HomeMy WebLinkAboutResolution - 2005-140 - Authorizing Issuance, Awarding Sale, Prescribing the Form and Details and Providing For the Payment of $4,920,000 General Obligation Bonds, Series 2005C - 12/05/2005 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2005-140
RESOLUTION AUTHORIZING ISSUANCE,AWARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR THE
PAYMENT OF$4,920,000 GENERAL OBLIGATION BONDS, SERIES 2005C
BE IT RESOLVED by the City Council (the Council) of the City of Eden Prairie,
Minnesota(the City), as follows:
SECTION 1. AUTHORIZATION AND SALE.
1.01. Authorization and Election. This City Council hereby determines it is in the best
interests of the City to authorize the issuance and sale of$4,920,000 aggregate principal amount
of General Obligation Bonds, Series 2005C (the Bonds), the proceeds to be used to finance a
portion of various community-wide improvements including improvements to the City's
community center, park land acquisition and trails (collectively, the Project), as approved by the
electors at an election held on November 8, 2005.
1.02. Sale. Pursuant to the Official Statement prepared on behalf of the City by
Northland Securities, Inc., sealed proposals for the purchase of the Bonds were received at or
before the time specified for receipt of proposals. The proposals have been opened,publicly
read and considered and the purchase price, interest rates and net interest cost under the terms of
each proposal have been determined. The most favorable proposal received is that of
, in
(the Purchaser), to purchase the Bonds
at a price of$ plus accrued interest on all Bonds to the day of delivery and
payment, on the further terms and conditions hereinafter set forth.
1.03. Award. The sale of the Bonds is hereby awarded to the Purchaser, and the Mayor
and City Manager are hereby authorized and directed on behalf of the City to execute a contract
for the sale of the Bonds in accordance with the terms of the proposal. The good faith deposit of
the Purchaser shall be retained and deposited by the City until the Bonds have been delivered,
and shall be deducted from the purchase price paid at settlement. Any good faith deposit of other
bidders shall be returned to them forthwith.
SECTION 2. 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 prior to the issuance of the Bonds
having been done, existing and having happened, it is necessary for this Council to establish the
form and terms of the Bonds, to provide for the security thereof, and to issue the Bonds
forthwith.
2.02. Maturities, Interest Rates and Denominations. The Bonds shall be originally dated
as of December 1, 2005, shall be in denominations of$5,000 or any integral multiple thereof of
single maturities, shall mature on January 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
2021 $515,000 % 2024 $880,000 %
2022 810,000 2025 915,000
2023 845,000 2026 955,000
[REVISE MATURITY SCHEDULE FOR ANY TERM BONDS]
For purposes of complying with the maturity provisions of Minnesota Statutes, Section 475.54,
subdivision 1, the maturity schedule for the Bonds is being combined with the maturity schedule
for the City's General Obligation Bonds, Series 2006A.
The Bonds shall be issuable only in fully registered form. Interest shall be computed on the basis
of a 360-day year composed of twelve 30-day months. The interest on 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. The interest
on the Bonds shall be payable on January 1 and July 1, commencing July 1, 2006, to the owners
of record thereof as of the close of business on the fifteenth day of the immediately preceding
month, whether or not such day is a business day.
2.04. Redemption. The Bonds shall be subject to redemption and prepayment at the
option of the City, in whole or in part, in such order as the City shall determine and within a
maturity by lot as selected by the Registrar in multiples of$5,000, on January 1, 2014, and on
any date thereafter, at a price equal to the principal amount thereof and accrued interest to the
date of redemption. The City Manager shall cause notice of the call for redemption thereof to be
published as required by law and, at least thirty(30) days prior to the designated redemption
date, shall cause notice of the call for redemption to be mailed,by first class mail, to the
registered owners of any Bonds to be redeemed at their addresses as they appear on the bond
register described in Section 2.06 hereof but no defect in or failure to give such mailed notice of
redemption shall affect the validity of proceedings for the redemption of any Bond not affected
by such defect or failure. Official notice of redemption having been given as aforesaid, the
Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and
payable at the redemption price therein specified, and from and after such date (unless the City
shall default in the payment of the redemption price) such Bonds or portions of Bonds shall cease
to bear interest. Upon partial redemption of any Bond, a new Bond or Bonds will be delivered to
the registered owner without charge, representing the remaining principal amount outstanding.
