5.3. SR 08-02-2004Item 5.3.
TO:
FROM:
DATE:
SUBJECT:
MEMORANDUM
Mayor and City Council
Lori Johnson, Finance Director
August 2, 2004
Consider Resolution Concurring in the Action of the Board of
Commissioners of the Public Utilities Commission of the City of Elk
River in Providing for the Issuance and Sale of $940,000 Electric
Revenue Bonds, Series 2004A
Attached is a resolution requiring action by the City Council in order for the 2004A electric revenue
bonds to be issued. The Elk River Municipal Utility Commission will also be approving a resolution
providing for the issuance and sale of $940,000 electric revenue bonds, series 2004A and pledging
that revenues for the security thereof at its special meeting to be held on Tuesday, August 3, 2004 at
12:30 p.m. at City Hall. The resolution to be approved by the ERMU Commission secures the
payment of the bond paid entirely with electric revenues. The city resolution states that the city
concurs with the issuance and the pledge of security for payment of the bond. That resolution is also
attached for your reference.
As we have discussed previously, the City Council is approving its resolution prior to receiving bids
on the bond with the understanding that a pricing committee will review the bids prior to the
ERMU Commission's consideration and adoption of the resolution providing for the issuance and
sale of the bonds. At this time, it is estimated that the interest rate will not exceed 5.25%.
Actioa Requested
The City Council is asked to approve the attached resolution concurring in the action of the Board
of Commissioners of the Public Utilities Commission of the City of Elk River in providing for the
issuance and sale of $940,000 electric revenue bonds, series 2004A.
S:\Council~Lori~2004\ERMUbonds.doc
EXTRACT OF MINUTES OF A MEETING OF THE
CITY COUNCIL OF THE
CITY OF ELK RIVER, MINNESOTA
HELD: August 2, 2004
Pursuant to due call and notice thereof, a regular or special meeting of the City Council
of the City of Elk River, Minnesota, was duly called and held at the City Hall in the City of Elk
River, Minnesota on August 2, 2004, at __ o'clock _.M.
The following members were present:
and the following were absent:
Member
introduced the following resolution and moved its adoption:
RESOLUTION CONCURRING IN THE ACTION OF THE BOARD OF COMMISSIONERS
OF THE PUBLIC UTILITIES COMMISSION OF THE CITY OF ELK RIVER, MINNESOTA,
IN PROVIDING FOR THE ISSUANCE AND SALE OF $940,000 ELECTRIC REVENUE
BONDS, SERIES 2004A
WHEREAS:
A. the Public Utilities Commission of the City of Elk River, Minnesota (the
"Commission") has determined to undertake capital improvements to the municipal electric light
and power plant and distribution system of the City (the "Electric System") consisting of
(the "Project"); and will finance the Project by the issuance of the City's
$940,000 Electric Revenue Bonds, Series 2004A (the "Series 2004A Bonds"); and
B. the Commission has presented to the City Council a copy of a resolution (the
"Bond Resolution") entitled "Resolution Providing for the Issuance and Sale of $940,000
Electric Revenue Bonds, Series 2004A and Pledging Net Revenues for the Security Thereof," to
be considered for adoption by the Commission after the date hereof.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River,
Minnesota that the City Council hereby concurs in the Bond Resolution of the Commission
providing for the issuance and sale of the Series 2004A Bonds, hereby joins in and adopts the
Bond Resolution and makes the determinations and findings set forth in the Bond Resolution
with the same force and effect as if the Bond Resolution had been adopted by the City Council.
The motion for the adoption of the foregoing resolution was seconded by member
and upon a vote being taken thereon, the following voted in favor
thereofi
and the following voted against the same:
Whereupon the resolution was declared duly passed and adopted.
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STATE OF MINNESOTA
COUNTY OF SHERBURNE
CITY OF ELK RIVER
I, the undersigned, being the duly qualified and acting Clerk of the City of Elk River,
Minnesota, DO HEREBY CERTIFY that I have compared the attached and foregoing extract of
minutes with the original thereof on file in my office, and that the same is a full, true and
complete transcript of the minutes of a meeting of the City Council, duly called and held on the
date therein indicated, insofar as such minutes relate to providing for the issuance and sale of
$940,000 Electric Revenue Bonds, Series 2004A.
WITNESS my hand on August 2, 2004.
Clerk
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EXTRACT OF MINUTES OF A MEETING OF THE
PUBLIC UTILITIES COMMISSION OF THE
CITY OF ELK RIVER, MINNESOTA
HELD: August 3, 2004
Pursuant to due call, a regular or special meeting of the Public Utilities Commission of
the City of Elk River, Sherbume County, Minnesota, was duly held at the City Hall on August 3,
2004, at 12:30 P.M, for the purpose, in part, of providing for the issuance and sale of $940,000
Electric Revenue Bonds, Series 2004A.
The following members were present:
and the following were absent:
Member
introduced the following resolution and moved its adoption:
RESOLUTION PROVIDING FOR THE ISSUANCE AND SALE OF $940,000 ELECTRIC
REVENUE BONDS, SERIES 2004A AND PLEDGING NET REVENUES FOR THE
SECURITY THEREOF
BE IT RESOLVED by the Public Utilities Commission of the City of Elk River,
Minnesota (the Commission), as follows:
Section 1. Definitions; Interpretation. For all purposes of this Resolution, except as
otherwise expressly provided or unless the context otherwise requires, the terms defined in this
section have the meanings assigned to them in this section. All terms defined in this section
include the plural as well as the singular and the female as well as the male. Except as otherwise
expressly provided herein, accounting terms not otherwise defined herein have the meanings
assigned to them, and all computations herein provided for shall be made, in accordance with
generally accepted accounting principles.
"Accountant" means a Person engaged in the practice of accounting, retained by the
Commission.
"Act" means Minnesota Statutes, Sections 412.321 through 412.391, and Chapter 475,
including any amendment thereof.
"Additional Bonds" means any Bonds issued pursuant to Section 10.
"Audited Fiscal Year" means a Fiscal Year for which the financial statements of the
Commission have been audited, as required by Section 12(g).
"Bond Counsel" means any attorney or firm of attorneys having a favorable reputation
for matters relating to tax-exempt financing of properties similar to the Electric System, retained
by the Commission.
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"Bondholder" means the Person in whose name a Bond is registered in the Bond
Register.
"Bond Register" means the register maintained by the Registrar pursuant to Section 6.01.
"Bonds" means any Outstanding Series 2004A Bonds or Additional Bonds.
"City" means the City of Elk River, Minnesota, and any successor to its obligations under
this Resolution.
"Public Utilities Commission" means the goveming body of the Commission.
"Code" means the Internal Revenue Code of 1986, including any amendment thereof.
"Commission" means the Public Utilities Commission of the City, and any successor to
its obligations under this Resolution.
"Commission Resolution" means a resolution or other legislative enactment duly adopted
by the Commission.
"Construction Account" means the Construction Account established in the Electric Fund
pursuant to Section 13 hereof.
"Consultant" means a Person having a favorable reputation as experienced in planning
and financing, and evaluating the economic feasibility, of properties similar to the Electric
System, retained by the Commission.
"Debt Service Account" means the account so designated in the Electric Fund.
"Electric Fund" means the Electric Fund maintained on the official books of account of
the City.
"Electric System" means the municipal electric light and power plant and distribution
system of the City, as it may at any time exist, including any replacement, expansion or
improvement thereof.
"Fiscal Year" means the period commencing on January 1 of any year and ending on
December 31 of the same year, or any other period of twelve consecutive months specified by
Commission Resolution as the fiscal year of the Commission.
"Government Obligations" means direct ol~ligations of, or obligations the principal of and
the interest on which are fully and unconditionally guaranteed by the United States of America.
"Gross Revenues" means all revenues and receipts from rates, fees, charges, and rentals
imposed by the Commission for the availability, benefit, use and products of the Electric System
or any part thereof, and any penalties and interest thereon, and income from the investment
thereof. Gross Revenues do not include amounts received from the sale of property which is part
of the Electric System or amounts borrowed with respect to the Electric System.
1670578vl 2
"Holder" means a Bondholder.
