HomeMy WebLinkAboutCity Council Resolution 2004-471CERTIFICATION OF MINUTES RELATING TO
$13,140,000 GENERAL OBLIGATION WATER REVENUE BONDS, SERIES 2004B
Issuer: City of Plymouth, Minnesota
Governing Body: City Council
Kind, date, time and place of meeting: A regular meeting held November 9, 2004, at 7 o'clock
P.M., at the Plymouth City Center, 3400 Plymouth Boulevard, Plymouth, Minnesota.
Members present: Mayor Johnson, Councilmembers Neset, Hewitt, Slavik, Stein, and Black.
Members absent: Councilmember Bildsoe
Documents Attached:
Minutes of said meeting (including):
RESOLUTION NO. 2004-471
RESOLUTION AUTHORIZING ISSUANCE, AWARDING
SALE, PRESCRIBING THE FORM AND DETAILS AND
PROVIDING FOR THE PAYMENT OF $13,140,000 GENERAL
OBLIGATION WATER REVENUE BONDS, SERIES 2004B
I, the undersigned, being the duly qualified and acting recording officer of the public
corporation issuing the bonds referred to in the title of this certificate, certify that the documents
attached hereto, as described above, have been carefiilly compared with the original records of
said corporation in my legal custody, from which they have been transcribed; that said
documents are a correct and complete transcript of the minutes of a meeting of the governing
body of said corporation, and correct and complete copies of all resolutions and other actions
taken and of all documents approved by the governing body at said meeting, so far as they relate
to said bonds; and that said meeting was duly held by the governing body at the time and place
and was attended throughout by the members indicated above, pursuant to call and notice of such
meeting given as required by law.
WITNESS my hand officially as such recording officer on November , 2004.
City Clerk
It was reported that three (3) proposals for the purchase of $13,140,000 General
Obligation Water Revenue Bonds, Series 2004B were received prior to 12:00 noon, Central time,
pursuant to the Official Statement distributed to potential purchasers of the Bonds by Springsted
Incorporated, financial consultants to the Issuer. The proposals have been publicly opened, read
and tabulated and were found to be as follows:
See attached
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Member Slavik introduced the following resolution and moved its adoption, which motion was
seconded by Member Hewitt:
RESOLUTION NO. 2004-471
RESOLUTION AUTHORIZING ISSUANCE, AWARDING
SALE, PRESCRIBING THE FORM AND DETAILS AND
PROVIDING FOR THE PAYMENT OF $13,140,000 GENERAL
OBLIGATION WATER REVENUE BONDS, SERIES 2004B
BE IT RESOLVED by the City Council of the City of Plymouth, Minnesota (the Issuer),
as follows:
SECTION 1. AUTHORIZATION AND SALE
1.1. Authorization. This Council, by resolution adopted on October 12, 2004, authorized
the issuance and sale of its $13,140,000 principal amount of General Obligation Water Revenue
Bonds, Series 2004B (the Bonds) pursuant to Minnesota Statutes, Section 444.075 and Chapter
475. The proceeds will be used to finance the costs of various improvements (the Project) to the
Issuer's municipal water treatment system (the System).
1.2. Sale. Pursuant to the Terms of Proposal and the Official Statement prepared on
behalf of the Issuer by Springsted Incorporated, sealed proposals for the purchase of the Bonds
were received at or before the time specified for receipt of proposals. The proposals have been
opened, publicly read and considered and the purchase price, interest rates and net interest cost
under the terms of each proposal have been determined. The most favorable proposal received is
that of Citigroup Global Markets Inc., in Chicago, Illinois and associates (the Purchaser), to
purchase the Bonds at a price of $13,111,671.35 plus accrued interest on all Bonds to the day of
delivery and payment, on the fi rther terms and conditions hereinafter set forth.
1.3. Award. The sale of the Bonds is hereby awarded to the Purchaser and the Mayor
and City Administrator are hereby authorized and directed to execute a contract on behalf of the
Issuer for the sale of the Bonds in accordance with the Terms of Proposal. The good faith
deposit of the Purchaser shall be retained and deposited by the Issuer until the Bonds have been
delivered and shall be deducted from the purchase price paid at settlement.
SECTION 2. BOND TERMS: REGISTRATION: EXECUTION AND DELIVERY.
2.1. Issuance of Bonds. All acts, conditions and things which are required by the
Constitution and laws of the State of Minnesota and the City Charter to be done, to exist, to
happen and to be performed precedent to and in the valid issuance of the Bonds having been
done, now existing, having happened and having been performed, it is now necessary for the
City Council to establish the form and terms of the Bonds, to provide security therefor and to
issue the Bonds forthwith.
2.2. Maturities, Interest Rates, Denominations and Payment. The Bonds shall be
originally dated as of December 1, 2004, shall be in the denomination of $5,000 each, or any
integral multiple thereof, of single maturities, shall mature on February I in the years and
amounts stated below, and shall bear interest from the date of issue until paid or duly called for
redemption at the annual rates set forth opposite such years and amounts, as follows:
Year
Amount
Rate
Year
Amount
Rate
2005
$1,050,000
3.00%
2013
$ 860,000
3.625%
2006
715,000
3.00
2014
890,000
4.00
2007
725,000
3.00
2015
920,000
4.00
2008
745,000
3.00
2016
955,000
4.00
2009
760,000
3.00
2017
995,000
4.00
2010
785,000
3.25
2018
1,030,000
4.00
2011
805,000
3.50
2019
1,075,000
4.00
2012
830,000
3.50
The Bonds shall be issuable only in fully registered form. The interest thereon and, upon
surrender of each Bond, the principal amount thereof shall be payable by check or draft issued by
the Registrar described herein; provided that, so long as the Bonds are registered in the name of a
securities depository, or a nominee thereof, in accordance with Section 2.7 hereof, principal and
interest shall be payable in accordance with the operational arrangements of the securities
depository.
