HomeMy WebLinkAboutResolution - 2011-98 - 1,820,000 GO Crossover Refunding Bonds, Series 2011D - 11/15/2011 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2011-98
RESOLUTION AUTHORIZING ISSUANCE,AWARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR
THE PAYMENT OF$1,820,000 GENERAL OBLIGATION PERMANENT
IMPROVEMENT REVOLVING FUND CROSSOVER REFUNDING
BONDS, SERIES 2011D
BE IT RESOLVED by the City Council (the"Council")of the City of Eden Prairie,
Minnesota(the"City"), as follows:
SECTION 1. AUTHORIZATION AND SALE.
1.01. Authorization. Pursuant to a resolution adopted by this Council on September 20,
2011, the City has determined it to be in its best interests to issue its General Obligation
Permanent Improvement Revolving Fund Crossover Refunding Bonds, Series 2011 D, in the
principal amount of$I,820,000(the"Bonds"), pursuant to Minnesota Statutes, Chapter 475, to
provide funds to be used to refinance on December 1, 2013 (the"Refunding"), the 2015 through
2025 maturities of the City's General Obligation Permanent Improvement Revolving Fund
Bonds, Series 2005B, dated, as originally issued, as of October 1,2005 (the"Series 2005B
Bonds"),which maturities are presently outstanding in the principal amount of$1,730,000 (the
"Refunded Bonds"). December 1, 2013 (the "Crossover Date") is the earliest date upon which
the Refunded Bonds may be redeemed without payment of premium. The Refunding is being
carried out for the purpose described in Minnesota Statutes, Section 475.67, subdivision 3,
section(b)(2)(i) and in compliance with Minnesota Statutes, Chapter 475.
1.02. Sale. Pursuant to the Notice of Sale and the Official Statement prepared on behalf
of the City by Northland Securities, Inc., sealed proposals for the purchase of the Bonds were
received at or before the time specified for receipt thereof. The proposals have been opened,
publicly read and considered and the purchase price, interest rates and net interest cost under the
terms of each proposal have been determined. The most favorable proposal received is that of
, in and associates(the"Purchaser"),
to purchase the Bonds at a price of$ plus accrued interest on all Bonds to the
day of delivery and payment, on the further terms and conditions hereinafter set forth.
1.03. Award. The sale of the Bonds is hereby awarded to the Purchaser, and the Mayor
and City Manager are hereby authorized and directed to execute a contract on behalf of the City
for the sale of the Bonds in accordance with the Notice of Sale. The good faith deposit of the
Purchaser shall be retained and deposited by the City until the Bonds have been delivered and
shall be deducted from the purchase price paid at settlement.
1.04. Savings. It is hereby determined that:
(a) by the issuance of the Bonds, the City will realize a substantial interest rate
reduction, a gross savings of approximately$ and a present value savings
(using the yield on the Bonds, computed in accordance with Section 148 of the Internal
Revenue Code of 1986, as amended(the"Code"), as the discount factor) of
approximately$ ; and
(b) as of the Crossover Date,the sum of(i)the present value of the debt service
on the Bonds, computed to their stated maturity dates, after deducting any premium,
using the yield of the Bonds as the discount rate, plus (ii) any expenses of the refunding
payable from a source other than the proceeds of the Bonds or investment earnings
thereon, is lower by %than the present value 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.
SECTION 2. BOND TERMS; REGISTRATION-, EXECUTION AND DELIVERY.
2.01. Issuance of Bonds. All acts, conditions and things which are required by the
Constitution and laws of the State of Minnesota to be done,to exist, to happen and to be
performed precedent to and in the valid issuance of the Bonds having been done,now existing,
having happened and having been performed, it is now necessary for the Council to establish the
form and terms of the Bonds,to provide security therefor and to issue the Bonds forthwith.
2.02. Maturities: Interest Rates-, Denominations and Pa ent. The Bonds shall be
originally dated as of December 1,2011, shall be in the denomination of$5,000 each, or any
integral multiple thereof,of single maturities, shall mature on December I 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 Year Amount Rate
2014 $20,000 % 2020 $160,000 %
2015 150,000 2021 165,000
2016 145,000 2022 170,000
2017 155,000 2023 175,000
2018 155,000 2024 180,000
2019 160,000 2025 185,000
[REVISE MATURITY SCHEDULE FOR TERM BONDS]
For purposes of satisfying Minnesota Statutes, Section 475.54, the maturity schedule for
the Bonds shall be combined with that of the portion of the Series 2005B Bonds not refunded by
the Bonds.
