HomeMy WebLinkAboutCity Council Resolution 2003-552CERTIFICATION AS TO RESOLUTION AND ADOPTING VOTE
Issuer: City of Plymouth, Minnesota
Governing Body: City Council
Kind, date, time and place of meeting: A regular meeting held on November 25, 2003, at 7:00
o'clock p.m., at the City offices.
Members present: Mayor Johnson, Councilmembers Neset, Hewitt, Slavik, Stein, and Black.
Members absent: Councilmember Bildsoe.
Documents Attached:
Minutes of said meeting (including):
RESOLUTION NO. 2003-552
RESOLUTION AUTHORIZING ISSUANCE, AWARDING
SALE, PRESCRIBING THE FORM AND DETAILS AND
PROVIDING FOR THE PAYMENT OF $1,355,000 GENERAL
OBLIGATION OPEN SPACE REFUNDING BONDS, SERIES
2003D
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 carefully 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 this 25th day of November, 2003.
City Clerk
It was reported that seven (7) sealed bids for the purchase of the Bonds were received
prior to 11:00 a.m. on November 25, 2003, pursuant to the Official Statement distributed to
potential purchasers of the Bonds by Springsted Incorporated, financial advisor to the City. The
bids have been publicly opened, read and tabulated and were found to be as follows:
(See Attached)
Councilmember Slavik introduced the following resolution and moved its adoption,
which motion was seconded by Councilmember Stein:
RESOLUTION NO. 2003-552
RESOLUTION AUTHORIZING ISSUANCE,
AWARDING SALE, PRESCRIBING THE FORM AND
DETAILS AND PROVIDING FOR THE PAYMENT OF
$1,355,000 GENERAL OBLIGATION OPEN SPACE
REFUNDING BONDS, SERIES 2003D
NOW, THEREFORE, BE IT RESOLVED by the City Council (the "Council") of City of
Plymouth, Minnesota (the "City"), as follows:
Section 1. Authorization and Sale.
1.01. Authorization. By resolution adopted October 14, 2003, this
Council has heretofore called for the sale on this date of $1,355,000 General Obligation
Open Space Refunding Bonds, Series 2003D of the City (the "Bonds") to refund on
February 1, 2005, the February 1, 2006 through February 1, 2011 maturities of the
Issuer's outstanding General Obligation Open Space Bonds, Series 1995A, dated
August 1, 1995 (the Refunded Bonds). The issuance of the Bonds to refund the
Refunded Bonds will result in a reduction of interest cost and of total debt service on a
present value basis on the indebtedness represented by the Refunded Bonds and is
therefore in the best interests of the Council. The refunding of the Refunded Bonds
constitutes a "crossover refunding" as defined in Minnesota Statutes, Section 475.67,
subdivision 13.
1.02. Sale. Pursuant to the Terms of Proposal and the Official Statement
prepared on behalf of the City by Springsted Incorporated, sealed or electronic proposals
for the purchase of the Bonds were received at or before the time specified for receipt of
proposals. The bids have been opened and publicly read and considered, and the
purchase price, interest rates and net interest cost under the terms of each bid have been
determined. The most favorable proposal received is that of Banc One Capital Markets,
of Chicago, Illinois (the "Purchaser"), to purchase the Bonds at a price of $1,352,071.07
plus interest accrued on all Bonds to the date of delivery and payment, on the further
terms and conditions hereinafter set forth.
1.03. Award. The sale of the Bonds is hereby awarded to the Purchaser,
and the Mayor of the Council and the Finance Director are hereby authorized and
directed to execute a contract on the part of the City with the Purchaser for the sale of the
Bonds. The good faith deposit of the Purchaser shall be retained and deposited by the
City until the Bonds have been delivered, and shall be deducted from the purchase price
paid at settlement.
Section 2. Bond Terms; Registration; Execution and Delivery.
2.01. Issuance of Bonds. 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 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 this
Council to establish the form and terms of the Bonds, to provide for the security thereof
and to issue the Bonds forthwith.