2.3. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to
Section 2.8 and upon any subsequent transfer or exchange pursuant to Section 2.6, the date of
authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on
the Bonds shall be payable on each February 1 and August 1, commencing February 1, 2005,
each such date being referred to herein as an Interest Payment Date, to the persons in whose
names the Bonds are registered on the Bond Register, as hereinafter defined, at the Registrar's
close of business on the fifteenth day of the calendar month next preceding such Interest
Payment Date, whether or not such day is a business day. Interest shall be computed on the basis
of a 360 -day year composed of twelve 30 -day months.
2.4. Redemption. Bonds maturing in 2015 and later years shall be subject to redemption
at the option of the Issuer, in whole or in part, in such order of maturity dates as the Issuer shall
determine and, if less than all of the Bonds of a single maturity date are to be redeemed, by lot or
other method as selected by the Registrar (or, if applicable, by the bond depository in accordance
with its customary procedures), in integral multiples of $5,000, on February 1, 2014, and on any
date thereafter, at a price equal to 100% of the principal amount thereof and accrued interest to
the date of redemption. At least 30 days before the date specified for redemption of any Bond,
the City Clerk shall cause notice of redemption to be published if and as required by law, and
mailed by first class mail, postage prepaid, to the Registrar and to the Holders, as hereinafter
defined, of all Bonds to be redeemed at their addresses as they appear on the Bond Register;
provided that notice shall be given to any securities depository in accordance with its operational
arrangements. No defect in or failure to give such notice of redemption shall affect the validity
of proceedings for the redemption of any Bond not affected by such defect or failure. Official
notice of redemption having been given as aforesaid, the Bonds or portions 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 Issuer shall default in the payment of the
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redemption price), such Bonds or portions of Bonds shall cease to bear interest. Upon partial
redemption of any Bond, a new Bond or Bonds shall be delivered to the owner without charge,
representing the remaining principal amount outstanding.
2.5. Appointment of Registrar. The Issuer hereby appoints the Issuer Finance Director
as the initial bond registrar, transfer agent and paying agent (the Registrar). The Mayor and City
Manager are authorized to execute and deliver, on behalf of the Issuer, a contract with the
Registrar. The Issuer agrees to pay the reasonable and customary charges of the Registrar for the
services performed. The Issuer reserves the right to remove the Registrar, effective upon not less
than thirty days' written notice and upon the appointment and acceptance of a successor
Registrar, in which event the predecessor Registrar shall deliver all cash and Bonds in its
possession to the successor Registrar and shall deliver the Bond Register to the successor
Registrar.
2.6. Registration. The effect of registration and the rights and duties of the Issuer and the
Registrar with respect thereto shall be as follows:
(a) Re ig ster. The Registrar shall keep at its principal corporate trust office a
register (the Bond Register) in which the Registrar shall provide for the registration of
ownership of Bonds and the registration of transfers and exchanges of Bonds entitled to
be registered, transferred or exchanged. The term Holder or Bondholder as used herein
shall mean the person (whether a natural person, corporation, association, partnership,
trust, governmental unit, or other legal entity) in whose name a Bond is registered in the
Bond Register.
(b) Transfer of Bonds. Upon surrender for transfer of any Bond duly endorsed by
the Holder thereof or accompanied by a written instrument of transfer, in form
satisfactory to the Registrar, duly executed by the Holder thereof or by an attorney duly
authorized by the Holder in writing, the Registrar shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Bonds of a like
aggregate principal amount and maturity, as requested by the transferor. The Registrar
may, however, close the books for registration of any transfer after the fifteenth day of
the month preceding each Interest Payment Date and until such Interest Payment Date.
(c) Exchange of Bonds. At the option of the Holder of any Bond in a
denomination greater than $5,000, such Bond may be exchanged for other Bonds of
authorized denominations, of the same maturity and a like aggregate principal amount,
upon surrender of the Bond to be exchanged at the office of the Registrar. Whenever any
Bond is so surrendered for exchange the Issuer shall execute and the Registrar shall
authenticate and deliver the Bonds which the Bondholder making the exchange is entitled
to receive.
(d) Cancellation. All Bonds surrendered for payment, transfer or exchange shall
be promptly canceled by the Registrar and thereafter disposed of as directed by the
Issuer.
(e) Improper or Unauthorized Transfer. When any Bond is presented to the
Registrar for transfer, the Registrar may refuse to transfer the same until it is satisfied that
the endorsement on such Bond or separate instrument of transfer is valid and genuine and
that the requested transfer is legally authorized. The Registrar shall incur no liability for
the refusal, in good faith, to make transfers which it, in its judgment, deems improper or
unauthorized.
(f) Persons Deemed Owners. The Issuer and the Registrar may treat the person in
whose name any Bond is at any time registered in the Bond Register as the absolute
owner of the Bond, whether the Bond shall be overdue or not, for the purpose of
receiving payment of or on account of, the principal of and interest on the Bond and for
all other purposes; and all payments made to or upon the order of such Holder shall be
valid and effectual to satisfy and discharge the liability upon such Bond to the extent of
the sum or sums so paid.
(g) Taxes, Fees and Charges. For every transfer or exchange of Bonds (except
for an exchange upon a partial redemption of a Bond), the Registrar may impose a charge
upon the owner thereof sufficient to reimburse the Registrar for any tax, fee or other
governmental charge required to be paid with respect to such transfer or exchange.
