HomeMy WebLinkAboutResolution - 2009-37 - Issuane of General Obligation Certificates Series 2009B - 07/21/2009 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY,MINNESOTA
RESOLUTION NO. 2009-37
RESOLUTION AUTHORIZING ISSUANCE,AWARDING
SALE,PRESCRIBING THE FORM AND DETAILS AND
PROVIDING FOR.THE PAYMENT OF$2,455,000
GENERAL OBLIGATION ITAXABLEI EQUIPMENT
CERTIFICATES OF INDEBTEDNESS, SERIES 2009B
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. This Council hereby determines that it is in the best interest
of the City to issue its$2,455,000 General Obligation [Taxable] Equipment Certificates of
Indebtedness, Series 2009B (the Obligations)to finance the costs of acquiring various items of
capital equipment(the Project). Said items of capital equipment have a useful life not less than
the term of the Obligations. The principal amount of the Obligations does not exceed .25 percent
of the market value of taxable property in the City; therefore the Obligations may be issued
without an election.
1.02. Sale. Pursuant to the Notice of Sale and the Official Statement prepared on
behalf of the City by Northland Securities, Inc., sealed proposals for the purchase of the
Obligations were received at or before the time specified for receipt of proposals. The proposals
have been opened,publicly read and considered and the purchase price, interest rates and net
interest cost under the terms of each proposal have been determined. The most favorable
proposal received is that of , in ,
(the Purchaser),to purchase the Obligations at a price of$ plus
accrued interest on all Obligations to the day of delivery and payment, on the further terms and
conditions hereinafter set forth.
1.03. Award. The sale of the Obligations is hereby awarded to the Purchaser, and
the Mayor and City Manager are hereby authorized and directed to execute a contract on behalf
of the City for the sale of the Obligations. The good faith deposit of the Purchaser shall be
retained by the City until the Obligations have been delivered, and shall be deducted from the
purchase price paid at settlement.
[1.04. Build America Bond Designation. The Council irrevocably designates the
Obligations as"Build America Bonds,"elects to have Section 54AA of the Internal Revenue
Code of 1985, as amended (the Code),apply to the Obligations, and irrevocably elects to have
Section 54AA(g) of the Code apply to the Obligations,with the result that the City shall be
entitled to the credit provided in Section 6431 of the Code.]
Section 2. Obligation Terms; Registration, Execution and Delivery.
2.01. Issuance of Obligations. 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 Obligations 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 Obligations, to provide security therefor and to issue the
Obligations forthwith.
2.02. Maturities; Interest Rates; Denominations and Payment. The Obligations
shall be originally dated as of August 1, 2009, shall be in denominations of$5,000 or more,of
single maturities, shall mature on December 1 in the years and amounts stated below,without
option of prior payment, and shall bear interest from date of issue until paid at the annual rates
set forth opposite such years and amounts, as follows:
Year Amount Rate [Price] Year Amount Rate Price
2010 $270,000 2015 $ 60,000
2011 230,000 2016 60,000
2012 295,000 2017 60,000
2013 770,000 2018 65,000
2014 645,000
[REVISE MATURITY SCHEDULE FOR TERM BONDS]
The Obligations shall be issuable only in fully registered form. The interest thereon and, upon
surrender of each Obligation at the office of the Registrar described herein, the principal amount
thereof, shall be payable by check or draft issued by the Registrar described herein. Upon the
initial delivery of the Obligations 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 Obligation
so delivered, exchanged or transferred.
2.03. Dates and Interest Payment Dates. Interest on the Obligations shall be
payable on each June 1 and December 1, commencing June 1, 2010, 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. Interest shall be computed on the basis of a 360-day
year composed of twelve 30-day months.
2.04. Redemption. Obligations maturing in the years 2017 and 2018 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
integral multiples of$5,000, on December 1, 2016, 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 if
and as required by law, and at least thirty and not more than 60 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 Obligations to be redeemed at their addresses as they appear on the
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bond register described in Section 2.06 hereof, provided that notice shall be given to any
securities depository in accordance with its operational arrangements, but no defect in or failure
to give such mailed notice of redemption shall affect the validity of proceedings for the
redemption of any Obligation not affected by such defect or failure. Official notice of
redemption having been given as aforesaid, the Obligations or portions of Obligations 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 Obligations or portions of Obligations shall cease to bear interest. Upon
partial redemption of any Obligation, a new Obligation or Obligations 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]
[Obligations maturing on December I in the years 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 I in each of the
following years the following stated principal amounts:
Term Bonds Maturing in 20-- Term Bonds Maturing in 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.]