2.02. Maturities; Interest Rates; Denominations; Payment; Dates. The
Bonds shall be originally dated as of December 1, 2003, shall be in the denomination of
$5,000, or any integral multiple thereof, of single maturities, shall mature on February 1
in the years and amounts stated below, and shall bear interest from 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
2006
2007
2008
$200,000
$230,000
210,000
240,000
215,000
260,000
2.25%
2.25
2.25
2009
2010
2011
2.50%
2.75
3.05
The Bonds shall be issued only in fully registered form. The interest
thereon and, upon surrender of each Bond, the principal thereof, shall be payable by
check or draft issued by the Registrar described herein; provided that, so long as the
Bonds are registered in the name of a securities depository, or a nominee thereof, in
accordance with Section 2.08 hereof, principal and interest shall be payable in accordance
with the operational arrangements of the securities depository.
2.03. Dates and Interest Payment Dates. Upon initial delivery of the
Bonds pursuant to Section 2.07 and upon any subsequent transfer or exchange pursuant to
Section 2.06, the date of authentication shall be noted on each Bond so delivered,
exchanged or transferred. Interest on the Bonds shall be payable on February 1 and
August 1 in each year, commencing August 1, 2004, 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.
2.04. Redemption. The Bonds are not subject to optional redemption
and prepayment prior to their stated maturity date.
2.05. Appointment of Initial Re iso tray. The City hereby appoints the
Finance Director, City of Plymouth, Minnesota, as the initial bond registrar, transfer
agent and paying agent (the "Registrar"). The City reserves the right to remove the
Registrar upon 30 days' notice and upon the appointment of a successor Registrar, in
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which event the predecessor Registrar shall deliver all cash and Bonds in its possession to
the successor Registrar and shall deliver the bond register to the successor Registrar.
2.06. Registration. The effect of registration and the rights and duties of
the City and the Registrar with respect thereto shall be as follows:
(a) Re i ster. The Registrar shall keep at its office a bond register in
which the Registrar shall provide for the registration of ownership of Bonds and the
registration of transfers and exchanges of Bonds entitled to be registered, transferred or
exchanged.
(b) Transfer of Bonds. Upon surrender to the Registrar for transfer of
any Bond duly endorsed by the registered owner thereof or accompanied by a written
instrument of transfer, in form satisfactory to the Registrar, duly executed by the
registered owner thereof or by an attorney duly authorized by the registered owner in
writing, the Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Bonds of a like series, aggregate principal
amount and maturity, as requested by the transferor. The Registrar may, however, close
the books for registration of the transfer of any Bond or portion thereof selected or called
for redemption.
(c) Exchange of Bonds. Whenever any Bonds are surrendered by the
registered owner for exchange, the Registrar shall authenticate and deliver one or more
new Bonds of a like aggregate principal amount and maturity, as requested by the
registered owner or the owner's attorney duly authorized in writing.
(d) Cancellation. All Bonds surrendered upon any transfer or
exchange shall be promptly cancelled by the Registrar and thereafter disposed of as
directed by the City.
(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 its refusal, in good faith, to make transfers which it, in its judgment,
deems improper or unauthorized.
(f) Persons Deemed Owners. The City and the Registrar may treat the
person in whose name any Bond is at any time registered in the bond register as the
absolute owner of the Bond, whether such Bond shall be overdue or not, for the purpose
of receiving payment of, or on account of, the principal of and interest on the Bond and
for all other purposes; and all payments made to any such registered owner or upon the
owner's order shall be valid and effectual to satisfy and discharge the liability of the City
upon such 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 lost, stolen or destroyed, 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
such Bond lost, stolen or destroyed, upon the payment of the reasonable expenses and
charges of the Registrar in connection therewith; and, in the case of a Bond lost, stolen or
destroyed, upon filing with the Registrar of evidence satisfactory to it that such Bond was
lost, stolen or destroyed, and of the ownership thereof, and upon furnishing to the
Registrar of an appropriate bond or indemnity in form, substance and amount satisfactory
to it, in which both the City and the Registrar shall be named as obligees. All Bonds so
surrendered to the Registrar shall be canceled by it and evidence of such cancellation
shall be given to the City. If the mutilated, lost, stolen or destroyed 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 City, evidencing the same debt,
and entitled to the same benefits under this Resolution as the Bonds surrendered upon
such transfer or exchange.