(h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become
mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like
amount, number, maturity date and tenor in exchange and substitution for and upon
cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond
destroyed, stolen or lost, upon the payment of the reasonable expenses and charges of the
Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost,
upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed,
stolen or lost, and of the ownership thereof, and upon fi rnishing to the Registrar of an
appropriate bond or indemnity in form, substance and amount satisfactory to it, in which
both the Issuer and the Registrar shall be named as obligees. All Bonds so surrendered to
the Registrar shall be canceled by it and evidence of such cancellation shall be given to
the Issuer. If the mutilated, destroyed, stolen or lost Bond has already matured or been
called for redemption in accordance with its terms it shall not be necessary to issue a new
Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated authenticating
agent for the Bonds, within the meaning of Minnesota Statutes, Section 475.55,
Subdivision 1, as amended.
0) Valid Obligations. All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Resolution as the Bonds surrendered upon such transfer or
exchange.
2.7. Securities Depository. (a) For purposes of this section the following terms shall
have the following meanings:
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"Beneficial Owner" shall mean, whenever used with respect to a Bond, the person in
whose name such Bond is recorded as the beneficial owner of such Bond by a Participant
on the records of such Participant, or such person's subrogee.
"Cede & Co." shall mean Cede & Co., the nominee of DTC, and any successor nominee
of DTC with respect to the Bonds.
"DTC" shall mean The Depository Trust Company of New York, New York.
"Participant" shall mean any broker-dealer, bank or other financial institution for which
DTC holds Bonds as securities depository.
"Representation Letter" shall mean the Representation Letter pursuant to which the
sender agrees to comply with DTC's Operational Arrangements.
(b) The Bonds shall be initially issued as separately authenticated fidly registered
bonds, and one Bond shall be issued in the principal amount of each stated maturity of
the Bonds. Upon initial issuance, the ownership of such Bonds shall be registered in the
bond register in the name of Cede & Co., as nominee of DTC. The Registrar and the
Issuer may treat DTC (or its nominee) as the sole and exclusive owner of the Bonds
registered in its name for the purposes of payment of the principal of or interest on the
Bonds, selecting the Bonds or portions thereof to be redeemed, if any, giving any notice
permitted or required to be given to registered owners of Bonds under this resolution,
registering the transfer of Bonds, and for all other purposes whatsoever; and neither the
Registrar nor the Issuer shall be affected by any notice to the contrary. Neither the
Registrar nor the Issuer shall have any responsibility or obligation to any Participant, any
person claiming a beneficial ownership interest in the Bonds under or through DTC or
any Participant, or any other person which is not shown on the bond register as being a
registered owner of any Bonds, with respect to the accuracy of any records maintained by
DTC or any Participant, with respect to the payment by DTC or any Participant of any
amount with respect to the principal of or interest on the Bonds, with respect to any
notice which is permitted or required to be given to owners of Bonds under this
resolution, with respect to the selection by DTC or any Participant of any person to
receive payment in the event of a partial redemption of the Bonds, or with respect to any
consent given or other action taken by DTC as registered owner of the Bonds. So long as
any Bond is registered in the name of Cede & Co., as nominee of DTC, the Registrar
shall pay all principal of and interest on such Bond, and shall give all notices with respect
to such Bond, only to Cede & Co. in accordance with DTC's Operational Arrangements,
and all such payments shall be valid and effective to fidly satisfy and discharge the
Issuer's obligations with respect to the principal of and interest on the Bonds to the extent
of the sum or sums so paid. No person other than DTC shall receive an authenticated
Bond for each separate stated maturity evidencing the obligation of the Issuer to make
payments of principal and interest. Upon delivery by DTC to the Registrar of written
notice to the effect that DTC has determined to substitute a new nominee in place of Cede
& Co., the Bonds will be transferable to such new nominee in accordance with paragraph
(e) hereof.
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(c) In the event the Issuer determines that it is in the best interest of the
Beneficial Owners that they be able to obtain Bonds in the form of bond certificates, the
Issuer may notify DTC and the Registrar, whereupon DTC shall notify the Participants of
the availability through DTC of Bonds in the form of certificates. In such event, the
Bonds will be transferable in accordance with paragraph (e) hereof. DTC may determine
to discontinue providing its services with respect to the Bonds at any time by giving
notice to the Issuer and the Registrar and discharging its responsibilities with respect
thereto under applicable law. In such event the Bonds will be transferable in accordance
with paragraph (e) hereof.
(d) The execution and delivery of the Representation Letter to DTC by the Mayor
or City Manager, if not previously filed with DTC, is hereby authorized and directed.
(e) In the event that any transfer or exchange of Bonds is permitted under
paragraph (b) or (c) hereof, such transfer or exchange shall be accomplished upon receipt
by the Registrar of the Bonds to be transferred or exchanged and appropriate instruments
of transfer to the permitted transferee in accordance with the provisions of this resolution.
In the event Bonds in the form of certificates are issued to owners other than Cede & Co.,
its successor as nominee for DTC as owner of all the Bonds, or another securities
depository as owner of all the Bonds, the provisions of this resolution shall also apply to
all matters relating thereto, including, without limitation, the printing of such Bonds in
the form of bond certificates and the method of payment of principal of and interest on
such Bonds in the form of bond certificates.
2.8. Execution, Authentication and Delivery. The Bonds shall be prepared under the
direction of the City Manager and shall be executed on behalf of the Issuer by the signatures of
the Mayor and the City Manager, provided that the signatures may be printed, engraved or
lithographed facsimiles of the originals. In case any officer whose signature or a facsimile of
whose signature shall appear on any Bond shall cease to be such officer before the delivery of
such Bond, such signature or facsimile shall nevertheless be valid and sufficient for all purposes,
the same as if such officer had remained in office until the date of delivery of such Bond.
