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RES 10-10Extract of Minutes of Meeting of the City Council of the City of Elk River, Sherburne County, Minnesota Pursuant to due call and notice thereof, a regular meeting of the City Council of the City of Elk River, Minnesota, was duly held in the City Hall in said City on Monday, March 15, 2010, commencing at 6:30 P.M. The following members were present: Mayor Klinzing, Councilmembers Zerwas, Gumphrey, Westgaard and Motin and the following were absent: none. The Mayor announced that the next order of business was consideration of the issuance and sale of the City's approximately $8,000,000 General Obligation Capital Improvement Plan Bonds, Series 2010A. Member Zerwas introduced the following written resolution, the reading of which was dispensed with by the unanimous consent, and moved its adoption: 365125vIJSB EL185-11 RESOLUTION NO. 10- 10 A RESOLUTION AWARDING THE SALE OF APPROXIMATELY $8,000,000 GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN BONDS, SERIES 2010A; FIXING THEIR FORM AND SPECIFICATIONS; DIRECTING THEIR EXECUTION AND DELIVERY; PROVIDING FOR THEIR PAYMENT; PROVIDING FOR THE ESCROWING AND INVESTMENT OF THE PROCEEDS THEREOF; AND PROVIDING FOR THE REDEMPTION OF BONDS REFUNDED THEREBY. BE IT RESOLVED By the City Council of the City of Elk River, Sherburne County, Minnesota (the "City") as follows: Section I. Authorization to Issue Bonds• Issuance of Bonds 1.01. Authorization to Bonds. It is hereby determined that: (a) The Elk River Economic Development Authority, Minnesota (the "Authority") previously issued its Public Safety Building Lease Revenue Bonds, Series 2002A (City of Elk River, Minnesota Lease Obligation), dated September 1, 2002 (the "Series 2002A Bonds"), pursuant to a Mortgage and Security Agreement and Trust Indenture, dated September 1, 2002, between the Authority and U.S. Bank National Association, as trustee (the "Series 2002A Trustee") (the "Series 2002A Indenture") and a resolution adopted by Authority on August 12, 2002 (the "Series 2002A Bond Resolution"). The proceeds of the Series 2002A Bonds were used for construction and furnishing of a certain public safety facility (the "Safety Facility"). The City currently leases the Safety Facility pursuant to a Lease Agreement, dated September 1, 2002 (the "Lease Agreement"), between the Authority, as lessor, and the City, as lessee. The City has determined to terminate the Lease Agreement and purchase the Safety Facility from the Authority by refunding the Series 2002A Bonds, which are currently outstanding in the principal amount of $5,840,000 (b) The Authority also previously issued its City Hall Expansion Revenue Bonds, Series 2002B (City of Elk River Lease Purchase Obligation), dated September 1, 2002 (the "Series 2002B Bonds"), pursuant to a Trust Indenture, dated November 1, 1991, as supplemented by a Supplement to Trust Indenture dated December 1, 1997, and further supplemented by a Supplement to Trust Indenture dated September 1, 2002, between the Authority and U.S. Bank National Association (formerly First Trust National Association), as trustee (the "Series 2002B Trustee") (collectively the "Series 2002B Indenture") and a resolution adopted by Authority on August 12, 2002 (the "Series 2002B Bond Resolution"). The proceeds of the Series 2002B Bonds were used for the expansion of the City Hall, including related furnishings, equipment and site improvements (the "City Hall Facility"). The City currently 365125v1 JSB EL185-11 2 leases the City Facility pursuant to a Lease Purchase Agreement, dated November 1, 1991 as supplemented by a Supplement to Lease Purchase Agreement dated December 1, 1997, as further supplemented by a Supplement to Lease Purchase Agreement dated September 1, 2002 (collectively the "Lease Purchase Agreement"), between the Authority, as lessor, and the City, as lessee. The City has determined to terminate the Lease Purchase Agreement and purchase the City Hall Facility from the Authority by refunding the Series 2002B Bonds, which are currently outstanding in the principal amount of $1,270,000. (c) The City is authorized by Minnesota Statutes, Section 475.521 (the "CIP Act") to finance certain capital improvements under an approved capital improvement plan by the issuance of general obligation bonds of the City payable from ad valorem taxes. Capital improvements include acquisition or betterment of public lands, buildings or other improvements for the purpose of a city hall, public safety facility and public works facilities. Further, the City is authorized by the provisions of Minnesota Statutes, Chapter 475 (the "Municipal Debt Act"), and specifically Section 475.67, Subdivisions 3 through 12 of the Municipal Debt Act, to issue and sell its general obligation bonds to refund outstanding bonds when determined by the City Council to be necessary and desirable for the reduction of debt service or interest cost and the adjustment of maturities of outstanding issues of bonds. (d) On December 21, 2009 the City held a public hearing regarding (i) the adoption of a five-year capital improvement plan for the City prepared in compliance with, Minnesota Statutes, Section 475.521 (the "CIP Plan"); and (ii) the issuance of general obligation bonds (the "CIP Bonds") in the maximum amount of $8,000,000, to acquire the City's Safety Facility and the City Hall Facility from the Authority by refunding the outstanding Series 2002A Bonds and Series 2002B Bonds issued by the Authority. (e) The City Council has determined that, within 30 days after the public hearing, no petition for a referendum on issuance of bonds pursuant to the Plan was received by the City in accordance with the CIP Act. (f) As required by the CIP Act, the City has determined that: (i) the expected useful life of the City Hall will be at least five years; and (ii) the amount of principal and interest due in any year on all outstanding bonds issued by the City under the CIP Act, including the CIP Bonds, will not exceed 0.16 percent of the taxable market value of property in the City for taxes payable in 2011. 