2.07. Execution, Authentication and Delivery. The Bonds shall be
prepared under the direction of the Finance Director and shall be executed on behalf of
the City by the signatures of the Mayor and the Finance Director, 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 the Bonds
shall cease to be such officer before the delivery of any Bond, such signature or facsimile
shall nevertheless be valid and sufficient for all purposes, the same as if he had remained
in office until delivery. Notwithstanding such execution, no Bond shall be valid or
obligatory for any purpose or entitled to any security or benefit under this resolution
unless and until a certificate of authentication on the Bond has been duly executed by the
manual signature of an authorized representative of the Registrar. Certificates of
authentication on different Bonds need not be signed by the same representative. The
executed certificate of authentication on each Bond shall be conclusive evidence that it
has been authenticated and delivered under this resolution. When the Bonds have been
prepared, executed and authenticated, the Finance Director 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.
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2.08. Securities Depository. (a) For purposes of this section the
following terms shall have the following meanings:
"Beneficial Owner" shall mean, whenever used with respect to a Bond, the
person in whose name such Bond is recorded as the beneficial owner of such Bond by a
Participant on the records of such Participant, or such person's subrogee.
"Cede & Co." shall mean Cede & Co., the nominee of DTC, and any
successor nominee of DTC with respect to the Bonds.
"DTC" shall mean The Depository Trust Company of New York, New
York.
"Participant" shall mean any broker-dealer, bank or other financial
institution for which DTC holds Bonds as securities depository.
"Representation Letter" shall mean the Representation Letter pursuant to
which the City agrees to comply with DTC's Operational Arrangements.
(b) The Bonds shall be initially issued as separately authenticated fully
registered bonds, and one Bond shall be issued in the principal amount of each stated
maturity of the Bonds. Upon initial issuance, the ownership of such Bonds shall be
registered in the bond register in the name of Cede & Co., as nominee of DTC. The
Registrar and the City may treat DTC (or its nominee) as the sole and exclusive owner of
the Bonds registered in its name for the purposes of payment of the principal of or
interest on the Bonds, selecting the Bonds or portions thereof to be redeemed, if any,
giving any notice permitted or required to be given to registered owners of Bonds under
this resolution, registering the transfer of Bonds, and for all other purposes whatsoever;
and neither the Registrar nor the City shall be affected by any notice to the contrary.
Neither the Registrar nor the City shall have any responsibility or obligation to any
Participant, any person claiming a beneficial ownership interest in the Bonds under or
through DTC or any Participant, or any other person which is not shown on the bond
register as being a registered owner of any Bonds, with respect to the accuracy of any
records maintained by DTC or any Participant, with respect to the payment by DTC or
any Participant of any amount with respect to 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 fully
satisfy and discharge the City's obligations with respect to the principal of and interest on
the Bonds to the extent of the sum or sums so paid. No person other than DTC shall
receive an authenticated Bond for each separate stated maturity evidencing the obligation
of the City to make payments of principal and interest. Upon delivery by DTC to the
Registrar of written notice to the effect that DTC has determined to substitute a new
nominee in place of Cede & Co., the Bonds will be transferable to such new nominee in
accordance with paragraph (e) hereof.
(c) In the event the City determines that it is in the best interest of the
Beneficial Owners that they be able to obtain Bonds in the form of bond certificates, the
City may notify DTC and the Registrar, whereupon DTC shall notify the Participants of
the availability through DTC of Bonds in the form of certificates. In such event, the
Bonds will be transferable in accordance with paragraph (e) hereof. DTC may determine
to discontinue providing its services with respect to the Bonds at any time by giving
notice to the City and the Registrar and discharging its responsibilities with respect
thereto under applicable law. In such event the Bonds will be transferable in accordance
with paragraph (e) hereof.
(d) The execution and delivery of the Representation Letter to DTC by
the Chair or Finance Director, 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.
form:
2.09. Form of Bonds. The Bonds shall be in substantially the following
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
CITY OF PLYMOUTH, MINNESOTA
GENERAL OBLIGATION OPEN SPACE REFUNDING BOND, SERIES 2003D
31
Interest Rate Maturity Date Date of Original Issue CUSIP No.
