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HomeMy WebLinkAboutResolution No. 090-09 D-60 -D9 • RESOLUTION ACCEPTING PROPOSAL ON SALE OF $835,000 GENERAL OBLIGATION EQUIPMENT CERTIFICATES OF INDEBTEDNESS, SERIES 2009B PROVIDING FOR THEIR ISSUANCE AND LEVYING A TAX FOR THE PAYMENT THEREOF A. WHEREAS, the Common Council of the City of Rochester, Minnesota (the "City")has heretofore determined and declared that it is necessary and expedient to issue $835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B of the City, pursuant to Minnesota Statutes, Chapter 475 and Minnesota Statutes, Section 412.301, to finance the acquisition of various items of capital equipment for the City(the "Equipment"); and B. WHEREAS, each piece of equipment to be financed by the Certificates has an expected useful life at least as long as the term of the Certificates; and C. WHEREAS, the principal amount of the Certificates does not exceed 0.25% of the market value of the City; and D. WHEREAS,proposals to purchase the Certificates were solicited on behalf of the City by Springsted Incorporated in Saint Paul, Minnesota, as its independent financial advisor; and • E. WHEREAS, the followingproposals were p p received, opened and recorded at the offices of Springsted Incorporated at 10:30 A.M. this same day: Bidder Interest Rate Net Interest Cost NOW, THEREFORE,BE IT RESOLVED by the Common Council of the City of Rochester, Minnesota, as follows: 1. Acceptance of Pronosal. The proposal of (the "Purchaser"), to purchase $835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B of the City (the "Certificates", or individually a "Certificate"), in accordance with the terms of proposal at the rates of interest hereinafter set forth, and to pay therefor the sum of$ , plus interest accrued to settlement, is hereby found, determined and declared to be the most favorable proposal received and is hereby accepted, and the Certificates are hereby awarded to said purchaser. The Finance Director is directed to retain the deposit of said purchaser and to • forthwith return to the others making proposals their good faith checks or drafts. 2294541v1 T • 2. Terms of Certificates. (a) Title-, Original Issue Date; Denominations; Maturities. The Certificates shall be titled "General Obligation Equipment Certificates of Indebtedness, Series 200913", shall be dated March 15, 2009, as the date of original issue and shall be issued forthwith on or after such date as fully registered certificates. The Certificates shall be numbered from R-1 upward in the denomination of$5,000 each or in any integral multiple thereof of a single maturity. The Certificates shall mature, without option of prepayment, on February 1 in the years and amounts as follows: Year Amount 2010 $80,000 2011 75,000 2012 75,000 2013 80,000 2014 80,000 2015 85,000 2016 85,000 2017 90,000 2018 90,000 2019 95,000 • (b) Book Entry Only ystem; Letter of Representation. The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York or any of its successors or its successors to its functions hereunder(the "Depository")will act as securities depository for the Certificates, and the Certificates will be issued in book entry form and to this end. (i) The Certificates shall be initially issued and, so long as they remain in book entry form only(the "Book Entry Only Period"), shall at all times be in the form of a separate single fully registered Certificate for each maturity of the Certificates; and for purposes of complying with this requirement under paragraphs 7 (with respect to redemption) and 12 (with respect to registration, transfer and exchange)Authorized Denominations for any Certificate shall be deemed to be limited during the Book Entry Only Period to the outstanding principal amount of that Certificate. (ii) Upon initial issuance, ownership of the Certificates shall be registered in a Certificate register maintained by the City Finance Director in Rochester, Minnesota(the "Certificate Registrar") in the name of CEDE & CO., as the nominee (it or any nominee of the existing or a successor Depository, the "Nominee"). (iii) With respect to the Certificates neither the City nor the Certificate • Registrar shall have any responsibility or obligation to any broker, dealer, bank, or any other financial institution for which the Depository holds Certificates as 2294541v1 2 r • securities depository (the "Participant") or the person for which a Participant holds an interest in the Certificates shown on the books and records of the Participant(the "Beneficial Owner"). Without limiting the immediately preceding sentence,neither the City, nor the Certificate Registrar, shall have any such responsibility or obligation with respect to (A)the accuracy of the records of the Depository,the Nominee or any Participant with respect to any ownership interest in the Certificates, or (B)the delivery to any Participant, any Owner or any other person, other than the Depository, of any notice with respect to the Certificates, including any notice of redemption, or(C)the payment to any Participant, any Beneficial Owner or any other person, other than the