2.05. Appointment of Initial Registrar. The City hereby appoints Wells Fargo
Bank,National Association, 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 Obligations 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:
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(a) Register. The Registrar shall keep at its principal office a register in which
the Registrar shall provide for the registration of ownership of Obligations and the
registration of transfers and exchanges of Obligations entitled to be registered, transferred
or exchanged.
(b) Transfer of Obligation . Upon surrender for transfer of any Obligation 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 Obligations of a like aggregate principal amount and maturity, as requested
by the 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 Obligations. Whenever any Obligations are surrendered by the
registered owner for exchange the Registrar shall authenticate and deliver one or more
new Obligations of a like aggregate principal amount and maturity, as requested by the
registered owner or the owner's attorney in writing.
(d) Cancellation. All Obligations 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 Obligation is presented to the
Registrar for transfer,the Registrar may refuse to transfer the same until it is satisfied that
the endorsement on such Obligation 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.
(0 Persons Deemed Owners. The City and the Registrar may treat the person in
whose name any Obligation is at any time registered in the register as the absolute owner
of the Obligation,whether the Obligation shall be overdue or not, for the purpose of
receiving payment of or on account of, the principal of and interest on the Obligation and
for all other purposes; and all payments made to any registered owner or upon the
owner's order shall be valid and effectual to satisfy and discharge the liability upon
Obligation to the extent of the sum or sums so paid.
(g) Taxes, Fees and Charges. For every transfer or exchange of Obligations
(except for an exchange upon a partial redemption of an Obligation), 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 Obligations. In case any Obligation
shall become mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new
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Obligation of like amount, number,maturity date and tenor in exchange and substitution
for and upon cancellation of any such mutilated Obligation or in lieu of and in
substitution for any Obligation destroyed, stolen or lost, upon the payment of the
reasonable expenses and charges of the Registrar in connection therewith; and, in the case
of an Obligation destroyed, stolen or lost, upon filing with the Registrar of evidence
satisfactory to it that the Obligation 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 Obligations 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 Obligation has already matured or been called for redemption in accordance
with its terms it shall not be necessary to issue a new Obligation prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating
agent for the Obligations, within the meaning of Minnesota Statutes, Section 475.55,
Subdivision 1, as amended.
6) Valid Obligations. All Obligations issued upon any transfer or exchange of
Obligations shall be the valid obligations of the City, evidencing the same debt, and
entitled to the same benefits under this Resolution as the Obligations surrendered upon
such transfer or exchange.
2.07. Execution,Authentication and Delivery. The Obligations 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 the Obligations shall cease to be such officer before
the delivery of any Obligation, 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 Obligation 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 Obligation has been duly executed by the manual signature of an
authorized representative of the Registrar. Certificates of authentication on different Obligations
need not be signed by the same representative. The executed certificate of authentication on
each Obligation shall be conclusive evidence that it has been authenticated and delivered under
this Resolution. When the Obligations 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 Obligation,the person
in whose name such Obligation is recorded as the beneficial owner of such Obligation by a
Participant on the records of such Participant, or such person's subrogee.
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"Cede &Co."shall mean Cede &Co., the nominee of DTC,and any successor nominee
of DTC with respect to the Obligations.