Notwithstanding such execution, no Bond shall be valid or obligatory for any purpose or entitled
to any security or benefit under this Resolution unless and until a certificate of authentication on
the Bond, substantially in the form provided in Section 2.9, has been 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 any Bond shall be conclusive evidence that it has been duly authenticated and
delivered under this Resolution. When the Bonds have been prepared, executed and
authenticated, the City Clerk shall deliver them to the Purchaser upon payment of the purchase
price in accordance with the contract of sale heretofore executed, and the Purchaser shall not be
obligated to see to the application of the purchase price.
2.9. Form of Bonds. The Bonds shall be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
CITY OF PLYMOUTH
GENERAL OBLIGATION WATER REVENUE BONDS, SERIES 2004B
Interest Rate Maturity Date Date of Original Issue CUSIP No.
% February 1, 20 December 1, 2004
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: THOUSAND DOLLARS
THE CITY OF PLYMOUTH, MINNESOTA (the Issuer) 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
and promises to pay interest thereon from the date of original issue specified above or from the
most recent Interest Payment Date (as hereinafter defined) to which interest has been paid or
duly provided for, at the annual interest rate specified above, payable on February 1 and August
1 in each year, commencing February 1, 2005 (each such date, an Interest Payment Date), all
subject to the provisions referred to herein with respect to the redemption of the principal of this
Bond before maturity. The interest so payable on any Interest Payment Date shall be paid to the
person in whose name this Bond is registered at the close of business on the fifteenth day
(whether or not a business day) of the calendar month next preceding such Interest Payment
Date. Interest hereon shall be computed on the basis of a 360 -day year composed of twelve 30 -
day months. The interest hereon and, upon presentation and surrender hereof at the principal
office of the Registrar described below, the principal hereof, are payable in lawful money of the
United States of America by check or draft by the Issuer Finance Director, as Registrar and
Paying Agent, or its designated successor under the Resolution described herein. For the prompt
and fill payment of such principal and interest as the same respectively become due, the fill
faith and credit and taxing powers of the Issuer have been and are hereby irrevocably pledged.
This Bond is one of an issue (the Bonds) in the aggregate principal amount of
$13,140,000 issued pursuant to a resolution adopted by the City Council on November 9, 2004
(the Resolution), to finance the constriction of improvements to the Issuer's municipal water
treatment system (the System) and is issued pursuant to and in fill conformity with the
Constitution and laws of the State of Minnesota and City Charter thereunto enabling, including
Minnesota Statutes, Section 444.075 and Chapter 475. The Bonds are issuable only in filly
registered form, in the denomination of $5,000 or any integral multiple thereof, of single
maturities.
Bonds having stated maturity dates in the years 2015 and thereafter are each subject to
redemption at the option of the Issuer, in whole or in part, in such order of maturity dates as the
Issuer shall determine, and, if less than all Bonds of a single maturity date are to be redeemed, by
lot or other method as selected by the Registrar (or, if applicable, by the bond depository in
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accordance with its customary procedures), in multiples of $5,000, on February 1, 2014, and on
any date thereafter, at a price equal to 100% of the principal amount thereof plus interest accrued
to the date of redemption. At least 30 days before to the date specified for the redemption of any
Bond the Issuer will cause notice of redemption to be published if and to the extent required by
law, and to be mailed by first class mail (or, if applicable, provided in accordance with the
operational arrangements of the bond depository), to the registered owner of any Bond to be
redeemed at the owner's address as it appears on the Bond Register maintained by the Registrar,
but no defect in or failure to give such notice of redemption shall affect the validity of
proceedings for the redemption of any Bond not affected by such defect or failure. Official
notice of redemption having been given as aforesaid, the Bonds or portions of Bonds so to be
redeemed shall, on the redemption date, become due and payable at the redemption price therein
specified and from and after such date (unless the Issuer shall default in the payment of the
redemption price) such Bonds or portions of Bonds shall cease to bear interest. Upon surrender
to the Registrar of any Bond which has been redeemed in part, a new Bond or Bonds will be
delivered to the owner without charge, representing the unredeemed portion of the principal of
the Bond so surrendered.
As provided in the Resolution and subject to certain limitations set forth therein, this
Bond is transferable upon the Bond Register maintained by the Registrar at its principal office,
upon surrender of this Bond for transfer at such office, duly endorsed 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 Issuer will cause a new
Bond or Bonds to be issued in the name of the designated transferee or transferees, of the same
aggregate principal amount, bearing interest at the same rate and maturing on the same date. The
Registrar may require payment of a sum sufficient to pay any tax, fee or governmental charge
required to be paid with respect to any such transfer or exchange.
Notwithstanding any other provisions of this Bond, so long as this Bond is registered in
the name of Cede & Co., as nominee of The Depository Trust Company, or in the name of any
other nominee of The Depository Trust Company or other securities depository, the Registrar
shall pay all principal of and interest on this Bond, and shall give all notices with respect to this
Bond, only to Cede & Co. or other nominee in accordance with the operational arrangements of
The Depository Trust Company or other securities depository as agreed to by the Issuer.