"Interest Payment Date" means a date specified in a Bond as a fixed date for payment of
an installment of interest on the Bond.
"Net Revenues" means the Gross Revenues of the Electric System for any specified
period, less the Operating Expenses of the Electric System for the same specified period.
"Operating Account" means the account so designated in the Electric Fund.
"Operating Expenses" means the current expenses of operation, maintenance and minor
or current repair of the Electric System for any specified period. Operating Expenses include,
without limitation, administrative expenses of the Commission relating to the Electric System,
franchise fees, premiums for insurance relating to the Electric System, and amounts necessary to
accumulate and maintain the Operating Reserve Requirement. Operating Expenses do not
include depreciation, amortization, or interest expense.
"Operating Reserve Requirement" means an amount equal to the greater of (i) one
month's Operating Expenses, based upon the financial statements of the Commission for the
preceding Audited Fiscal Year, or (ii) a larger amount reasonably determined by the Commission
to be necessary to be maintained as a reserve for payment of Operating Expenses.
"Outstanding" means when used with reference to Bonds, as of the date of determination,
all Bonds theretofore issued except Bonds which have been paid or are deemed to have been paid
as provided in Section 15.
"Person" means any individual, corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization, or government, or any agency or political
subdivision thereof.
"Project" means
and other capital improvements to the Electric System.
"Purchaser" means
"Rate Stabilization Account" means the account so designated in the Electric Fund.
"Registrar" means
appointed by the Commission pursuant to Section 6.01.
., or its successor
"Repair and Replacement Account" means the account so designated in the Electric Fund.
"Reserve Account" means the account so designated in the Electric Fund.
"Reserve Requirement" means, as of the date of reference, an amount equal to the least of
(i) 10% of the original principal amount of the Bonds, or (ii) the maximum amount of principal
and interest payable during the then current Fiscal Year or any future Fiscal Year on all Bonds
1670578vl 3
Outstanding as of the date of reference, or (iii) 125% of the average annual principal and interest
payable on all Bonds as of the date of reference.
"Resolution" means this Resolution, including any amendment hereof or supplement
hereto adopted in accordance with Section 14.
"Series 2004A Bonds" means the Bonds created by Section 5.
Section 2. Recitals.
2.01. Electric System. The City owns and, for financing purposes, operates a municipal
Electric System, hereinafter referred to as the "Electric System."
2.02. Public Utilities Commission. The City has established the Commission and
placed the Electric System under the jurisdiction of the Commission pursuant to the Act. The
City has granted to the Commission a non-exclusive franchise to transmit, furnish, deliver or
receive electrical energy within the utility service area. The Commission operates the Electric
System as a public, revenue-producing convenience, providing service to the City and its
inhabitants and residents and other customers in the area surrounding the City, as authorized by
the Act.
2.03. Authorization of Series 2004A Bonds. The Commission is authorized by law to
borrow money necessary to finance the Project and to pay the related financing costs and fund
the Reserve Account, as hereinafter provided. It is necessary and expedient for the City
forthwith to issue its Electric System Revenue Bonds, Series 2004A, in the principal amount of
$940,000. All costs of the Project in excess of the proceeds of the Series 2004A Bonds available
for payment of such costs shall be paid from any other funds legally available to the Commission
for such purpose.
2.04. Sale of Series 2004A Bonds. The Commission has retained Ehlers and
Associates, Inc., in Roseville, Minnesota (Ehlers), as its independent financial advisor for the
sale of the Bonds and was therefore authorized to sell the Bonds by private negotiation in
accordance with Minnesota Statutes, Section 475.60, Subdivision 2(9) and proposals to purchase
the Bonds have been solicited by Ehlers.
2.05. Receipt and Acceptance of Proposals. Proposals will be received by the
Secretary, or designee, at the offices of Ehlers, on August 3, 2004, pursuant to the Official Terms
of Bond Sale established for the Bonds. The authority to accept the most favorable proposal for
the purchase of the Bonds, the interest rates and the amount of the purchaser's discount is hereby
delegated by the Commission to the Secretary and a representative of Ehlers (collectively, the
Pricing Committee); provided the true interest cost on the Bonds shall not exceed %.
2.06. Performance of Requirements. 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 Series 2004A Bonds having been done,
existing, having happened and having been performed, it is now necessary to establish the form
and terms of the Series 2004A Bonds, to provide security therefor and to issue the Series 2004A
Bonds forthwith.
1670578vl 4
Section 3. Security for Series 2004A Bonds.
3.01. Pledge of Net Revenues. From and after their issuance, the principal of and
interest on the Series 2004A Bonds, as set forth in Section 6.01 hereof, shall be payable solely
from and constitute a first lien and charge on the respective subaccounts of the Debt Service
Account, the Reserve Account and the Net Revenues of the Electric System.
3.02. Reserve Account Requirement. Upon issuance of the Series 2004A Bonds, the
Commission shall deposit, from available funds on hand, in the Reserve Account $94,000, so
that the balance in the Reserve Account shall be not less than the then applicable Reserve
Requirement.
3.03. Not General Obligations. The Series 2004A Bonds are not general obligations of
the City or the Commission and the full faith and credit and taxing powers of the City are not
pledged for their payment.
Section 4. Form of Series 2004A Bonds.
4.01. Series 2004A Bond Form. The Series 2004A Bonds shall be prepared in
substantially the following form:
1670578vl 5
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF SHERBURNE
CITY OF ELK RIVER
ELECTRIC SYSTEM REVENUE BOND, SERIES 2004A
No. $
Interest Rate Maturity Date Date of Original Issue CUSIP
February 1,__ August 1, 2004
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
THE CITY OF ELK RIVER, Sherbume County, Minnesota (the "City"), acknowledges
itself to be indebted and, for value received, hereby promises to pay to the registered owner
specified above, or registered assigns, the principal amount specified above, on the maturity date
specified above, with interest thereon from the date of original issue specified above or from the
most recent interest payment date to which interest has been paid or duly provided for, at the
annual rate specified above, all subject to the provisions referred to herein with respect to the
redemption of the principal of this Series 2004A Bond before maturity. Interest hereon is payable
on February 1 and August 1 in each year, commencing February 1, 2005, to the person in whose
name this Series 2004A Bond is registered at the close of business on the 15th day (whether or
not a business day) of the immediately preceding month. The principal of and premium, if any,
on this Series 2004A Bond are payable upon presentation and surrender hereof at the principal
office of ., in , Minnesota (the
"Bond Registrar"), acting as paying agent, or any successor paying agent duly appointed by the
City. Interest on this Series 2004A Bond will be paid on each Interest Payment Date by check or
draft mailed to the person in whose name this Series 2004A Bond is registered (the "Holder" or
"Bondholder") on the registration books of the City maintained by the Bond Registrar and at the
address appearing thereon at the close of business on the fifteenth day of the calendar month next
preceding such Interest Payment Date (the "Regular Record Date"). Any interest not so timely
paid shall cease to be payable to the person who is the Holder hereof as of the Regular Record
Date, and shall be payable to the person who is the Holder hereof at the close of business on a
date (the Special Record Date) fixed by the Bond Registrar whenever money becomes available
for payment of the defaulted interest. Notice of the Special Record Date shall be given to
Bondholders not less than ten days prior to the Special Record Date. The principal of and
premium, if any, and interest on this Series 2004A Bond are payable in lawful money of the
United States of America. So long as this Series 2004A Bond is registered in the name of the
Depository or its Nominee as provided in the Resolution hereinafter described, and as those
terms are defined therein, payment of principal of, premium, if any, and interest on this Series
2004A Bond and notice with respect thereto shall be made as provided in the Letter of
1670578vl 6
Representations, as defined in the Resolution, and surrender of this Series 2004A Bond shall not
be required for payment of the redemption price upon a partial redemption of this Series 2004A
Bond. Until termination of the book-entry only system pursuant to the Resolution, Series 2004A
Bonds may only be registered in the name of the Depository or its Nominee.