February 1, 2011 December 1, 2003
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
CITY OF PLYMOUTH, MINNESOTA (the City), acknowledges itself to
be indebted and hereby promises to pay to the registered owner named above, or
registered assigns, the principal amount specified above, on the maturity date specified
above, without option of prior redemption with interest thereon from the date of original
issue hereof or from the most recent Interest Payment Date (as herinafter defined) to
which interest has been paid or duly provided for, at the annual rate specified above,
payable on February 1 and August 1 in each year, commencing August 1, 2004 (each
such date, an Interest Payment Date), 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, [all subject to the provisions referred to herein with
respect to the redemption of the principal of this Bond before maturity.] 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 office of the
Finance Director, in Plymouth, Minnesota, as Registrar, Transfer Agent and Paying
Agent (the "Bond Registrar"), or its successor designated under the Resolution described
herein, the principal hereof, are payable in lawful money of the United States of America
by check or draft by the Finance Director, City of Plymouth, Minnesota, as bond
registrar, transfer agent and paying agent (the Registrar), or its successor designated
under the Resolution described herein. For the prompt and full payment of such principal
and interest as the same become due, the full faith and credit and taxing powers of the
City are hereby irrevocably pledged.
This Bond is one of an issue in the aggregate principal amount of
$1,355,000 (the Bonds), issued pursuant to a resolution adopted by the City Council on
November 25, 2003 (the Resolution) to refund general obligation bonds previously issued
by the City, and are issued pursuant to and in strict accordance with the provisions of the
Constitution and laws of the State of Minnesota thereunto enabling, including Minnesota
Statutes, Section 375.18 and Chapter 475. The Bonds are issuable only in fully registered
form, in denominations of $5,000 or any integral multiple thereof, of single maturities.
This Bond will not be subject to optional redemption and prepayment
prior to its stated maturity date.
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 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
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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 shall be affected by any notice to the contrary.
Notwithstanding any other provisions of this Bond, so long as this Bond is
registered in the name of Cede & Co., as nominee of The Depository Trust Company, or
in the name of any other nominee of The Depository Trust Company or other securities
depository, the Registrar shall pay all principal of and interest on this Bond, and shall
give all notices with respect to this Bond, only to Cede & Co. or other nominee in
accordance with the operational arrangements of The Depository Trust Company or other
securities depository as agreed to by the City.
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 precedent to and
in the issuance of this Bond in order to make it a valid and binding general obligation of
the City in accordance with its terms have been done, do exist, have happened and have
been performed as so required; that, prior to the issuance hereof, the City has by the
Resolution covenanted and agreed to levy ad valorem taxes on all taxable property in the
City, which taxes will be collectible for the years and in amounts sufficient to produce
sums not less than five percent in excess of the principal of and interest on the Bonds
when due; that, if necessary to pay such principal and interest, additional ad valorem
taxes are required by law to be levied upon all taxable property in the City, without
limitation as to rate or amount; that the issuance of this Bond, together with all other
indebtedness of the City outstanding on the date hereof and on the date of its actual
issuance an delivery, does not cause the indebtedness of the City to exceed any
constitutional or statutory limitation; and that the opinion printed hereon is a full, true and
correct copy of the legal opinion given by Bond Counsel with reference to the Bonds,
dated as of the date of original delivery of the Bonds.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Resolution until the Certificate of
Authentication hereon shall have been executed by the Registrar by manual signature of
one of its authorized representatives.
IN WITNESS WHEREOF, the City of Plymouth, State of Minnesota, by
its City Council, has caused this Bond to be executed on its behalf by the facsimile
signatures of the Mayor and Finance Director.
(Facsimile Signature)
Finance Director
Date of Authentication:
within.
CITY OF PLYMOUTH, MINNESOTA
(Facsimile Signature)
Mayor
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds delivered pursuant to the Resolution mentioned
FINANCE DIRECTOR, as Registrar
WE
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 full according to the
applicable laws or regulations:
TEN COM as tenants
in common
TEN ENT as tenants
by the entireties
JT TEN as joint tenants
with right of
survivorship and
not as tenants in
common
UTMA as Custodian for
(Cust) (Minor)
under Uniform Transfers
to Minors Act
(State)
Additional abbreviations may also be used.
M
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 thereof, with full power of substitution in the
premises.