[COMPLETE THE FOLLOWING PROVISIONS IF THERE ARE TERM BONDS-
ADD ADDITIONAL PROVISIONS IF THERE ARE MORE THAN TWO TERM BONDS]
[Bonds maturing on January 1, 20 and 20 (the Term Bonds) shall be subject to
mandatory redemption prior to maturity pursuant to the sinking fund requirements of this Section
2.04 at a redemption price equal to the stated principal amount thereof plus interest accrued
thereon to the redemption date, without premium. The Registrar shall select for redemption,by
lot or other manner deemed fair, on January 1 in each of the following years the following stated
principal amounts of such Bonds:
Year Principal Amount
The remaining$ stated principal amount of such Bonds shall be paid at
maturity on January 1, 20
Year Principal Amount
The remaining $ stated principal amount of such Bonds shall be paid at
maturity on January 1, 20
Notice of redemption shall be given as provided in the preceding paragraph.]
2.05. Appointment of Initial Registrar. The City hereby appoints Wells Fargo Bank,
National Association, in Minneapolis, Minnesota, as the initial bond registrar,transfer agent and
paying agent(the Registrar). The Mayor and the 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
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 upon
thirty days'notice and upon the appointment 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 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.
(b) Transfer of Bonds. Upon surrender for transfer of any Bond duly endorsed by
the registered owner thereof or accompanied by a written instrument of transfer, in form
satisfactory to the Registrar, duly executed by the registered owner thereof or by an
attorney duly authorized by the registered owner 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
j transferor. The Registrar may,however, close the books for registration of any transfer
after the fifteenth day of the month preceding each interest payment date and until such
interest payment date.
(c) Exchange of Bonds. Whenever any Bonds are surrendered by the registered
owner for exchange the Registrar shall authenticate and deliver one or more new Bonds
of a like aggregate principal amount and maturity, as requested by the registered owner or
the owner's attorney in writing.
(d) Cancellation. All Bonds surrendered upon any transfer or exchange shall be
promptly canceled by the Registrar and thereafter disposed of as directed by the City.
(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 such Bond, whether such Bond shall be overdue or not, for the purpose of receiving
payment of, or on account of, the principal of and interest on such Bond and for all other
purposes, and all such payments so made to any such registered owner or upon the
owners order 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, 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 such
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
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lost, upon filing with the Registrar of evidence satisfactory to it that such 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
necessaryto issue a new Bond prior to payment.
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(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 all 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 the Bonds shall cease to be such officer before the delivery of
any 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 delivery. 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 such Bond has
been duly executed by the manual signature of the Registrar. The executed certificate of
authentication on each Bond shall be conclusive evidence that it has been authenticated and
delivered under this resolution. When the Bonds have been so delivered and authenticated, they
shall be delivered by the City Manager to the Purchaser upon payment of the purchase price in
accordance with the contract of sale heretofore made and 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 by the Mayor or City
Manager, if not previously filed with DTC, 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.
SECTION 3. 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 BOND, SERIES 2005C
Interest Rate Maturity Date of Original Issue CUSIP No.
% January 1, 20-- December 1, 2005
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: THOUSAND DOLLARS
CITY OF EDEN PRAIRIE, STATE OF 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 sum specified above on the maturity date specified
above, and to pay interest thereon from the date of original issue specified above, or from the
most recent interest payment date to which interest has been paid or duly provided for, at the
annual rate specified above,payable on January I and July I in each year, commencing July 1,
2006, 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 immediately preceding month, all subject to the
provisions referred to herein with respect to the redemption of the principal of this Bond prior to
its stated maturity. The interest hereon and, upon presentation and surrender hereof at the
principal office of the Registrar described below,the principal hereof, are payable in lawful
money of the United States of America by check or draft drawn on Wells Fargo Bank,National
Association, Minneapolis, Minnesota, as bond registrar, transfer agent and paying agent, or its
successor designated under the Resolution described herein (the Registrar).