The Issuer 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 Issuer nor the Registrar shall be
affected by any notice to the contrary.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts,
conditions and things required by the City Charter, 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 Issuer in accordance
with its terms, have been done, do exist, have happened and have been performed as so required;
that in and by the Resolution, the Issuer has covenanted and agreed it will impose and collect, or
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cause to be imposed and collected, charges for the service, use and availability of the System at
the times and in the amounts required to produce net revenues which, together with any other
funds appropriated by the Issuer, will be receivable in the years and in amounts sufficient to
produce sums not less than five percent in excess of the principal of and interest on the Bonds
when due, and has appropriated such revenues and other fiends to its General Obligation Water
Revenue Bonds, Series 2004B Bond Fund for payment of principal of and interest on the Bonds;
that if necessary for payment of such principal and interest, ad valorem taxes are required to be
levied upon all taxable property in the Issuer, without limitation as to rate or amount; that the
issuance of this Bond, together with all other indebtedness of the Issuer outstanding on the date
hereof and on the date of its actual issuance and delivery, does not cause the indebtedness of the
Issuer to exceed any charter, constitutional or statutory limitation of indebtedness.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until the Certificate of Authentication hereon shall have
been executed by the Registrar by manual signature of one of its authorized representatives.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed on its behalf
by the facsimile signatures of the Mayor and City Manager.
CITY OF PLYMOUTH, MINNESOTA
(facsimile signature City Manager) (facsimile signature Mayor)
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds referred to in the Resolution mentioned within.
Date of Authentication:
CITY FINANCE DIRECTOR, as Registrar
Authorized Representative
The following abbreviations, when used in the inscription on the face of this Bond, shall be
construed as though they were written out in fiill according to the applicable laws or regulations:
TEN COM - as tenants in common UTMA ................... as Custodian for ....................
(Cost) (Minor)
TEN ENT - as tenants by the entireties under Uniform Transfers to Minors Act ..............
(State)
JT TEN -- as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used.
ASSIGNMENT
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For value received, the undersigned hereby sells, assigns and transfers unto the within
Bond and all rights thereunder, and does hereby irrevocably constitute and appoint
attorney to transfer the said Bond on the books kept for registration of the within Bond, with full
power of substitution in the premises.
Dated:
NOTICE: The assignor's signature to this assignment
must correspond with the name as it appears upon the
face of the within Bond in every particular, without
alteration or enlargement or any change whatsoever.
Signature Guaranteed:
Signature(s) must be guaranteed by an eligible guarantor institution meeting the requirements of
the Registrar, which requirements include membership or participation in STAMP or such other
signature guaranty program as may be determined by the Registrar in addition to or in
substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
Please insert social security or other identifying number of assignee:
[End of form of Bond]
SECTION 3. GENERAL OBLIGATION WATER REVENUE BONDS, SERIES 2004B
CONSTRUCTION FUND. There is hereby established on the official books and records of the
Issuer a separate fiind designated the General Obligation Water Revenue Bonds, Series 2004B
Constriction Fund (the Constriction Fund). The Constriction Fund shall be maintained until all
costs and expenses incurred by the Issuer in connection with the constriction of the Project have
been paid. To the Constriction Fund there shall be credited from the proceeds of the Bonds, the
sum of $12,995,460.00 and from the Constriction Fund there shall be paid all costs and expenses
incurred by the Issuer in constriction of the Project. After payment of all such costs, the
Constriction Fund shall be discontinued. Any Bond proceeds remaining on hand in the
Constriction Fund after payment of all such costs and expenses shall be transferred to the Bond
Fund, as hereinafter defined, unless and except as such proceeds may be transferred to some
other fiend or account as to which the Issuer has received from Bond Counsel, as hereinafter
defined, an opinion that such other transfer is permitted by applicable laws and does not impair
the exemption of interest on the Bonds from federal income taxes. "Bond Counsel" means an
attorney or law firm retained by or the Issuer having a favorable reputation for expertise in the
area of tax-exempt municipal finance.
SECTION 4. GENERAL OBLIGATION WATER REVENUE BONDS, SERIES 2004B BOND
FUND. There is hereby established on the official books and records of the Issuer a separate
fund designated the General Obligation Water Revenue Bonds, Series 2004B Bond Fund (the
Bond Fund). The principal of and interest on the Bonds shall be payable from the Bond Fund
and the Bond Fund shall be maintained until the Issuer has paid, or made provision for the
payment of, all of the principal of and interest on the Bonds. If the balance on hand in the Bond
Fund is at any time insufficient to pay principal and interest then due on the Bonds, such
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amounts shall be paid from other money on hand in other fiends of the Issuer, which other fiends
shall be reimbursed therefor when sufficient money becomes available in the Bond Fund. The
money on hand in the Bond Fund from time to time shall be used only to pay the principal of and
interest on the Bonds. Into the Bond Fund shall be paid (a) any proceeds of the Bonds in excess
of the amount credited to the Constriction Fund under Section 3, (b) any proceeds of Bonds
remaining in the Constriction Fund after payment of all costs and expenses of the Project have
been paid, unless transferred to some other fiend or account as provided by Section 3, (c) all net
revenues of the System appropriated to the payment of the principal of and interest on the Bonds
in accordance with Section 6 hereof, (d) any taxes collected pursuant to Section 7 hereof, and (e)
any other fiends appropriated by the Council for the payment of the principal of or interest on the
Bonds.
SECTION 5. SUFFICIENCY OF SYSTEM REVENUES. It is hereby found, determined and
declared that the Issuer owns and operates the System as a revenue-producing utility and
convenience and that the net operating revenues of the System, after deducting from the gross
receipts derived from charges for the service, use and availability of the System the normal,
current and reasonable expenses of operation and maintenance thereof, will be sufficient,
together with any other fiends actually appropriated by the Issuer, for the payment when due of
the principal of and interest on the Bonds herein authorized, and on any other bonds to which
such revenues are pledged.