1.02. Authorization to Issue Bonds. It is determined that the City is authorized by Section 475.67, Subdivision 3 of the Municipal Debt Act, to issue and sell its general obligation bonds to refund obligations and the interest thereon before the due date of the obligations, if consistent with covenants made with the holders thereof, when determined by the City Council to be necessary or desirable for the reduction of debt service cost to the City or for the extension or adjustment of maturities in relation to the resources available for their payment. Further, Minnesota Statutes, Section 475.67, subdivision 4 permits the sale of refunding obligations • 365125v1 JSB EL185-11 3 during the six month period prior to the date on which the obli ations to be refunded ma be g Y called for redemption. 1.03. Issuance of Bonds. (a) The City finds that it is necessary and desirable for the reduction of interest cost that the City issue its General Obligation Capital Improvement Plan Bonds, Series 2010A (the "Bonds"), in an original aggregate principal amount not to exceed $8,000,000, the proceeds of which will be applied to defease and advance refund the Authority's Series 2002A Bonds and the Authority's Series 2002B Bonds. (b) The City is authorized by Minnesota Statutes, Section 475.60, Subdivision 2(9) to negotiate the sale of the Bonds because the City has hired an independent financial advisor to opine that the sale price of the Bonds is commercially reasonable. The actions of the City staff and financial advisors in negotiating the sale of the Bonds are ratified and confirmed in all respects. 1.04. Pricing Committee. The City hereby establishes a pricing committee with respect to the Bonds comprised of the City Administrator, the Finance Director and the Mayor and/or a City Council member designated by the Mayor, (the "Pricing Committee"). The Pricing Committee is authorized and directed, with the advice of the City's financial advisor, Ehlers & Associates, Inc., to (a) review proposals for the sale of the Bonds, (b) award the sale of the Bonds to the prospective purchaser (the "Purchaser") with a proposal conforming to the terms of proposal distributed by the City (including any adjustment in principal amount in an aggregate principal amount not to exceed $8,000,000), offering the lowest true interest cost which shall not exceed 3.5%, and meeting the debt service savings required by Minnesota Statutes, Section 475.67, subdivision 12 and (c) approve the tax levy for the repayment of the Bonds. The City hereby approves the sale of the Bonds to the Purchaser, at the price and at the rates to be determined by the Pricing Committee in accordance with the preceding sentence. Issuance of the Bonds shall be conclusive evidence that the Pricing Committee has determined such price and rates in accordance with this Resolution. 1.05. Credit to Debt Service Fund, Good Faith Check, and Contract with the Purchaser. The amount proposed by the Purchaser in excess of the minimum bid specified in the terms of proposal will be credited to the Debt Service Fund hereinafter created. The City Finance Director is directed to retain the good faith check of the Purchaser, pending completion of the sale of the Bonds, and to return the good faith checks of the unsuccessful proposers forthwith. The Mayor and City Finance Director are directed to execute a contract with the Purchaser on behalf of the City. 1.06. Terms of the Bonds and Principal Amounts. The City will forthwith issue and sell the Bonds pursuant to the Municipal Debt Act in the total principal amount not to exceed $8,000,000, originally dated as of their date of issuance, in the denomination of $5,000 each or any integral multiple thereof, numbered No. R-1, upward, bearing interest as determined by the 365125v1 JSB EL185-11 4 Pricin Committee, and maturin on Februar 1 in the ears and amounts as determined b the g g Y Y Y Pricing Committee. 1.07 Optional Redemption. The City may elect on February 1, 2020, and on any day thereafter, to prepay Bonds due on or after February 1, 2021. Redemption may be in whole or in part and if in part, at the option of the City and in such manner as the City will determine. If less than all Bonds of a maturity are called for redemption, the City will notify DTC (as defined in Section 8 hereof) of the particular amount of such maturity to be prepaid. DTC will determine by lot the amount of each participant's interest in such maturity to be redeemed and each participant will then select by lot the beneficial ownership interests in such maturity to be redeemed. Prepayments will be at a price of par plus accrued interest. 1.08. Term Bonds. If Term Bonds are requested by the Purchaser, the following provisions apply: Mandatory Redemption. The Term Bonds are subject to mandatory sinking fund redemption and shall be redeemed in part by lot at par plus accrued interest on the sinking fund installment dates and in the principal amounts specified by the Purchaser and approved by the Pricing Committee in accordance with Section 1.04. The specific Term Bonds to be redeemed will be selected by lot by the Registrar. All prepayments will be at a price of par plus accrued interest. Section 2. Registration and Payment. 2.01. Registered Form. The Bonds will be issued only in fully registered form. The interest thereon and, upon surrender of each Bond, the principal amount thereof, is payable by check or draft issued by the Registrar described herein. 