Bonds shall be payable from the Bond
Fund. The City irrevocably appropriates to the Bond Fund(a) any amount received from the
Purchaser in excess of the amount required by Section 3 hereof to be deposited in the
Construction Fund; (b) all moneys transferred with respect to the Bonds from other accounts
within the Permanent Improvement Revolving Fund to the Debt Service Account in accordance
with this Resolution; and(c) all other moneys as shall be appropriated by the City Council to the
Bond Fund from time to time. On the business day preceding each date on which principal of or
interest on the Bonds are to be paid by the City in accordance with this resolution, the City
Manager shall,without further direction by the Council, transfer from the Debt Service Account
in the Permanent Improvement Revolving Fund to the Bond Fund an amount sufficient to pay
such principal and interest. If the aggregate balance in the Bond Fund is at any time insufficient
to pay all interest and principal then due on all Bonds payable therefrom, the payment shall be
made from any fund of the City which is available for that purpose, subject to reimbursement
from the Permanent Improvement Revolving Fund when the balance therein is sufficient, and the
City Council covenants and agrees that it will each year levy a sufficient amount of ad valorem
taxes to take care of any accumulated or anticipated deficiency, which levy is not subject to any
constitutional or statutory limitation.
SECTION 6. SPECIAL ASSESSMENTS. The City hereby covenants and agrees that, for the
payment of the cost of the Projects,the City has done or will do and perform all acts and things
necessary for the final and valid levy of special assessments in an amount not less than 20% of
the cost of each of the improvements financed by the Bonds. The City estimates it will levy
special assessments in the aggregate principal amount of$ . It is estimated that the
principal and interest on such special assessments will be levied and collected in the years and
amounts shown on Exhibit A attached hereto. In the event any such assessment shall at any time
be held invalid with respect to any lot or tract of land, due to any error, defect or irregularity in
any action or proceeding taken or to be taken by the City or by the City Council or by any of the
officers or employees of the City, either in the making of such assessment or in the performance
of any condition precedent thereto, the City hereby covenants and agrees that it will forthwith do
all such further things and take all such further proceedings as shall be required by law to make
such assessment a valid and binding lien upon said property. The collections of the special
assessments shall be deposited, as received, into the Revenue Account.
SECTION 7. PLEDGE OF TAXING POWERS. For the prompt and full payment of the
principal of and interest on the Bonds as such payments respectively come due, the full faith,
credit and unlimited taxing powers of the City shall be and are hereby irrevocably pledged.
However, the City presently estimates that the special assessments described herein, together
with any funds to be appropriated by the City to the Bond Fund, will be at least five percent in
excess of the amounts needed to meet when due the principal and interest payments on the Bonds
and therefore no ad valorem taxes are required to be levied at this time.
SECTION 8. DEFEASANCE. When all of the Bonds have been discharged as provided in this
Section, all pledges, covenants and other rights granted by this Resolution to the Holders of the
Bonds shall cease. The City may discharge its obligations with respect to any Bonds which are
due on any date by depositing with the Registrar on or before that date a sum sufficient for the
payment thereof in full; or, if any Bond should not be paid when due, it may nevertheless be
discharged by depositing with the Registrar a sum sufficient for the payment thereof in full with
interest accrued from the due date to the date of such deposit. The City may also at any time
discharge its obligations with respect to any Bonds, subject to the provisions of law now or
hereafter authorizing and regulating such action,by depositing irrevocably in escrow, with the
Registrar or with a bank qualified by law to act as an escrow agent for this purpose, cash or
securities which are authorized by law to be so deposited for such purpose,bearing interest
payable at such times and at such rates and maturing or callable at the holder's option on such
dates as shall be required to pay all principal and interest to become due thereon to maturity or, if
notice of redemption as herein required has been irrevocably provided for, to an earlier
designated redemption date. Provided, however, that if such deposit is made more than ninety
days before the maturity date or specified redemption date of the Bonds to be discharged, the
City shall have received a written opinion of Bond Counsel to the effect that such deposit does
not adversely affect the exemption of interest on any Bonds from federal income taxation and a
written report of an accountant or investment banking firm verifying that the deposit is sufficient
to pay when due all of the principal and interest on the Bonds to be discharged on and before
their maturity dates or earlier designated redemption date.