Depository, of any amount with respect to the principal of or premium, if any, or interest on the Certificates, or(D)the consent given or other action taken by the Depository as the Registered Holder of any Certificates (the "Holder"). For purposes of securing the vote or consent of any Holder under this Resolution,the City may, however, rely upon an omnibus proxy under which the Depository assigns its consenting or voting rights to certain Participants to whose accounts the Certificates are credited on the record date identified in a listing attached to the omnibus proxy. (iv) The City and the Certificate Registrar may treat as and deem the Depository to be the absolute owner of the Certificates for the purpose of payment of the principal of and premium, if any, and interest on the Certificates, for the purpose of giving notices of redemption and other matters with respect to the • Certificates, for the purpose of obtaining any consent or other action to be taken by Holders for the purpose of registering transfers with respect to such Certificates, and for all purpose whatsoever. The Certificate Registrar, as paying agent hereunder, shall pay all principal of and premium, if any, and interest on the Certificates only to or upon the Holder of the Holders of the Certificates as shown on the Certificate register, 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 premium, if any, and interest on the Certificates to the extent of the sum or sums so paid. (v) Upon delivery by the Depository to the Certificate Registrar of written notice to the effect that the Depository has determined to substitute a new Nominee in place of the existing Nominee, and subject to the transfer provisions in paragraph 12 hereof(with respect to registration,transfer and exchange), references to the Nominee hereunder shall refer to such new Nominee. (vi) So long as any Certificate is registered in the name of a Nominee, all payments with respect to the principal of and premium, if any, and interest on such Certificate and all notices with respect to such Certificate shall be made and given, respectively,by the Certificate Registrar or City, as the case may be, to the Depository as provided in the Letter of Representations,to the Depository required by the Depository as a condition to its acting as book-entry Depository for the Certificates (said Letter of Representations,together with any replacement • thereof or amendment or substitute thereto, including any standard procedures or policies referenced therein or applicable thereto respecting the procedures and 2294541v1 3 . other matters relating to the Depository's role as book entry Depository for the Certificates, collectively hereinafter referred to as the "Letter of Representations"). The provisions in the Letter of Representations are incorporated herein by reference and made a part of the resolution, and if and to the extent any such provisions are inconsistent with the other provisions of this resolution,the provisions in the Letter of Representations shall control. 3. Purpose. The Certificates shall provide funds to finance the purchase of various items of capital equipment(the "Equipment"). The total cost of the Equipment, which shall include all costs enumerated in Minnesota Statutes, Section 475.65, is estimated to be at least equal to the amount of the Certificates. 4. Interest. The Certificates shall bear interest payable semiannually on February 1 and August 1 of each year(each, an "Interest Payment Date"), commencing February 1, 2010, calculated on the basis of a 360-day year of twelve 30-day months, at the respective rates per annum set forth opposite the maturity years as follows: Maturity Interest Year Rate 2010 % • 2011 2012 2013 2014 2015 2016 2017 2018 2019 5. No Redemption. The Certificates shall not be subject to redemption and prepayment prior to their maturity. 6. Registrar. The City Finance Director, in Rochester, Minnesota, is appointed to act as registrar and transfer agent with respect to the Certificates (the "Registrar"), and shall do so unless and until a successor Registrar is duly appointed, all pursuant to any contract the City and Registrar shall execute which is consistent herewith. The Registrar shall also serve as paying agent unless and until a successor paying agent is duly appointed. Principal and interest on the Certificates shall be paid to the registered holders (or record holders) of the Certificates in the manner set forth in the form of Certificate and paragraph 12 of this resolution (with respect to interest payment and record date). • 2294541v1 4 1 • 7. Form of Certificate. The Certificates,together with the Registrar's Certificate of Authentication,the form of Assignment and the registration information thereon, shall be in substantially the following form: • 2294541v1 5 1 • UNITED STATES OF AMERICA STATE OF MINNESOTA OLMSTED COUNTY CITY OF ROCHESTER R- $ GENERAL OBLIGATION EQUIPMENT CERTIFICATE OF INDEBTEDNESS, SERIES 2009B DATE OF INTEREST RATE MATURITY DATE ORIGINAL ISSUE CUSIP March 15, 2009 REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS KNOW ALL PERSONS BY THESE