The Bonds shall be issuabie only in fully registered form. The interest thereon and,upon
surrender of each Bond, the principal amount thereof shall be payable by check or draft issued by
the Registrar described herein, provided that, so long as the Bonds are registered in the name of a
securities depository, or a nominee thereof, in accordance with Section 2.08 hereof, principal and
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interest shall be payable in accordance with the operational arrangements of the securities
depository.
2.03. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to
Section 2.07 and upon any subsequent transfer or exchange pursuant to Section 2.06, the date of
authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on
the Bonds shall be payable on June 1 and December 1, commencing June 1, 2012, 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.
2.04. Redemption. Bonds maturing in 2020 and later years shall be subject to
redemption and prepayment at the option of the City, in whole or in part, in such order as the
City shall determine and within a maturity by lot as selected by the Registrar in multiples of
$5,000, on December 1, 2019, and on any date thereafter, at a price equal to the principal amount
thereof and accrued interest to the date of redemption. The City Manager shall cause notice of
the call for redemption thereof to be published if and as required by law and, at least thirty(30)
days prior to the designated redemption date, shall cause notice of the call for redemption to be
mailed,by first class mail,to the registered owners of any Bonds to be redeemed at their
addresses as they appear on the bond register described in Section 2.06 hereof but no defect in or
failure to give such mailed notice of redemption shall affect the validity of proceedings for the
redemption of any Bond not affected by such defect or failure. Official notice of redemption
having been given as aforesaid,the Bonds or portions of Bonds so to be redeemed shall, on the
redemption date,become due and payable at the redemption price therein specified, and from
and after such date (unless the City shall default in the payment of the redemption price) such
Bonds or portions of Bonds shall cease to bear interest. Upon partial redemption of any Bond, a
new Bond or Bonds will be delivered to the registered owner without charge, representing the
remaining principal amount outstanding.
[COMPLETE THE FOLLOWING PROVISIONS IF THERE ARE TERM BONDS-
ADD ADDITIONAL PROVISIONS IF THERE ARE MORE THAN TWO TERM BONDS]
[Bonds maturing on December 1, 20 and 20 (the"Term Bonds") shall be subject to
mandatory redemption prior to maturity pursuant to the sinking fund requirements of this Section
2.04 at a redemption price equal to the stated principal amount thereof plus interest accrued
thereon to the redemption date, without premium. The Registrar shall select for redemption, by
lot or other manner deemed fair,on December 1 in each of the following years the following
stated principal amounts of such Bonds:
Year Principal Amount
The remaining$ stated principal amount of such Bonds shall be paid at
maturity on December 1, 20_.
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Year Principal Amount
The remaining$ stated principal amount of such Bonds shall he paid at
maturity on December 1, 20 .
Notice of redemption shall be given as provided in the preceding paragraph.]
2.05. Ayyointment 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 hank 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.
2.06. Registration. The effect of registration and the rights and duties of the City and the
Registrar with respect thereto shall be as follows:
(a) 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.
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(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.
(1) Authenticating Agent. The Registrar is hereby designated authenticating agent
for the Bonds, within the meaning of Minnesota Statutes, Section 475.55, Subdivision 1,
as amended.
0) Valid Obligations. All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the City, evidencing the same debt, and entitled to the
same benefits under this Resolution as the Bonds surrendered upon such transfer or
exchange.
2,07. Execution, Authentication and Delivery, The Bonds shall be prepared under the
direction of the City Manager and shall he 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
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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.
2.08. Securities Depository. (a) For purposes of this section the following terms shall
have the following meanings:
"Beneficial Owner" shall mean,whenever used with respect to a Bond, the person in
whose name such Bond is recorded as the beneficial owner of such Bond by a Participant on the
records of such Participant, or such person's subrogee.
"Cede &Co."shall mean Cede& Co., the nominee of DTC, and any successor nominee
of DTC with respect to the Bonds.
"DTC"shall mean The Depository Trust Company of New York,New York.
"Participant"shall mean any broker-dealer,bank or other financial institution for which
DTC holds Bonds as securities depository.
"Representation Letter" shall mean the Representation Letter pursuant to which the
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
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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.
2.09. Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
CITY OF EDEN PRAIRIE
COUNTY OF HENNEPIN
GENERAL OBLIGATION PERMANENT IMPROVEMENT REVOLVING FUND
CROSSOVER REFUNDING BONDS, SERIES 2011D
7
Rate Maturity Date Date of Original Issue CUSIP No.