This Bond is one of a series (the "Series 2004A Bonds") in the aggregate principal
amount of $940,000, issued pursuant to a resolution adopted by the Public Utilities Commission
of the City of Elk River, Minnesota (the "Commission") on August 3, 2004 (the "Resolution"), to
provide funds to pay part of the costs of certain capital improvements to the City's electric
system (the "Electric System") and is issued pursuant to and in full conformity with the
provisions of the Constitution and laws of the State of Minnesota thereunto enabling, including
Minnesota Statutes, Chapter 475 and Sections 412.321 through 412.391. This Series 2004A
Bond and the interest thereon are payable solely from Net Revenues, as defined in the
Resolution, of the Electric System which have been pledged to the payment thereof. The Series
2004A Bonds do not constitute a debt of the City within the meaning of any constitutional or
statutory limitation of indebtedness, and the full faith and credit and taxing power of the City are
not pledged to the payment of the principal of or interest on the Series 2004A Bonds. Additional
Bonds may be issued, which are payable on a parity of lien from the Net Revenues of the
Electric System, upon the terms and conditions provided in the Resolution.
Series 2004A Bonds maturing on February 1, 2012, and thereafter, are subject to
redemption and prepayment at the option of the City on August 1,2011, and on any date
thereafter at a price of par plus accrued interest. Redemption may be in whole or in part of the
Series 2004A Bonds subject to prepayment. If redemption is in part, the maturities and the
principal amounts within each maturity to be redeemed shall be determined by the City; and if
only part of the Series 2004A Bonds having a common maturity date are called for prepayment,
the specific Series 2004A Bonds to be prepaid shall be chosen by lot by the Bond Registrar.
Series 2004A Bonds or portions thereof called for redemption shall be due and payable on the
redemption date, and interest thereon shall cease to accrue from and after the redemption date.
Mailed notice of redemption shall be given to the paying agent and to each affected Holder of the
Series 2004A Bonds at least thirty days prior to the date fixed for redemption.
To effect a partial redemption of Series 2004A Bonds having a common maturity date,
the Bond Registrar shall assign to each Series 2004A Bond having a common maturity date a
distinctive number for each $5,000 of the principal amount of such Series 2004A Bond. The
Bond Registrar shall then select by lot, using such method of selection as it shall deem proper in
its discretion, from the numbers assigned to the Series 2004A Bonds, as many numbers as, at
$5,000 for each number, shall equal the principal amount of such Series 2004A Bonds to be
redeemed. The Series 2004A Bonds to be redeemed shall be the Series 2004A Bonds to which
were assigned numbers so selected; provided, however, that only so much of the principal
amount of such Series 2004A Bond of a denomination of more than $5,000 shall be redeemed as
shall equal $5,000 for each number assigned to it and so selected. If a Series 2004A Bond is to
be redeemed only in part, it shall be surrendered to the Bond Registrar (with, if the City or Bond
Registrar so requires, a written instrument of transfer in form satisfactory to the City and Bond
Registrar duly executed by the Holder thereof or the Holder's attorney duly authorized in
writing) and the City shall execute (if necessary) and the Bond Registrar shall authenticate and
deliver to the Holder of the Series 2004A Bond, without service charge, a new Series 2004A
1670578vl 7
Bond or Series 2004A Bonds having the same stated maturity and interest rate and of any
Authorized Denomination or Denominations, as requested by the Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Series 2004A
Bond so surrendered.
The Series 2004A Bonds are issuable solely in fully registered form in Authorized
Denominations (as defined in the Resolution) and are exchangeable for fully registered Series
2004A Bonds of other Authorized Denominations in equal aggregate principal amounts at the
principal office of the Bond Registrar, but only in the manner and subject to the limitations
provided in the Resolution. Reference is hereby made to the Resolution for a description of the
rights and duties of the Bond Registrar. Copies of the Resolution are on file in the principal
office of the Bond Registrar.
This Series 2004A Bond is transferable by the Holder in person or the Holder's attorney
duly authorized in writing at the principal office of the Bond Registrar upon presentation and
surrender hereof to the Bond Registrar, all subject to the terms and conditions provided in the
Resolution and to reasonable regulations of the City contained in any agreement with the Bond
Registrar. Thereupon the City and the Commission shall execute and the Bond Registrar shall
authenticate and deliver, in exchange for this Series 2004A Bond, one or more new fully
registered Series 2004A Bonds in the name of the transferee (but not registered in blank or to
"bearer" or similar designation), of an Authorized Denomination or Denominations, in aggregate
principal amount equal to the principal amount of this Series 2004A Bond, of the same maturity
and bearing interest at the same rate.
The Bond Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the transfer or exchange of this Series 2004A
Bond and any legal or unusual costs regarding transfers and lost Series 2004A Bonds.
The City, the Commission and the Bond Registrar may treat the person in whose name
this Series 2004A Bond is registered as the owner hereof for the purpose of receiving payment as
herein provided (except as otherwise provided herein with respect to the Record Date) and for all
other purposes, whether or not this Series 2004A Bond shall be overdue, and neither the City, the
Commission nor the Bond Registrar shall be affected by notice to the contrary.
This Series 2004A Bond shall not be valid or become obligatory for any purpose or be
entitled to any security unless the Certificate of Authentication hereon shall have been executed
by the Bond Registrar.
The Series 2004A Bonds have been designated as "qualified tax-exempt obligations"
pursuant to the provisions of Section 265(b) of the Internal Revenue Code of 1986, as amended.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that the City,
through the Commission, has fixed and established and will collect reasonable rates and charges
for the services and facilities provided by the Electric System; that the City, through the
Commission, will maintain on its books and records an Electric Fund, and will credit to the
Operating Account of the Electric Fund the Gross Revenues of the Electric System as received
and pay all Operating Expenses therefrom, and will credit to the Debt Service Account, once
1670578vl 8
each month, out of Net Revenues then on hand, an amount equal to one-twelfth of all principal
payable on the Series 2004A Bonds during the next twelve months and one-sixth of all interest
payable on the Series 2004A Bonds in the next six months, and will credit to the Reserve
Account an amount necessary to maintain therein a balance equal to the least of (i) 10% of the
original principal amount of the Series 2004A Bonds, or (ii) the maximum amount of principal
and interest to come due in any future calendar year on all Series 2004A Bonds, or (iii) 125% of
the average annual debt service on all Series 2004A Bonds; that the obligation to credit such
amounts to such accounts is cumulative, and if in any month the money in the Electric Fund is
insufficient to credit the required amount into any account, the deficiency shall be made up in the
following month or months after payment to all other accounts having a claim on such revenues
has been paid in full; that the City, through the Commission, will impose and collect such rates
and charges as necessary to provide in each Fiscal Year Net Revenues at least equal to the annual
principal and interest payable on all bonds payable from the Debt Service Account in such Fiscal
Year; that all provisions for the security of the Series 2004A Bonds set forth in the Resolution
will be punctually and faithfully performed as therein stipulated; that all acts, conditions and
things required by the Constitution and laws of the State of Minnesota and ordinances and
resolutions of the City and the Commission to be done, to exist, to happen, and to be performed
in order to make this Series 2004A Bond a valid and binding special obligation of the City
according to its terms have been done, do exist, have happened and have been performed as so
required; and that the issuance of this Series 2004A Bond does not cause the indebtedness of the
City to exceed any constitutional or statutory limitation.
IN WITNESS WHEREOF, the City of Elk River, Sherbume County, State of Minnesota,
by the Commission, has caused this Series 2004A Bond to be executed by the signatures of the
President and Secretary of the Commission and the Mayor and Clerk-Treasurer of the City and
has caused this Series 2004A Bond to be dated as of the Date of Original Issue set forth above.
1670578vl 9
Date of Registration:
BOND REGISTRAR'S
CERTIFICATE OF
AUTHENTICATION
This Series 2004A Bond is one of the
Series 2004A Bonds described in the
Resolution mentioned within.
Bond Registrar
, Minnesota
By:
Authorized Signature
Registrable by:
Payable at:
CITY OF ELK RIVER,
SHERBURNE COUNTY, MINNESOTA
/s/ Facsimile
Mayor
/s/ Facsimile
Clerk-Treasurer
PUBLIC UTILITIES COMMISSION OF THE
CITY OF ELK RIVER,
SHERBURNE COUNTY, MINNESOTA
/s/ Facsimile
President
/s/ Facsimile
Secretary
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Series
2004A Bond, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
UTMA - as custodian for
(Cust) (Minor)
under the
(State)
Uniform Transfers to Minors Act
Additional abbreviations may also be used though not in the above list.
