HomeMy WebLinkAboutResolution - 2009-64 - Issuance & Sale of General Obligation Capital Improvement Plan Refunding Bonds, Series 2009C - 10/06/2009CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2009-64
RESOLUTION AUTHORIZING ISSUANCE, AWARDING SALE, PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR THE PAYMENT OF $1,395,000 GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS,
SERIES 2009C
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. On September 15, 2009, this Council held a public hearing on the questions of approving the adoption of amendments to its Capital Improvement Plan (the “Plan”)
and issuing General Obligation Capital Improvement Plan Refunding Bonds in the approximate principal amount of $1,450,000 (the “Bonds”) for the purpose of purchasing the City fire station
(the “Project”), which Project is currently leased by the City from the Housing and Redevelopment Authority in and for the City of Eden Prairie (the “Authority”). The Project was originally
financed with proceeds of the Authority’s $3,390,000 Public Facility Lease Revenue Bonds, Series 2000A (City of Eden Prairie Lease Obligations) dated, as originally issued, as of November
1, 2000 (the “Refunded Bonds”).
By resolution duly adopted on September 15, 2009, the Council (i) authorized the amendments to the Plan; (ii) approved the issuance and sale of Bonds to Northland Securities, Inc. (the
“Purchaser”), subject to satisfaction of certain conditions described therein. The City has received an offer from the Purchaser to purchase the Bonds at a price of $1,427,343.70, plus
accrued interest on all Bonds to the day of delivery and payment, on the further terms and conditions hereinafter set forth. The total debt service on the Bonds is lower by at least
$109,916.45 than the debt service on the Refunded Bonds, and the present value of this reduction in debt service is not less than 3% of the debt service on the Refunded Bonds, exclusive
of any premium, computed to their stated maturity dates, using the yield of the Bonds as the discount rate.
No petition requesting a vote on the question of adopting the amendments to the Plan or issuing the Bonds has yet been filed. The sale of the Bonds to the Purchaser is hereby ratified
on the terms provided herein, provided that no such petition is filed within thirty days of September 15, 2009.
1.02. Issuance of Bonds. All acts, conditions and things which are required by the Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be performed
precedent to and in the valid issuance of the Bonds having been done, now existing, having happened and having been performed, it is now necessary for the Council to establish the form
and terms of the Bonds, to provide security therefor and to issue the Bonds forthwith.
SECTION 2. BOND TERMS; REGISTRATION; EXECUTION AND DELIVERY.
2.01. Maturities; Interest Rates; Denominations and Payment. The Bonds shall be originally dated as of November 1, 2009, shall be in the denomination of $5,000 each, or any integral
multiple thereof, of single maturities, shall mature on December 1 in the years and amounts stated below, and shall bear interest from date of original issue until paid at the annual
rates set forth opposite such years and amounts, as follows:
Year Amount Rate 2010 $260,000 2.50% 2011 270,000 3.00 2012 280,000 3.00 2013 290,000 2.50 2014 295,000 2.50
The maximum debt service payments to become due in any year on all outstanding capital improvement plan bonds of the City, including the Bonds and the General Obligation Capital Improvement
Plan Bonds, Series 2006B ($319,856.25) is less than .16% of the taxable market value of the property within the City ($16,119,006). This Council hereby finds that the general obligation
capital improvement plan bonds may be issued without an election pursuant to Minnesota Statutes, Section 475.521, subdivision 2.
The Bonds shall be issuable only in fully registered form. The interest thereon and, upon surrender of each Bond, the principal amount thereof shall be payable by check or draft issued
by the Registrar described herein, provided that, so long as the Bonds are registered in the name of a securities depository, or a nominee thereof, in accordance with Section 2.07 hereof,
principal and interest shall be payable in accordance with the operational arrangements of the securities depository.
2.02. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to Section 2.06 and upon any subsequent transfer or exchange pursuant to Section 2.05, the date
of authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on the Bonds shall be payable on June 1 and December 1, commencing June 1, 2010, each
such date being referred to herein as an Interest Payment Date, to the person in whose name the Bonds are registered on the Bond Register, as hereinafter defined, at the Registrar’s
close of business on the fifteenth day of the calendar month next preceding such Interest Payment Date, whether or not such day is a business day. Interest shall be computed on the
basis of a 360-day year composed of twelve 30-day months.
2.03. Redemption. The Bonds shall not be subject to optional redemption prior to their stated maturity dates.
2.04. Appointment of Initial Registrar. The City hereby appoints Wells Fargo Bank, National Association, as the initial 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 30 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.
2.05. Registration. The effect of registration and the rights and duties of the City and the Registrar with respect thereto shall be as follows:
(a) Register. 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 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 the Bond,
whether the Bond shall be overdue or not, for the purpose of receiving payment of or on account of, the principal of and interest on the Bond and for all other purposes; and all payments
made to any registered owner or upon the owner's order shall be valid and effectual to satisfy and discharge the liability upon Bond to the extent of the sum or sums so paid.
(g) Taxes, Fees and Charges. For every transfer or exchange of Bonds (except for an exchange upon a partial redemption of a Bond), the Registrar may impose a charge upon the owner
thereof sufficient to reimburse the Registrar for any tax, fee or other governmental charge required to be paid with respect to such transfer or exchange.
(h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like amount, number,
maturity date and tenor in exchange and substitution for and upon cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond destroyed, stolen or lost, upon
the payment of the reasonable expenses and charges of the Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost, upon filing with the Registrar of evidence
satisfactory to it that the Bond was destroyed, stolen or lost, and of the ownership thereof, and upon furnishing to the Registrar of an appropriate bond or indemnity in form, substance
and amount satisfactory to it, in which both the City and the Registrar shall be named as obligees. All Bonds so surrendered to the Registrar shall be canceled by it and evidence of
such cancellation shall be given to the City. If the mutilated, destroyed, stolen or lost Bond has already matured it shall not be necessary to issue a new Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating agent for the Bonds, within the meaning of Minnesota Statutes, Section 475.55, Subdivision 1, as amended.
(j) 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.
2.06. 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 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 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 the Bond has been duly executed by the manual signature of an authorized representative of the Registrar.
Certificates of authentication on different Bonds need not be signed by the same representative. The executed certificate of authentication on each Bond shall be conclusive evidence
that it has been authenticated and delivered under this Resolution. When the Bonds have been prepared, executed and authenticated, the City Manager shall deliver them to the Purchaser
upon payment of the purchase price in accordance with the contract of sale heretofore executed, and the Purchaser shall not be obligated to see to the application of the purchase price.
2.07. 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 sender 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,
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, 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.
Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS, SERIES 2009C
Rate Maturity Date Date of Original Issue CUSIP No.
December 1, 20___ November 1, 2009
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
THE CITY OF EDEN PRAIRIE, MINNESOTA (the “City”), acknowledges itself to be indebted and hereby promises to pay to the registered owner named above, or registered assigns, the principal
amount specified above on the maturity date specified above and promises to pay interest thereon from the date of original issue specified above or from the most recent Interest Payment
Date (as hereinafter defined) to which interest has been paid or duly provided for, at the annual rate specified above, payable on June 1 and December 1 of each year, commencing June
1, 2010 (each such date, an “Interest Payment Date”). The interest so payable on any Interest Payment Date shall be paid to the person in whose name this Bond is registered at the close
of business on the fifteenth day (whether or not a business day) of the 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 drawn on Wells Fargo Bank, National Association, as bond registrar, transfer agent and paying agent, or its successor designated under the Resolution
described herein (the “Registrar”). For the prompt and full payment of such principal and interest as the same respectively become due, the full faith and credit and taxing powers of
the City have been and are hereby irrevocably pledged.
This Bond is one of an issue in the aggregate principal amount of $1,395,000 issued pursuant to a resolution adopted by the City Council on October 6, 2009 (the “Resolution”), to finance
certain capital projects as described in the City’s Capital Improvement Plan. This Bond is issued by authority of and in strict accordance with the provisions of the Constitution and
laws of the State of Minnesota thereunto enabling, including Minnesota Statutes, Section 475.521 and Chapter 475. The Bonds are issuable only in fully registered form, in denominations
of $5,000 or any multiple thereof, of single maturities.
The Bonds shall not be subject to optional redemption prior to their stated maturity dates.
The Bonds have been designated as "qualified tax-exempt obligations" pursuant to Section 265(b) of the Internal Revenue Code of 1986, as amended.
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.
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.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts, conditions and things required by the Constitution and laws of the State of Minnesota to be done, to exist, to happen
and to be performed preliminary to and in the issuance of this Bond in order to make it a valid and binding general obligation of the City in accordance with its terms, have been done,
do exist, have happened and have been performed as so required; that, prior to the issuance hereof, the City has levied 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 Bonds when due, and has appropriated
the taxes to its General Obligation Capital Improvement Plan Refunding Bonds, Series 2009C Bond Fund for the payment of principal and interest; that if necessary for payment of 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; and that the issuance of this Bond,
together with all other indebtedness of the City outstanding on the date hereof and on the date of its actual issuance and delivery, does not cause the indebtedness of the City to exceed
any constitutional 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, 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.