December 1, 20 December 1, 2011
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 I of each year, commencing June
1,2012 (each such date, an"Interest Payment Date"), subject to the provisions referred to herein
with respect to the redemption of the principal of this Bond prior to its stated maturity. The
interest 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$1,820,000 issued
pursuant to a resolution adopted by the City Council on November 15, 2011 (the "Resolution"),
to refund outstanding general obligation permanent improvement revolving fund bonds
previously issued by the City. 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,Chapter 475. The Bonds are issuable only in fully registered form,
in denominations of$5,000 or any multiple thereof, of single maturities.
Bonds maturing in 2020 and later years shall be subject to redemption and prepayment at
the option of the City, in whole or in part, in such order of maturity dates as the City may select
and, within a maturity,by lot as selected by the Registrar(or, if applicable, by the bond
depository in accordance with its customary procedures) in multiples of$5,000,on December 1,
2019, and on any date thereafter, at a price equal to the principal amount thereof and accrued
interest to the date of redemption. The City shall cause notice of the call for redemption thereof
to be published if and as required by law, and at least thirty(30)days prior to the designated
redemption date, shall cause notice of call for redemption to be mailed,by first class mail, to the
registered holders of any Bonds, at the holders' addresses as they appear on the bond register
maintained by the Registrar, but no defect in or failure to give such mailed notice of redemption
shall affect the validity of proceedings for the redemption of any Bond not affected by such
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defect or failure. Official notice of redemption having been given as aforesaid, the Bonds or
portions of Bonds so to be redeemed shall, on the redemption date,become due and payable at
the redemption price therein specified and from and after such date (unless the City shall default
in the payment of the redemption price) such Bonds or portions of Bonds shall cease to bear
interest. Upon partial redemption of any Bond, a new Bond or Bonds will be delivered to the
owner without charge, representing the remaining principal amount outstanding.
[COMPLETE THE FOLLOWING PROVISIONS IF THERE ARE TERM BONDS-
ADD ADDITIONAL PROVISIONS IF THERE ARE MORE THAN TWO TERM BONDS]
[Bonds maturing in the year 20 and 20 shall be subject to mandatory redemption, at
a redemption price equal to their principal amount plus interest accrued thereon to the
redemption date,without premium,on December 1 in each of the years shown below, in an
amount equal to the following principal amounts:
Term Bonds Maturing in 20-- Term Bonds Maturing in 20--
Sinking Fund Aggregate Sinking Fund Aggregate
Payment Date Principal Amount Payment Date Principal Amount
Notice of redemption shall be given as provided in the preceding paragraph.]
As provided in the Resolution and subject to certain limitations set forth therein, this
Bond is transferable upon the books of the City at the principal office of the Registrar,by the
registered owner hereof in person or by the owner's attorney duly authorized in writing upon
surrender hereof together with a written instrument of transfer satisfactory to the Registrar, duly
executed by the registered owner or the owner's attorney, and may also be surrendered in
exchange for Bonds of other authorized denominations. Upon such transfer or exchange, the
City will cause a new Bond or Bonds to be issued in the name of the transferee or registered
owner, of the same aggregate principal amount, bearing interest at the same rate and maturing on
the same date, subject to reimbursement for any tax, fee or governmental charge required to be
paid with respect to such transfer or exchange.
The Bonds have been designated as"qualified tax-exempt obligations"pursuant to
Section 255(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
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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 special assessments on property specially benefited by the
improvements financed by the Bonds, 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 such assessments to the Revenue Account of its Permanent
Improvement Revolving Fund; that, on or before each date the City is obligated to pay principal
of or interest on the Bonds, the City will transfer from its Revenue Account to a separate General
Obligation Permanent Improvement Revolving Fund Crossover Refunding Bonds, Series 2011D
Bond Fund for the payment of principal and interest;that if necessary for payment of principal
and interest, ad valorem taxes are required to be levied upon all taxable property in the City,
without limitation as to rate or amount; and that the issuance of this Bond, together with all other
indebtedness of the City outstanding on the date hereof and on the date of its actual issuance and
delivery, does not cause the indebtedness of the City to exceed any constitutional 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 Manage (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
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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)
]T 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:
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[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 with Wells Fargo Bank, National Association,
in Minneapolis,Minnesota(the"Escrow Agent") for application in accordance with the Escrow
Agreement, a form of which has been presented to this Council. The Mayor and City Manager
are hereby authorized to enter into an 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 PERMANENT IMPROVEMENT REVOLVING
FUND CROSSOVER REFUNDING BONDS, SERIES 2011 D BOND FUND. So long as any
of the Bonds are outstanding and any principal of or interest thereon unpaid, the City shall
maintain a separate debt service fund on its official books and records to be known as the
General Obligation Permanent Improvement Revolving Fund Crossover Refunding Bonds,
Series 2011 D Bond Fund(the"Bond Fund")within the Revenue Account of the Permanent
Improvement Revolving Fund(as described herein, the"Revenue Account"), and the principal of
and interest on the Bonds shall be payable from the Bond Fund. Into the Bond Fund shall be
paid: (a)the amounts appropriated thereto pursuant to the Escrow Agreement; (b) all moneys
transferred with respect to the Bonds from other accounts within the Permanent Improvement
Revolving Fund to the Revenue Account in accordance with this Resolution; (c) all excess
amounts on deposit in the debt service fund maintained for the payment of the Refunded Bonds
upon the retirement of the Refunded Bonds on the Crossover Date; and(d) any other funds
appropriated by the Council for the payment of the Blinds. On the business day preceding each
date on which principal of or interest on the Bonds are to be paid by the City in accordance with
this Resolution,the City Manager shall,without further direction by the Council, transfer from
the Revenue Account in the Permanent Improvement Revolving Fund to the Bond Fund an
amount sufficient to pay such principal and interest. 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, subject to reimbursement from the
Permanent Improvement Revolving Fund when the balance therein is sufficient, and the City
Council covenants and agrees that it will each year levy a sufficient amount of ad valorem taxes
to take care of any accumulated or anticipated deficiency, which levy is not subject to any
constitutional or statutory limitation. 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.