PRESENTS that the City of Rochester, Olmsted County, Minnesota(the "Issuer"), certifies that it is indebted and for value received promises to pay to the registered owner specified above, or registered assigns in the manner • hereinafter set forth,the principal amount specified above, on the maturity date specified above, without option of prepayment, and to pay interest thereon semiannually on February 1 and August 1 of each year(each, an "Interest Payment Date"), commencing February 1, 2010, at the rate per annum specified above(calculated on the basis of a 360-day year of twelve 30-day months) until the principal sum is paid or has been provided for. This Certificate will bear interest from the most recent Interest Payment Date to which interest has been paid or, if no interest has been paid, from the date of original issue hereof. The principal of and premium, if any, on this Certificate are payable upon presentation and surrender hereof at the principal office of the City Finance Director, in Rochester,Minnesota(the "Registrar"), acting as paying agent, or any successor paying agent duly appointed by the Issuer. Interest on this Certificate will be paid on each Interest Payment Date by check or draft mailed to the person in whose name this Certificate is registered(the "Holder") on the registration books of the Issuer maintained by the Registrar and at the address appearing thereon at the close of business on the fifteenth day of the calendar month next preceding such Interest Payment Date (the "Regular Record Date"). Any interest not so timely paid shall cease to be payable to the person who is the Holder hereof as of the Regular Record Date, and shall be payable to the person who is the Holder hereof at the close of business on a date (the "Special Record Date") fixed by the Registrar whenever money becomes available for payment of the defaulted interest. Notice of the Special Record Date shall be given to Holders not less than ten days prior to the Special Record Date. The principal of and premium, if any, and interest on this Certificate are payable in lawful money of the United States of America. So long as this Certificate is registered in the name of the Depository or its Nominee as provided in the Resolution hereinafter described, and as those terms are defined • therein, payment of principal of,premium, if any, and interest on this Certificate and notice with respect thereto shall be made as provided in the Letter of Representations, as defined in the 2294541v1 6 • Resolution, and surrender of this Certificate shall not be required for payment of the redemption price upon a partial redemption of this Certificate. Until termination of the book-entry only system pursuant to the Resolution, Certificates may only be registered in the name of the Depository or its Nominee. No Redemption. The Certificates are not subject to redemption and prepayment prior to their maturity. Issuance• Purpose; General Obligation. This Certificate is one of an issue in the total principal amount of$835,000, all of like date of original issue and tenor, except as to number, maturity, interest rate and denomination, which Certificate has been issued pursuant to and in full conformity with the Constitution, Charter of the Issuer and laws of the State of Minnesota and pursuant to a resolution adopted by the Common Council of the Issuer on March 2, 2009 (the "Resolution"), for the purpose of providing money to finance the acquisition of various items of capital equipment for the City. This Certificate is payable out of the General Obligation Equipment Certificates of Indebtedness, Series 2009B Fund of the Issuer. This Certificate constitutes a general obligation of the Issuer, and to provide moneys for the prompt and full payment of its principal,premium, if any, and interest when the same become due, the full faith and credit and taxing powers of the Issuer have been and are hereby irrevocably pledged. Denominations; Exchange; Resolution. The Certificates are issuable solely as fully registered certificates in the denominations of$5,000 and integral multiples thereof of a single maturity and are exchangeable for fully registered Certificates of other authorized denominations in equal aggregate principal amounts at the principal office of the Registrar,but only in the manner and subject to the limitations provided in the Resolution. Reference is hereby made to the Resolution for a description of the rights and duties of the Registrar. Copies of the Resolution are on file in the principal office of the Registrar. Transfer. This Certificate is transferable by the Holder in person or by his,her or its attorney duly authorized in writing at the principal office of the Registrar upon presentation and surrender hereof to the Registrar, all subject to the terms and conditions provided in the Resolution and to reasonable regulations of the Issuer contained in any agreement with the Registrar. Thereupon the Issuer shall execute and the Registrar shall authenticate and deliver, in exchange for this Certificate, one or more new fully registered Certificates in the name of the