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RES 02-05 RESOLUTION 02-05 EXTRACT OF MINUTES OF A MEETING OF THE • BOARD OF COMMISSIONERS OF THE ELK RIVER ECONOMIC DEVELOPMENT AUTHORITY Pursuant to due call and notice thereof, a regular or special meeting of the Board of Commissioners of the EIk River Economic Development Authority (the "Authority"), located in the City of Elk River, Minnesota, was duly called and held at the Elk River City Hall on August 12, 2002, commencing at approximately 6:00 P.M., C.T. The following Commissioners were present: Dwyer, Tveite, Kuester, Motin, and Klinzing and the following were absent: Gongoll and Koenig Commissioner Klinzing introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING • THE ISSUANCE OF CITY HALL EXPANSION REVENUE BONDS, SERIES 2002B (CITY OF ELK RIVER LEASE PURCHASE OBLIGATION) AND THE EXECUTION AND DELIVERY OF A SUPPLEMENT TO LEASE PURCHASE AGREEMENT AND A SUPPLEMENT TO TRUST INDENTURE IN CONNECTION THEREWITH WHEREAS,pursuant to a certain Trust Indenture, dated as of November 1, 1991 (as heretofore amended and supplemented and as amended and supplemented by the Indenture Supplement hereinafter described,the "Indenture"), the Authority issued its $2,740,000 City Hall and Law Enforcement Facility Revenue Bonds (City of Elk River Lease Purchase Obligation), Series 1991, dated November 1, 1991 (the "Series 1991 Bonds"); WHEREAS, pursuant to a certain Lease Purchase Agreement, dated as of November 1, 1991 (as heretofore amended and supplemented and as amended and supplemented by the Lease Supplement hereinafter described,the "Lease"), which was executed and delivered in connection with the issuance of the Series 1991 Bonds, the Authority leased to the City certain land and certain buildings constructed and located thereon (collectively, the "Original Project"), which the City now occupies and uses for City Hall and related public purposes, and the City agreed to pay to the Authority certain Basic Rent(as defined in the Lease); WHEREAS, in order to reduce the debt service costs on the Series 1991 Bonds, • the Authority issued its City Hall and Law Enforcement Facility Revenue Refunding Bonds, 1431832v1 Series 1997 (City of Elk River Lease Purchase Obligation), dated December 1, 1997 (the "Series • 1997 Bonds"), the proceeds of which were used on February 1, 2000,to effect a crossover refunding of the Series 1991 Bonds; WHEREAS, in order to provide financing for a certain expansion of City Hall (the "Project"), it is proposed that the Authority issue its City Hall Expansion Revenue Bonds, Series 2002B (City of Elk River Lease Purchase Obligation), dated as of September 1, 2002 (the "Bonds"); and WHEREAS, in order to issue the Bonds in accordance with the provisions of the Indenture, it is necessary to execute certain supplements to the Indenture and the Lease,more specifically, a certain Supplement to Lease Purchase Agreement, dated as of September 1, 2002 (the "Lease Supplement"), between the City and the Authority, and a certain Supplement to Trust Indenture, dated as of September 1, 2002 (the "Indenture Supplement"),between the Authority and the Trustee under the Indenture: NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Elk River Economic Development Authority(the "Authority") as follows: 1. Findings. The Authority acknowledges, finds, determines and declares that the Project and its financing will promote the welfare of the City and satisfies the purposes stated in the Act (as defined in the Indenture). 2. Authorization of Financing. Pursuant to the Lease Supplement and the Indenture 411 Supplement, and pursuant to the Lease and the Indenture, as respectively amended and supplemented thereby,the financing by the Authority of the acquisition, construction and installation of the Project and the issuance of the Bonds are hereby authorized and approved. 3. Acceptance of Purchase. The offer of (the "Purchaser"),to purchase the Authority's City Expansion Revenue Bonds, Series 2002B (City of Elk River Lease Purchase Obligation), dated as of September 1, 2002 (the "Bonds", or individually a "Bond"), in accordance with the terms and at the rates of interest set forth in the Indenture, and to pay therefor the sum of $ plus interest accrued to settlement, is hereby accepted. The Bonds shall bear interest at the rates, shall be in such amount and denominations, shall be numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity, shall be in such form and shall have such other details and provisions as are prescribed by the Indenture, including particularly as amended by the Indenture Supplement. 4. Special Obligations; Security; Authorization to Execute and Deliver Indenture and Bonds. The Bonds shall be special obligations of the Authority payable solely from the revenues derived by the Authority from the Original Project and the Project and as may otherwise be available for such purposes pursuant to the Indenture. The execution, issuance and delivery of the Bonds are hereby authorized and approved. 5. Authorization to Execute and Deliver Lease Supplement and Indenture • Supplement and All Other Bond Documents. The President and the Secretary are hereby authorized to execute, attest and deliver the Indenture Supplement and the Lease Supplement 1431832v1 2 (collectively,together with the full provisions of the Lease and the Indenture, the "Bond Documents"), in substantially the forms on file with the Secretary. All Bond Documents are authorized to be executed and delivered by the Authority and shall include (1) all other documentation which may be necessary for the Authority to execute in connection with the issuance of the Bonds and (2) any cross easement or similar agreements respecting the split of the current City Hall parcel occasioned by the issuance of the Bonds and of certain separately secured Series 2002A Bonds (being issued to assist in financing the City's public safety facility). All of the provisions of the Bond Documents, when executed and delivered as authorized herein, shall be deemed to be part of this resolution as fully and to the same extent as if incorporated herein and shall be in full force and effect according to the terms thereof from the date of execution and delivery thereof. The Authority hereby ratifies and approves the prior execution of the Lease and the Indenture and all other documents executed in connection with the issuance of the Series 1991 Bonds and the Series 1997 Bonds. 