Dated _________________ WELLS FARGO BANK, NATIONAL ASSOCIATION, as Registrar
By ________________________________
Authorized Representative
____________
The following abbreviations, when used in the inscription on the face of this Bond, shall be construed as though they were written out in full according to the applicable laws or regulations:
TEN COM -- as tenants in common UTMA ........................... as Custodian for .............
(Cust) (Minor)
TEN ENT -- as tenants by the entireties under Uniform Transfers to Minors Act ..................
(State)
JT TEN -- as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used.
_________
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto _________________ the within Bond and all rights thereunder, and does hereby irrevocably constitute and appoint
_____________________ attorney to transfer the said Bond on the books kept for registration of the within Bond, with full power of substitution in the premises.
Dated: ___________________ _________________________________________
NOTICE: The assignor’s signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement
or any change whatsoever.
Signature Guaranteed:
_________________________________________
Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements
of the Registrar, which requirements include
membership or participation in STAMP or such
other “signature guaranty program” as may be
determined by the Registrar in addition to or in
substitution for STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:
____________________________________
[end of form of bond]
SECTION 3. USE OF PROCEEDS. Upon payment for the Bonds by the Purchaser, the Registrar shall deposit the proceeds of the Bonds and certain amounts with respect to the Refunded Bonds
in accordance with the Escrow Agreement dated as of November 9, 2009 (the “Escrow Agreement”), between the City, the Authority and Wells Fargo Bank, National Association, as escrow agent
(the “Escrow Agent”), a banking institution whose deposits are insured by the Federal Deposit Insurance Corporation and whose combined capital and surplus is not less than $500,000.
The funds so deposited with respect to the refunding of the Refunded Bonds shall be invested in securities authorized for such purpose by Minnesota Statutes, Section 475.67, subdivision
8, maturing on such dates and bearing interest at such rates as are required to provide funds sufficient, with cash retained in the escrow account, to pay all principal and interest
to become due on the Refunded Bonds to and including December 1, 2010 (the “Redemption Date”) and to pay and redeem the outstanding principal of the Refunded Bonds on the Redemption
Date. The Mayor and City Manager are hereby authorized to enter into the Escrow Agreement with the Escrow Agent establishing the terms and conditions for the escrow account in accordance
with Minnesota Statutes, Section 475.67.
SECTION 4. GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS, SERIES 2009C BOND FUND. The Bonds shall be payable from a separate General Obligation Capital Improvement Plan
Refunding Bonds, Series 2009C Bond Fund (the “Bond Fund”) of the City, which Bond Fund the City agrees to maintain until the Bonds have been paid in full. If the money in the Bond Fund
should at any time be insufficient to pay principal and interest due on the Bonds, such amounts shall be paid from other moneys on hand in other funds of the City, which other funds
shall be reimbursed therefor when sufficient money becomes available in the Bond Fund. The moneys on hand in the Bond Fund from time to time shall be used only to pay the principal
of and interest on the Bonds. Into the Bond Fund shall be paid: (a) the amounts appropriated thereto pursuant to the Escrow Agreement; (b) all taxes collected pursuant to Section 5;
(c) all excess amounts on deposit in the debt service and debt service reserve funds maintained for the payment of the Refunded Bonds upon the retirement of the Refunded Bonds on the
Redemption Date; and (d) any other funds appropriated by the Council for the payment of the Bonds.
SECTION 5. PLEDGE OF TAXING POWERS. For the prompt and full payment of the principal of and interest on the Bonds 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 amounts needed to meet when
due the principal and interest payments on the Bonds, ad valorem taxes are hereby levied on all taxable property in the City, the taxes to be levied and collected in the following years
and amounts:
Levy Years Collection Years Amount
See attached levy calculation
The 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 tax levies from other legally
available funds, in accordance with the provisions of Minnesota Statutes, Section 475.61.
SECTION 6. BOND FUND BALANCE RESTRICTION. In order to ensure compliance with the Internal Revenue Code of 1986, as amended (the “Code”), and applicable Treasury Regulations thereunder
(the “Regulations”), upon allocation of any funds to the Bond Fund, the balance then on hand in the Fund shall be ascertained. If it exceeds the amount of principal and interest on
the Bonds to become due and payable through December 1 next following, plus a reasonable carryover equal to 1/12th of the debt service due in the following bond year, the excess shall
(unless an opinion is otherwise received from bond counsel) be used to prepay the Bonds, or invested at a yield which does not exceed the yield on the Bonds calculated in accordance
with Section 148 of the Code.
SECTION 7. 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 registered
owners 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 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, provided, however, that if such deposit is made more than ninety days before
the maturity 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.
SECTION 8. TAX COVENANTS; ARBITRAGE MATTERS AND CONTINUING DISCLOSURE.
8.01. Covenant. The City covenants and agrees with the owners from time to time of the Bonds, that it will not take, or permit to be taken by any of its officers, employees or agents,
any action which would cause the 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 affirmative 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 applicable Regulations.
The City represents and covenants that all improvements financed from the proceeds of the Bonds are and will be owned and operated by the City and available for use by members of the
general public on a substantially equal basis. The City has not and will not enter into any lease, management contract, operating agreement, use agreement or other contract relating
to the use, operation or maintenance of the Project or any part thereof which would cause the Bonds to be considered “private activity bonds” or “private loan bonds” pursuant to Section
141 of the Code.
8.02. 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 that on the basis
of facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds, it is reasonably expected 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 applicable Regulations.
8.03. Qualified Tax-Exempt Obligations. In order to enhance the marketability of the Bonds and since the City and all subordinate entities do not reasonably expect to issue in excess
of $30,000,000 of governmental bonds during calendar year 2009, the Bonds are hereby designated by the City as “qualified tax-exempt obligations” pursuant to Section 265(b) of the Code.
8.04. Arbitrage Rebate Exemption. For purposes of complying with the requirements of Section 148(f)(4)(D) of the Code relating to the exemption of certain small governmental units
from the rebate requirements of the Code, the City represents that:
(i) the City is a governmental unit with general taxing powers;
(ii) the Bonds are not private activity bonds as defined in Section 141 of the Code;
(iii) ninety-five percent of the net proceeds of the Bonds are to be used for the local governmental purposes of the City; and
(iv) the aggregate face amount of all tax-exempt bonds (other than private activity bonds) issued by the City in the calendar year in which the Bonds are to be issued is not reasonably
expected to exceed $5,000,000.
Therefore, pursuant to the provisions of 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.
If notwithstanding the provisions of the immediately preceding paragraph, the arbitrage rebate provisions of Section 148(f) of the Code apply to the Bonds, 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.
8.05. Reimbursement. The City certifies that the proceeds of the Bonds will not be used by the City to reimburse itself for any expenditure with respect to the financed facilities
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 a declaration of official intent shall not be required (i) with respect to certain
de minimis expenditures, if any, with respect to the financed facilities meeting the requirements of Section 1.150-2(f)(1) of the Regulations, or (ii) with respect to “preliminary expenditures”
for the financed facilities as defined in Section 1.150-2(f)(2) of the Regulations, including engineering or architectural expenses and similar preparatory expenses, which in the aggregate
do not exceed 20% of the “issue price” of the Bonds.
8.06. Continuing Disclosure. 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.
(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:
on or before 365 days after the end of each fiscal year of the City, commencing with the fiscal year ending December 31, 2009, 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: Economic and Financial Information; Summary of Debt and Debt Statistics and General Information—“Major Employers” and “Building
Permits,” which information may be unaudited.
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 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 paragraphs (1), (2) and (3) of subsection (b), to the MSRB through EMMA;
(2) 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 paragraph (1) of this subsection, or, if such information is transmitted with a subsequent time
of release, at the time such information is to be released;
(3) 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) 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 9. CERTIFICATION OF PROCEEDINGS.
9.01. Registration and Levy of Taxes. The City Manager is hereby authorized and directed to file a certified copy of this resolution in the records of the County Auditor, together
with such additional information as required, and to issue a certificate that the Bonds have been duly entered upon the County Auditor’s bond register and the tax required by law has
been levied.
9.02. Certification of Records. The officers of the City 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 their custody and control or as otherwise
known to them, and all such certified copies, certificates and affidavits, including any heretofore furnished, shall be deemed representations of the City to the facts recited herein.
9.03. Official Statement. The Preliminary Official Statement relating to the Bonds, dated September 23, 2009, relating to the Bonds prepared and distributed by Northland Securities,
Inc., is hereby approved. The officers of the City are hereby authorized and directed to execute such certificates as may be appropriate concerning the accuracy, completeness and sufficiency
of the Official Statement.
ADOPTED by the Eden Prairie City Council on this 6th day of October 2009.
_____________________________
Phil Young, Mayor
ATTEST:
______________________________
Kathleen Porta, City Clerk
Levy Year Collect Year Levy 2009 2010 $315,798.44 2010 2011 316,181.25 2011 2012 318,176.25 2012 2013 319,856.25 2013 2014 317,493.75
CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2009-64
RESOLUTION AUTHORIZING ISSUANCE, AWARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR
THE PAYMENT OF $1,395,000 GENERAL OBLIGATION CAPITAL
IMPROVEMENT PLAN REFUNDING BONDS, SERIES 2009C
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. On September 15, 2009, this Council held a public hearing on the
questions of approving the adoption of amendments to its Capital Improvement Plan (the "Plan")
and issuing General Obligation Capital Improvement Plan Refunding Bonds in the approximate
principal amount of$1,450,000 (the "Bonds") for the purpose of purchasing the City fire station
(the "Project"), which Project is currently leased by the City from the Housing and
Redevelopment Authority in and for the City of Eden Prairie (the "Authority"). The Project was
originally financed with proceeds of the Authority's $3,390,000 Public Facility Lease Revenue
Bonds, Series 2000A (City of Eden Prairie Lease Obligations) dated, as originally issued, as of
November 1, 2000 (the "Refunded Bonds").