2.02. Dates; Interest Payment Dates. Each Bond will be dated as of the last interest payment date preceding the date of authentication to which interest on the Bond has been paid or made available for payment, unless (i) the date of authentication is an interest payment date to which interest has been paid or made available for payment, in which case the Bond will be dated as of the date of authentication, or (ii) the date of authentication is prior to the first interest payment date, in which case the Bond will be dated as of the date of original issue. The interest on the Bonds is payable on February 1 and August 1 of each year, commencing August 1, 2010, to the registered owners of record as of the close of business on the fifteenth day of the immediately preceding month, whether or not that day is a business day. 2.03. Registration. The City will appoint a bond registrar, transfer agent, authenticating agent and paying agent (the "Registrar"). The effect of registration and the rights and duties of the City and the Registrar with respect thereto are as follows: 365125v1 JSB EL185-11 • (a) Re ig ster. The Registrar must keep at its principal corporate trust office a bond register in which the Registrar provides for the registration of ownership of Bonds and the registration of transfers and exchanges of Bonds entitled to be registered, transferred or exchanged. (b) Transfer of Bonds. Upon surrender for transfer of a 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 will authenticate and deliver, in the name of the designated transferee or transferees, one or more new Bonds of a like aggregate principal amount and maturity, as requested by the transferor. The Registrar may, however, close the books for registration of any transfer after the fifteenth day of the month preceding each interest payment date and until that interest payment date. (c) Exchange of Bonds. When Bonds are surrendered by the registered owner for exchange the Registrar will authenticate and deliver one or more new Bonds of a like aggregate principal amount and maturity as requested by the registered owner or the owner's attorney in writing. (d) Cancellation. Bonds surrendered upon transfer or exchange will be • promptly cancelled by the Registrar and thereafter disposed of as directed by the City. (e) Improper or Unauthorized Transfer. When a Bond is presented to the Registrar for transfer, the Registrar may refuse to transfer the Bond until the Registrar is satisfied that the endorsement on the Bond or separate instrument of transfer is valid and genuine and that the requested transfer is legally authorized. The Registrar will incur no liability for the refusal, in good faith, to make transfers which it, in its judgment, deems improper or unauthorized. (f) Persons Deemed Owners. The City and the Registrar may treat the person in whose name a Bond is registered in the bond register as the absolute owner of the Bond, whether the Bond is overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on the Bond and for all other purposes, and payments so made to a registered owner or upon the owner's order will be valid and effectual to satisfy and discharge the liability upon the Bond to the extent of the sum or sums so paid. (g) Taxes, Fees and Charges. The Registrar may impose a charge upon the owner thereof for a transfer or exchange of Bonds sufficient to reimburse the Registrar for any tax, fee or other governmental charge required to be paid with respect to the transfer or exchange. • 365125v1 JSB EL185-11 6 • (h) Mutilated Lost Stolen or Destro ed Bonds. If a Bond becomes mutilated or is destroyed, stolen or lost, the Registrar will deliver a new Bond of like amount, number, maturity date and tenor in exchange and substitution for and upon cancellation of the mutilated Bond or in lieu of and in substitution for any Bond destroyed, stolen or lost, upon the payment of the reasonable expenses and charges of the Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost, upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed, stolen or lost, and of the ownership thereof, and upon furnishing to the Registrar an appropriate bond or indemnity in form, substance and amount satisfactory to it and as provided by law, in which both the City and the Registrar must be named as obligees. Bonds so surrendered to the Registrar will be cancelled by the Registrar and evidence of such cancellation must be given to the City. If the mutilated, destroyed, stolen or lost Bond has already matured or been called for redemption in accordance with its terms it is not necessary to issue a new Bond prior to payment. (i) Redemption. In the event any of the Bonds are called for redemption, notice thereof identifying the Bonds to be redeemed will be given by the Registrar by mailing a copy of the redemption notice by first class mail (postage prepaid) to the registered owner of each Bond to be redeemed at the address shown on the registration books kept by the Registrar and by publishing the notice if required by law. Failure to give notice by publication or by mail to any registered owner, or any defect therein, will • not affect the validity of the proceedings for the redemption of Bonds. Bonds so called for redemption will cease to bear interest after the specified redemption date, provided that the funds for the redemption are on deposit with the place of payment at that time. 2.04. Appointment of Initial Re isg tray. The City appoints U.S. Bank National Association in St. Paul, Minnesota, as the initial Registrar. The Mayor and the City Administrator are authorized to execute and deliver, on behalf of the City, a contract with the Registrar. Upon merger or consolidation of the Registrar with another corporation, if the resulting corporation is a bank or trust company authorized by law to conduct such business, the resulting corporation is authorized to act as successor Registrar. The City agrees to pay the reasonable and customary charges of the Registrar for the services performed. The City reserves the right to remove the Registrar upon 30 days' notice and upon the appointment of a successor Registrar, in which event the predecessor- Registrar must deliver all cash and Bonds in its possession to the successor Registrar and must deliver the bond register to the successor Registrar. On or before each principal or interest due date, without