This Bond is one of an issue in the aggregate principal amount of$4,920,000 (the
Bonds), issued by the City to finance a portion of various community-wide improvements
including improvements to the City's community center, park land acquisition and trails, and is
issued pursuant to and in full conformity with resolutions of the City Council, including a
resolution adopted December 5, 2005 (the Resolution), and authority conferred by more than the
requisite majority vote of the qualified electors of the City voting on the question of its issuance
at an election duly and legally called and held, and pursuant to and in full conformity with the
Constitution and laws of the State of Minnesota thereunto enabling, including Minnesota
Statutes, Chapter 475. The Bonds are issuable only in fully registered form, in denominations of
$5,000 or any integral multiple thereof, of single maturities.
The Bonds are each subject to redemption and prepayment at the option of the City, in
whole or in part, in such order as the City shall determine and, within a maturity,by lot as
selected by the Registrar in multiples of$5,000, on January 1, 2014, and on any date thereafter,
at a price equal to the principal amount thereof plus interest accrued to the date of redemption.
The City will cause notice of the call for redemption to be published as required by law and, at
least thirty(30) days prior to the designated redemption date,will cause notice of the call thereof
to be mailed by first class mail to the registered owner of any Bond to be redeemed at the
owner's address as it appears on the bond register maintained by the Registrar, but 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 registered 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 January 1 in each of the years shown below, in an
amount equal to the following principal amounts:
Term Bonds Maturingin n 20__ Term Bonds Maturingin•n 20__
Sinking Fund Aggregate Sinking Fund Aggregate
Payment Date Principal Amount Pa m� ent Date Principal Amount
Notice of redemption shall be given as provided in the preceding paragraph.]
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.
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 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 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 such transfer or exchange.
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 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 happen, to exist and to be performed precedent to and in the issuance of this Bond in order to
make it a valid and binding general obligation of the City according to its terms have been done,
have happened, do exist and have been performed in regular and due form, time and manner as
so required; that,prior to the issuance hereof, a direct, annual, ad valorem tax has been duly
levied upon all taxable property in the City for the years and in amounts not less than five
percent in excess of sums sufficient to pay the interest hereon and the principal hereof as the
same respectively become due; that additional taxes, if needed to meet the principal and interest
requirements of the Bonds, shall be levied upon all such property without limitation as to rate or
amount; and that the issuance of the Bonds does not cause the indebtedness of the City to exceed
any constitutional 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 of Eden Prairie, State of Minnesota, by its City
Council,has caused this Bond to be executed on its behalf by the facsimile signatures of the
Mayor and City Manager.
CITY OF EDEN PRAIRIE, MINNESOTA
(Facsimile Signature - City Manager) (Facsimile Signature - Mayor)
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds delivered pursuant to the Resolution mentioned within.
Date of Authentication: WELLS FARGO BANK,NATIONAL
ASSOCIATION, as Registrar
By
Authorized Representative
The followingabbreviations 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 4. USE OF PROCEEDS.
4.01. General Obligation Bonds, Series 2005C Construction Fund. There is hereby
established on the official books and records of the City a General Obligation Bonds, Series
2005C Construction Fund (the Construction Fund), and the City shall continue to maintain the
Construction Fund until payment of all costs and expenses incurred in connection with the
Project financed by the Bonds have been paid. To the Construction Fund there shall be credited
from the proceeds of the Bonds an amount equal to the estimated cost of the acquisition and
betterment of the Project(including bond issuance expenses) and from the Construction Fund
there shall be paid all construction costs and expenses (including bond issuance expenses). After
payment of all construction costs and bond issuance costs, the Construction Fund shall be
discontinued and any Bond proceeds remaining therein shall be credited to the Debt Service
Fund established by Section 4.02 hereof. All proceeds of the Bonds deposited in the Construction
Fund will be expended solely for the payment of the costs of the Project as required pursuant to
Minnesota Statutes, Section 475.58, subdivision 4.
4.02. General Obligation Bonds, Series 2005C Debt Service Fund. So long as any of the
Bonds are outstanding and any principal or interest thereon unpaid, the City shall maintain as a
separate account on its books and records a General Obligation Bonds, Series 2005C Debt
Service Fund(the Debt Service Fund). The Debt Service Fund shall be used for no purpose
other than payment of the principal of and interest on the Bonds. The City irrevocably
appropriates to the Debt Service Fund (a) any amount in excess of the amount deposited to the
Construction Fund pursuant to Section 4.01; (b)the amounts specified in Section 4.01, after
payment of all costs of the Project; (c) all taxes levied and collected in accordance with this
resolution; and(d) all other moneys as shall be appropriated by the City to the Debt Service Fund
from time to time. If any payment of principal of and interest on the Bonds shall become due
when there is not sufficient money in the Debt Service Fund to make such payment, the City
Manager shall pay the same from any other available fund of the City, and such other fund shall
be reimbursed for such advances out of the proceeds of the taxes levied for the payment of the
Bonds when available.