AS SIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Series
2004A Bond and does hereby irrevocably constitute and appoint attorney
to transfer the Series 2004A Bond on the books kept for the registration thereof, 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 Series 2004A
Bond in every particular, without alteration or any change
whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a national bank or trust company or by a brokerage firm
having a membership in one of the major stock exchanges or any other "Eligible Guarantor
Institution" as defined in 17 CFR 240.17 Ad- 15(a)(2).
The Bond Registrar will not effect transfer of this Series 2004A Bond unless the
information concerning the transferee requested below is provided.
Name and Address:
(Include information for all joint owners if the Series 2004A Bond is held by joint account.)
1670578vl 11
PREPAYMENT SCHEDULE
This Series 2004A Bond has been prepaid in part on the date(s) and in the amount(s) as follows:
AUTHORIZED
SIGNATURE
DATE AMOUNT OF HOLDER
1670578vl 12
Section 5. Series 2004A Bond Terms Execution and Delivery.
5.01. Maturities, Denominations, Payment and Dating of Bonds. The City shall
forthwith issue and deliver the Series 2004A Bonds which shall be in the denomination of $5,000
each or any integral multiple thereof of a single maturity, shall bear a date of original issue of
August 1, 2004, and shall mature on February 1 in the years and amounts set forth below:
Year Amount Year Amount
2006 2011
2007 2012
2008 2013
2009 2014
2010 2015
The Series 2004A Bonds shall be issuable only in fully registered form. The interest thereon
and, upon surrender of each Series 2004A Bond, the principal amount thereof, shall be payable
by check or draft issued by the Registrar.
5.02. Interest Rates and Interest Payment Dates. The Series 2004A Bonds shall bear
interest payable semiannually on February 1 and August 1 of each year, commencing February 1,
2005, calculated on the basis of a 360-day year of twelve 30-day months to the Person who is the
Holder thereof according to the Bond Register as of the close of business on the fifteenth day of
the immediately preceding month, whether or not such day is a business day. The Series 2004A
Bonds will bear interest as established by the authority given to the Pricing Committee based on
the Purchaser's proposal.
5.03. Redemption. Series 2004A Bonds maturing on February 1, 2012, and thereafter,
shall be subject to redemption and prepayment at the option of the City on August 1,2011, and
on any date thereafter at a price of par plus accrued interest. Redemption may be in whole or in
part of the Series 2004A Bonds subject to prepayment. If redemption is in part, the maturities
and the principal amounts within each maturity to be redeemed shall be determined by the City;
and if only part of the Series 2004A Bonds having a common maturity date are called for
prepayment, the specific Series 2004A Bonds to be prepaid shall be chosen by lot by the Bond
Registrar. Series 2004A Bonds or portions thereof called for redemption shall be due and
payable on the redemption date, and interest thereon shall cease to accrue from and after the
redemption date. Mailed notice of redemption shall be given to the paying agent and to each
affected registered holder of the Series 2004A Bonds at least thirty days prior to the date fixed
for redemption.
To effect a partial redemption of Series 2004A Bonds having a common maturity date,
the Bond Registrar prior to giving notice of redemption shall assign to each Series 2004A Bond
having a common maturity date a distinctive number for each $5,000 of the principal amount of
such Series 2004A Bond. The Bond Registrar shall then select by lot, using such method of
selection as it shall deem proper in its discretion, from the numbers so assigned to such Series
2004A Bonds, as many numbers as, at $5,000 for each number, shall equal the principal amount
1670578vl 13
of such Series 2004A Bonds to be redeemed. The Series 2004A Bonds to be redeemed shall be
the Series 2004A Bonds to which were assigned numbers so selected; provided, however, that
only so much of the principal amount of each such Series 2004A Bond of a denomination of
more than $5,000 shall be redeemed as shall equal $5,000 for each number assigned to it and so
selected. If a Series 2004A Bond is to be redeemed only in part, it shall be surrendered to the
Bond Registrar (with, if the City, the Commission or Bond Registrar so requires, a written
instrument of transfer in form satisfactory to the City, the Commission and the Bond Registrar
duly executed by the Holder thereof or the Holder's attorney duly authorized in writing) and the
City and the Commission shall execute (if necessary) and the Bond Registrar shall authenticate
and deliver to the Holder of the Series 2004A Bond, without service charge, a new Series 2004A
Bond or Series 2004A Bonds having the same stated maturity and interest rate and of any
Authorized Denomination or Denominations, as requested by the Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Series 2004A
Bond so surrendered.
5.04. Application of Proceeds. Immediately upon delivery of the Series 2004A Bonds
to the Purchaser, the amount received as accrued interest on the Series 2004A Bonds shall be
credited to the Debt Service Account and the remaining proceeds shall be deposited in the
Construction Account and used to pay costs of issuance of the Series 2004A Bonds and costs of
the Project, as provided in Section 13.
Section 6. Registration; Appointment of Registrar; Book-Entry System.
6.01. Registration. The City, by the Commission, shall appoint, and shall maintain, a
bond registrar, transfer agent and paying agent (the Registrar). 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
Series 2004A Bonds and the registration of transfers and exchanges of Bonds entitled to
be registered, transferred or exchanged.
(b) Transfer of Series 2004A Bonds. Upon surrender to the Registrar for
transfer of any Series 2004A 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 Series 2004A Bonds of a like
aggregate principal amount and maturity, as requested by the transferor. The Registrar
shall not be obligated to transfer or exchange any Series 2004A Bond which has been
selected for redemption.
(c) Exchange of Series 2004A Bonds. Whenever any Series 2004A Bond is
surrendered by the registered owner for exchange, the Registrar shall authenticate and
deliver one or more new Series 2004A Bonds of alike aggregate principal amount and
maturity, as requested by the registered owner or the owner's attorney duly authorized in
writing.
1670578vl 14
(d) Cancellation. All Series 2004A 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 Series 2004A 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 Series 2004A Bond or separate instrument of
transfer is legally authorized. The Registrar shall incur no liability for its 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 Series 2004A Bond is at any time registered in the Bond Register as
the absolute owner of such Series 2004A Bond, whether such Series 2004A Bond shall
be overdue or not, for the purpose of receiving payment of, or on account of, the principal
of and interest on such Series 2004A Bond and for all other purposes, and all such
payments so made to any such registered owner or upon the owner's order shall be valid
and effectual to satisfy and discharge the liability of the City upon such Series 2004A
Bond to the extent of the sum or sums so paid.
(g) Taxes Fees and Charges. For every transfer or exchange of Series 2004A
Bonds (except for an exchange upon a partial redemption of a Series 2004A Bond), the
Registrar may impose upon the owner thereof a charge 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 Series 2004A Bonds. In case any
Series 2004A Bond shall become mutilated or be lost, stolen or destroyed, the City shall
execute and the Registrar shall authenticate and deliver a new Series 2004A Bond of the
same series, of like amount, number, maturity date and tenor, in exchange and
substitution for and upon cancellation of any such mutilated Series 2004A Bond or in lieu
of and in substitution for any such Series 2004A Bond lost, stolen or destroyed, upon the
payment of the reasonable expenses and charges of the Registrar in connection therewith,
and, in the case of a Series 2004A Bond lost, stolen or destroyed, upon the payment of
the reasonable expenses and charges of the Registrar in connection therewith, and, in the
case of a Series 2004A Bond lost, stolen or destroyed, upon filing with the Registrar of
evidence satisfactory to it that such Series 2004A Bond was lost, stolen or destroyed, and
of the ownership thereof, and upon fumishing to the Registrar an appropriate bond or
indemnity in form, substance and amount satisfactory to it, in which the City, the
Commission, and the Registrar shall be named as obligees. All Series 2004A Bonds so
surrendered to the Registrar shall be canceled by it and evidence of such cancellation
shall be given to the Commission. If the mutilated, lost, stolen or destroyed Series 2004A
Bond has already matured or been called for redemption in accordance with its terms, it
shall not be necessary to issue a new Series 2004A Bond prior to payment.