"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 Obligations 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 Obligations shall be initially issued as separately authenticated fully registered
bonds, and one Obligation shall be issued in the principal amount of each stated maturity of the
Obligations. Upon initial issuance, the ownership of such Obligations 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 Obligations registered in its
name for the purposes of payment of the principal of or interest on the Obligations, selecting the
Obligations or portions thereof to be redeemed, if any, giving any notice permitted or required to
be given to registered owners of Obligations under this resolution, registering the transfer of
Obligations, 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 Obligations 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 Obligations,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
Obligations,with respect to any notice which is permitted or required to be given to owners of
Obligations 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 Obligations, or with respect
to any consent given or other action taken by DTC as registered owner of the Obligations. So
long as any Obligation is registered in the name of Cede& Co., as nominee of DTC, the
Registrar shall pay all principal of and interest on such Obligation, and shall give all notices with
respect to such Obligation, 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 Obligations to the extent
of the sum or sums so paid. No person other than DTC shall receive an authenticated Obligation
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 Obligations 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 Obligations 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 Obligations in the form of certificates. In such event, the Obligations will be transferable in
accordance with paragraph(e)hereof. DTC may determine to discontinue providing its services
with respect to the Obligations at any time by giving notice to the City and the Registrar and
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discharging its responsibilities with respect thereto under applicable law. In such event the
Obligations 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 Obligations is permitted under paragraph
(b)or(c)hereof, such transfer or exchange shall be accomplished upon receipt by the Registrar
of the Obligations 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
Obligations in the form of certificates are issued to owners other than Cede&Co., its successor
as nominee for DTC as owner of all the Obligations, or another securities depository as owner of
all the Obligations,the provisions of this resolution shall also apply to all matters relating
thereto, including, without limitation, the printing of such Obligations in the form of bond
certificates and the method of payment of principal of and interest on such Obligations in the
form of bond certificates.
2.09. Form of Obligations. The Obligations shall be prepared in substantially the
following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
CITY OF EDEN PRAIRIE
GENERAL OBLIGATION [TAXABLE] EQUIPMENT CERTIFICATES OF
INDEBTEDNESS, SERIES 2009B
No. R- $
Interest Rate Maturity Date Date of Original Issue CUSIP No.
% December 1,20_ August 1, 2009
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 the principal sum specified above on the
maturity date specified above, subject to prior payment as provided herein, with interest thereon
from the date hereof at the annual rate specified above,payable on June 1 and December I in
each year,commencing June 1, 2010, to the person in whose name this Obligation is registered
at the close of business on the fifteenth day(whether or not a business day)of the immediately
preceding month. 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 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
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Association,Minneapolis, Minnesota, 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 Obligation is one of an issue in the aggregate principal amount of$2,455,000 issued
pursuant to a resolution adopted by the City Council on July 21, 2009(the Resolution),to
finance the costs of acquisition of capital equipment, and is issued pursuant to and in full
conformity with the Constitution and laws of the State of Minnesota thereunto enabling,
including Minnesota Statutes, Section 412.301 and Chapter 475. The Obligations are issuable
only in fully registered form, in denominations of$5,000 or greater, of single maturities.
Obligations maturing in the years 2017 and 2018 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 integral multiples of$5,000,
on December 1, 2016, 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 if and as
required by law, and at least thirty and not more than 60 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 Obligations to be redeemed, at their addresses as they appear on the bond register
maintained by the Bond Registrar,provided that notice shall be given to any securities
depository in accordance with its operational arrangements, but no defect in or failure to give
such mailed notice of redemption shall affect the validity of proceedings for the redemption of
any Obligation not affected by such defect or failure. Official notice of redemption having been
given as aforesaid,the Obligations or portions of Obligations 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
Obligations or portions of Obligations shall cease to bear interest. Upon partial redemption of
any Obligation,a new Obligation or Obligations 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]
[Obligations maturing on December 1 in the years 20 and 20 shall be subject to
mandatory redemption prior to maturity pursuant to the sinking fund requirements of the
Resolution, at a redemption price equal to the stated principal amount thereof plus interest
accrued thereon to the redemption date,without premium, on December 1 in each of the
following years and principal amounts:
Term Bonds Maturing in 20-- Term Bonds Maturing,in 20--
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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
Obligation is transferable upon the books of the City at the 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 Obligations of other authorized denominations. Upon such transfer or exchange
the City will cause a new Obligation or Obligations 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 Obligations have been designated as "qualified tax-exempt obligations"pursuant to
Section 265(b)(3)of the Internal Revenue Code of 1986, as amended.]
The City and the Registrar may deem and treat the person in whose name this Obligation
is registered as the absolute owner hereof, whether this Obligation 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.
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 precedent to and in the issuance of this Obligation 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 Council has levied ad valorem taxes on all taxable property in the
City, which taxes will be collectible for the years and in amounts sufficient to produce sums not
less than five percent in excess of the principal of and interest on the Obligations when due, and
has appropriated such taxes to its General Obligation [Taxable] Equipment Certificates of
Indebtedness, Series 2009B Sinking Fund for the payment of such principal and interest; that if
necessary for payment of such principal and interest, additional ad valorem taxes are required to
be levied upon all taxable property in the City, without limitation as to rate or amount; that the
issuance of this Obligation, 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 or statutory limitation of indebtedness.