Dated:
NOTICE: The assignor's signature to this
assignment must correspond with the name
as it appears upon the face of the within
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 Bond Registrar, which requirements include membership
or participation in STAMP or such other "signature guaranty program" as may be
determined by the Bond 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 Bond form]
Section 3. Use of Proceeds and Redemption of Refunded Bonds.
3.01. Deposit of Proceeds. The proceeds of the Bonds in the amount of
$1,321,557.64 are irrevocably appropriated for the payment of interest to become due on
the Bonds to and including February 1, 2005 (the Crossover Date) and for the payment
and redemption of the Refunded Bonds on the Crossover Date. The Finance Director is
hereby authorized and directed, simultaneously with the delivery of the Bonds, to deposit
the proceeds thereof, to the extent described above, in escrow with U.S. Bank National
Association, in St. Paul, Minnesota, and shall invest the funds so deposited in securities
authorized for such purpose by Minnesota Statutes, Section 475.67, maturing on such
dates and bearing interest at such rates as are required to provide funds sufficient, with
cash retained in the escrow account, to make the above-described payments. The Chair
and Finance Director are hereby authorized to enter into an escrow agreement with said
bank establishing the terms and conditions for the escrow account in accordance with
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Minnesota Statutes, Section 475.67. The remaining proceeds of the Bonds, $32,612.14,
shall be applied to pay issuance expenses.
3.02. Redemption of Refunded Bonds. The Paying Agent for the
Refunded Bonds is hereby authorized to call for redemption and prepayment the
Refunded Bonds on February 1, 2005, and to give thirty (30) day's mailed Notice of
Redemption, substantially in the forms attached hereto, all in accordance with the
provisions of the resolution authorizing the issuance of the Refunded Bonds.
Section 4. Series 2003D Open Space Refunding Bond Sinking Fund;
Security and Covenants. There is hereby created a General Obligation Open Space
Refunding Bonds, Series 2003D Bond Sinking Fund (Bond Sinking Fund), into which
the Issuer shall deposit (i) any amount received from the Purchaser, other than amounts
deposited in accordance with Section 3 hereof; (ii) all interest earned on the investments
held in the escrow account established in Section 3 to and including the Crossover Date,
(iii) all taxes collected pursuant to Section 5 hereof; and (iv) any other funds appropriated
by the Council for the payment of the Bonds. The Bond Sinking Fund will be used only
to pay principal of and interest on the Bonds and any other bonds similarly authorized.
Section 5. Pledge of Taxing Powers. For the prompt and full payment of
the principal of and interest on the Bonds as such payments respectively become due, the
full faith, credit, and unlimited taxing powers of the City shall be and are hereby
irrevocably pledged. In order to produce aggregate amounts not less than 5% in excess of
the amounts needed to meet when due the principal and interest payments on the Bonds,
ad valorem taxes are hereby levied on all taxable property in the City, the taxes to be
levied and collected in the following years and amounts:
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Levy Years Collection Years Amount
(See attached levy calculation)
The taxes shall be irrepealable as long as any of the Bonds are outstanding and unpaid;
provided, that the City reserves the right and power to reduce the levies from other
legally available funds, in accordance with the provisions of Minnesota Statutes, Section
475.61.
Section 6. Defeasance. When all Bonds have been discharged as
provided in this Section 6, all pledges, covenants and other rights granted by this
resolution to the registered owners of the Bonds shall cease. The City may discharge its
obligations with respect to any Bonds which are due on any date by irrevocably
depositing with the Registrar on or before that date a sum sufficient for the payment
thereof in full; or, if any Bond should not be paid when due, it may nevertheless be
discharged by depositing with the Registrar a sum sufficient for the payment thereof in
full with interest accrued to the date of such deposit. The City may also discharge its
obligations with respect to any prepayable Bonds called for redemption on any date when
they are prepayable according to their terms, by depositing with the Registrar on or
before that date a sum sufficient for the payment thereof in full, provided that notice of
such redemption has been duly given as provided herein. The City may also at any time
discharge its obligations with respect to any Bonds, subject to the provisions of law now
or hereafter authorizing and regulating such action, by depositing irrevocably in escrow,
with a bank 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 times and at
such rates and maturing or callable at the holder's option on such dates as shall be
required to pay all principal, interest and redemption premiums to become due thereon to
maturity or earlier redemption date.