4.03. Tax Levies. For the prompt and full payment of the principal and interest on the
Bonds as the same respectively become due, the full faith, credit and taxing power of the City
shall be and are hereby irrevocably pledged. To provide moneys for the payment of principal of
and interest on the Bonds as required by Minnesota Statutes, Section 475.61, subdivision 1, there
is hereby levied on all of taxable property in the City a direct, annual ad valorem tax which shall
be spread upon the tax rolls for collection in the years and amounts as follows, as a part of other
general taxes of the City, as follows:
Levy Years Collection Years Amount
2005-2024 2006-2025 See attached levy computation
The foregoing taxes shall be irrepealable as long as any of the Bonds are outstanding and unpaid;
provided, that the City reserves the right and power to reduce the levies in the manner and to the
extent permitted by Minnesota Statutes, Section 475.61. It is estimated that the ad valorem taxes
will be collected in amounts not less than five percent in excess of the annual principal and
interest requirements of the Bonds. If, as of the date tax levies are certified in any year, the sum
of the balance in the Debt Service Fund plus any ad valorem taxes theretofore levied for the
payment of Bonds payable therefrom and collectible through the end of the following calendar
year is not sufficient to pay when due all principal and interest to become due on all Bonds
payable therefrom in said following calendar year, or the Debt Service Fund has incurred a
deficiency in the manner provided in Section 4.02, an additional direct, irrepealable, ad valorem
tax shall be levied on all taxable property within the corporate limits of the City for the purpose
of restoring such accumulated or anticipated deficiency in accordance with the provisions of this
resolution.
SECTION 5. 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 6. TAX COVENANTS ARBITRAGE MATTERS, REIMBURSEMENT AND
CONTINUING DISCLOSURE.
6.01. Restrictive Action. The Project will be owned and maintained by the City and used
to carry out its program of public recreation. The City shall not enter into any lease,management
agreement, use agreement or other contract with any nongovernmental entity relating to the
Project or a portion thereof which would cause the Bonds to be considered "private activity
bonds" or "private loan bonds" pursuant to the provisions of Section 141 of the Code. The City
covenants and agrees with the registered owners of the Bonds that it will not take or permit to be
taken by any of its officers, employees or agents any actions that would cause interest on the
Bonds to become includable in gross income of the recipient under the Code and applicable
Regulations and covenants 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.
6.02. 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
the provisions of 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 the Regulations.
6.03. Arbitrage Rebate. The City acknowledges that the Bonds are subject to the rebate
requirements of Section 148(f) 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.
6.04. 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 Project 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 Project
meeting the requirements of Section 1.150-2(f)(1) of the Regulations, or(ii) with respect to
"preliminary expenditures" for the Project as defined in Section 1.1 50-2(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.
6.05. 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.
6.06. 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 To Be Disclosed. The City will provide, in the manner set forth in
subsection(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 year, containing
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 7. CERTIFICATION OF PROCEEDINGS.
7.01. Filing with County Auditor. The City Manager is hereby authorized and directed
to file with the County Auditor of Hennepin County, a certified copy of this resolution together
with such other information as the County Auditor shall require and to obtain from the County
Auditor a certificate that the Bonds have been entered upon the bond register and that the tax for
the payment of the Bonds has been levied as required by law.
7.02. Certification of Proceedings. 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 of the City relating to the
Bonds and to the financial condition and affairs of the City, 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 they appear from the books and records under the officer's custody and control or as
otherwise known to the them. All such certified copies, certificates and affidavits, including any
heretofore furnished, shall be deemed representations of the City to the correctness of all
statements contained herein.
7.03. Official Statement. The preliminary Official Statement relating to the Bonds, dated
November_, 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 City Council of the City of Eden Prairie this 5th day of December 2005.
fancy a-L ns, or
ATTEST:
1;1 1VPh44,W
K hleen Porta, City Clerk