This Obligation 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.
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IN WITNESS WHEREOF, the City of Eden Prairie,Minnesota, by its City Council, has
caused this Obligation to be executed on its behalf by the facsimile signatures of the Mayor and
City Manager and has caused this Obligation to be dated as of the date set forth below.
Date of Authentication:
CITY OF EDEN PRAIRIE, MINNESOTA
(facsimile signature -City Manager) (facsimile signature- Mayor)
CERTIFICATE OF AUTHENTICATION
This is one of the Obligations delivered pursuant to the Resolution mentioned within.
Date of Authentication:
WELLS FARGO BANK,NATIONAL
ASSOCIATION,as Registrar
By
Authorized Representative
The following abbreviations, when used in the inscription on the face of this Obligation,
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
Obligation and all rights thereunder, and does hereby irrevocably constitute and appoint
attorney to transfer
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the said Obligation on the books kept for registration of the within Obligation,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 Obligation 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 certificate form]
Section 3. General Obligation [Taxable] Equipment Certificates of Indebtedness,
Series 2009B Si in Fund, So long as any of the Obligations are outstanding and any principal
of or interest thereon unpaid, the City Manager shall maintain a separate debt service fund on the
official books and records of the City to be known as the General Obligation [Taxable]
Equipment Certificates of Indebtedness, Series 2009E Sinking Fund(the Sinking Fund), and the
principal of and interest on the Obligations shall be payable from the Sinking Fund. The City
irrevocably appropriates to the Sinking Fund (a) any amount in excess of$
received from the Purchaser(including amounts representing capitalized interest); (b) all taxes
levied and collected in accordance with this Resolution; and(c) all other moneys appropriated by
the City Council to the Sinking Fund from time to time. If the balance in the Sinking Fund is at
any time insufficient to pay all interest and principal then due on all Obligations payable
therefrom, the payment shall be made from any fund of the City which is available for that
purpose, subject to reimbursement from the Sinking 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.
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Section 4. Pledge of Taxing Powers. For the prompt and full payment of the
principal of and interest on the Obligations as such payments respectively become due, the full
faith, credit and unlimited taxing powers of the City shall be and are hereby irrevocably pledged.
In order to produce aggregate amounts not less than 5% in excess of the amount needed to meet
when due the principal and interest payments on the Obligations, ad valorem taxes are hereby
levied on all taxable property in the City. The taxes are to be levied and collected in the
following years and amounts:
Levy Years Collection Years Amount
See attached Levy Computation
The taxes shall be irrepealable as long as any of the Obligations are outstanding and unpaid,
provided that the City reserves the right and power to reduce the tax levies in accordance with
the provisions of Minnesota Statutes, Section 475.61.
Section 5. Defeasance. When all of the Obligations have been discharged as
provided in this section, all pledges,covenants and other rights granted by this Resolution to the
holders of the Obligations shall cease. The City may discharge its obligations with respect to
any Obligations 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 Obligation 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 Obligations, subject to the
provisions of law now or hereafter authorizing and regulating such action,by depositing
irrevocably in escrow,with a bank or trust company qualified by law as an escrow agent for this
purpose, cash or securities which are authorized by law to be so deposited, bearing interest
payable at such time 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.
Section 6. Certification of Proceedings.
6.01. Registration of Obligations and Levy of Taxes. The City Manager is
hereby authorized and directed to file a certified copy of this resolution with the County Auditor
of Hennepin County and obtain a certificate that the Obligations have been duly entered upon the
Auditor's register and the tax required by law has been levied.
6.02. 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
Obligations and such other affidavits, certificates and information as may be required to show
the facts relating to the legality and marketability of the Obligations, as the same appear from the
books and records in their custody and control or as otherwise known to them, and all such
certifiers copies, affidavits and certificates, including any heretofore furnished, shall be deemed
representations of the City as to the correctness of all statements contained therein.
Section 7. Tax Covenants; Arbitrage Matters, Reimbursement_and Continuing
Disclosure.