Section 7. Tax Covenants; Arbitrage Matters and Continuing Disclosure.
7.01. No Designation as Qualified Tax-exempt Obligations. The Bonds
are not designated as "qualified tax-exempt obligations" for purposes of
Section 265(b)(3) of the Code.
7.02. General Tax Covenant. The City covenants and agrees with the
owners from time to time of the Bonds, that it will not take, or permit to be taken by any
of its officers, employees or agents, any action which would cause the interest on the
Bonds to become includable in gross income of the recipient under the Internal Revenue
Code of 1986 (the "Code") and applicable Treasury Regulations (the "Regulations"), and
covenants to take any and all affirmative actions within its powers to ensure that the
interest on the Bonds will not become includable in gross income of the recipient under
the Code and the Regulations.
7.03. Arbitrage Certification. The Mayor and Finance Director being the
officers of the City charged with the responsibility for issuing the Bonds pursuant to this
Resolution, are authorized and directed to execute and deliver to the Purchaser a
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certificate in accordance with the provisions of Section 148 of the Code and applicable
Regulations, stating that on the basis of facts, estimates and circumstances in existence on
the date of issue and delivery of the Bonds, it is reasonably expected that the proceeds of
the Bonds will not be used in a manner that would cause the Bonds to be "arbitrage
bonds" within the meaning of the Code and the applicable Regulations.
7.04. Arbitrage Rebate. The City acknowledges that the Bonds are
subject to the rebate requirements of Section 148(f) of the Code. The City covenants and
agrees to retain such records, make such determinations, file such reports and documents
and pay such amounts at such times as are required under said Section 148(f) and
applicable Regulations to preserve the exclusion of interest on the Bonds from gross
income for federal income tax purposes, unless the Bonds qualify for an exception from
the rebate requirement pursuant to one of the spending exceptions set forth in Section
1.148-7 of the Regulations and no "gross proceeds" of the Bonds (other than amounts
constituting a "bona fide debt service fund") arise during or after the expenditure of the
original proceeds thereof.
7.05. Continuing Disclosure. (a) Purpose and Beneficiaries. To provide
for the public availability of certain information relating to the Bonds and the security
therefor and to permit the Purchaser and other participating underwriters in the primary
offering of the Bonds to comply with amendments to Rule 15c2-12 promulgated by the
SEC under the Securities Exchange Act of 1934 (17 C.F.R. § 240.15c2-12), relating to
continuing disclosure (as in effect and interpreted from time to time, the "Rule"), which
will enhance the marketability of the Bonds, the City hereby makes the following
covenants and agreements for the benefit of the Owners (as hereinafter defined) from
time to time of the Outstanding Bonds. The City is the only obligated person in respect
of the Bonds within the meaning of the Rule for purposes of identifying the entities in
respect of which continuing disclosure must be made. The City has complied in all
material respects with any undertaking previously entered into by it under the Rule. If
the City fails to comply with any provisions of this section, any person aggrieved thereby,
including the Owners of any Outstanding Bonds, may take whatever action at law or in
equity may appear necessary or appropriate to enforce performance and observance of
any agreement or covenant contained in this section, including an action for a writ of
mandamus or specific performance. Direct, indirect, consequential and punitive damages
shall not be recoverable for any default hereunder to the extent permitted by law.
Notwithstanding anything to the contrary contained herein, in no event shall a default
under this section constitute a default under the Bonds or under any other provision of
this resolution. As used in this section, Owner or Bondowner means, in respect of a
Bond, the registered owner or owners thereof appearing in the bond register maintained
by the Registrar or any Beneficial Owner (as hereinafter defined) thereof, if such
Beneficial Owner provides to the Registrar evidence of such beneficial ownership in form
and substance reasonably satisfactory to the Registrar. As used herein, Beneficial Owner
means, in respect of a Bond, any person or entity which (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
13
intermediaries), or (b) is treated as the owner of the Bond for federal income tax
purposes.