By resolution duly adopted on September 15, 2009, the Council (i) authorized the
amendments to the Plan; (ii) approved the issuance and sale of Bonds to Northland Securities,
Inc. (the "Purchaser"), subject to satisfaction of certain conditions described therein. The City
has received an offer from the Purchaser to purchase the Bonds at a price of$1,427,343.70, plus
accrued interest on all Bonds to the day of delivery and payment, on the further terms and
conditions hereinafter set forth. The total debt service on the Bonds is lower by at least
$109,916.45 than the debt service on the Refunded Bonds, and the present value of this reduction
in debt service is not less than 3% of the debt service on the Refunded Bonds, exclusive of any
premium, computed to their stated maturity dates, using the yield of the Bonds as the discount
rate.
No petition requesting a vote on the question of adopting the amendments to the Plan or
issuing the Bonds has yet been filed. The sale of the Bonds to the Purchaser is hereby ratified on
the terms provided herein, provided that no such petition is filed within thirty days of September
15, 2009.
1.02. Issuance of Bonds. All acts, conditions and things which are required by the
Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be
performed precedent to and in the valid issuance of the Bonds having been done, now existing,
having happened and having been performed, it is now necessary for the Council to establish the
form and terms of the Bonds, to provide security therefor and to issue the Bonds forthwith.
SECTION 2. BOND TERMS; REGISTRATION; EXECUTION AND DELIVERY.
2.01. Maturities; Interest Rates; Denominations and Payment. The Bonds shall be
originally dated as of November 1, 2009, shall be in the denomination of$5,000 each, or any
integral multiple thereof, of single maturities, shall mature on December 1 in the years and
amounts stated below,and shall bear interest from date of original issue until paid at the annual
rates set forth opposite such years and amounts, as follows:
Year Amount Rate
2010 $260,000 2.50%
2011 270,000 3.00
2012 280,000 3.00
2013 290,000 2.50
2014 295,000 2.50
The maximum debt service payments to become due in any year on all outstanding
capital improvement plan bonds of the City, including the Bonds and the General Obligation
Capital Improvement Plan Bonds, Series 2006B ($319,856.25) is less than .16%of the taxable
market value of the property within the City($16,119,006). This Council hereby finds that the
general obligation capital improvement plan bonds may be issued without an election pursuant to
Minnesota Statutes, Section 475.521, subdivision 2.
The Bonds shall be issuable only in fully registered form. The interest thereon and, upon
surrender of each Bond, the principal amount thereof shall be payable by check or draft issued by
the Registrar described herein, provided that, so long as the Bonds are registered in the name of a
securities depository, or a nominee thereof, in accordance with Section 2.07 hereof,principal and
interest shall be payable in accordance with the operational arrangements of the securities
depository.
2.02. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to
Section 2.06 and upon any subsequent transfer or exchange pursuant to Section 2.05, the date of
authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on
the Bonds shall be payable on June 1 and December 1, commencing June 1,2010, each such date
being referred to herein as an Interest Payment Date, to the person in whose name the Bonds are
registered on the Bond Register, as hereinafter defined, at the Registrar's close of business on the
fifteenth day of the calendar month next preceding such Interest Payment Date, whether or not
such day is a business day. Interest shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
2.03. Redemption. The Bonds shall not be subject to optional redemption prior to their
stated maturity dates.
2.04. Appointment of Initial Re ig strar. The City hereby appoints Wells Fargo Bank,
National Association, as the initial 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 30 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.
2.05. Registration. The effect of registration and the rights and duties of the City and the
Registrar with respect thereto shall be as follows:
(a) R. egister. 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
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 Iegally authorized. The Registrar shall incur no liability for
the refusal, in good faith, to make transfers which it, in its judgment, deems improper or
unauthorized.
(f) Persons Deemed Owners. The City and the Registrar may treat the person in
whose name any Bond is at any time registered in the bond register as the absolute owner
of the Bond,whether the Bond shall be overdue or not, for the purpose of receiving
payment of or on account of, the principal of and interest on the Bond and for all other
purposes; and all payments made to any registered owner or upon the owner's order shall
be valid and effectual to satisfy and discharge the liability upon Bond to the extent of the
sum or sums so paid.
(g) Taxes,Fees and Charges. For every transfer or exchange of Bonds(except for
an exchange upon a partial redemption of a Bond),the Registrar may impose a charge
upon the owner thereof sufficient to reimburse the Registrar for any tax, fee or other
governmental charge required to be paid with respect to such transfer or exchange.
(h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become
mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like
amount, number, maturity date and tenor in exchange and substitution for and upon
cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond
destroyed, stolen or lost, upon the payment of the reasonable expenses and charges of the
Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost,
upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed,
stolen or lost, and of the ownership thereof, and upon furnishing to the Registrar of an
appropriate bond or indemnity in form, substance and amount satisfactory to it, in which
both the City and the Registrar shall be named as obligees. All Bonds so surrendered to
the Registrar shall be canceled by it and evidence of such cancellation shall be given to
the City. If the mutilated, destroyed, stolen or lost Bond has already matured it shall not
be necessary to issue a new Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating agent
for the Bonds,within the meaning of Minnesota Statutes, Section 475.55, Subdivision 1,
as amended.
0) Valid Obligations. All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the City, evidencing the same debt, and entitled to the
same benefits under this Resolution as the Bonds surrendered upon such transfer or
exchange.
2.06. 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 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 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 the Bond has been duly executed by
the manual signature of an authorized representative of the Registrar. Certificates of
authentication on different Bonds need not be signed by the same representative. The executed
certificate of authentication on each Bond shall be conclusive evidence that it has been
authenticated and delivered under this Resolution. When the Bonds have been prepared,
executed and authenticated,the City Manager shall deliver them to the Purchaser upon payment
of the purchase price in accordance with the contract of sale heretofore executed, and the
Purchaser shall not be obligated to see to the application of the purchase price.
2.07. 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
sender 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,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, is hereby authorized and directed.
(e) In the event that any transfer or exchange of Bonds is permitted under paragraph(b)
or(c) hereof, such transfer or exchange shall be accomplished upon receipt by the Registrar of
the Bonds to be transferred or exchanged and appropriate instruments of transfer to the permitted
transferee in accordance with the provisions of this resolution. In the event Bonds in the form of
certificates are issued to owners other than Cede& Co., its successor as nominee for DTC as
owner of all the Bonds,or another securities depository as owner of all the Bonds,the provisions
of this resolution shall also apply to all matters relating thereto, including, without limitation, the
printing of such Bonds in the form of bond certificates and the method of payment of principal of
and interest on such Bonds in the form of bond certificates.
2.08. Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS,
SERIES 2009C
Rate Maturity Date Date of Original Issue CUSIP No.
December 1,20 November 1,2009
REGISTERED OWNER: CEDE&CO.
PRINCIPAL AMOUNT:
THE CITY OF EDEN PRAIRIE,MINNESOTA (the"City"), acknowledges itself to be
indebted and hereby promises to pay to the registered owner named above, or registered assigns,
the principal amount specified above on the maturity date specified above and promises to pay
interest thereon from the date of original issue specified above or from the most recent Interest
Payment Date(as hereinafter defined)to which interest has been paid or duly provided for, at the
annual rate specified above,payable on June 1 and December 1 of each year,commencing
June 1, 2010(each such date, an"Interest Payment Date"). The interest so payable on any
Interest Payment Date shall be paid to the person in whose name this Bond is registered at the
close of business on the fifteenth day(whether or not a business day)of the 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 drawn on Wells Fargo Bank,National Association, as
bond registrar, transfer agent and paying agent,or its successor designated under the Resolution
described herein (the"Registrar"). For the prompt and full payment of such principal and
interest as the same respectively become due, the full faith and credit and taxing powers of the
City have been and are hereby irrevocably pledged.
This Bond is one of an issue in the aggregate principal amount of$1,395,000 issued
pursuant to a resolution adopted by the City Council on October G,2009 (the"Resolution"),to
finance certain capital projects as described in the City's Capital Improvement Plan. This Bond
is issued by authority of and in strict accordance with the provisions of the Constitution and laws
of the State of Minnesota thereunto enabling, including Minnesota Statutes, Section 475.521 and
Chapter 475. The Bonds are issuable only in fully registered form, in denominations of$5,000
or any multiple thereof,of single maturities.
The Bonds shall not be subject to optional redemption prior to their stated maturity dates.
The Bonds have been designated as "qualified tax-exempt obligations"pursuant to
Section 265(b)of the Internal Revenue Code of 1986, as amended.
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.