SECTION 9. TAX COVENANTS: ARBITRAGE MATTERS AND CONTINUING
DISCLOSURE.
9.01. General Tax Covenant. The City agrees with the registered owners from time to
time of the Bonds that it will not take, or permit to be taken by any of its officers, employees or
agents, any action that would cause interest on the Bonds to become includable in gross income
of the recipient under the Internal Revenue Code of 1986, as amended (the Code) and applicable
Treasury Regulations (the Regulations), and agrees to take any and all actions within its powers
to ensure that the interest on the Bonds will not become includable in gross income of the
recipient under the Code and the Regulations. All proceeds of the Bonds deposited in the
Construction Fund will be expended for payment of the costs of the Project, except that any
excess over that required for the Project may be expended as provided herein. The
Improvements are and will be owned and maintained by the City and available for use by
members of the general public on a substantially equal basis. The City shall not enter into any
lease, management contract, use agreement, capacity agreement or other agreement with any
non-governmental person relating to the use of the Improvements, or any portion thereof, or
security for the payment of the Bonds which might cause the Bonds to be considered"private
activity bonds"or"private loan bonds"pursuant to Section 141 of the Code.
9.02. Arbitrage Certification. The Mayor and City Manager being the officers of the
City charged with the responsibility for issuing the Bonds pursuant to this Resolution, are
authorized and directed to execute and deliver to the Purchaser a certificate in accordance with
Section 148 of the Code, and applicable Regulations, stating the facts, estimates and
circumstances in existence on the date of issue and delivery of the Bonds which make it
reasonable to expect that the proceeds of the Bonds will not be used in a manner that would
cause the Bonds to be"arbitrage bonds"within the meaning of the Code and Regulations.
9.03. Arbitrage Rebate. The City acknowledges that the Bonds are subject to the rebate
requirements of Section 148(o of the Code. The City covenants and agrees to retain such
records, make such determinations, file such reports and documents and pay such amounts at
such times as are required under Section 148(f) and applicable Regulations to preserve the
exclusion of interest on the Bonds from gross income for federal income tax purposes,unless the
Bonds qualify for an exception from the rebate requirement pursuant to one of the spending
exceptions set forth in Section 1.148-7 of the Regulations and no "gross proceeds"of the Bonds
(other than amounts constituting a"bona fide debt service fund") arise during or after the
expenditure of the original proceeds thereof.
9.04. Qualified Tax-Exempt Obligations. The Council hereby designates the Bonds as
"qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code relating to the
disallowance of interest expense for financial institutions, and hereby finds that the reasonably
anticipated amount of tax-exempt obligations which are not private activity bonds (not treating
qualified 501(c)(3)bonds under Section 145 of the Code as private activity bonds for the purpose
of this representation)which will be issued by the City and all subordinate entities during
calendar year 2005 does not exceed $10,000,000.
9.05. Reimbursement. The City certifies that the proceeds of the Bonds will not be used
by the City to reimburse itself for any expenditure with respect to the Projects which the City
paid or will have paid more than 60 days prior to the issuance of the Bonds unless,with respect
to such prior expenditures, the City shall have made a declaration of official intent which
complies with the provisions of Section 1.150-2 of the Regulations; provided that this
certification shall not apply(i)with respect to certain de minimis expenditures, if any,with
respect to the Projects meeting the requirements of Section 1.150-2(f)(1) of the Regulations, or
(ii)with respect to "preliminary expenditures" for the Projects as defined in Section 1.150-2(f)(2)
of the Regulations, including engineering or architectural expenses and similar preparatory
expenses,which in the aggregate do not exceed 20%of the "issue price"of the Bonds.