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7.01. General Tax Covenant. The City agrees with the registered owners from
time to time of the Obligations 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 Obligations [, if the interest on
the Obligations were intended to be tax-exempt,] 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 covenants to take any and all affirmative actions
within its powers to ensure that the interest on the Obligations [(if the interest on the Obligations
were intended to be tax-exempt)] does not become includable in gross income of the recipient
under the Code and the Regulations. In particular, the City covenants and agrees that all
proceeds of the Obligations will be expended solely for the payment of the costs of acquisition
and installation of capital equipment to be owned and maintained by the City and used in the
City's general governmental operations. 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 City shall not enter into any lease, use or other agreement with
any non-governmental person relating to the use of the equipment or security for the payment of
the Obligations which might cause the Obligations [, if interest on the Obligations were intended
to be tax-exempt,] to be considered"private activity bonds"or"private loan bonds"pursuant to
Section 141 of the Code.
7.02. Certification. The Mayor and City Manager being the officers of the City
charged with the responsibility for issuing the Obligations 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 Regulations, stating the facts,estimates and
circumstances in existence on the date of issue and delivery of the Obligations which make it
reasonable to expect that the proceeds of the Obligations will not be used in a manner that would
cause the Obligations[, if interest on the Bonds were intended to be tax-exempt,] to be"arbitrage
bonds"within the meaning of the Code and Regulations.
7.03. Arbitrage Rebate. (a) It is hereby found that the City has general taxing
powers, that no Obligation is a"private activity bond" within the meaning of Section 141 of the
Code, that 95%or more of the net proceeds of the Obligations are to be used for local
governmental activities of the City, and that the aggregate face amount of all tax-exempt
obligations(other than private activity bonds) issued by the City and all subordinate entities
thereof during the year 2009 is not reasonably expected to exceed$5,000,000. Therefore,
pursuant to Section 148(f)(4)(D) of the Code, the City shall not be required to comply with the
arbitrage rebate requirements of paragraphs(2)and(3)of Section 148(f)of the Code.
(b)Notwithstanding the provisions of paragraph(a)of this Section 7.03, if the
arbitrage rebate provisions of Section 148(f)of the Code apply to the Obligations,the City
hereby covenants and agrees to make the determinations, retain records and rebate to the United
States the amounts at the times and in the manner required by said Section 148(f) and applicable
Regulations.
7.04. Reimbursement. The City certifies that the proceeds of the Obligations will
not be used by the City to reimburse itself for any expenditure with respect to the equipment
which the City paid or will have paid more than 60 days prior to the issuance of the Obligations
unless,with respect to such prior expenditures, [the City is in compliance with the relevant
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provisions of the American Resource and Recovery Act of 2009 and unless] 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 a declaration of official intent shall not be required(i) with respect to
certain de minimis expenditures, if any,with respect to the equipment meeting the requirements
of Section 1.150-2(f)(1) of the Regulations,or(ii)with respect to"preliminary expenditures"for
the equipment as defined in Section 1.150-2(0(2)of the Regulations which in the aggregate do
not exceed 20%of the "issue price"of the Obligations.
[7.05. Qualified Tax-Exempt Obligations. The City Council hereby designates
the Obligations 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) and are not excluded from this calculation by
Section 265(b)(3)(C)(ii)of the Code which will be issued by the City and all subordinate entities
during calendar year 2009 does not exceed$30,000,000.]
7.06. 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 (a) 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.
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(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, 2008, 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, the information for such fiscal year or for the period most recently
available of the type contained in the Official Statement under headings: City
Property Values; City Indebtedness; and City Tax Rates, Levies and
Collections.
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 "MSRB"). 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
15
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;
(3) 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.
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(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 ("NRMSR") under the Rule,
provided that from and after July 1, 2449, the Electronic Municipal Market Access
System ("EMMA") operated by the MSRB as a NRMSR shall be the primary
repository for continuing disclosure under the Rule;
(2) the information described in paragraphs (2) and (3) of subsection (b), to the MSRB;
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.
(4) all documents provided to the MSRB shall be accompanied by identifying
information as prescribed by the MSRB.
(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)
17
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.
ADOPTED by the Eden Prairie City Council on July 21, 200
(a 0:��
Phil oung,Mayor
SEAL
ATTEST:
Ka 41eenorta, City Clerk
18
PROJECTED LEVIES
Date Levy
2009
2010
2011
2012
2013
2014
2015
2016
2017
Total