(b) Information To Be Disclosed. The City will provide, in the manner
set forth in subsection (c) hereof, either directly or indirectly through an agent designated
by the City, the following information at the following times:
(1) On or before 365 days after the end of each fiscal year of the City,
commencing with the fiscal year ending December 31, 2003, the following financial
information and operating data in respect of the City (the Disclosure Information):
(A) the audited financial statements of the City for such fiscal
year, 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 City, 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
City, noting the discrepancies therefrom and the effect thereof, and certified as to
accuracy and completeness in all material respects by the fiscal officer of the
City; and
(B) to the extent not included in the financial statements referred to
in paragraph (A) hereof, the information for such fiscal year or for the period
most recently available of the type contained in the Official Statement under
headings: City Property Values; City Indebtedness; and City Tax Rates, Levies
and Collections.
Notwithstanding the foregoing paragraph, if the audited financial statements are not
available by the date specified, the City shall provide on or before such date unaudited
financial statements in the format required for the audited financial statements as part of
the Disclosure Information and, within 10 days after the receipt thereof, the City shall
provide the audited financial statements. Any or all of the Disclosure Information may
be incorporated by reference, if it is updated as required hereby, from other documents,
including official statements, which have been submitted to 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 City shall clearly identify in the Disclosure Information each
document so incorporated by reference. If any part of the Disclosure Information can no
longer be generated because the operations of the City have materially changed or been
discontinued, such Disclosure Information need no longer be provided if the City
includes in the Disclosure Information a statement to such effect; provided, however, if
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such operations have been replaced by other City operations in respect of which data is
not included in the Disclosure Information and the City determines that certain specified
data regarding such replacement operations would be a Material Fact (as defined in
paragraph (2) hereof), then, from and after such determination, the Disclosure
Information shall include such additional specified data regarding the replacement
operations. If the Disclosure Information is changed or this section is amended as
permitted by this paragraph (b)(1) or subsection (d), then the City shall include in the
next Disclosure Information to be delivered hereunder, to the extent necessary, an
explanation of the reasons for the amendment and the effect of any change in the type of
financial information or operating data provided.
(2) In a timely manner, 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 draws on debt service reserves reflecting financial
difficulties;
(D) Unscheduled draws on credit enhancements reflecting financial
difficulties;
(E) Substitution of credit or liquidity providers, or their failure to
perform;
(F) Adverse tax opinions 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 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 City to provide the Disclosure Information
required under paragraph (b)(1) at the time specified thereunder;
(B) the amendment or supplementing of this section pursuant to
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subsection (d), together with a copy of such amendment or supplement
and any explanation provided by the City under subsection (d)(2);
(C) the termination of the obligations of the City under this section
pursuant to subsection (d);
(D) any change in the accounting principles pursuant to which the
financial statements constituting a portion of the Disclosure Information
are prepared; and
(E) any change in the fiscal year of the City.
(c) Manner of Disclosure. The City 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 paragraph (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
(3) the information described in subsection (b), to any rating agency then
maintaining a rating of the Bonds at the request of the City 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 City in this section shall remain in effect so long
as any Bonds are Outstanding. Notwithstanding the preceding sentence, however, the
obligations of the City under this section shall terminate and be without further effect as
of any date on which the City delivers to the Registrar an opinion of Bond Counsel to the
effect that, because of legislative action or final judicial or administrative actions or
proceedings, the failure of the City to comply with the requirements of this section will
not cause participating underwriters in the primary offering of the Bonds to be in
violation of the Rule or other applicable requirements of the Securities Exchange Act of
1934, as amended, or any statutes or laws successory thereto or amendatory thereof.
(2) This section (and the form and requirements of the Disclosure
Information) may be amended or supplemented by the City from time to time, without
notice to (except as provided in paragraph (c)(3) hereof) or the consent of the Owners of
any Bonds, by a resolution of this Council filed in the office of the recording officer of
the City accompanied by an opinion of Bond Counsel, who may rely on certificates of the
City and others and the opinion may be subject to customary qualifications, to the effect
that: (i) such amendment or supplement (a) is made in connection with a change in
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circumstances that arises from a change in law or regulation or a change in the identity,
nature or status of the City or the type of operations conducted by the City, or (b) is
required by, or better complies with, the provisions of paragraph (b)(5) of the Rule; (ii)
this section as so amended or supplemented would have complied with the requirements
of paragraph (b)(5) of the Rule at the time of the primary offering of the Bonds, giving
effect to any change in circumstances applicable under clause (i)(a) and assuming that the
Rule as in effect and interpreted at the time of the amendment or supplement was in
effect at the time of the primary offering; and (iii) such amendment or supplement does
not materially impair the interests of the Bondowners under the Rule.