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.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts,
conditions and things required by the Constitution and laws of the State of Minnesota to be done,
to exist,to happen and to be performed preliminary to and in the issuance of this Bond in order
to make it a valid and binding general obligation of the City in accordance with its terms,have
been done,do exist,have happened and have been performed as so required; that,prior to the
issuance hereof, the City has levied 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 Bonds when due, and has appropriated
the taxes to its General Obligation Capital Improvement Plan Refunding Bonds, Series 2009C
Bond Fund for the payment of principal and interest; that if necessary for payment of 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; and that the issuance of this Bond,together with all
other indebtedness of the City outstanding on the date hereof and on the date of its actual
issuance and delivery, does not cause the indebtedness of the City to exceed any constitutional 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, 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.
Dated WELLS FARGO BANK,NATIONAL
ASSOCIATION, as Registrar
By
Authorized Representative
The following abbreviations,when used in the inscription on the face of this Bond, shall be
construed as though they were written out in full according to the applicable laws or regulations:
TEN COM-- as tenants in common UTMA ........................... as Custodian for.............
{Cost} (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 form of bond]
SECTION 3. USE OF PROCEEDS. Upon payment for the Bonds by the Purchaser, the
Registrar shall deposit the proceeds of the Bonds and certain amounts with respect to the
Refunded Bonds in accordance with the Escrow Agreement dated as of November 9, 2009 (the
"Escrow Agreement"), between the City,the Authority and Wells Fargo Bank,National
Association, as escrow agent(the"Escrow Agent"), a banking institution whose deposits are
insured by the Federal Deposit Insurance Corporation and whose combined capital and surplus is
not less than $500,000. The funds so deposited with respect to the refunding of the Refunded
Bonds shall be invested in securities authorized for such purpose by Minnesota Statutes, Section
475.67, subdivision 8, maturing on such dates and bearing interest at such rates as are required to
provide funds sufficient, with cash retained in the escrow account, to pay all principal and
interest to become due on the Refunded Bonds to and including December 1, 2010(the
"Redemption Date") and to pay and redeem the outstanding principal of the Refunded Bonds on
the Redemption Date. The Mayor and City Manager are hereby authorized to enter into the
Escrow Agreement with the Escrow Agent establishing the terms and conditions for the escrow
account in accordance with Minnesota Statutes, Section 475.67.
SECTION 4. GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING
BONDS,SERIES 2009C BOND FUND. The Bonds shall be payable from a separate General
Obligation Capital Improvement Plan Refunding Bonds, Series 2009C Bond Fund(the`Bond
Fund")of the City,which Bond Fund the City agrees to maintain until the Bonds have been paid
in full. If the money in the Bond Fund should at any time be insufficient to pay principal and
interest due on the Bonds, such amounts shall be paid from other moneys on hand in other funds
of the City, which other funds shall be reimbursed therefor when sufficient money becomes
available in the Bond Fund. The moneys on hand in the Bond Fund from time to time shall be
used only to pay the principal of and interest on the Bonds. Into the Bond Fund shall be paid:
(a) the amounts appropriated thereto pursuant to the Escrow Agreement; (b) all taxes collected
pursuant to Section 5; (c) all excess amounts on deposit in the debt service and debt service
reserve funds maintained for the payment of the Refunded Bonds upon the retirement of the
Refunded Bonds on the Redemption Date; and (d)any other funds appropriated by the Council
for the payment of the Bonds.
SECTION 5. PLEDGE OF TAXING POWERS. For the prompt and full payment of the
principal of and interest on the Bonds 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 amounts needed to meet
when due the principal and interest payments on the Bonds, ad valorem taxes are hereby levied
on all taxable property in the City, the taxes to be levied and collected in the following years and
amounts:
Levy Years Collection Years Amount
See attached levy calculation
The 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 tax levies from other legally available
funds, in accordance with the provisions of Minnesota Statutes, Section 475.61.
SECTION 6. BOND FUND BALANCE RESTRICTION. In order to ensure compliance with
the Internal Revenue Code of 1986, as amended (the"Code"), and applicable Treasury
Regulations thereunder(the"Regulations"),upon allocation of any funds to the Bond Fund,the
balance then on hand in the Fund shall be ascertained. If it exceeds the amount of principal and
interest on the Bonds to become due and payable through December 1 next following,plus a
reasonable carryover equal to 1112th of the debt service due in the following bond year, the
excess shall (unless an opinion is otherwise received from bond counsel) be used to prepay the
Bonds, or invested at a yield which does not exceed the yield on the Bonds calculated in
accordance with Section 148 of the Code.
SECTION 7. 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 registered owners
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 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,provided,however, that if such deposit
is made more than ninety days before the maturity 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.
SECTION 8. TAX COVENANTS: ARBITRAGE MATTERS AND CONTINUING
DISCLOSURE.
8.01. Covenant. The City covenants and agrees with the owners from time to time of the
Bonds,that it will not take,or permit to be taken by any of its officers, employees or agents, any
action which would cause the 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
affirmative 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 applicable Regulations. The City
represents and covenants that all improvements financed from the proceeds of the Bonds are and
will be owned and operated by the City and available for use by members of the general public
on a substantially equal basis. The City has not and will not enter into any lease,management
contract, operating agreement, use agreement or other contract relating to the use, operation or
maintenance of the Project or any part thereof which would cause the Bonds to be considered
"private activity bonds"or"private loan bonds"pursuant to Section 141 of the Code.
8.02. 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 that on the basis of
facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds, it
is reasonably expected 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 applicable
Regulations.
8.03. Qualified Tax-Exempt Obligations. In order to enhance the marketability of the
Bonds and since the City and all subordinate entities do not reasonably expect to issue in excess
of$30,000,000 of governmental bonds during calendar year 2009, the Bonds are hereby
designated by the City as"qualified tax-exempt obligations"pursuant to Section 265(b)of the
Code.
8.04. Arbitrage Rebate Exemption. For purposes of complying with the requirements of
Section 148(f)(4)(D) of the Code relating to the exemption of certain small governmental units
from the rebate requirements of the Code,the City represents that:
(i) the City is a governmental unit with general taxing powers;
(ii) the Bonds are not private activity bonds as defined in Section 141 of the
Code;
(iii) ninety-five percent of the net proceeds of the Bonds are to be used for the
local governmental purposes of the City; and
(iv) the aggregate face amount of all tax-exempt bonds(other than private
activity bonds) issued by the City in the calendar year in which the Bonds
are to be issued is not reasonably expected to exceed$5,000,000.
Therefore,pursuant to the provisions of 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.
If notwithstanding the provisions of the immediately preceding paragraph, the arbitrage
rebate provisions of Section 148(f)of the Code apply to the Bonds,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.
8.05. Reimbursement. The City certifies that the proceeds of the Bonds will not be used
by the City to reimburse itself for any expenditure with respect to the financed facilities 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 a declaration
of official intent shall not be required(i)with respect to certain de minimis expenditures, if any,
with respect to the financed facilities meeting the requirements of Section 1.1 50-2(f)(1)of the
Regulations,or(ii)with respect to"preliminary expenditures" for the financed facilities as
defined in Section 1.150-2(f)(2) of the Regulations, including engineering or architectural
expenses and similar preparatory expenses,which in the aggregate do not exceed 20%of the
"issue price"of the Bonds.
8.06. Continuing Disclosure. 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.
(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, 2009, 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:
Economic and Financial Information; Summary of Debt and Debt Statistics and
General Information--"Major Employers"and`Building Permits,"which
information may be unaudited.
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
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;
(7) 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 paragraphs(1), (2)and (3) of subsection(b), to the
MSRB through EMMA;
(2) 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 paragraph (1) of this subsection,or, if such information is
transmitted with a subsequent time of release,at the time such information is to be
released;
(3) 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)
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 9. CERTIFICATION OF PROCEEDINGS.
9.01. Registration and Levy of Taxes. The City Manager is hereby authorized and
directed to file a certified copy of this resolution in the records of the County Auditor, together
with such additional information as required, and to issue a certificate that the Bonds have been
duly entered upon the County Auditor's bond register and the tax required by law has been
levied.
9.02. Certification of Records. The officers of the City 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 hooks and records under their custody and control or as otherwise known to
them, and all such certified copies, certificates and affidavits, including any heretofore furnished,
shall be deemed representations of the City to the facts recited herein.
9.03. Official Statement. The Preliminary Official Statement relating to the Bonds,
dated September 23, 2009, relating to the Bonds prepared and distributed by Northland
Securities, Inc., is hereby approved. The officers of the City are hereby authorized and directed
to execute such certificates as may be appropriate concerning the accuracy, completeness and
sufficiency of the Official Statement.
ADOPTED by the Eden Prairie City Council on this 6th day of October 2009.