6. Binding Obligations;No Personal Liability. All covenants, stipulations, obligations and agreements of the Authority contained in this resolution and in the Bond Documents shall be deemed to be the covenants, stipulations, obligations and agreements of the Authority to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations and agreements shall be binding upon the Authority. No covenant, stipulation, obligation or agreement herein contained or contained in the Bond Documents shall be deemed to be a covenant, stipulation, obligation or agreement of any Commissioner, or any officer, agent or employee of the Authority in that person's individual • capacity, and neither the Commissioners of the Authority nor any officer executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. 7. Performance. The officers, attorneys and other agents or employees of the Authority are hereby authorized to do all acts and things required of them by or in connection with this resolution and the Bond Documents for the full,punctual and complete performance of all the terms, covenants and agreements contained in the Bonds, the Bond Documents and this resolution. 8. Furnishing of Certificates and Proceedings. The President and the Secretary and other officers of the Authority are authorized to prepare and furnish to the Purchaser and to bond counsel for the Bonds certified copies of all proceedings and records of the Authority relating to the Bonds, and such other affidavits and certificates as may be required to show the facts relating to the Bonds as such facts appear from the books and records in the officers'custody and control or as otherwise known to them; and all such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute representations of the Authority as to the truth of all statements contained therein. 9. Negative Covenant as to Use of Project. The Authority hereby covenants not to use the Original Project or the Project, or to cause or permit the same to be used, or to enter into any deferred payment arrangements for the cost of the Project, in such a manner as (or to take any action or permit any other circumstance to exist or any action to be taken, the effect to which would be)to cause the Bonds to be "private activity bonds"within the meaning of Sections 103 1431832v1 3 and 141 through 150 of the Code. In particular, but without limitation, the Authority covenants . to forebear the implementation, effectuation or enforcement of any and all contracts or other agreements respecting the Original Project or the Project or any property benefitted thereby or assessed with respect thereto, which it may now or in the future have with developers, contractors, owners or any other person or parties to the extent that such implementation, effectuation or enforcement would (individually or in the aggregate) cause the Bonds to become such "private activity bonds," and to said limited extent the Authority would and hereby does (solely for the benefit of the owners of the Bonds) disavow any and all such provisions, entitlements and enforcements which would or could become so offending. 10. Arbitrage Rebate. The Authority shall comply with requirements necessary under the Code to establish and maintain the exclusion from gross income under Section 103 of the Code of the interest on the Bonds, including without limitation (1)requirements relating to temporary periods for investments, (2) limitations on amounts invested at a yield greater than the yield on the Bonds, and(3)the rebate of excess investment earnings to the United States if and to the extent applicable to the Bonds. While the Authority does not expect that the Bonds will qualify for the $5,000,000 small issuer exception,the Authority may avail itself of such other arbitrage rebate exceptions as may apply to the Bonds in whole or in part. 11. Bonds Are "Bank-Qualified". The Authority hereby designates the Bonds as a "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the Code and hereby determines that: • (a) the reasonably anticipated amount of tax-exempt obligations (other than private activity bonds, treating qualified 501(c)(3) bonds as not being private activity bonds)which will be issued by the Authority(and all entities subordinate to, or treated as one issuer with, the Authority) during calendar year 2002 will not exceed $10,000,000; and (b) not more than $10,000,000 of obligations issued or to be issued by the Authority during calendar year 2002 have been designated for purposes of Section 265(b)(3) of the Code. The Authority shall use its best efforts to comply with any federal procedural requirements which may apply in order to effectuate the designation made by this paragraph. 12. Modifications to Documents. The approval hereby given to the various documents referred to above includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the officials authorized herein to execute said documents prior to their execution; and said Authority officials are hereby authorized to approve said changes on behalf of the Authority. The execution of any instrument by the appropriate officer or officers of the Authority herein authorized shall be conclusive evidence of the approval of such documents in accordance with the terms hereof. In the absence of the President or Secretary any of the documents authorized by this resolution to be executed by the Acting President or the Acting Secretary, respectively. Adopted on August 12, 2002,by the Board of Commissioners of the Elk River Economic . Development Authority. 1431832v1 4 The motion for the adoption of the foregoing resolution was duly seconded by • Commissioner Motin, and upon vote being taken thereon the following Commissioner voted in favor thereof: Dwyer, Tveite, Kuester, Motin, and Klinzing and the following voted against the same: None whereupon said resolution was declared duly passed and adopted. • • 1431832v1 5 Secretary's Certificate 0 I, the undersigned, being the duly qualified and acting Secretary of the Elk River Economic Development Authority(the "EDA"), hereby certify that I have carefully compared and attached the foregoing extract of minutes of a duly called and held meeting of the Board of Commissioners of the EDA held August 12, 2002, a quorum being present and acting throughout, with the original thereof on file and of record in my office and the same is a full,true and complete transcript therefrom insofar as the same relates to the issuance of certain bonds to provide financing for an expansion of the Elk River City Hall.. WITNESS my hand this 12thday of August ,2002. / /........„ _ • 0', , ,.....i Secretary Elk River EDA • • 1431832v1