If the Disclosure Information is so amended, the City agrees to provide,
contemporaneously with the effectiveness of such amendment, an explanation of the
reasons for the amendment and the effect, if any, of the change in the type of financial
information or operating data being provided hereunder.
(3) This section is entered into to comply with the continuing disclosure
provisions of the Rule and should be construed so as to satisfy the requirements of
paragraph (b)(5) of the Rule.
Section 8. Certification of Proceedings.
8.01. Registration and Levy of Taxes. The Finance Director is hereby
authorized and directed to file a certified copy of this resolution with the County Auditor
of Hennepin County, together with such other information as he shall require, and to
obtain from the County Auditor a certificate that the Bonds have been entered on his
bond register and that the tax required for the payment thereof has been levied and filed
as required by law.
8.02. Authentication of Transcript. The officers of the City 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 of the City relating to the Bonds and to the financial condition
and affairs of the City, and such other affidavits, certificates and information as may be
required to show the facts relating to the legality and marketability of the Bonds as they
appear from the books and records under their custody and control or as otherwise known
to them, and all such certified copies, certificates and affidavits, including any heretofore
furnished, shall be deemed representations of the City to the facts recited herein.
8.03. Official Statement. The Official Statement, dated November 11,
2003, and the supplement thereto, relating to the Bonds prepared and distributed by
Springsted Incorporated, the financial consultant for the City, is hereby approved.
Springsted Incorporated, is hereby authorized on behalf of the City to prepare and
distribute 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
17
Securities and Exchange Commission under the Securities Exchange Act of 1934. The
officers of the City are hereby authorized and directed to execute such certificates as may
be appropriate concerning the accuracy, completeness and sufficiency of the Official
Statement.
PASSED by the City Council of the City of Plymouth, Minnesota, this
25th day of November, 2003.
In
COUNTY AUDITOR'S CERTIFICATE
AS TO BOND REGISTRATION
AND TAX LEVY
I, the undersigned, being the duly qualified and acting County Auditor of
Hennepin County, Minnesota, hereby certify that there has been filed in my office a
certified copy of Resolution No. 03- adopted November 25, 2003, by the City Council
of the City of Plymouth, Minnesota, setting forth the form and details of an issue of
$1,355,000 General Obligation Open Space Refunding Bonds, Series 2003D, dated as of
December 1, 2003. and levying taxes for the payment thereof.
I further certify that the bond issue has been entered on my bond register
and the tax required by law for payment of the Bonds has been levied and filed, as
required by Minnesota Statutes, Sections 475.61 to 475.63.
WITNESS my hand this day of December, 2003.
Hennepin County Auditor
$1,355,000
City of Plymouth, Minnesota
General Obligation Open Space Refunding Bonds, Series 2003D
Crossover Refunding of Series 1995A
Post -Sale Tax Levies
Date
Principal
Coupon
Interest
Total P+I
Levy Amount
Levy Year
02/01/2005
-
-
40,066.25
40,066.25
42,069.56
2003*
02/01/2006
200,000.00
2.250%
34,342.50
234,342.50
246,059.63
2004
02/01/2007
210,000.00
2.250%
29,842.50
239,842.50
251,834.63
2005
02/01/2008
215,000.00
2.250%
25,117.50
240,117.50
252,123.38
2006
02/01/2009
230,000.00
2.500%
20,280.00
250,280.00
262,794.00
2007
02/01/2010
240,000.00
2.750%
14,530.00
254,530.00
267,256.50
2008
02/01/2011
260,000.00
3.050%
7,930.00
267,930.00
281,326.50
2009
Total
$1,355,000.00
-
$172,108.75
$1,527,108.75
$1,603,464.19
* To be paid from the escrow account.
Series 2003DX,— 19959 / Ref959 / 77/25/2003 / 3: OOPM
SPRINGSTTD
Advisors . the h,bb, Seaoz
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