(hi A n�
Phi oung, Mayor
ATTEST:
K leen Porta, City Clerk
Levy Year Collect Year Lev
2009 2010 $315,798.44
2010 2011 316,181.25
2011 2012 318,176.25
2012 2013 319,856.25
2013 2014 317,493.75
CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2009-64
RESOLUTION AUTHORIZING ISSUANCE, AWARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR
THE PAYMENT OF $1,395,000 GENERAL OBLIGATION CAPITAL
IMPROVEMENT PLAN REFUNDING BONDS, SERIES 2009C
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. On September 15, 2009, this Council held a public hearing on the
questions of approving the adoption of amendments to its Capital Improvement Plan (the “Plan”)
and issuing General Obligation Capital Improvement Plan Refunding Bonds in the approximate
principal amount of $1,450,000 (the “Bonds”) for the purpose of purchasing the City fire station
(the “Project”), which Project is currently leased by the City from the Housing and
Redevelopment Authority in and for the City of Eden Prairie (the “Authority”). The Project was
originally financed with proceeds of the Authority’s $3,390,000 Public Facility Lease Revenue
Bonds, Series 2000A (City of Eden Prairie Lease Obligations) dated, as originally issued, as of
November 1, 2000 (the “Refunded Bonds”).
By resolution duly adopted on September 15, 2009, the Council (i) authorized the
amendments to the Plan; (ii) approved the issuance and sale of Bonds to Northland Securities,
Inc. (the “Purchaser”), subject to satisfaction of certain conditions described therein. The City
has received an offer from the Purchaser to purchase the Bonds at a price of $1,427,343.70, plus
accrued interest on all Bonds to the day of delivery and payment, on the further terms and
conditions hereinafter set forth. The total debt service on the Bonds is lower by at least
$109,916.45 than the debt service on the Refunded Bonds, and the present value of this reduction
in debt service is not less than 3% of the debt service on the Refunded Bonds, exclusive of any
premium, computed to their stated maturity dates, using the yield of the Bonds as the discount
rate.
No petition requesting a vote on the question of adopting the amendments to the Plan or
issuing the Bonds has yet been filed. The sale of the Bonds to the Purchaser is hereby ratified on
the terms provided herein, provided that no such petition is filed within thirty days of September
15, 2009.
1.02. Issuance of Bonds. All acts, conditions and things which are required by the
Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be
performed precedent to and in the valid issuance of the Bonds having been done, now existing,
having happened and having been performed, it is now necessary for the Council to establish the
form and terms of the Bonds, to provide security therefor and to issue the Bonds forthwith.
SECTION 2. BOND TERMS; REGISTRATION; EXECUTION AND DELIVERY.
2.01. Maturities; Interest Rates; Denominations and Payment. The Bonds shall be
originally dated as of November 1, 2009, shall be in the denomination of $5,000 each, or any
integral multiple thereof, of single maturities, shall mature on December 1 in the years and
amounts stated below, and shall bear interest from date of original issue until paid at the annual
rates set forth opposite such years and amounts, as follows:
Year Amount Rate
2010 $260,000 2.50%
2011 270,000 3.00
2012 280,000 3.00
2013 290,000 2.50
2014 295,000 2.50
The maximum debt service payments to become due in any year on all outstanding
capital improvement plan bonds of the City, including the Bonds and the General Obligation
Capital Improvement Plan Bonds, Series 2006B ($319,856.25) is less than .16% of the taxable
market value of the property within the City ($16,119,006). This Council hereby finds that the
general obligation capital improvement plan bonds may be issued without an election pursuant to
Minnesota Statutes, Section 475.521, subdivision 2.
The Bonds shall be issuable only in fully registered form. The interest thereon and, upon
surrender of each Bond, the principal amount thereof shall be payable by check or draft issued by
the Registrar described herein, provided that, so long as the Bonds are registered in the name of a
securities depository, or a nominee thereof, in accordance with Section 2.07 hereof, principal and
interest shall be payable in accordance with the operational arrangements of the securities
depository.
2.02. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to
Section 2.06 and upon any subsequent transfer or exchange pursuant to Section 2.05, the date of
authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on
the Bonds shall be payable on June 1 and December 1, commencing June 1, 2010, each such date
being referred to herein as an Interest Payment Date, to the person in whose name the Bonds are
registered on the Bond Register, as hereinafter defined, at the Registrar’s close of business on the
fifteenth day of the calendar month next preceding such Interest Payment Date, whether or not
such day is a business day. Interest shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
2.03. Redemption. The Bonds shall not be subject to optional redemption prior to their
stated maturity dates.
2.04. Appointment of Initial Registrar. The City hereby appoints Wells Fargo Bank,
National Association, as the initial 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 30 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.
2.05. Registration. The effect of registration and the rights and duties of the City and the
Registrar with respect thereto shall be as follows:
(a) Register. 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
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 the Bond, whether the Bond shall be overdue or not, for the purpose of receiving
payment of or on account of, the principal of and interest on the Bond and for all other
purposes; and all payments made to any registered owner or upon the owner's order shall
be valid and effectual to satisfy and discharge the liability upon Bond to the extent of the
sum or sums so paid.
(g) Taxes, Fees and Charges. For every transfer or exchange of Bonds (except for
an exchange upon a partial redemption of a Bond), the Registrar may impose a charge
upon the owner thereof sufficient to reimburse the Registrar for any tax, fee or other
governmental charge required to be paid with respect to such transfer or exchange.
(h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become
mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like
amount, number, maturity date and tenor in exchange and substitution for and upon
cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond
destroyed, stolen or lost, upon the payment of the reasonable expenses and charges of the
Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost,
upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed,
stolen or lost, and of the ownership thereof, and upon furnishing to the Registrar of an
appropriate bond or indemnity in form, substance and amount satisfactory to it, in which
both the City and the Registrar shall be named as obligees. All Bonds so surrendered to
the Registrar shall be canceled by it and evidence of such cancellation shall be given to
the City. If the mutilated, destroyed, stolen or lost Bond has already matured it shall not
be necessary to issue a new Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating agent
for the Bonds, within the meaning of Minnesota Statutes, Section 475.55, Subdivision 1,
as amended.
(j) 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.
2.06. 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 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 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 the Bond has been duly executed by
the manual signature of an authorized representative of the Registrar. Certificates of
authentication on different Bonds need not be signed by the same representative. The executed
certificate of authentication on each Bond shall be conclusive evidence that it has been
authenticated and delivered under this Resolution. When the Bonds have been prepared,
executed and authenticated, the City Manager shall deliver them to the Purchaser upon payment
of the purchase price in accordance with the contract of sale heretofore executed, and the
Purchaser shall not be obligated to see to the application of the purchase price.
2.07. 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
sender 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, 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, is hereby authorized and directed.
(e) In the event that any transfer or exchange of Bonds is permitted under paragraph (b)
or (c) hereof, such transfer or exchange shall be accomplished upon receipt by the Registrar of
the Bonds to be transferred or exchanged and appropriate instruments of transfer to the permitted
transferee in accordance with the provisions of this resolution. In the event Bonds in the form of
certificates are issued to owners other than Cede & Co., its successor as nominee for DTC as
owner of all the Bonds, or another securities depository as owner of all the Bonds, the provisions
of this resolution shall also apply to all matters relating thereto, including, without limitation, the
printing of such Bonds in the form of bond certificates and the method of payment of principal of
and interest on such Bonds in the form of bond certificates.
2.08. Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS,
SERIES 2009C
Rate Maturity Date Date of Original Issue CUSIP No.
December 1, 20___ November 1, 2009
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
THE CITY OF EDEN PRAIRIE, MINNESOTA (the “City”), acknowledges itself to be
indebted and hereby promises to pay to the registered owner named above, or registered assigns,
the principal amount specified above on the maturity date specified above and promises to pay
interest thereon from the date of original issue specified above or from the most recent Interest
Payment Date (as hereinafter defined) to which interest has been paid or duly provided for, at the
annual rate specified above, payable on June 1 and December 1 of each year, commencing
June 1, 2010 (each such date, an “Interest Payment Date”). The interest so payable on any
Interest Payment Date shall be paid to the person in whose name this Bond is registered at the
close of business on the fifteenth day (whether or not a business day) of the 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 drawn on Wells Fargo Bank, National Association, as
bond registrar, transfer agent and paying agent, or its successor designated under the Resolution
described herein (the “Registrar”). For the prompt and full payment of such principal and
interest as the same respectively become due, the full faith and credit and taxing powers of the
City have been and are hereby irrevocably pledged.
This Bond is one of an issue in the aggregate principal amount of $1,395,000 issued
pursuant to a resolution adopted by the City Council on October 6, 2009 (the “Resolution”), to
finance certain capital projects as described in the City’s Capital Improvement Plan. This Bond
is issued by authority of and in strict accordance with the provisions of the Constitution and laws
of the State of Minnesota thereunto enabling, including Minnesota Statutes, Section 475.521 and
Chapter 475. The Bonds are issuable only in fully registered form, in denominations of $5,000
or any multiple thereof, of single maturities.
The Bonds shall not be subject to optional redemption prior to their stated maturity dates.
The Bonds have been designated as "qualified tax-exempt obligations" pursuant to
Section 265(b) of the Internal Revenue Code of 1986, as amended.
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.
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.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts,
conditions and things required by the Constitution and laws of the State of Minnesota to be done,
to exist, to happen and to be performed preliminary to and in the issuance of this Bond in order
to make it a valid and binding general obligation of the City in accordance with its terms, have
been done, do exist, have happened and have been performed as so required; that, prior to the
issuance hereof, the City has levied 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 Bonds when due, and has appropriated
the taxes to its General Obligation Capital Improvement Plan Refunding Bonds, Series 2009C
Bond Fund for the payment of principal and interest; that if necessary for payment of 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; and that the issuance of this Bond, together with all
other indebtedness of the City outstanding on the date hereof and on the date of its actual
issuance and delivery, does not cause the indebtedness of the City to exceed any constitutional 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, 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.