6.02. Appointment of Initial Registrar. ,
in ., Minnesota, is hereby appointed as the initial Registrar. Upon merger
or consolidation of the Registrar with another corporation, if the resulting corporation is a bank
1670578vl 15
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 any
Registrar upon thirty days' notice and upon the appointment of a successor Registrar, in which
event the predecessor Registrar shall deliver all cash and Bonds in its possession to the successor
Registrar and shall deliver the Bond Register to the successor Registrar. On or before each
principal or interest due date, without further order of this Commission, there shall be transmitted
to the Registrar, from amounts on hand in the Debt Service Account available therefore, an
amount sufficient to pay all principal and interest then due on the Bonds.
6.03. The Series 2004A Bonds shall be initially issued in the form of a separate single
typewritten or printed fully registered Series 2004A Bond for each of the maturities set forth in
this Resolution. Upon initial issuance, the ownership of each such Series 2004A Bond shall be
registered in the registration books kept by the Registrar in the name of Cede & Co., as nominee
for The Depository Trust Company, New York, New York, and its successors and assigns
("DTC"). Except as provided in this Section, all of the outstanding Series 2004A Bonds shall be
registered in the registration books kept by the Registrar in the name of Cede & Co., as nominee
of DTC.
6.04. With respect to Series 2004A Bonds registered in the registration books kept by
the Registrar in the name of Cede & Co., as nominee of DTC, the City, the Registrar and the
Paying Agent shall have no responsibility or obligation to any broker dealers, banks and other
financial institutions from time to time for which DTC holds Series 2004A Bonds as securities
depository (the "Participants") or to any other person on behalf of which a Participant holds an
interest in the Series 2004A Bonds, including but not limited to any responsibility Or obligation
with respect to (i) the accuracy of the records of DTC, Cede & Co. or any Participant with
respect to any ownership interest in the Series 2004A Bonds, (ii) the delivery to any Participant
or any other person other than a registered owner of Series 2004A Bonds, as shown by the
registration books kept by the Registrar, of any notice with respect to the Series 2004A Bonds,
including any notice of redemption, or (iii) the payment to any Participant or any other person,
other than a registered owner of Series 2004A Bonds, or any amount with respect to principal of,
premium, if any, or interest on the Series 2004A Bonds. The City, the Registrar and the Paying
Agent may treat and consider the person in whose name each Series 2004A Bond is registered in
the registration books kept by the Registrar as the holder and absolute owner of such Series
2004A Bond for the purpose of payment of principal, premium and interest with respect to such
Series 2004A Bond, for the purpose of registering transfers with respect to such Series 2004A
Bonds, and for all other purposes. The Paying Agent shall pay all principal of, premium, if any,
and interest on the Series 2004A Bonds only to or on the order of the respective registered
owners, as shown in the registration books kept by the Registrar, and all such payments shall be
valid and effectual to fully satisfy and discharge the City's obligations with respect to payment of
principal of, premium, if any, or interest on the Series 2004A Bonds to the extent of the sum or
sums so paid. No person other than a registered owner of Series 2004A Bonds, as shown in the
registration books kept by the Registrar, shall receive a certificated Series 2004A Bond
evidencing the obligation of this resolution. Upon delivery by DTC to the City of a written
notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Ca,
and the words "Cede & Co.," shall refer to such new nominee of DTC; and upon receipt of such
1670578vl 16
a notice, the City shall promptly deliver a copy of the same to the Registrar and Paying Agent, if
the Paying Agent is other than the Registrar.
6.05. Transfers Outside Book-Entry System. In the event the City, by resolution of the
Commission, determines that it is in the best interests of the persons having beneficial interest in
the Series 2004A Bonds that they be able to obtain Series 2004A Bond certificates, the City shall
notify DTC, whereupon DTC shall notify the Participants, of the availability through DTC of
Series 2004A Bond certificates. In such event the City shall issue, transfer and exchange Series
2004A Bond certificates as requested by DTC and any other registered owners in accordance
with the provisions of this Resolution. DTC may determine to discontinue providing its services
with respect to the Series 2004A Bonds at any time by giving notice to the City and discharging
its responsibilities with respect thereto under applicable law. In such event, if no successor
securities depository is appointed, the City shall issue and the Registrar shall authenticate Series
2004A Bond certificates in accordance with this resolution and the provisions hereof shall apply
to the transfer, exchange and method of payment thereof.
6.06. Payments to Cede & Co. Notwithstanding any other provision of this resolution to
the contrary, so long as any Series 2004A Bond is registered in the name of Cede & Co., as
nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such
Series 2004A Bond and all notices with respect to such Series 2004A Bond shall be made and
given, respectively in the manner provided in the representation letter executed by the City and
on file with DTC.
Section 7. Notice of Redemption. At least thirty days before the date set for optional
or mandatory redemption of any Series 2004A Bond, the City shall cause notice of such
redemption to be mailed to the registered Holder of each Series 2004A Bond to be redeemed, but
no defect in or failure to give such mailed notice of redemption shall affect the validity of
proceedings for the redemption of any Series 2004A Bond not affected by such defect or failure.
The notice of redemption shall specify the redemption date, redemption price, the numbers,
interest rates and CUSIP numbers of the Series 2004A Bonds to be redeemed and the place at
which the Series 2004A Bonds are to be surrendered for payment, which shall be the principal
office of the Registrar. Notice of redemption having been given as aforesaid, the Series 2004A
Bonds or portions thereof 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 Series 2004A Bonds or portions
thereof shall cease to bear interest.
In addition to the notice prescribed by the preceding paragraph, the City shall also give
notice of the redemption of any Series 2004A Bond or Series 2004A Bonds or portions thereof at
least thirty days before the redemption date by certified mail or telecopy to the original purchaser
of the Series 2004A Bonds and to all registered securities depositories then in the business of
holding substantial amounts of obligations of the character of the Series 2004A Bonds (such
depositories now being The Depository Trust Company, of Garden City, New York; Pacific
Securities Depository Trust Company, of San Francisco, California; and Philadelphia Depository
Trust Company, of Philadelphia, Pennsylvania) and one or more national information services
that disseminate information regarding municipal bond redemptions; provided that any defect in
1670578vl 17
or any failure to give any notice of redemption prescribed by this paragraph shall not affect the
validity of the proceedings for the redemption of any Series 2004A Bond or portion thereof.
Series 2004A Bonds in a denomination larger than $5,000 may be redeemed in part in
any integral multiple of $5,000. The Holder of any Series 2004A Bond redeemed in part shall
receive, upon surrender of such Series 2004A Bond to the Registrar, one or more new Series
2004A Bonds of the same series in authorized denominations equal in principal amount to the
unredeemed portion of the Series 2004A Bond so surrendered.
Section 8. Execution. Authentication and Delivery of Series 2004A Bonds. The
Series 2004A Bonds shall be prepared under the direction of the Secretary and shall be executed
on behalf of the City by the facsimile signatures of the Mayor and the Clerk-Treasurer and the
facsimile signatures of the President and Secretary of the Commission. In case any officer
whose signature appears on the Series 2004A Bonds shall cease to be such officer before the
delivery of any Series 2004A Bond, such signature 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 Series 2004A Bond shall be valid or obligatory for any purpose or entitled to
any security or benefit under this Resolution unless a certificate of authentication on such Series
2004A Bond has been executed by the manual signature of an authorized representative of the
Registrar. Certificates of authentication on different Series 2004A Bonds need not be signed by
the same representative. The executed certificate of authentication on each Series 2004A Bond
shall be conclusive evidence that it has been authenticated and delivered under this resolution.
When the Series 2004A Bonds have been so executed and authenticated, they shall be delivered
to the original purchaser thereof upon payment of the purchase price in accordance with the
contract of sale heretofore made and executed, and the purchaser shall not be obligated to see to
the application of the purchase price.
Section 9. Electric Fund and Accounts.