SECTION 6. RATE COVENANT. Pursuant to Minnesota Statutes, Section 444.075, the Issuer
hereby covenants and agrees with the registered owners from time to time of the Bonds, that
until the Bonds and the interest thereon are paid in full, or are discharged as provided in Section
8, the Issuer will impose and collect, or cause to be imposed and collected, reasonable charges
for the service, use and availability of the System according to schedules which will produce net
revenues sufficient, with any other fiends appropriated by the Issuer, to pay all principal and
interest when due on the Bonds and any other bonds to which said net revenues have been
pledged; and said net revenues, to the extent necessary, are hereby irrevocably pledged and
appropriated to the payment of the Bonds. Nothing herein shall preclude the Issuer from
hereafter making further pledges and appropriations of the net revenues of the System for
payment of additional obligations of the Issuer hereafter authorized if the Council determines
before the authorization of such additional obligations that the estimated net revenues of the
System will be sufficient, together with any other sources pledged to the payment of the
outstanding and additional obligations, for payment of the outstanding bonds and such additional
obligations. Such further pledges and appropriations of said net revenues may be made superior
or subordinate to, or on a parity with, the pledge and appropriation herein made.
SECTION 7. PLEDGE OF TAXING POWERS. For the prompt and fiill payment of the
principal of and interest on the Bonds as such payments respectively become due, the fiill faith,
credit and unlimited taxing powers of the Issuer shall be and are hereby irrevocably pledged.
However, it is presently estimated that the net revenues of the System, together with other fiinds
to be appropriated by the Issuer to the Bond Fund, will produce amounts not less than five
percent in excess of the amounts needed to meet when due the principal and interest payments on
the Bonds and therefore no ad valorem taxes are required to be levied at this time.
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SECTION 8. DEFEASANCE. When all of the Bonds have been discharged as provided in this
section, all pledges, covenants and other rights granted by this Resolution to the registered
owners of the Bonds shall cease. The Issuer may discharge its obligations with respect to any
Bonds which are due on any date by depositing with the Registrar on or before that date a sum
sufficient for the payment thereof in full; or, if any Bond should not be paid when due, it may
nevertheless be discharged by depositing with the Registrar a sum sufficient for the payment
thereof in full with interest accrued from the due date to the date of such deposit. The Issuer may
also discharge its obligations with respect to any prepayable Bonds called for redemption on any
date when they are prepayable according to their terms, by depositing with the Registrar on or
before that date an amount equal to the principal, interest and redemption premium, if any, which
are then due, provided that notice of such redemption has been duly given as provided herein.
The Issuer may also at any time discharge its obligations with respect to any Bonds, subject to
the provisions of law now or hereafter authorizing and regulating such action, by depositing
irrevocably in escrow, with a bank qualified by law as an escrow agent for this purpose, cash or
securities which are authorized by law to be so deposited, bearing interest payable at such time
and at such rates and maturing or callable at the holder's option on such dates as shall be
required to pay all principal and interest to become due thereon to maturity or earlier designated
redemption date.
SECTION 9. CERTIFICATION OF PROCEEDINGS.
9.1. Registration of Bonds. The City Clerk is hereby authorized and directed to file a
certified copy of this resolution with the County Auditor of Hennepin County and obtain a
certificate that the Bonds have been duly entered upon the Auditor's bond register.
9.2. Authentication of Transcript. The officers of the Issuer and the County Auditor are
hereby authorized and directed to prepare and furnish to the Purchaser and to Dorsey & Whitney
LLP, Bond Counsel, certified copies of all proceedings and records relating to the Bonds and
such other affidavits, certificates and information as may be required to show the facts relating to
the legality and marketability of the Bonds, as the same appear from the books and records in
their custody and control or as otherwise known to them, and all such certified copies, affidavits
and certificates, including any heretofore fi rnished, shall be deemed representations of the Issuer
as to the correctness of all statements contained therein.
9.3. Offering Statement. The Offering Statement relating to the Bonds, dated October
26, 2004, prepared and distributed by Springsted Incorporated, the financial consultant for the
Issuer, is hereby approved. Springsted Incorporated is hereby authorized on behalf of the Issuer
to prepare and deliver to the Purchaser within seven business days from the date hereof a
supplement to the Official Statement listing the offering price, the interest rates, selling
compensation, delivery date, the underwriters and such other information relating to the Bonds
required to be included in the Official Statement by Rule 15c2-12 adopted by the SEC under the
Securities Exchange Act of 1934. The officers of the Issuer are hereby authorized and directed
to execute such certificates as may be appropriate concerning the accuracy, completeness and
sufficiency of the Official Statement.
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SECTION 10. TAX COVENANTS, ARBITRAGE MATTERS, REIMBURSEMENT AND
CONTINUING DISCLOSURE.
10.1. Restrictive Action. The Issuer covenants and agrees with the registered owners
from time to time of the Bonds that it will not take, or permit to be taken by any of its officers,
employees or agents, any actions that would cause interest on the Bonds to become includable in
gross income of the recipient under the Internal Revenue Code of 1986, as amended (the Code)
and applicable Treasury Regulations (the Regulations), and covenants to take any and all actions
within its powers to ensure that the interest on the Bonds will not become includable in gross
income of the recipient under the Code and the Regulations. All proceeds of the Bonds
deposited in the Constriction Fund will be expended solely for payment of the costs of the
Project. The improvements financed by the Bonds are and will be owned and maintained by the
Issuer and available for use by members of the general public on a substantially equal basis. The
Issuer shall not enter into any lease agreement, use agreement, capacity contract or other
agreement with any non-governmental user with respect to the System, the Project or the Bonds
which would cause the Bonds to be considered "private activity bonds" or "private loan bonds"
pursuant to Section 141 of the Code.
10.2. Certification. The Mayor and City Manager being the officers of the Issuer
charged with the responsibility for issuing the Bonds pursuant to this Resolution, are authorized
and directed to execute and deliver to the Purchaser a certificate in accordance with the
provisions of Section 148 of the Code, and applicable Regulations, stating the facts, estimates
and circumstances in existence on the date of issue and delivery of the Bonds which make it
reasonable to expect that the proceeds of the Bonds will not be used in a manner that would
cause the Bonds to be "arbitrage bonds" within the meaning of the Code and Regulations.