Dated _________________ WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Registrar
By ________________________________
Authorized Representative
____________
The following abbreviations, when used in the inscription on the face of this Bond, shall be
construed as though they were written out in full according to the applicable laws or regulations:
TEN COM -- as tenants in common UTMA ........................... as Custodian for .............
(Cust) (Minor)
TEN ENT -- as tenants by the entireties under Uniform Transfers to Minors Act ..................
(State)
JT TEN -- as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used.
_________
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto _________________
the within Bond and all rights thereunder, and does hereby irrevocably constitute and appoint
_____________________ attorney to transfer the said Bond on the books kept for registration of
the within Bond, with full power of substitution in the premises.
Dated: ___________________ _________________________________________
NOTICE: The assignor’s signature to this
assignment must correspond with the name as it
appears upon the face of the within Bond in every
particular, without alteration or enlargement or any
change whatsoever.
Signature Guaranteed:
_________________________________________
Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements
of the Registrar, which requirements include
membership or participation in STAMP or such
other “signature guaranty program” as may be
determined by the Registrar in addition to or in
substitution for STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE:
____________________________________
\[end of form of bond\]
SECTION 3. USE OF PROCEEDS. Upon payment for the Bonds by the Purchaser, the
Registrar shall deposit the proceeds of the Bonds and certain amounts with respect to the
Refunded Bonds in accordance with the Escrow Agreement dated as of November 9, 2009 (the
“Escrow Agreement”), between the City, the Authority and Wells Fargo Bank, National
Association, as escrow agent (the “Escrow Agent”), a banking institution whose deposits are
insured by the Federal Deposit Insurance Corporation and whose combined capital and surplus is
not less than $500,000. The funds so deposited with respect to the refunding of the Refunded
Bonds shall be invested in securities authorized for such purpose by Minnesota Statutes, Section
475.67, subdivision 8, maturing on such dates and bearing interest at such rates as are required to
provide funds sufficient, with cash retained in the escrow account, to pay all principal and
interest to become due on the Refunded Bonds to and including December 1, 2010 (the
“Redemption Date”) and to pay and redeem the outstanding principal of the Refunded Bonds on
the Redemption Date. The Mayor and City Manager are hereby authorized to enter into the
Escrow Agreement with the Escrow Agent establishing the terms and conditions for the escrow
account in accordance with Minnesota Statutes, Section 475.67.
SECTION 4. GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING
BONDS, SERIES 2009C BOND FUND. The Bonds shall be payable from a separate General
Obligation Capital Improvement Plan Refunding Bonds, Series 2009C Bond Fund (the “Bond
Fund”) of the City, which Bond Fund the City agrees to maintain until the Bonds have been paid
in full. If the money in the Bond Fund should at any time be insufficient to pay principal and
interest due on the Bonds, such amounts shall be paid from other moneys on hand in other funds
of the City, which other funds shall be reimbursed therefor when sufficient money becomes
available in the Bond Fund. The moneys on hand in the Bond Fund from time to time shall be
used only to pay the principal of and interest on the Bonds. Into the Bond Fund shall be paid:
(a) the amounts appropriated thereto pursuant to the Escrow Agreement; (b) all taxes collected
pursuant to Section 5; (c) all excess amounts on deposit in the debt service and debt service
reserve funds maintained for the payment of the Refunded Bonds upon the retirement of the
Refunded Bonds on the Redemption Date; and (d) any other funds appropriated by the Council
for the payment of the Bonds.
SECTION 5. PLEDGE OF TAXING POWERS. For the prompt and full payment of the
principal of and interest on the Bonds 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 amounts needed to meet
when due the principal and interest payments on the Bonds, ad valorem taxes are hereby levied
on all taxable property in the City, the taxes to be levied and collected in the following years and
amounts:
Levy Years Collection Years Amount
See attached levy calculation
The 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 tax levies from other legally available
funds, in accordance with the provisions of Minnesota Statutes, Section 475.61.
SECTION 6. BOND FUND BALANCE RESTRICTION. In order to ensure compliance with
the Internal Revenue Code of 1986, as amended (the “Code”), and applicable Treasury
Regulations thereunder (the “Regulations”), upon allocation of any funds to the Bond Fund, the
balance then on hand in the Fund shall be ascertained. If it exceeds the amount of principal and
interest on the Bonds to become due and payable through December 1 next following, plus a
reasonable carryover equal to 1/12th of the debt service due in the following bond year, the
excess shall (unless an opinion is otherwise received from bond counsel) be used to prepay the
Bonds, or invested at a yield which does not exceed the yield on the Bonds calculated in
accordance with Section 148 of the Code.
SECTION 7. 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 registered owners
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 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, provided, however, that if such deposit
is made more than ninety days before the maturity 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.
SECTION 8. TAX COVENANTS; ARBITRAGE MATTERS AND CONTINUING
DISCLOSURE.
8.01. Covenant. The City covenants and agrees with the owners from time to time of the
Bonds, that it will not take, or permit to be taken by any of its officers, employees or agents, any
action which would cause the 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
affirmative 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 applicable Regulations. The City
represents and covenants that all improvements financed from the proceeds of the Bonds are and
will be owned and operated by the City and available for use by members of the general public
on a substantially equal basis. The City has not and will not enter into any lease, management
contract, operating agreement, use agreement or other contract relating to the use, operation or
maintenance of the Project or any part thereof which would cause the Bonds to be considered
“private activity bonds” or “private loan bonds” pursuant to Section 141 of the Code.
8.02. 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 that on the basis of
facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds, it
is reasonably expected 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 applicable
Regulations.
8.03. Qualified Tax-Exempt Obligations. In order to enhance the marketability of the
Bonds and since the City and all subordinate entities do not reasonably expect to issue in excess
of $30,000,000 of governmental bonds during calendar year 2009, the Bonds are hereby
designated by the City as “qualified tax-exempt obligations” pursuant to Section 265(b) of the
Code.
8.04. Arbitrage Rebate Exemption. For purposes of complying with the requirements of
Section 148(f)(4)(D) of the Code relating to the exemption of certain small governmental units
from the rebate requirements of the Code, the City represents that:
(i) the City is a governmental unit with general taxing powers;
(ii) the Bonds are not private activity bonds as defined in Section 141 of the
Code;
(iii) ninety-five percent of the net proceeds of the Bonds are to be used for the
local governmental purposes of the City; and
(iv) the aggregate face amount of all tax-exempt bonds (other than private
activity bonds) issued by the City in the calendar year in which the Bonds
are to be issued is not reasonably expected to exceed $5,000,000.
Therefore, pursuant to the provisions of 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.
If notwithstanding the provisions of the immediately preceding paragraph, the arbitrage
rebate provisions of Section 148(f) of the Code apply to the Bonds, 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.
8.05. Reimbursement. The City certifies that the proceeds of the Bonds will not be used
by the City to reimburse itself for any expenditure with respect to the financed facilities 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 a declaration
of official intent shall not be required (i) with respect to certain de minimis expenditures, if any,
with respect to the financed facilities meeting the requirements of Section 1.150-2(f)(1) of the
Regulations, or (ii) with respect to “preliminary expenditures” for the financed facilities as
defined in Section 1.150-2(f)(2) of the Regulations, including engineering or architectural
expenses and similar preparatory expenses, which in the aggregate do not exceed 20% of the
“issue price” of the Bonds.
8.06. Continuing Disclosure. 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.
(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, 2009, 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:
Economic and Financial Information; Summary of Debt and Debt Statistics and
General Information—“Major Employers” and “Building Permits,” which
information may be unaudited.
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
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 paragraphs (1), (2) and (3) of subsection (b), to the
MSRB through EMMA;
(2) 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 paragraph (1) of this subsection, or, if such information is
transmitted with a subsequent time of release, at the time such information is to be
released;
(3) 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)
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 9. CERTIFICATION OF PROCEEDINGS.
9.01. Registration and Levy of Taxes. The City Manager is hereby authorized and
directed to file a certified copy of this resolution in the records of the County Auditor, together
with such additional information as required, and to issue a certificate that the Bonds have been
duly entered upon the County Auditor’s bond register and the tax required by law has been
levied.
9.02. Certification of Records. The officers of the City 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 their custody and control or as otherwise known to
them, and all such certified copies, certificates and affidavits, including any heretofore furnished,
shall be deemed representations of the City to the facts recited herein.
9.03. Official Statement. The Preliminary Official Statement relating to the Bonds,
dated September 23, 2009, relating to the Bonds prepared and distributed by Northland
Securities, Inc., is hereby approved. 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.
th
ADOPTED by the Eden Prairie City Council on this 6 day of October 2009.