9.01. Electric Fund. For the convenient and proper administration of the Electric
System, including the revenues thereof and proceeds of the Bonds, and to make adequate and
specific security to the purchaser and Holders of the Bonds from time to time, the Commission
agrees that there shall continue to be maintained on the books and records of the City so long as
any Bonds are Outstanding a separate bookkeeping account designated the Electric Fund.
Within the Electric Fund there shall be maintained the separate accounts and subaccounts
described in this section, or in lieu thereof there may be maintained the required balances as
undesignated components of the Electric Fund.
9.02. Operating Account. There shall be credited to the Operating Account all Gross
Revenues as received. There shall be paid from the Operating Account when due all reasonable,
necessary, and current Operating Expenses of the Electric System. All money on hand in the
Operating Account as of the first day of each month in excess of the sum of (i) Operating
Expenses then due and payable and to become due and payable during such calendar month, plus
(ii) the Operating Reserve Requirement, shall constitute Net Revenues and shall be credited to
other accounts in the Electric Fund as provided in Sections 9.03, 9.04, 9.05 and 9.06.
1670578vl 18
9.03. Debt Service Account. Upon delivery of the Series 2004A Bonds, the
Commission shall credit to the Debt Service Account, from the proceeds of the Series 2004A
Bonds, the accrued interest received from the Purchaser of the Series 2004A Bonds and any
unused discount. As of the first day of each month there shall be credited to the Debt Service
Account out of the Net Revenues on hand in the Operating Account an amount equal to not less
than one-sixth of the interest due within the next six months on all Bonds then Outstanding and
one-twelfth of the principal, if any, due within the next twelve months on all Outstanding Bonds;
provided that the Commission shall be entitled to reduce a monthly apportionment by the amount
of any surplus previously credited and then on hand in the Debt Service Account. Money on
hand in the Debt Service Account shall be disbursed only to pay principal of and interest on the
Bonds when due; provided that on any date when the amount then on hand in the Debt Service
Account plus the amount in the Reserve Account allocable to a series of Bonds, is sufficient with
other money available for the purpose to pay or discharge all Bonds of that series and the interest
accrued thereon in full, it may be used for that purpose. If any payment of principal of or interest
on Bonds becomes due when money in the Debt Service Account is temporarily insufficient
therefor, an amount equal to such deficiency shall be transferred thereto from the Reserve
Account, the Repair and Replacement Account or the Rate Stabilization Account, in that order.
9.04. Reserve Account. Upon delivery of the Series 2004A Bonds the Commission
shall credit to the Reserve Account from available funds on hand, the sum of $94,000. If the
balance in the Reserve Account is ever less than the applicable Reserve Requirement, as of the
first day of each month all Net Revenues in the Operating Account remaining after the required
credit to the Debt Service Account shall be credited to the Reserve Account until the balance
therein equals the Reserve Requirement. If the balance in the Reserve Account has not been
restored to the Reserve Requirement from transfers of Net Revenues within six months of the
deficiency, the Commission shall transfer to the Reserve Account from the Repair and
Replacement Account or the Rate Stabilization Account, an amount sufficient to restore the
balance therein to the Reserve Requirement.
If on any date on which principal or interest is due on the Bonds the balance then on hand
in the Debt Service Account is not sufficient to pay such principal and interest in full, the
Commission shall immediately transfer from the Reserve Account to the Debt Service Account
an amount equal to such deficiency.
If any Additional Bonds are issued, the Commission shall, upon issuance of the
Additional Bonds, increase the balance in the Reserve Fund to the Reserve Requirement,
calculated after giving effect to the issuance of such Additional Bonds.
Money held in the Reserve Account shall be used only to pay maturing principal and
interest when money in the Debt Service Account is insufficient therefor.
If at any time (including, but not limited to, any Principal Payment Date and any
Redemption Date), the balance in the Reserve Account exceeds the Reserve Requirement, the
Commission shall transfer such excess to the Debt Service Account.
9.05. Repair and Replacement Account. The Repair and Replacement Account is
hereby established as a separate account within the Electric Fund. As of the first day of each
1670578vl 19
month, there shall be credited to the Repair and Replacement Account from the Operating
Account such portion of the Net Revenues, in excess of the current requirements of the Debt
Service Account and the Reserve Account (which portion of the Revenues is referred to herein as
"surplus revenues"), as the Commission shall determine to be required for replacement or
renewal of worn out, obsolete or damaged properties and equipment of the Electric System.
Money in the Repair and Replacement Account shall be used only for the purposes above stated
or, if so directed by the Commission, to pay Operating Expenses, to redeem Bonds which are
subject to redemption according to their terms, to pay principal or interest when due thereon as
required in Section 9.03, to restore a deficiency in the Reserve Account, or to pay the cost of
improvements to the Electric System; provided that in the event construction and installation of
additional improvements or additions to the Electric System are financed other than from Bonds
payable from the Debt Service Account, surplus revenues from time to time received may be
segregated and paid into one or more separate and additional accounts for the repayment of such
indebtedness and interest thereon, in advance of payments required to be made into the Repair
and Replacement Account.
9.06. Rate Stabilization Account. The Rate Stabilization Account is hereby established
as a separate account within the Electric Fund. There shall be credited to the Rate Stabilization
Account from the Operating Account such portion of Net Revenues, in excess of the current
requirements of the Debt Service Account, the Reserve Account and the Repair and Replacement
Account, as the Commission shall determine from time to time to be necessary or appropriate as
a "rate stabilization fired" to minimize increases in rates and charges that might otherwise have to
be imposed in order to pay Operating Expenses, maintain the Operating Reserve Requirement,
pay the principal of and interest on the Bonds when due, and satisfy the requirements of Section
9.05. Amounts on hand in the Rate Stabilization Account may be transferred by the Commission
to the Operating Account when and as determined by the Commission to be appropriate, to be
used as Gross Revenues in the Operating Account are otherwise used.
9.07. Deposit and Investment of Funds. The Commission shall cause all money
pertaining to the Electric Fund to be deposited as received with one or more depository banks.
The balance in such accounts, except such portion thereof as shall be guaranteed by federal
deposit insurance, shall at all times be secured to its full amount by bonds or securities of the
types authorized by applicable laws. Any such money not necessary for immediate use may be
deposited with such depository banks in savings or time deposits. No money shall at any time be
withdrawn from such deposit accounts except for the purposes of the Electric Fund as authorized
in this Resolution, except that money from time to time On hand in the Electric Fund may at any
time, in the discretion of the Commission, be deposited or invested in accounts or securities
which are permitted by applicable laws of the State. Except as otherwise expressly provided
herein, income received from the deposit or investment of money in said accounts shall be
credited to the account from which the deposit was made or the investment was purchased, and
handled and accounted for in the same manner as other money in that account.
Section 10. Additional Bonds. Additional Bonds shall be issued and made payable
from the Net Revenues of the Electric System only as provided in this section. One or more
series of Additional Bonds may be issued on a parity of lien with the Series 2004A Bonds, if and
only if the Net Revenues of the Electric System for the Audited Fiscal Year immediately
preceding the issuance of such Additional Bonds, adjusted as hereinafter provided, were not less
1670578vl 1
than one hundred twenty-five percent of the average annual principal and interest due on all
Outstanding Series 2004A Bonds and on the Additional Bonds to be issued, during the remaining
term of the Outstanding Bonds. No Additional Bonds shall be issued unless each of the following
conditions is satisfied prior to the issuance thereof, such satisfaction to be shown by a certificate
of the President of the Commission and the resolution authorizing the issuance thereof:
(a) The payments required to be made (at the time of the issuance of such
Additional Bonds) into the various accounts provided for in this Resolution have been
made.
(b) The resolution authorizing such Additional Bonds provides for payment to
the Reserve Account upon delivery of such Additional Bonds, from the proceeds thereof
or any other source, of an amount necessary to cause the aggregate balance in the Reserve
Account to equal the Reserve Requirement.
(c) The proceeds of such Additional Bonds shall be used only for the purpose
of making improvements, additions, extensions, renewals or replacements to the Electric
System, or refunding bonds payable from the Debt Service Account.