10.3. Arbitrage Rebate. The Issuer acknowledges that the Bonds are subject to the rebate
requirements of Section 148(f) of the Code. The Issuer covenants and agrees to retain such
records, make such determinations, file such reports and documents and pay such amounts at
such times as are required under said Section 148(f) and applicable Regulations to preserve the
exclusion of interest on the Bonds from gross income for federal income tax purposes, unless the
Bonds qualify for an exception from the rebate requirement pursuant to one of the spending
exceptions set forth in Section 1.148-7 of the Regulations and no "gross proceeds" of the Bonds
(other than amounts constituting a "bona fide debt service fiind") arise during or after the
expenditure of the original proceeds thereof.
10.4. Continuing Disclosure. (a) Purpose and Beneficiaries. To provide for the public
availability of certain information relating to the Bonds and the security therefor and to permit
the Purchaser and other participating underwriters in the primary offering of the Bonds to
comply with amendments to Rule 15c2-12 promulgated by the 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), which
will enhance the marketability of the Bonds, the Issuer hereby makes the following covenants
and agreements for the benefit of the Owners (as hereinafter defined) from time to time of the
Outstanding Bonds. The Issuer is the only "obligated person" in respect of the Bonds within the
meaning of the Rule for purposes of identifying the entities in respect of which continuing
disclosure must be made. The Issuer has complied in all material respects with any undertaking
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previously entered into by it under the Rule. If the Issuer fails to comply with any provisions of
this section, any person aggrieved thereby, including the Owners of any Outstanding Bonds, may
take whatever action at law or in equity may appear necessary or appropriate to enforce
performance and observance of any agreement or covenant contained in this section, including
an action for a writ of mandamus or specific performance. Direct, indirect, consequential and
punitive damages shall not be recoverable for any default hereunder to the extent permitted by
law. Notwithstanding anything to the contrary contained herein, in no event shall a default under
this section constitute a default under the Bonds or under any other provision of this resolution.
As used in this section, "Owner" or "Bondowner" means, in respect of a Bond, the registered
owner or owners thereof appearing in the bond register maintained by the Registrar or any
"Beneficial Owner" (as hereinafter defined) thereof, if such Beneficial Owner provides to the
Registrar evidence of such beneficial ownership in form and substance reasonably satisfactory to
the Registrar. As used herein, `Beneficial Owner" means, in respect of a Bond, any person or
entity which (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 Bonds through
nominees, depositories or other intermediaries), or (ii) is treated as the owner of the Bond for
federal income tax purposes.
(b) Information To Be Disclosed. The Issuer will provide, in the manner set forth
in subsection (c) hereof, either directly or indirectly through an agent designated by the Issuer,
the following information at the following times:
(1) on or before 365 days after the end of each fiscal year of the Issuer,
commencing with the fiscal year ending December 31, 2004, the following financial
information and operating data in respect of the Issuer (the Disclosure Information):
(A) the audited financial statements of the Issuer for such fiscal year,
containing balance sheets as of the end of such fiscal year and a statement of
operations, changes in fund balances and cash flows for the fiscal year then
ended, showing in comparative form such figures for the preceding fiscal year of
the Issuer, prepared in accordance with generally accepted accounting principles
promulgated by the Financial Accounting Standards Board as modified in
accordance with the governmental accounting standards promulgated by the
Governmental Accounting Standards Board or as otherwise provided under
Minnesota law, as in effect from time to time, or, if and to the extent such
financial statements have not been prepared in accordance with such generally
accepted accounting principles for reasons beyond the reasonable control of the
Issuer, noting the discrepancies therefrom and the effect thereof, and certified as
to accuracy and completeness in all material respects by the fiscal officer of the
Issuer; and
(B) To the extent not included in the financial statements referred to in
paragraph (A) hereof, the information for such fiscal year or for the period most
recently available of the type contained in the Official Statement under the
headings City Property Values; City Indebtedness and City Tax Rates, Levies and
Collections.
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Notwithstanding the foregoing paragraph, if the audited financial statements are not available by
the date specified, the Issuer shall provide on or before such date unaudited financial statements
in the format required for the audited financial statements as part of the Disclosure Information
and, within 10 days after the receipt thereof, the Issuer shall provide the audited financial
statements. Any or all of the Disclosure Information may be incorporated by reference, if it is
updated as required hereby, from other documents, including official statements, which have
been submitted to each of the repositories hereinafter referred to under subsection (c) or the SEC.
If the document incorporated by reference is a final official statement, it must be available from
the Municipal Securities Rulemaking Board. The Issuer shall clearly identify in the Disclosure
Information each document so incorporated by reference. If any part of the Disclosure
Information can no longer be generated because the operations of the Issuer have materially
changed or been discontinued, such Disclosure Information need no longer be provided if the
Issuer includes in the Disclosure Information a statement to such effect; provided, however, if
such operations have been replaced by other Issuer operations in respect of which data is not
included in the Disclosure Information and the Issuer determines that certain specified data
regarding such replacement operations would be a Material Fact (as defined in paragraph (3)
hereof), then, from and after such determination, the Disclosure Information shall include such
additional specified data regarding the replacement operations. If the Disclosure Information is
changed or this section is amended as permitted by this paragraph (b)(1) or subsection (d), then
the Issuer shall include in the next Disclosure Information to be delivered hereunder, to the
extent necessary, an explanation of the reasons for the amendment and the effect of any change
in the type of financial information or operating data provided.