_____________________________
Phil Young, Mayor
ATTEST:
______________________________
Kathleen Porta, City Clerk
Levy Year Collect Year Levy
2009 2010 $315,798.44
2010 2011 316,181.25
2011 2012 318,176.25
2012 2013 319,856.25
2013 2014 317,493.75
CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2009-64
RESOLUTION AUTHORIZING ISSUANCE, AWARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR
THE PAYMENT OF $1,395,000 GENERAL OBLIGATION CAPITAL
IMPROVEMENT PLAN REFUNDING BONDS, SERIES 2009C
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. On September 15, 2009, this Council held a public hearing on the
questions of approving the adoption of amendments to its Capital Improvement Plan (the "Plan")
and issuing General Obligation Capital Improvement Plan Refunding Bonds in the approximate
principal amount of$1,450,000 (the "Bonds") for the purpose of purchasing the City fire station
(the "Project"), which Project is currently leased by the City from the Housing and
Redevelopment Authority in and for the City of Eden Prairie (the "Authority"). The Project was
originally financed with proceeds of the Authority's $3,390,000 Public Facility Lease Revenue
Bonds, Series 2000A (City of Eden Prairie Lease Obligations) dated, as originally issued, as of
November 1, 2000 (the "Refunded Bonds").
By resolution duly adopted on September 15, 2009, the Council (i) authorized the
amendments to the Plan; (ii) approved the issuance and sale of Bonds to Northland Securities,
Inc. (the "Purchaser"), subject to satisfaction of certain conditions described therein. The City
has received an offer from the Purchaser to purchase the Bonds at a price of$1,427,343.70, plus
accrued interest on all Bonds to the day of delivery and payment, on the further terms and
conditions hereinafter set forth. The total debt service on the Bonds is lower by at least
$109,916.45 than the debt service on the Refunded Bonds, and the present value of this reduction
in debt service is not less than 3% of the debt service on the Refunded Bonds, exclusive of any
premium, computed to their stated maturity dates, using the yield of the Bonds as the discount
rate.
No petition requesting a vote on the question of adopting the amendments to the Plan or
issuing the Bonds has yet been filed. The sale of the Bonds to the Purchaser is hereby ratified on
the terms provided herein, provided that no such petition is filed within thirty days of September
15, 2009.
1.02. Issuance of Bonds. All acts, conditions and things which are required by the
Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be
performed precedent to and in the valid issuance of the Bonds having been done, now existing,
having happened and having been performed, it is now necessary for the Council to establish the
form and terms of the Bonds, to provide security therefor and to issue the Bonds forthwith.
SECTION 2. BOND TERMS; REGISTRATION; EXECUTION AND DELIVERY.
2.01. Maturities; Interest Rates; Denominations and Payment. The Bonds shall be
originally dated as of November 1, 2009, shall be in the denomination of$5,000 each, or any
integral multiple thereof, of single maturities, shall mature on December 1 in the years and
amounts stated below,and shall bear interest from date of original issue until paid at the annual
rates set forth opposite such years and amounts, as follows:
Year Amount Rate
2010 $260,000 2.50%
2011 270,000 3.00
2012 280,000 3.00
2013 290,000 2.50
2014 295,000 2.50
The maximum debt service payments to become due in any year on all outstanding
capital improvement plan bonds of the City, including the Bonds and the General Obligation
Capital Improvement Plan Bonds, Series 2006B ($319,856.25) is less than .16%of the taxable
market value of the property within the City($16,119,006). This Council hereby finds that the
general obligation capital improvement plan bonds may be issued without an election pursuant to
Minnesota Statutes, Section 475.521, subdivision 2.
The Bonds shall be issuable only in fully registered form. The interest thereon and, upon
surrender of each Bond, the principal amount thereof shall be payable by check or draft issued by
the Registrar described herein, provided that, so long as the Bonds are registered in the name of a
securities depository, or a nominee thereof, in accordance with Section 2.07 hereof,principal and
interest shall be payable in accordance with the operational arrangements of the securities
depository.
2.02. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to
Section 2.06 and upon any subsequent transfer or exchange pursuant to Section 2.05, the date of
authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on
the Bonds shall be payable on June 1 and December 1, commencing June 1,2010, each such date
being referred to herein as an Interest Payment Date, to the person in whose name the Bonds are
registered on the Bond Register, as hereinafter defined, at the Registrar's close of business on the
fifteenth day of the calendar month next preceding such Interest Payment Date, whether or not
such day is a business day. Interest shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
2.03. Redemption. The Bonds shall not be subject to optional redemption prior to their
stated maturity dates.
2.04. Appointment of Initial Re ig strar. The City hereby appoints Wells Fargo Bank,
National Association, as the initial 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 30 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.
2.05. Registration. The effect of registration and the rights and duties of the City and the
Registrar with respect thereto shall be as follows:
(a) R. egister. 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
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 Iegally authorized. The Registrar shall incur no liability for
the refusal, in good faith, to make transfers which it, in its judgment, deems improper or
unauthorized.
(f) Persons Deemed Owners. The City and the Registrar may treat the person in
whose name any Bond is at any time registered in the bond register as the absolute owner
of the Bond,whether the Bond shall be overdue or not, for the purpose of receiving
payment of or on account of, the principal of and interest on the Bond and for all other
purposes; and all payments made to any registered owner or upon the owner's order shall
be valid and effectual to satisfy and discharge the liability upon Bond to the extent of the
sum or sums so paid.
(g) Taxes,Fees and Charges. For every transfer or exchange of Bonds(except for
an exchange upon a partial redemption of a Bond),the Registrar may impose a charge
upon the owner thereof sufficient to reimburse the Registrar for any tax, fee or other
governmental charge required to be paid with respect to such transfer or exchange.
(h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become
mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like
amount, number, maturity date and tenor in exchange and substitution for and upon
cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond
destroyed, stolen or lost, upon the payment of the reasonable expenses and charges of the
Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost,
upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed,
stolen or lost, and of the ownership thereof, and upon furnishing to the Registrar of an
appropriate bond or indemnity in form, substance and amount satisfactory to it, in which
both the City and the Registrar shall be named as obligees. All Bonds so surrendered to
the Registrar shall be canceled by it and evidence of such cancellation shall be given to
the City. If the mutilated, destroyed, stolen or lost Bond has already matured it shall not
be necessary to issue a new Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating agent
for the Bonds,within the meaning of Minnesota Statutes, Section 475.55, Subdivision 1,
as amended.
0) Valid Obligations. All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the City, evidencing the same debt, and entitled to the
same benefits under this Resolution as the Bonds surrendered upon such transfer or
exchange.
2.06. 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 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 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 the Bond has been duly executed by
the manual signature of an authorized representative of the Registrar. Certificates of
authentication on different Bonds need not be signed by the same representative. The executed
certificate of authentication on each Bond shall be conclusive evidence that it has been
authenticated and delivered under this Resolution. When the Bonds have been prepared,
executed and authenticated,the City Manager shall deliver them to the Purchaser upon payment
of the purchase price in accordance with the contract of sale heretofore executed, and the
Purchaser shall not be obligated to see to the application of the purchase price.
2.07. 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
sender 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,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, is hereby authorized and directed.
(e) In the event that any transfer or exchange of Bonds is permitted under paragraph(b)
or(c) hereof, such transfer or exchange shall be accomplished upon receipt by the Registrar of
the Bonds to be transferred or exchanged and appropriate instruments of transfer to the permitted
transferee in accordance with the provisions of this resolution. In the event Bonds in the form of
certificates are issued to owners other than Cede& Co., its successor as nominee for DTC as
owner of all the Bonds,or another securities depository as owner of all the Bonds,the provisions
of this resolution shall also apply to all matters relating thereto, including, without limitation, the
printing of such Bonds in the form of bond certificates and the method of payment of principal of
and interest on such Bonds in the form of bond certificates.
2.08. Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS,
SERIES 2009C
Rate Maturity Date Date of Original Issue CUSIP No.
December 1,20 November 1,2009
REGISTERED OWNER: CEDE&CO.
PRINCIPAL AMOUNT:
THE CITY OF EDEN PRAIRIE,MINNESOTA (the"City"), acknowledges itself to be
indebted and hereby promises to pay to the registered owner named above, or registered assigns,
the principal amount specified above on the maturity date specified above and promises to pay
interest thereon from the date of original issue specified above or from the most recent Interest
Payment Date(as hereinafter defined)to which interest has been paid or duly provided for, at the
annual rate specified above,payable on June 1 and December 1 of each year,commencing
June 1, 2010(each such date, an"Interest Payment Date"). The interest so payable on any
Interest Payment Date shall be paid to the person in whose name this Bond is registered at the
close of business on the fifteenth day(whether or not a business day)of the 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 drawn on Wells Fargo Bank,National Association, as
bond registrar, transfer agent and paying agent,or its successor designated under the Resolution
described herein (the"Registrar"). For the prompt and full payment of such principal and
interest as the same respectively become due, the full faith and credit and taxing powers of the
City have been and are hereby irrevocably pledged.
This Bond is one of an issue in the aggregate principal amount of$1,395,000 issued
pursuant to a resolution adopted by the City Council on October G,2009 (the"Resolution"),to
finance certain capital projects as described in the City's Capital Improvement Plan. This Bond
is issued by authority of and in strict accordance with the provisions of the Constitution and laws
of the State of Minnesota thereunto enabling, including Minnesota Statutes, Section 475.521 and
Chapter 475. The Bonds are issuable only in fully registered form, in denominations of$5,000
or any multiple thereof,of single maturities.