For purposes of the coverage test set forth above, the Net Revenues for the last Audited Fiscal
Year immediately preceding the issuance of such Additional Bonds, may be adjusted for such
Fiscal Year as follows: (1) the Gross Revenues for such Audited Fiscal Year may be increased to
reflect the Gross Revenues which would have been received had any rate increase placed in
effect after the commencement of the Audited Fiscal Year been in effect for the entire Audited
Fiscal Year; and (2) by including the additional revenues reasonably determined by the
Commission to be likely to result from the acquisition and construction of the facilities to be
financed by such Additional Bonds, provided that the debt service on the proposed Additional
Bonds is funded until the estimated date of completion of such facilities.
The Commission also reserves the right to cause the issuance of Additional Bonds if and
to the extent needed to refund maturing Bonds payable from the Debt Service Account in case
the money on hand therein is insufficient to pay the same at maturity, which refunding revenue
bonds may be on a parity with the Bonds then Outstanding, but shall mature subsequent to all
Bonds then Outstanding which are not to be refunded by such Additional Bonds.
The Commission also reserves the right to cause the issuance of Additional Bonds
payable on a parity as to both principal and interest with the Bonds to refund Bonds if the
maximum amount of principal and interest payable on the Bonds and such Additional Bonds in
the then current or any future calendar year is not increased by more than 5%.
Section 11. Priority of Payments. If the money on hand in the Debt Service Account
shall be insufficient at any time to pay the principal then due and interest then accrued on all
Bonds payable therefrom, said money shall first be applied to the payment pro rata of the
accrued interest on all Bonds, and any balance shall be applied first in payment of maturing
principal; as between Bonds having different maturity dates, the principal of earlier maturing
Bonds shall be paid first; and as between Bonds maturing on the same date, the principal of
Bonds shall be paid pro rata.
1670578vl
Section 12. Covenants. For the protection of the Holders of the Bonds, the City and
the Commission hereby covenant and agree to and with the Holders thereof from time to time as
follows:
(a) They will at all times adequately maintain and efficiently operate the
Electric System. They will from time to time make all needful and proper repairs,
replacements, additions and betterments to the equipment and facilities of the Electric
System so that it may at all times be operated properly and advantageously and so that the
value and efficiency of the facilities shall be at all times fully maintained and its revenues
unencumbered by reason thereof.
(b) In order to ensure the efficient and economical operation of the Electric
System and the proper maintenance thereof, the Commission on behalf of the City will
employ an experienced manager to operate and maintain the Electric System. Such
manager shall be employed on a full-time basis and the compensation shall be paid as an
operating expense of the Electric System.
(c) The rates for all service and the charges for all electricity and services
supplied by the Electric System to the City and its residents and to all consumers shall be
reasonable and just, taking into account the cost and value of the Electric System, the cost
of maintaining and operating the Electric System and the proper and necessary
allowances for depreciation and amounts required for the payment of principal and
interest on the bonds payable from the revenues. Charges to all customers shall be
uniform for all users of the same class. The Commission on behalf of the City will bill its
customers and the City on a monthly basis and, subject to the requirements of Minnesota
law, will discontinue public utility service to any customer whose bill remains unpaid 30
days following the mailing of such bill, and service will not be restored until the bill and
penalties have been paid in full.
(d) They will establish, maintain and collect such charges and rates as will
produce revenues sufficient to pay the reasonable cost of operation and maintenance of
the Electric System and to produce, in each Fiscal Year, Net Revenues at least equal to
the annual interest and principal requirements of the Series 2004A Bonds in such Fiscal
Year. Such rates and charges will be increased from time to time whenever necessary to
carry out the obligations of this Resolution.
(e) The City and the Commission will not sell, lease, mortgage, or in any
manner dispose of all or substantially all of properties of the Electric System until all of
the Bonds have been paid in full; provided, however, that the City or the Commission
may sell the Electric System as a whole if, simultaneously with the sale of the Electric
System, there is deposited with the Registrar the amount necessary to retire all of the
Outstanding Bonds payable from the revenues of the Electric System, including interest
to accrue to the date when said Bonds are callable, or if the Bonds are then called in
accordance with their terms, to the date of redemption. This covenant shall not be
construed to prevent the sale by the City or the Commission at fair market value of real
estate, equipment or other non-revenue-producing properties which in the judgment of
the City or the Commission and a consulting engineer have become unnecessary,
167057Svl 22
uneconomical or inexpedient to use in connection with the Electric System, provided
suitable facilities are obtained in place thereof and any cash balance from the transaction
is deposited in the Electric Fund.
(f) They will procure and keep in force insurance upon the properties of the
Electric System of a kind and in an amount which would normally be carried by private
companies in a like business, including public liability insurance, with an insurer or
insurers in good standing, and will keep in full force and effect fiduciary bonds On
employees in charge of the Electric System. In the event of any loss, the proceeds from
such insurance (including liability insurance) or bonds shall be used to make good such
loss or to repair or restore the Electric System. Insurance premiums shall be paid as a
cost of operation, The proceeds of insurance, except the proceeds of public liability
insurance, received by the Commission or the City, shall be placed in the Electric Fund.
(g) The Commission, on behalf of the City, shall cause to be kept proper
books, records and accounts adapted to the Electric System, separate from other accounts
of the City and shall cause such books, records and accounts to be audited at the end of
each Fiscal Year by a qualified firm of public accountants. The expense of preparing
such audit shall be paid as a current operating expense of the Electric System. In addition
to whatever other matters are included in the audit, each such audit shall include the
following:
(1) A statement in detail of the income and expenditures of the
Electric System and the component systems thereof for each such Fiscal Year.
(2) A balance sheet as of the end of each such Fiscal Year.
(3) The accountants' comments, if any, regarding the manner in which
the Commission and the City have carried out the requirements of this Resolution
and their recommendations for any changes or improvements in the operation of
the Electric System.
(4) The disposition of any Bond proceeds during such Fiscal Year, and
the amount of Bonds Outstanding at the end of each Fiscal Year.
The Holders of the Bonds from time to time shall have the right at all reasonable times to
inspect the Electric System and the books, records, accounts and data relating thereto.
The Commission agrees to furnish copies of such audit to any Person who holds
Outstanding Bonds upon request within 90 days after the close of each Fiscal Year.
(h) They will faithfully and punctually perform all duties with respect to the
Electric System required by the Constitution and laws of the State of Minnesota and this
Resolution.
Section 13. Construction Account.
13.01. There is hereby established within the Electric Fund a Construction Account, into
which the Commission shall deposit the proceeds of the Series 2004A Bonds, net of amounts
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deposited in the Revenue Bond Account and the Reserve Account, as provided in Section 5.04
hereof. Moneys on deposit in the Construction Account may be disbursed by the Commission to
pay costs of issuance of the Series 2004A Bonds and costs of the Project, Pending such
disbursement, moneys on deposit in the Construction Account may be invested in Government
Obligations maturing or subject to redemption at the option of the holder thereof not later than
the date on which such moneys are expected to be needed. Investment earnings on moneys in
the Construction Account shall be credited to the Construction Account and used to pay costs of
the Project. Any remaining balance in the Construction Account upon completion of the Project
may be used to pay additional capital costs of the Electric System, may be transferred to the
Repair and Replacement Account, or may be used for any other lawful purpose.
Section 14. Amendments. The provisions of this Resolution shall constitute a contract
between the City, the Commission and the Holders of the Bonds and after the issuance of any of
the Bonds, no change, variation or alteration of any kind in the provisions of this Resolution shall
be made in any manner, except as herein provided, until such time as all of the Bonds and
interest thereon have been paid in full. However, the Holders of a majority in principal amount
of the Bonds at any time Outstanding shall have the right to consent to, and approve the adoption
of resolutions or other proceedings modifying or amending any of the terms or provisions
contained in this Resolution, except that without the consent of 100% of the Holders of
Outstanding Bonds this Resolution shall not be modified or amended in any manner that may
adversely affect the rights of any Holders of the Bonds then Outstanding or reduce the
percentage of the number of Holders whose consent is required to effect a further modification.