(2) In a timely manner, notice of the occurrence of any of the following events
which is a Material Fact (as hereinafter defined):
(A) Principal and interest payment delinquencies;
(B) Non-payment related defaults;
(C) Unscheduled draN-, s on debt service reserves reflecting financial difficulties;
(D) Unscheduled draN-, s on credit enhancements reflecting financial difficulties;
(E) Substitution of credit or liquidity providers, or their failure to perform;
(F) Adverse tax opinions or events affecting the tax-exempt status of the
security;
(G) Modifications to rights of security holders;
(H) Bond calls;
(I) Defeasances;
(J) Release, substitution, or sale of property securing repayment of the
securities; and
(K) Rating changes.
As used herein, a "Material Fact' is a fact as to which a substantial likelihood exists that a
reasonably prudent investor would attach importance thereto in deciding to buy, hold or sell a
Bond or, if not disclosed, would significantly alter the total information otherwise available to an
investor from the Official Statement, information disclosed hereunder or information generally
available to the public. Notwithstanding the foregoing sentence, a "Material Fact' is also an
event that would be deemed "material" for purposes of the purchase, holding or sale of a Bond
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within the meaning of applicable federal securities laws, as interpreted at the time of discovery of
the occurrence of the event.
(3) In a timely manner, notice of the occurrence of any of the following events or
conditions:
(A) the failure of the Issuer to provide the Disclosure Information required
under paragraph (b)(1) at the time specified thereunder;
(B) the amendment or supplementing of this section pursuant to subsection
(d), together with a copy of such amendment or supplement and any explanation
provided by the Issuer under subsection (d)(2);
(C) the termination of the obligations of the Issuer under this section pursuant
to subsection (d);
(D) any change in the accounting principles pursuant to which the financial
statements constituting a portion of the Disclosure Information are prepared; and
(E) any change in the fiscal year of the Issuer.
(c) Manner of Disclosure. The Issuer agrees to make available the information
described in subsection (b) to the following entities by telecopy, overnight delivery, mail or other
means, as appropriate:
(1) the information described in paragraphs (1) of subsection (b), to each then
nationally recognized municipal securities information repository under the Rule and to
any state information depository then designated or operated by the State of Minnesota as
contemplated by the Rule (the State Depository), if any;
(2) the information described in paragraphs (2) and (3) of subsection (b) to the
Municipal Securities Rulemaking Board and to the State Depository, if any; and
(2) the information described in subsection (b), to any rating agency then
maintaining a rating of the Bonds at the request of the Issuer and, at the expense of such
Bondowner, to any Bondowner who requests in writing such information, at the time of
transmission under paragraphs (1) or (2) of this subsection (c), as the case may be, or, if
such information is transmitted with a subsequent time of release, at the time such
information is to be released.
(d) Term, Amendments, Interpretation.
(1) The covenants of the Issuer in this section shall remain in effect so long as
any Bonds are Outstanding. Notwithstanding the preceding sentence, however, the
obligations of the Issuer under this section shall terminate and be without further effect as
of any date on which the Issuer delivers to the Registrar an opinion of Bond Counsel to
the effect that, because of legislative action or final judicial or administrative actions or
proceedings, the failure of the Issuer to comply with the requirements of this section will
not cause participating underwriters in the primary offering of the Bonds to be in
violation of the Rule or other applicable requirements of the Securities Exchange Act of
1934, as amended, or any statutes or laws successory thereto or amendatory thereof.
(2) This section (and the form and requirements of the Disclosure Information)
may be amended or supplemented by the Issuer from time to time, without notice to
(except as provided in paragraph (c)(3) hereof) or the consent of the Owners of any
Bonds, by a resolution of this Council filed in the office of the recording officer of the
Issuer accompanied by an opinion of Bond Counsel, who may rely on certificates of the
Issuer and others and the opinion may be subject to customary qualifications, to the effect
that: (i) such amendment or supplement (a) is made in connection with a change in
circumstances that arises from a change in law or regulation or a change in the identity,
nature or status of the Issuer or the type of operations conducted by the Issuer, or (b) is
required by, or better complies with, the provisions of paragraph (b)(5) of the Rule; (ii)
this section as so amended or supplemented would have complied with the requirements
of paragraph (b)(5) of the Rule at the time of the primary offering of the Bonds, giving
effect to any change in circumstances applicable under clause (i)(a) and assuming that the
Rule as in effect and interpreted at the time of the amendment or supplement was in
effect at the time of the primary offering; and (iii) such amendment or supplement does
not materially impair the interests of the Bondowners under the Rule.
If the Disclosure Information is so amended, the Issuer agrees to provide, contemporaneously
with the effectiveness of such amendment, an explanation of the reasons for the amendment and
the effect, if any, of the change in the type of financial information or operating data being
provided hereunder.
(3) This section is entered into to comply with the continuing disclosure
provisions of the Rule and should be construed so as to satisfy the requirements of
paragraph (b)(5) of the Rule.
Upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon the resolution was declared duly passed and adopted.
Attest:
City Manager
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Mayor
COUNTY AUDITOR'S CERTIFICATE
AS TO REGISTRATION
The undersigned, being the duly qualified and acting County Auditor of Hennepin
County, Minnesota, hereby certifies that there has been filed in my office a certified copy of a
resolution duly adopted on November 9, 2004, by the City Council of the City of Plymouth,
Minnesota, setting forth the form and details of an issue of $13,140,000 General Obligation
Water Revenue Bonds, Series 2004B, dated as of December 1, 2004.
I further certify that the issue has been entered on my bond register as required by
Minnesota Statutes, Sections 475.61 to 475.63.
WITNESS my hand and official seal on , 2004.
(SEAL)
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County Auditor