further order of this Council, the Administrator must transmit to the Registrar moneys sufficient for the payment of all principal and interest then due. 2.05. Execution. Authentication and Delivery. The Bonds will be prepared under the direction of the City Administrator and executed on behalf of the City by the signatures of the Mayor and the City Administrator, provided that all signatures may be printed, engraved or lithographed facsimiles of the originals. If an officer whose signature or a facsimile of whose • 365125v1 JSB EL185-11 7 • signature a ears on the Bonds ceases to be such officer before the deliver of an Bond that PP Y Y signature or facsimile will nevertheless be valid and sufficient for all purposes, the same as if the officer had remained in office until delivery. Notwithstanding such execution, a Bond will not be valid or obligatory for any purpose or entitled to any security or benefit under this Resolution unless and until a certificate of authentication on the Bond has been duly executed by the manual signature of an authorized representative of the Registrar. Certificates of authentication on different Bonds need not be signed by the same representative. The executed certificate of authentication on each Bond is conclusive evidence that it has been authenticated and delivered under this Resolution. When the Bonds have been so prepared, executed and authenticated, the City Administrator will deliver the same to the Purchaser upon payment of the purchase price in accordance with the contract of sale heretofore made and executed, and the Purchaser is not obligated to see to the application of the purchase price. 2.06. Temporary Bonds. The City may elect to deliver in lieu of printed definitive Bonds one or more typewritten temporary Bonds in substantially the form set forth in Section 3 with such changes as may be necessary to reflect more than one maturity in a single temporary bond. Upon the execution and delivery of definitive Bonds the temporary Bonds will be exchanged therefor and cancelled. Section 3. Form of Bond. • 3.01. Execution of the Bonds. The Bonds will be printed or typewritten in substantially the following form: 365125v1 JSB EL185-11 g U No. R- UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF SHERBURNE CITY OF ELK RIVER GENERAL OBLIGATION CAPITAL IMROVEMENT PLAN BOND, SERIES 2010A • • Rate Maturity Date of Original Issue CUSIP February 1, 20 Registered Owner: Cede & Co. April 21, 2010 The City of Elk River, Minnesota, a duly organized and existing municipal corporation in Sherburne County, Minnesota (the "City"), acknowledges itself to be indebted and for value received promises to pay to the Registered Owner specified above or registered assigns, the principal sum of $ on the maturity date specified above with interest thereon from the date hereof at the annual rate specified above, payable February 1 and August 1 in each year, commencing August 1, 2010, to the person in whose name this Bond is registered at the close of business on the fifteenth day (whether or not a business day) of the immediately preceding month. The interest hereon and, upon presentation and surrender hereof, the principal hereof are payable in lawful money of the United States of America by check or draft by U.S. Bank National Association, St. Paul, Minnesota, as Registrar, Paying Agent, Transfer Agent and Authenticating Agent, or its designated successor under the Resolution described herein. For the prompt and full payment of such principal and interest as the same respectively become due, the full faith and credit and taxing powers of the City have been and are hereby irrevocably pledged. The City may elect on February 1, 2020, and on any day thereafter to prepay Bonds due on or after February 1, 2021. Redemption may be in whole or in part and if in part, at the option of the City and in such manner as the City will determine. If less than all Bonds of a maturity are called for redemption, the City will notify Depository Trust Company ("DTC") of the particular amount of such maturity to be prepaid. DTC will determine by lot the amount of each participant's interest in such maturity to be redeemed and each participant will then select by lot the beneficial ownership interests in such maturity to be redeemed. Prepayments will be at a price of par plus accrued interest. The City Council has designated the issue of Bonds of which this Bond forms a part as "qualified tax exempt obligations" within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code") relating to disallowance of interest expense for 365125v1 JSB EL185-11 9 financial institutions and within the $30 million limit allowed b the Code for the calendar ear Y Y of issue. This Bond is one of an issue in the aggregate principal amount of $ all of like original issue date and tenor, except as to number, maturity date, redemption privilege, and interest rate, all issued pursuant to a resolution adopted by the City Council on March 15, 2010 (the "Resolution"), for the purpose of providing money to refund in advance of maturity of the outstanding principal amount of certain general obligation bonds of the City, pursuant to and in full conformity with the Constitution and laws of the State of Minnesota, including Minnesota Statutes, Sections 475.67, Subdivisions 3 through 12, and the principal hereof and interest hereon are payable in part from ad valorem taxes, as set forth in the Resolution to which reference is made for a full statement of rights and powers thereby conferred. The full faith and credit of the City are irrevocably pledged for payment of this Bond and the City Council has obligated itself to levy additional ad valorem taxes on all taxable property in the City in the event of any deficiency in taxes pledged, which additional taxes may be levied without limitation as to rate or amount. The Bonds of this series are issued only as fully registered Bonds in denominations of $5,000 or any integral multiple thereof of