Section 15. Defeasance. When any Bond has been discharged as provided in this
section, all pledges, covenants and other rights granted by this Resolution to the Holder of such
Bond shall cease, and such Bond shall no longer be deemed to be Outstanding under this
Resolution. The obligations with respect to any Bond which is due on any date may be
discharged 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 to the date of such deposit. The obligations with respect to any Bond which is
subject to redemption according to its terms may also be discharged by depositing with the
Registrar on or before that date an amount equal to the principal, interest and redemption
premium, if any, which will then be due, provided that notice of such redemption has been duly
given or provided for. The obligations with respect to any Bonds may also be discharged at any
time, subject to the provisions of law now or hereafter authorizing and regulating such action, by
depositing irrevocably in escrow, with the Registrar or any bank qualified by law as an escrow
agent for this purpose, cash or Government Obligations which are authorized by law to be so
deposited, bearing interest payable at such times and at such rates and maturing on such dates as
shall be required to pay all principal, interest and redemption premiums to become due on the
Bonds to their maturity or redemption date, provided that if any of such Bonds are to be
redeemed, notice of redemption has been given or provided for, and provided that such
defeasance shall not impair the exemption of interest on any Bonds from federal income
taxation.
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Section 16. County Auditor Registration, Certification of Proceedings, Investment of
Money Arbitrage, Designation of Bonds as Qualified Tax Exempt Obligations and Official
Statement.
16.01. County Auditor Registration. The Secretary is hereby authorized and directed to
file a certified copy of this Resolution and the resolution adopted by the City Council concurring
in the adoption of this Resolution with the County Auditor of Sherbume County, together with
such other information as the County Auditor shall require, and to obtain from the County
Auditor a certificate that the Series 2004A Bonds have been entered on the County Auditor's
bond register, as required by law.
16.02. Certification of Proceedings. The officers of the City and the Commission and
the County Auditor of Sherbume County are hereby authorized and directed to prepare and
furnish to the Purchaser of the Series 2004A Bonds and to bond counsel certified copies of all
proceedings and records of the City and the Commission and such other affidavits, certificates
and information as may be required to show the facts relating to the legality and marketability of
the Series 2004A Bonds as the same 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 and the
Commission as to the facts recited therein,
16.03. Tax Covenant. The Commission and the City covenant and agree with the
Holders from time to time of the Bonds that they will not take or permit to be taken by any of
their officers, employees or agents any action which would cause the interest on the Bonds to
become subject to taxation under the Code and the Treasury Regulations promulgated
thereunder, and covenant to take any and all actions within their powers to ensure that the
interest on the Bonds will not become subject to taxation under the Code and the Regulations.
The Commission will cause to be filed with the Secretary of Treasury an information reporting
statement in the form and at the time prescribed by the Code.
16.04. Arbitrage Certification. The Mayor and City Clerk-Treasurer and the President
and Secretary of the Commission, being the officers of the City and the Commission charged
with the responsibility for issuing the Series 2004A 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 Treasury Regulations, stating the facts,
estimates and circumstances in existence on the date of issue and delivery of the Series 2004A
Bonds which make it reasonable to expect that the proceeds of the Series 2004A Bonds will not
be used in a manner that would cause the Series 2004A Bonds to be arbitrage bonds within the
meaning of the Code and Regulations.
16.05. Exemption from Rebate Requirement. 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 Commission represents that.
(i) the City is a governmental unit with general taxing powers;
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(ii)
the Series 2004A Bonds are not "private activity bonds" as defined in
Section 141 of the Code;
(iii)
at least ninety-five percent of the net proceeds of the Series 2004A Bonds
are to be used for the local governmental purposes of the City; and
(iv)
the aggregate face amount of all tax-exempt bonds issued by the City in
the calendar year in which the Series 2004A Bonds are to be issued is not
reasonably expected to exceed $5,000,000.
If any of the above representations proves to be incorrect, the City and the Commission
will comply with the provisions of Section 148(0 of the Code relating to arbitrage rebate.
16.06. Interest Disallowance. The Series 2004A Bonds are hereby designated as
"qualified tax-exempt obligations" for purpose of Section 265(b) of the Code relating to the
disallowance of interest expenses for financial institutions. The City represents that in calendar
year 2004 it does not reasonably expect to issue tax-exempt obligations which are not "private
activity bonds" (other than "qualified 501 (c)(3) bonds" under Section 145 of the Code) in an
amount in excess of $10,000,000.
16.07. Official Statement. The Official Statement relating to the Series 2004A Bonds,
substantially in the form presented at this meeting, is hereby approved. The officers of the
Commission are hereby authorized on behalf of the Commission and City to prepare and
distribute an addendum to the Official Statement listing the offering prices, interest rates, selling
compensation, delivery date, and any other information relating to the Series 2004A Bonds not
included in the Official Statement and required to be included in the Official Statement by Rule
15c2-12 adopted by the Securities and Exchange Commission under the Securities Exchange Act
of 1934. Within seven business days from the date hereof, the Commission shall deliver to the
Purchaser a reasonable number of copies of the Official Statement. The officers of the
Commission and City are hereby authorized and directed to execute such certificates as may be
appropriate concerning the accuracy, completeness and sufficiency of the Official Statement.
16.08. Continuing Disclosure. To provide for the public availability of certain
information relating to the Series 2004A Bonds and the security therefor and to permit the
Purchaser and other participating underwriters in the primary offering of the Series 2004A Bonds
to comply with amendments to Rule 15c2-12 promulgated by the Securities and Exchange
Commission (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"), the
Commission hereby makes the following statements, covenants and agreements for the benefit of
the Owners (as hereinafter defined) from time to time of the Outstanding Series 2004A Bonds.
The Electric System of the Commission is the only "obligated person" in respect of the Series
2004A Bonds within the meaning of the Rule for purposes of identifying the entities in respect of
which continuing disclosure must be made. As of the date of delivery of the Series 2004A
Bonds, the Electric System of the Commission is not an "obligated person" with respect to more
than $10,000,000 in aggregate amount of outstanding municipal securities, including the Series
2004A Bonds. The Commission hereby covenants and agrees that it will comply with and carry
out all of the provisions of the Continuing Disclosure Certificate. Notwithstanding any other
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provision of this Resolution, failure of the Commission to comply with the Continuing
Disclosure Certificate is not an event of default with respect to the Bonds; however, any person
aggrieved thereby, including the Owners of any Outstanding Series 2004A 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. As used in this Section, "Owner" or "Bondowner"
means, in respect of a Bond, the registered owner or owners thereof appearing in the bond
register maintained by the Registrar or any "Beneficial Owner" (as hereinafter defined) thereof,
if such Beneficial Owner provides to the Registrar evidence of such beneficial ownership in form
and substance reasonably satisfactory to the Registrar. As used herein. "Beneficial Owner"
means, in respect of a Bond, any person or entity which (i) has the power, directly or indirectly,
to vote or consent with respect to, Or to dispose of ownership of, such Bond (including persons
or entities holding Series 2004A Bonds through nominees, depositories or other intermediaries),
or (ii) is treated as the Owner of the Bond for federal income tax purposes. "Continuing
Disclosure Certificate" means that certain Continuing Disclosure Certificate substantially in the
form on file with the Commission on the date hereof, which is authorized to be executed by the
President and Secretary of the Commission and the Mayor and City Clerk-Treasurer.
16.09. Effective Date. This Resolution, having been concurred in by the City Council by
resolution adopted on August 2, 2004, shall be effective immediately.
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STATE OF MINNESOTA
COUNTY OF SHERBURNE
PUBLIC UTILITIES COMMISSION
OF THE CITY OF ELK RIVER, MINNESOTA
I, the undersigned, being the duly qualified and acting Secretary of the Public Utilities
Commission of the City of Elk River, Minnesota, DO HEREBY CERTIFY that I have carefully
compared the attached and foregoing extract of minutes of a meeting of the Board of
Commissioners, held on the date therein indicated, with the original thereof on file and of record
in my office and that the same is a full, tree and complete transcript insofar as the same relates to
the $940,000 Electric Revenue Bonds, Series 2004A of the City of Elk River, Minnesota.
WITNESS my hand on August 3, 2004.
Secretary
Public Utilities Commission
of the City of Elk River, Minnesota
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