SECTION 5. SPECIAL ASSESSMENTS. The City hereby covenants and agrees that, for the
payment of the cost of the projects refinanced by the Bonds, the City has performed all acts and
things necessary for the final and valid levy of special assessments in an amount equal to the
original principal amount of the Refunded Bonds. In the event that any such assessment shall at
any time be held invalid with respect to any lot,trust or parcel of land, owing to any error,defect
or irregularity in any action or proceeding taken or to be taken by the City or this Council or any
of the City's officers or employees, either in the making of such assessment or in the
performance of any condition precedent thereto, the City hereby covenants and agrees that it will
forthwith take all such further actions and proceedings as may be required by law to make such
assessment a valid and binding lien upon such property. The collections of the special
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assessments shall be deposited, as received, into the Revenue Account, following the Crossover
Date.
SECTION 6. 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. It is,
however, presently estimated that the special assessments and other amounts appropriated to the
Bond Fund pursuant to Section S will provide sums not less than 5% in excess of the principal
and interest due on the Bonds, and therefore no ad valorem taxes are required to be levied at this
time.
SECTION 7. 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 8. DEFEASANCE. When all of the Bonds have been discharged as provided in this
section, all pledges, covenants and other rights granted by this resolution to the 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 discharge
its obligations with respect to any prepayable Bonds called for redemption on any date when
they are prepayable according to their terms by depositing with the Registrar on or before that
date an amount equal to the principal, interest and redemption premium, if any,which are then
due,provided that notice of such redemption has been duly given as provided herein. 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.
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SECTION 9. TAX COVENANTS-ARBITRAGE MATTERS AND CONTINUING
DISCLOSURE.
9.01. 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.
9.02. Arbitrage Certification. The Mayor and City Manager being the officers of the
City charged with the responsibility for issuing the Bonds pursuant to this Resolution, are
authorized and directed to execute and deliver to the Purchaser a certificate in accordance with
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.
9.03. Arbitrage Rebate. The City acknowledges that the Bonds are subject to the rebate
requirements of Section 148(f)of the Code. The City covenants and agrees to retain such
records, make such determinations, file such reports and documents and pay such amounts at
such times as are required under said Section 148(f) and applicable Regulations to preserve the
exclusion of interest on the Bonds from gross income for federal income tax purposes,unless the
Bonds qualify for an exception from the rebate requirement pursuant to one of the spending
exceptions set forth in Section 1.148-7 of the Regulations and no "gross proceeds"of the Bonds
(other than amounts constituting a"bona fide debt service fund") arise during or after the
expenditure of the original proceeds thereof.
8.04. Qualified Tax-Exempt Obligations. This Council hereby designates the Bonds as
"qualified tax-exempt obligations"for purposes of Section 265(b)(3) of the Code relating to the
disallowance of interest expense for financial institutions, and hereby finds that the reasonably
anticipated amount of tax-exempt obligations which are not private activity bonds(not treating
qualified 501(c)(3)bonds under Section 145 of the Code as private activity bonds for the purpose
of this representation)which will be issued by the City and all subordinate entities during
calendar year 2011 does not exceed $10,000,000.