The Bonds shall not be subject to optional redemption prior to their stated maturity dates.
The Bonds have been designated as "qualified tax-exempt obligations"pursuant to
Section 265(b)of the Internal Revenue Code of 1986, as amended.
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.
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.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts,
conditions and things required by the Constitution and laws of the State of Minnesota to be done,
to exist,to happen and to be performed preliminary to and in the issuance of this Bond in order
to make it a valid and binding general obligation of the City in accordance with its terms,have
been done,do exist,have happened and have been performed as so required; that,prior to the
issuance hereof, the City has levied 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 Bonds when due, and has appropriated
the taxes to its General Obligation Capital Improvement Plan Refunding Bonds, Series 2009C
Bond Fund for the payment of principal and interest; that if necessary for payment of 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; and that the issuance of this Bond,together with all
other indebtedness of the City outstanding on the date hereof and on the date of its actual
issuance and delivery, does not cause the indebtedness of the City to exceed any constitutional 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, 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.
Dated WELLS FARGO BANK,NATIONAL
ASSOCIATION, as Registrar
By
Authorized Representative
The following abbreviations,when used in the inscription on the face of this Bond, shall be
construed as though they were written out in full according to the applicable laws or regulations:
TEN COM-- as tenants in common UTMA ........................... as Custodian for.............
{Cost} (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 form of bond]
SECTION 3. USE OF PROCEEDS. Upon payment for the Bonds by the Purchaser, the
Registrar shall deposit the proceeds of the Bonds and certain amounts with respect to the
Refunded Bonds in accordance with the Escrow Agreement dated as of November 9, 2009 (the
"Escrow Agreement"), between the City,the Authority and Wells Fargo Bank,National
Association, as escrow agent(the"Escrow Agent"), a banking institution whose deposits are
insured by the Federal Deposit Insurance Corporation and whose combined capital and surplus is
not less than $500,000. The funds so deposited with respect to the refunding of the Refunded
Bonds shall be invested in securities authorized for such purpose by Minnesota Statutes, Section
475.67, subdivision 8, maturing on such dates and bearing interest at such rates as are required to
provide funds sufficient, with cash retained in the escrow account, to pay all principal and
interest to become due on the Refunded Bonds to and including December 1, 2010(the
"Redemption Date") and to pay and redeem the outstanding principal of the Refunded Bonds on
the Redemption Date. The Mayor and City Manager are hereby authorized to enter into the
Escrow Agreement with the Escrow Agent establishing the terms and conditions for the escrow
account in accordance with Minnesota Statutes, Section 475.67.
SECTION 4. GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING
BONDS,SERIES 2009C BOND FUND. The Bonds shall be payable from a separate General
Obligation Capital Improvement Plan Refunding Bonds, Series 2009C Bond Fund(the`Bond
Fund")of the City,which Bond Fund the City agrees to maintain until the Bonds have been paid
in full. If the money in the Bond Fund should at any time be insufficient to pay principal and
interest due on the Bonds, such amounts shall be paid from other moneys on hand in other funds
of the City, which other funds shall be reimbursed therefor when sufficient money becomes
available in the Bond Fund. The moneys on hand in the Bond Fund from time to time shall be
used only to pay the principal of and interest on the Bonds. Into the Bond Fund shall be paid:
(a) the amounts appropriated thereto pursuant to the Escrow Agreement; (b) all taxes collected
pursuant to Section 5; (c) all excess amounts on deposit in the debt service and debt service
reserve funds maintained for the payment of the Refunded Bonds upon the retirement of the
Refunded Bonds on the Redemption Date; and (d)any other funds appropriated by the Council
for the payment of the Bonds.
SECTION 5. PLEDGE OF TAXING POWERS. For the prompt and full payment of the
principal of and interest on the Bonds 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 amounts needed to meet
when due the principal and interest payments on the Bonds, ad valorem taxes are hereby levied
on all taxable property in the City, the taxes to be levied and collected in the following years and
amounts:
Levy Years Collection Years Amount
See attached levy calculation
The 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 tax levies from other legally available
funds, in accordance with the provisions of Minnesota Statutes, Section 475.61.
SECTION 6. BOND FUND BALANCE RESTRICTION. In order to ensure compliance with
the Internal Revenue Code of 1986, as amended (the"Code"), and applicable Treasury
Regulations thereunder(the"Regulations"),upon allocation of any funds to the Bond Fund,the
balance then on hand in the Fund shall be ascertained. If it exceeds the amount of principal and
interest on the Bonds to become due and payable through December 1 next following,plus a
reasonable carryover equal to 1112th of the debt service due in the following bond year, the
excess shall (unless an opinion is otherwise received from bond counsel) be used to prepay the
Bonds, or invested at a yield which does not exceed the yield on the Bonds calculated in
accordance with Section 148 of the Code.
SECTION 7. 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 registered owners
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 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,provided,however, that if such deposit
is made more than ninety days before the maturity 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.
SECTION 8. TAX COVENANTS: ARBITRAGE MATTERS AND CONTINUING
DISCLOSURE.
8.01. Covenant. The City covenants and agrees with the owners from time to time of the
Bonds,that it will not take,or permit to be taken by any of its officers, employees or agents, any
action which would cause the 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
affirmative 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 applicable Regulations. The City
represents and covenants that all improvements financed from the proceeds of the Bonds are and
will be owned and operated by the City and available for use by members of the general public
on a substantially equal basis. The City has not and will not enter into any lease,management
contract, operating agreement, use agreement or other contract relating to the use, operation or
maintenance of the Project or any part thereof which would cause the Bonds to be considered
"private activity bonds"or"private loan bonds"pursuant to Section 141 of the Code.
8.02. 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 that on the basis of
facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds, it
is reasonably expected 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 applicable
Regulations.
8.03. Qualified Tax-Exempt Obligations. In order to enhance the marketability of the
Bonds and since the City and all subordinate entities do not reasonably expect to issue in excess
of$30,000,000 of governmental bonds during calendar year 2009, the Bonds are hereby
designated by the City as"qualified tax-exempt obligations"pursuant to Section 265(b)of the
Code.
8.04. Arbitrage Rebate Exemption. For purposes of complying with the requirements of
Section 148(f)(4)(D) of the Code relating to the exemption of certain small governmental units
from the rebate requirements of the Code,the City represents that:
(i) the City is a governmental unit with general taxing powers;
(ii) the Bonds are not private activity bonds as defined in Section 141 of the
Code;
(iii) ninety-five percent of the net proceeds of the Bonds are to be used for the
local governmental purposes of the City; and
(iv) the aggregate face amount of all tax-exempt bonds(other than private
activity bonds) issued by the City in the calendar year in which the Bonds
are to be issued is not reasonably expected to exceed$5,000,000.
Therefore,pursuant to the provisions of 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.
If notwithstanding the provisions of the immediately preceding paragraph, the arbitrage
rebate provisions of Section 148(f)of the Code apply to the Bonds,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.
8.05. Reimbursement. The City certifies that the proceeds of the Bonds will not be used
by the City to reimburse itself for any expenditure with respect to the financed facilities 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 a declaration
of official intent shall not be required(i)with respect to certain de minimis expenditures, if any,
with respect to the financed facilities meeting the requirements of Section 1.1 50-2(f)(1)of the
Regulations,or(ii)with respect to"preliminary expenditures" for the financed facilities as
defined in Section 1.150-2(f)(2) of the Regulations, including engineering or architectural
expenses and similar preparatory expenses,which in the aggregate do not exceed 20%of the
"issue price"of the Bonds.
8.06. Continuing Disclosure. 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.
(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, 2009, 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:
Economic and Financial Information; Summary of Debt and Debt Statistics and
General Information--"Major Employers"and`Building Permits,"which
information may be unaudited.
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
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;
(7) 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 paragraphs(1), (2)and (3) of subsection(b), to the
MSRB through EMMA;
(2) 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 paragraph (1) of this subsection,or, if such information is
transmitted with a subsequent time of release,at the time such information is to be
released;
(3) 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)
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 9. CERTIFICATION OF PROCEEDINGS.
9.01. Registration and Levy of Taxes. The City Manager is hereby authorized and
directed to file a certified copy of this resolution in the records of the County Auditor, together
with such additional information as required, and to issue a certificate that the Bonds have been
duly entered upon the County Auditor's bond register and the tax required by law has been
levied.
9.02. Certification of Records. The officers of the City 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 hooks and records under their custody and control or as otherwise known to
them, and all such certified copies, certificates and affidavits, including any heretofore furnished,
shall be deemed representations of the City to the facts recited herein.
9.03. Official Statement. The Preliminary Official Statement relating to the Bonds,
dated September 23, 2009, relating to the Bonds prepared and distributed by Northland
Securities, Inc., is hereby approved. The officers of the City are hereby authorized and directed
to execute such certificates as may be appropriate concerning the accuracy, completeness and
sufficiency of the Official Statement.
ADOPTED by the Eden Prairie City Council on this 6th day of October 2009.
(hi A n�
Phi oung, Mayor
ATTEST:
K leen Porta, City Clerk
Levy Year Collect Year Lev
2009 2010 $315,798.44
2010 2011 316,181.25
2011 2012 318,176.25
2012 2013 319,856.25
2013 2014 317,493.75