single maturities. As provided in the Resolution and subject to certain limitations set forth therein, this Bond is transferable upon the books of the City at the principal office of the Registrar, by the registered owner hereof in person or by the owner's attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer satisfactory to the Registrar, duly executed by the registered owner or the owner's attorney; and may also be surrendered in exchange for Bonds of other authorized denominations. Upon such transfer or exchange the City will cause a new Bond or Bonds to be issued in the name of the transferee or registered owner, of the same aggregate principal amount, bearing interest at the same rate and maturing on the same date, subject to reimbursement for any tax, fee or governmental charge required to be paid with respect to such transfer or exchange. The City and the Registrar may deem and treat the person in whose name this Bond is registered as the absolute owner hereof, whether this Bond is overdue or not, for the purpose of receiving payment and for all other purposes, and neither the City nor the Registrar will be affected by any notice to the contrary. IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts, conditions and things required by the Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be performed preliminary to and in the issuance of this Bond in order to make it a valid and binding general obligation of the City in accordance with its terms, have been done, do exist, have happened and have been performed as so required, and that the issuance of this Bond does not cause the indebtedness of the City to exceed any constitutional or statutory limitation of indebtedness. 365125v1 JSB EL185-11 10 This Bond is not valid or obli ator for an a ose or entitled to an securit or benefit g Y Yp ~ Y Y under the Resolution until the Certificate of Authentication hereon has been executed by the Registrar by manual signature of one of its authorized representatives. IN WITNESS WHEREOF, the City of Elk River, Sherburne County, Minnesota, by its City Council, has caused this Bond to be executed on its behalf by the facsimile or manual signatures of the Mayor and City Administrator and has caused this Bond to be dated as of the date set forth below. Dated: CITY OF ELK RIVER, MINNESOTA (Facsimile) (Facsimile) City Administrator Mayor CERTIFICATE OF AUTHENTICATION This is one of the Bonds delivered pursuant to the Resolution mentioned within. U.S. BANK NATIONAL ASSOCIATION BY Authorized Representative The following abbreviations, when used in the inscription of the face of this Bond, will be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants UNIF GIFT MIN ACT Custodian in common (Gust) (Minor) TEN ENT -- as tenants under Uniform Gifts or by entireties Transfers to Minors JT TEN -- as joint tenants with right of survivorship and Act . . not as tenants in common (State) 365125v1 JSB EL185-11 1 I Additional abbreviations may also be used thou h not in the above list. g ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and all rights thereunder, and does hereby irrevocably constitute and appoint attorney to transfer the said Bond on the books kept for registration of the within Bond, with full power of substitution in the premises. Dated: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or any change whatever. Signature Guaranteed: • NOTICE: Signature(s) must be guaranteed by a financial institution that is a member of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc. Medallion Signatures Program ("MSP") or other such "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934, as amended. The Registrar will not effect transfer of this Bond unless the information concerning the assignee requested below is provided. Name and Address: (Include information for all joint owners if this Bond is held by joint account.) 365125v1 JSB EL185-11 12 Please insert social securit or other Y identifying number of assignee PROVISIONS AS TO REGISTRATION The ownership of the principal of and interest on the within Bond has been registered on the books of the Registrar in the name of the person last noted below. Signature of Date of Registration Registered Owner Officer of Re isg tray Cede & Co. Federal ID #13-2555119 3.02. Approving Leal Opinion. The City Administrator is authorized and directed to obtain a copy of the proposed approving legal opinion of Kennedy & Graven, Chartered, Minneapolis, Minnesota, which is to be complete except as to dating thereof and cause the opinion to be printed on or accompany each Bond. Section 4. Payment; Security Pledges and Covenants. 4.01. (a) Debt Service Fund. The Bonds are payable from the General Obligation Capital Improvement Plan Bonds, Series 2010A Debt Service Fund (the "Debt Service Fund") hereby created, and the proceeds of ad valorem taxes hereinafter levied (the "Taxes") are hereby pledged to the Debt Service Fund, into which shall be deposited (i) accrued interest paid by the Purchaser, if any, upon closing and delivery of the Bonds; (ii) proceeds of the Taxes herein levied; (iii) any additional funds directed to be deposited by the City Administrator. If the balance in the Debt Service Fund is at any time insufficient to pay all interest and principal then due on the Bonds payable therefrom, the Council covenants and agrees that it will each year levy an amount sufficient to take care of any accumulated or anticipated deficiency, which levy is not subject to any limitation as to rate or amount. (b) Escrow Account. Pursuant to an Escrow Agreement, dated as of April 1, 2010, between the City, the Authority, and the Escrow Agent, proceeds of the Bonds in the amount of set forth therein shall be deposited in the Escrow Account to be maintained by the Escrow Agent to be applied to the defeasance and refunding of the Authority's Series 2002A Bonds and the Authority's Series 2002B Bonds. 