transferee (but not registered in blank or to "bearer" or similar designation), of an authorized denomination or denominations, in aggregate principal amount equal to the principal amount of this Certificate, of the same maturity and bearing interest at the same rate. Fees upon Transfer or Loss. The Registrar may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the transfer or exchange of this Certificate and any legal or unusual costs regarding transfers and lost Certificates. Treatment of Registered Owners. The Issuer and Registrar may treat the person in whose name this Certificate is registered as the owner hereof for the purpose of receiving payment as herein provided(except as otherwise provided above with respect to the Record 2294541v1 7 • Date) and for all other purposes, whether or not this Certificate shall be overdue, and neither the Issuer nor the Registrar shall be affected by notice to the contrary. Authentication. This Certificate shall not be valid or become obligatory for any purpose or be entitled to any security unless the Certificate of Authentication hereon shall have been executed by the Registrar. Qualified Tax-Exempt Obligations. This Certificate has been designated by the Issuer as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things required by the Constitution, laws of the State of Minnesota and Charter of the Issuer to be done, to happen and to be performed,precedent to and in the issuance of this Certificate,have been done, have happened and have been performed, in regular and due form,time and manner as required by law, and that this Certificate, together with all other debts of the Issuer outstanding on the date of original issue hereof and the date of its issuance and delivery to the original purchaser, does not exceed any constitutional, statutory or Charter limitation of indebtedness. IN WITNESS WHEREOF,the City of Rochester, Olmsted County, Minnesota, by its Common Council has caused this Certificate to be executed on its behalf by the facsimile signatures of its Mayor and its Clerk, the corporate seal of the Issuer having been intentionally omitted as permitted by law. • • 2294541v1 8 • Date of Registration: Registrable by: CITY FINANCE DIRECTOR ROCHESTER, MINNESOTA Payable at: CITY FINANCE DIRECTOR ROCHESTER, MINNESOTA REGISTRAR'S CERTIFICATE OF AUTHENTICATION This Certificate is one of the CITY OF ROCHESTER Certificates described in the OLMSTED COUNTY, Resolution mentioned within. MINNESOTA CITY FINANCE DIRECTOR ROCHESTER, MINNESOTA /s/Facsimile Registrar Mayor By: Authorized Signature /s/Facsimile Clerk • • 2294541v1 9 • ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM-as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UTMA- as custodian for (Cust) (Minor) under the Uniform (State) Transfers to Minors Act Additional abbreviations may also be used though not in the above list. • • 2294541v1 10 • ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto the within Certificate and does hereby irrevocably constitute and appoint attorney to transfer the Certificate on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in every particular, without alteration or any change whatever. Signature Guaranteed: Signature(s) must be guaranteed by a national bank or trust company or by a brokerage firm having a membership in one of the major stock exchanges or any other "Eligible Guarantor Institution" as defined in 17 CFR 240.17 Ad-15(a)(2). • The Registrar will not effect transfer of this Certificate unless the information concerning the transferee requested below is provided. Name and Address: (Include information for all joint owners if the Certificate is held by joint account.) • 2294541v1 1 1 • 8. Execution; Temporary Certificates. The Certificates shall be printed(or, at the request of the Purchaser,typewritten), shall be executed on behalf of the City by the signatures of its Mayor and Clerk and be sealed with the seal of the City;provided, however,that the seal of the City may be a printed(or at the request of the Purchaser,photocopied) facsimile; and provided further that both of such signatures may be printed(or, at the request of the Purchaser,photocopied) facsimiles and the corporate seal may be omitted on the Certificates as permitted by law. In the event of disability or resignation or other absence of either such officer, the Certificates may be signed by the manual or facsimile signature of that officer who may act on behalf of such absent or disabled officer. In case either such officer whose signature or facsimile of whose signature shall appear on the Certificates shall cease to be such officer before the delivery of the Certificates, such signature or facsimile shall nevertheless be valid and sufficient for all purposes,the same as if he or she had remained in office until delivery. The City may elect to deliver, in lieu of printed definitive certificates, one or more typewritten temporary certificates in substantially the form set forth above, with such changes as may be necessary to reflect more than one maturity in a single temporary certificate. The temporary certificates may be executed with photocopied facsimile signatures of the Mayor and Clerk. Such temporary certificates shall, upon the printing of the definitive certificates and the execution thereof,be exchanged therefor and canceled. 