8.05. Continuing Disclosure. (a) Purpose and Beneficiaries. To provide for the public
availability of certain information relating to the Bonds and the security therefor and to permit
the Purchaser and other participating underwriters in the primary offering of the Bonds to
comply with amendments to Rule 15c2-12 promulgated by the SEC under the Securities
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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 (1)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(ii)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 twelve(12) months after the end of each fiscal year of the City,
commencing with the fiscal year ending December 31,2011,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, prepared in
accordance with generally accepted accounting principles in accordance with
the governmental accounting standards promulgated by the Governmental
Accounting Standards Board or as otherwise provided under Minnesota law, as
in effect from time to time,or, if and to the extent such financial statements
have not been prepared in accordance with such generally accepted accounting
principles for reasons beyond the reasonable control of the City, noting the
discrepancies therefrom and the effect thereof, and certified as to accuracy and
completeness in all material respects by the fiscal officer of the City; and
(B) to the extent not included in the financial statements referred to in paragraph(A)
hereof,the information for such fiscal year or for the period most recently
available of the type contained in the Official Statement under headings: City
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Property Values; City Indebtedness; and City Tax Rates, Levies and
Collections.
Notwithstanding the foregoing paragraph, if the audited financial statements are not available by
the date specified, the City shall provide on or before such date unaudited financial statements in
the format required for the audited financial statements as part of the Disclosure Information and,
within 10 days after the receipt thereof,the City shall provide the audited financial statements.
Any or all of the Disclosure Information may be incorporated by reference, if it is updated as
required hereby, from other documents, including official statements, which have been submitted
to the Municipal Securities Rulemaking Board("MSRB")through its Electronic Municipal
Market Access System("EMMA7) or to the SEC. If the document incorporated by reference is a
final official statement,it must be available from 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 not in excess of ten business days after the occurrence of the
event,notice of the occurrence of any of the following events(each a"Material
Fact"):
(A) Principal and interest payment delinquencies;
(B) Nan-payment related defaults, if material;
(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, the issuance by the Internal Revenue Service of proposed
or final determinations of taxability,Notices of Proposed Issue(IRS Form
5701-TEB)or other material notices or determinations with respect to the tax
status of the security,or other material events affecting the tax status of the
security;
(G) Modifications to rights of security holders, if material;
(H) Bond calls, if material, and tender offers;
(I) Defeasances;
(J) Release, substitution,or sale of property securing repayment of the securities, if
material;
(K) Rating changes;
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(L) Bankruptcy, insolvency, receivership or similar event of the obligated person;
(M) The consummation of a merger, consolidation, or acquisition involving an
obligated person or the sale of all or substantially all of the assets of the
obligated person, other than in the ordinary course of business,the entry into a
definitive agreement to undertake such an action or the termination of a
definitive agreement relating to any such actions,other than pursuant to its
terms, if material; and
(N) Appointment of a successor or additional trustee or the change of name of a
trustee, if material.
As used herein, for those events that must be reported if material, an event is"material" if it is an
event 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,an event is also "material"if it is 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.
For the purposes of the event identified in(L)hereinabove, the event is considered to occur when
any of the following occur: the appointment of a receiver, fiscal agent or similar officer for an
obligated person in a proceeding under the U.S. Bankruptcy Code or in any other proceeding
under state or federal law in which a court or governmental authority has assumed jurisdiction
over substantially all of the assets or business of the obligated person, or if such jurisdiction has
been assumed by leaving the existing governing body and officials or officers in possession but
subject to the supervision and orders of a court or governmental authority, or the entry of an
order confirming a plan of reorganization, arrangement or liquidation by a court or governmental
authority having supervision or jurisdiction over substantially all of the assets or business of the
obligated person.
(3) In a timely manner, notice of the occurrence of any of the following events or
conditions:
(A) the failure of the City to provide the Disclosure Information required under
paragraph (b)(1) at the time specified thereunder;
(B) the amendment or supplementing of this section pursuant to subsection(d),
together with a copy of such amendment or supplement and any explanation
provided by the City under subsection (d)(2);
(C) the termination of the obligations of the City under this section pursuant to
subsection(d);
(D) any change in the accounting principles pursuant to which the financial
statements constituting a portion of the Disclosure Information are prepared;
and
(E) any change in the fiscal year of the City.
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(c) Manner of Disclosure.
(1) The City agrees to make available to the MSRB through EMMA, in an electronic
format as prescribed by the MSRB, the information described in subsection(b).
(2) All documents provided to the MSRB pursuant to this subsection(c) shall be
accompanied by identifying information as prescribed by the MSRB from time to
time.
(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: (1) 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.
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(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 of Bonds. 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.
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 October 7, 2011,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 the 151"day of November, 2011.
Ron Case, Acting Mayor
ATTEST:
4�2� 4&
K leen Porta, City Clerk
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