365125v1 JSB EL185-11 13 4.02. Pledge of Taxes For the purpose of a in the rind al of and interest on the p Y g p p Bonds, there is hereby levied a direct annual irrepealable ad valorem tax upon all of the taxable property in the City, which will be spread upon the tax rolls and collected with and as part of other. general taxes of the City. Such tax will be credited to the Debt Service Fund above provided and will be in the years and amounts to be set for in the certificate of the Pricing Committee. 4.03. County Auditor's Certificate as to Registration. The City Administrator is directed to file a certified copy of this resolution along with a copy of the certificate of the Pricing Committee with the County Auditor of Sherburne County and to obtain the certificate required by Section 475.63 of the Act. 4.04. Cancellation of Tax Levies for the Refunded Bonds. It is hereby determined that upon the deposit of the proceeds of the Bonds in the Escrow Account pursuant to the Escrow Agreement that an irrevocable appropriation to the debt service fund for the Refunded Bonds will have been made within the meaning of Section 475.61, Subdivision 3 of Minnesota Statutes, as amended, and the City Administrator is hereby authorized and directed to certify such fact to and request the County Auditor to cancel any and all tax levies made by the resolution authorizing and approving the Refunded Bonds. 4.05. Certification to County Auditor as to Debt Service Fund Amount. It is hereby • determined that the estimated collection of the foregoing tax levies will produce at least five percent in excess of the amount needed to meet when due, the principal and interest payments on the Bonds. The tax levy herein provided will be irrepealable until all of the Bonds are paid, provided that at the time the City makes its annual tax levies the City Administrator may certify to the County Auditor the amount available in the Debt Service Fund to pay principal and interest due during the ensuing year, and the County Auditor will thereupon reduce the levy collectible during such year by the amount so certified. Section 5. Refunding; Findings; Redemption of Refunded Bonds. 5.01. Refunding Refunded Bonds. The Series 2002A Bonds will be defeased on the date of issue of the Bonds and the Series 2002A Bonds maturing on and after February 1, 2014 will be fully redeemed on February 1, 2013. The Series 2002A Bonds will be redeemed and prepaid in accordance with their terms and in accordance with the terms and conditions set forth in the form of Notice of Call for Redemption attached as Exhibit A to the Escrow Agreement (as hereinafter defined) which terms and conditions are hereby approved and incorporated herein by reference. The Series 2002B Bonds will be defeased on the date of issue of the Bonds and the Series 2002B Bonds maturing on and after February 1, 2014 will be fully redeemed on February 1, 2013. The Series 2002B Bonds will be redeemed and prepaid in accordance with their terms and in accordance with the terms and conditions set forth in the form of Notice of Call for Redemption attached as Exhibit B to the Escrow Agreement which terms and conditions are hereby approved and incorporated herein by reference. • 365125v1 JSB EL185-11 14 5.02. Investment Yields and Applicable Arbitra e Regulations. No portion of the proceeds of the Bonds will be used directly or indirectly to acquire higher yielding investments or to replace funds which were used directly or indirectly to acquire higher yielding investments, except (i) for a reasonable temporary period until such proceeds are needed for the purpose for which the Bonds were issued, and (ii) in addition to the above, in an amount not greater than the lesser of 5% of the proceeds of the Bonds or $100,000. To this effect, any proceeds of the Bonds and any sums from time to time held in the Debt Service Fund (or any other City account which will be used to pay principal and interest to become due on the Bonds) in excess of amounts which under the applicable federal arbitrage regulations may be invested without regard as to yield will not be invested at a yield in excess of the applicable yield restrictions imposed by the arbitrage regulations on such investments after taking into account any applicable temporary periods or minor portion made available under the federal arbitrage regulations. In addition, the proceeds of the Bonds and money in the Fund will not be invested in obligations or deposits issued by, guaranteed by or insured by the United States or any agency or instrumentality thereof if and to the extent that such investment would cause the Bonds to be federally guaranteed within the meaning of Section 149(b) of the Internal Revenue Code of 1986, as amended (the "Code"). 5.03. Payment at Maturity or Redemption of Series 2002A and Series 20028 Bonds. It is hereby found and determined, based solely on the Verification Report of the Independent Accountant identified in the Escrow Agreement, that the monies available and appropriated to . the Escrow Account will be sufficient, together with the permitted earnings on the investment of the Escrow Account, to pay at maturity or upon redemption all of the principal of and interest on the Series 2002A Bonds and the Series 20028 Bonds. 5.04. Purchase of Securities and Compliance with the Act. Securities purchased from the monies in the Escrow Account will be limited to securities specified in Section 475.67, subdivision 8 of the Act. The Escrow Agent, as agent for the City, is hereby authorized and directed to purchase for and on behalf of the City and in its name, appropriate securities to fund the Escrow Account. Upon the issuance and delivery of the Bonds, the securities so purchased will be deposited in the Escrow Account established herein and held pursuant to the terms of the Escrow Agreement and the Resolution. 