9.06. Continuing Disclosure. (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 Purchaser and other participating underwriters in the primary offering of the Bonds to
comply with amendments to Rule 15c2-12 promulgated by 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. 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. The City has complied in all
material respects with any undertaking previously entered into by it under the Rule. If the City
fails to comply with any provisions of this section, 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 in this section, 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 under this section constitute a default under the Bonds or under
any other provision of this resolution. As used in this section, 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, 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.
b Information in he manner set forth in subsection
at on To Be Disclosed. The City will t
( ) Y
(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, 2004, 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 , containing
( ) Y
balance sheets as of the end of such fiscal year and a statement of operations,
changes in fund balances and cash flows for the fiscal year then ended, showing
in comparative form such figures for the preceding fiscal year of the City,
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, an update of the operating and financial data of the type of information
contained in the Official Statement under the captions ECONOMIC AND
FINANCIAL INFORMATION; SUMMARY OF DEBT AND DEBT
STATISTICS; GENERAL INFORMATION- "Major Employers" and
"Building Permits."
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.
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(c) or the SEC. If the
document incorporated by reference is a final official statement, it must be available from the
Municipal Securities Rulemaking Board. 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)hereof), 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 this
section is amended as permitted by this paragraph(b)(1) or subsection(d), 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;
(I) 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 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(b)(1) at the time specified thereunder;
(B) the amendment or supplementing of this section pursuant to subsection(d),
together with a copy of such amendment or supplement and any explanation
provided by the City under subsection(d)(2);
(C) the termination of the obligations of the City under this section 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 information described in paragraph(1) of subsection(b), to each then nationally
recognized municipal securities information repository under the Rule and to any
state information depository then designated or operated by the State of Minnesota
as contemplated by the Rule (the State Depository), if any;
(2) the information described in paragraphs (2) and (3) of subsection(b), to the
Municipal Securities Rulemaking Board and to the State Depository, if any; and
(3) 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 paragraphs (1) or(2) of this subsection(c), as the case may be,
or, if such information is transmitted with a subsequent time of release, at the time
such information is to be released.
(d) Term; Amendments; Interpretation.
(1) The covenants of the City in this section shall remain in effect so long as any Bonds
are Outstanding. Notwithstanding the preceding sentence, however, the obligations
of the City under this section shall terminate and be without further effect as of any
date on which the City delivers to the Registrar 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 of this section
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 section(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(c)(3)hereof) 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 section 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 section 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.
SECTION 10. CERTIFICATION OF PROCEEDINGS.
10.01. Registration of Bonds. The City Manager is hereby authorized and directed to file
a certified copy of this resolution with the County Auditor of Hennepin County, together with
such additional information as the County Auditor may require, and to obtain from the County
Auditor a certificate that the Bonds have been duly entered upon the County Auditor's bond
register.
10.02. Authentication of Transcript. The officers of the City and the County Auditor are
hereby authorized and directed to prepare and furnish to the Purchaser and to Dorsey&Whitney
LLP, Bond Counsel, certified copies of all proceedings and records relating to the Bonds and
such other affidavits, certificates and information as may be required to show the facts relating to
the legality and marketability of the Bonds, as the same appear from the books and records in
their custody and control or as otherwise known to them, and all such certified copies, affidavits
and certificates, including any heretofore furnished, shall be deemed representations of the City
as to the correctness of all statements contained therein.
10.03. Official Statement. The Official Statement relating to the Bonds, dated
, 2005, relating to the Bonds prepared and distributed by Northland Securities,
Inc., the financial advisor for the City, is hereby approved. Northland Securities, Inc., is hereby
authorized on behalf of the City to prepare and distribute to the Purchaser within seven business
days from the date hereof, a supplement to the Official Statement listing the offering price, the
interest rates, selling compensation, delivery date, the underwriters and such other information
relating to the Bonds required to be included in the Official Statement by Rule 15c2-12 adopted
by the Securities and Exchange Commission(the SEC)under the Securities Exchange Act of
1934. The officers of the City are hereby authorized and directed to execute such certificates as
may be appropriate concerning the accuracy, completeness and sufficiency of the Official
Statement.
ADOPTED by the Eden Prairie City Council on October 4, 2005.
a yra- yor
ATTEST: SEAL
KarfteenoPorta, City Clerk