5.05. General Obligation Pled. For the prompt and full payment of the principal and interest on the Bonds, as the same respectively become due, the full faith, credit and taxing powers of the City will be and are hereby irrevocably pledged. If the balance in the Debt Service Fund is ever insufficient to pay all principal and interest then due on the Bonds and any other bonds payable therefrom, the deficiency will be promptly paid out of monies in the general fund of the City which are available for such purpose, and such general fund may be reimbursed with or without interest from the Debt Service Account when a sufficient balance is available therein. 5.06. Escrow Agreement. On or prior to the delivery of the Bonds, the Mayor and the City Administrator are hereby authorized and directed to execute on behalf of the City the . 365125v1 JSB EL185-11 15 Escrow Agreement. The Escrow Agreement is hereb a roved in substantial) the form on file Y pp Y with the City on the date hereof, with such necessary and appropriate variations, omissions, and insertions as do not materially change the substance thereof, or as the Mayor and City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and City Administrator shall be conclusive evidence of such determination. 5.07. Other Documents. In addition to the Escrow Agreement, the Mayor and City Administrator are hereby authorized and directed to execute such other documents which are necessary and appropriate to terminate the Lease-Purchase Agreement and defease the Series 2002A Bonds and the Series 2002B Bonds, including but not limited to a termination of the Ground Lease, termination of the Lease-Purchase Agreement and satisfaction of the Mortgage. Such documents are. hereby approved in substantially the forms on file with the City on the date hereof, with such necessary and appropriate variations, omissions, and insertions as do not materially change the substance thereof, or as the Mayor and City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and City Administrator shall be conclusive evidence of such determination. Section 6. Authentication of Transcript. 6.01. City Proceedings and Records. The officers of the City are authorized and directed to prepare and furnish to the Purchaser and to the attorneys approving the Bonds, certified copies of proceedings and records of the City relating to the Bonds and to the financial condition and affairs of the City, and such other certificates, affidavits and transcripts as may be required to show the facts within their knowledge or as shown by the books and records in their custody and under their control, relating to the validity and marketability of the Bonds and such instruments, including any heretofore furnished, will be deemed representations of the City as to the facts stated therein. 6.02. Certification as to Official Statement. The Mayor and City Administrator are hereby authorized and directed to certify that they have examined the Official Statement prepared and circulated in connection with the issuance and sale of the Bonds and that to the best of their knowledge and belief the Official Statement is a complete and accurate representation of the facts and representations made therein as of the date of the Official Statement. 6.03. Payment of Costs of Issuance. The City authorizes the Purchaser to forward the amount of Bond proceeds allocable to the payment of issuance expenses (other than amounts payable to Kennedy & Graven, Chartered, acting as bond counsel) to U.S. Trust Company, in Minneapolis, Minnesota on the closing date for further distribution as directed by the City's financial adviser, Ehlers & Associates, Inc. 365125v1 JSB EL185-11 16 Section 7. Tax Covenant. 7.01. Tax-Exempt Bonds. The City covenants and agrees with the holders from time to time of the Bonds that it will not take or permit to be taken by any of its officers, employees or agents any action which would cause the interest on the Bonds to become subject to taxation under the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations promulgated thereunder, in effect at the time of such actions, and that it will take or cause its officers, employees or agents to take, all affirmative action within its power that may be necessary to ensure that such interest will not become subject to taxation under the Code and applicable Treasury Regulations, as presently existing or as hereafter amended and made applicable to the Bonds. 7.02. Rebate. The City will comply with requirements necessary under the Code to establish and maintain the exclusion from gross income of the interest on the Bonds under Section 103 of the Code, including without limitation requirements relating to temporary periods for investments and limitations on amounts invested at a yield greater than the yield on the Bonds. 7.03. Not Private Activity Bonds. The City further covenants not to use the proceeds of the Bonds or to cause or permit them or any of them to be used, in such a manner as to cause the Bonds to be "private activity bonds" within the meaning of Sections 103 and 141 through 150 of • the Code. 7.04. Qualified Tax-Exempt Obli atg ions. In order to qualify the Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the Code, the City makes the following factual statements and representations: Code; (a) the Bonds are not "private activity bonds" as defined in Section 141 of the (b) the City hereby designates the Bonds as "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code; (c) the reasonably anticipated amount of tax-exempt obligations (other than private activity bonds, that are not qualified 501(c)(3) bonds) which will be issued by the City (and all subordinate entities of the City) during calendar year 2010 will not exceed $30,000,000; and (d) not more than $30,000,000 of obligations issued by the City during calendar year 2010 have been designated for purposes of Section 265(b)(3) of the Code. 365125vi JSB EL185-11 17 7.05. Procedural Re uirements. The Cit will use its best efforts to com 1 with an Y ~Y Y federal procedural requirements which may apply in order to effectuate the designations made by this section. Section 8. Book-Entry System; Limited Obligation of CitX. 8.01. DTC. The Bonds will be initially issued in the form of a separate single typewritten or printed fully registered Bond for each of the maturities set forth in Section 1.03 hereof. Upon initial issuance, the ownership of each Bond will 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 Bonds will be registered in the registration books kept by the Registrar in the name of Cede & Co., as nominee of DTC. 8.02. Partici ants. With respect to 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 will have no responsibility or obligation to any broker dealers, banks and other financial institutions from time to time for which DTC holds Bonds as securities depository (the "Participants") or to any other person on behalf of which a Participant holds an interest in the 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 Bonds, (ii) the delivery to any Participant or any other person (other than a registered owner of Bonds, as shown by the registration books kept by the Registrar), of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any Participant or any other person, other than a registered owner of Bonds, of any amount with respect to principal of, premium, if any, or interest on the Bonds. The City, the Registrar and the Paying Agent may treat and consider the person in whose name each Bond is registered in the registration books kept by the Registrar as the holder and absolute owner of such Bond for the purpose of payment of principal, premium and interest with respect to such Bond, for the purpose of registering transfers with respect to such Bonds, and for all other purposes. The Paying Agent will pay all principal of, premium, if any, and interest on the 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 will 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 Bonds to the extent of the sum or sums so paid. No person other than a registered owner of Bonds, as shown in the registration books kept by the Registrar, will receive a certificated Bond evidencing the obligation of this resolution. Upon delivery by DTC to the City Administrator of a written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., the words "Cede & Co.," will refer to such new nominee of DTC; and upon receipt of such a notice, the City Administrator will promptly deliver a copy of the same to the Registrar and Paying Agent. 365125v1 JSB EL185-11 18 8.03. Representation Letter. The Cit has heretofore executed and delivered to DTC a Y Blanket Issuer Letter of Representations (the "Representation Letter") which will govern payment of, premium, if any, and interest on the Bonds and notices with respect to the Bonds. Any Paying Agent or Registrar subsequently appointed by the City with respect to the Bonds will agree to take all action necessary for all representations of the City in the Representation letter with respect to the Registrar and Paying Agent, respectively, to be complied with at all times. 8.04. Transfers Outside Book-Entry S stem. In the event the City, by resolution of the City Council, determines that it is in the best interests of the persons having beneficial interests in the Bonds that they be able to obtain Bond certificates, the City will notify DTC, whereupon DTC will notify the Participants, of the availability through DTC of Bond certificates. In such event the City will issue, transfer and exchange 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 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 will issue and the Registrar will authenticate Bond certificates in accordance with this resolution and the provisions hereof will apply to the transfer, exchange and method of payment thereof. 8.05. Payments to Cede & Co. Notwithstanding any other provision of this Resolution to the contrary, so long as a Bond is registered in the name of Cede & Co., as nominee of DTC, i payments with respect to principal of, premium, if any, and interest on the Bond and notices with respect to the Bond will be made and given, respectively in the manner provided in DTC's Operational Arrangements, as set forth in the Representation Letter. Section 9. Continuing Disclosure. 9.01. City Compliance with Provisions of Continuing Disclosure Certificate. The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate. Notwithstanding any other provision of this Resolution, failure of the City to comply with the Continuing Disclosure Certificate is not to be considered an event of default with respect to the Bonds; however, any Bondholder may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City to comply with its obligations under this section. 9.02. Execution of Continuing Disclosure Certificate. "Continuing Disclosure Certificate" means that certain Continuing Disclosure Certificate executed by the Mayor and City Administrator and dated the date of issuance and delivery of the Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof. Section 10. Defeasance. When all Bonds and all interest thereon, have been discharged as provided in this section, all pledges, covenants and other rights granted by this resolution to the 365125v1 JSB EL185-I 1 19 • holders of the Bonds will cease, except that the pledge of the full faith and credit of the City for the prompt and full payment of the principal of and interest on the Bonds will remain in full force and effect. The City may discharge all Bonds which are due on any date by depositing with the Registrar on or before that date a sum sufficient for the payment thereof in full. 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 motion for the adoption of the foregoing resolution was duly seconded by Member Gumphrey ,and upon vote being taken thereon, the following voted in favor thereof: Mayor Klinzing, Councilmembers Zerwas, Gumphrey, Westgaard and Motin and the following voted against the same: none u whereupon said resolution was declared duly passed and adopted. ~- , .__._ _ `~ Steph a Klinzing, Maio ATTEST. ,~ f -~..~, Tina Allard, City Clerk 365125v1 JSB EL185-ll 20