9. Authentication. No Certificate shall be valid or obligatory for any purpose or be entitled to any security or benefit under this resolution unless a Certificate of Authentication on such Certificate, substantially in the form hereinabove set forth, shall have • been duly executed by an authorized representative of the Registrar. Certificates of Authentication on different Certificates need not be signed by the same person. The Registrar shall authenticate the signatures of officers of the City on each Certificate by execution of the Certificate of Authentication on the Certificate and by inserting as the date of registration in the space provided the date on which the Certificate is authenticated, except that for purposes of delivering the original Certificates to the Purchaser,the Registrar shall insert as a date of registration the date of original issue,which date is March 15, 2009. The Certificate of Authentication so executed on each Certificate shall be conclusive evidence that it has been authenticated and delivered under this resolution. 10. Registration; Transfer, Exchange. The City will cause to be kept at the principal office of the Registrar a certificate register in which, subject to such reasonable regulations as the Registrar may prescribe,the Registrar shall provide for the registration of Certificates and the registration of transfers of Certificates entitled to be registered or transferred as herein provided. Upon surrender for transfer of any Certificate at the principal office of the Registrar,the City shall execute (if necessary), and the Registrar shall authenticate, insert the date of registration(as provided in paragraph 9 with respect to authentication) of, and deliver, in the name of the designated transferee or transferees, one or more new Certificates of any authorized denomination or denominations of a like aggregate principal amount,having the same stated maturity and interest rate, as requested by the transferor; provided,however,that no • Certificate may be registered in blank or in the name of"bearer" or similar designation. 2294541v1 12 • At the option of the Holder, Certificates may be exchanged for Certificates of any authorized denomination or denominations of a like aggregate principal amount and stated maturity,upon surrender of the Certificates to be exchanged at the principal office of the Registrar. Whenever any Certificates are so surrendered for exchange,the City shall execute (if necessary), and the Registrar shall authenticate, insert the date of registration of, and deliver the Certificates which the Holder making the exchange is entitled to receive. All Certificates surrendered upon any exchange or transfer provided for in this resolution shall be promptly canceled by the Registrar and thereafter disposed of as directed by the City. All Certificates delivered in exchange for or upon transfer of Certificates shall be valid general obligations of the City evidencing the same debt, and entitled to the same benefits under this resolution, as the Certificates surrendered for such exchange or transfer. Every Certificate presented or surrendered for transfer or exchange shall be duly endorsed or be accompanied by a written instrument of transfer, in form satisfactory to the Registrar, duly executed by the Holder thereof or his,her or its attorney duly authorized in writing. The Registrar may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the transfer or exchange of any Certificate and • any legal or unusual costs regarding transfers and lost Certificates. Transfers shall also be subject to reasonable regulations of the City contained in any agreement with the Registrar, including regulations which permit the Registrar to close its transfer books between record dates and payment dates. The Clerk is hereby authorized to negotiate and execute the terms of said agreement. 11. Rights Upon Transfer or Exchange. Each Certificate delivered upon transfer of or in exchange for or in lieu of any other Certificate shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Certificate. 12. Interest Payment; Record Date. Interest on any Certificate shall be paid on each Interest Payment Date by check or draft mailed to the person in whose name the Certificate is registered(the "Holder") on the registration books of the City maintained by the Registrar and at the address appearing thereon at the close of business on the fifteenth(15th) day of the calendar month next preceding such Interest Payment Date (the "Regular Record Date"). Any such interest not so timely paid shall cease to be payable to the person who is the Holder thereof as of the Regular Record Date, and shall be payable to the person who is the Holder thereof at the close of business on a date (the "Special Record Date") fixed by the Registrar whenever money becomes available for payment of the defaulted interest. Notice of the Special Record Date shall be given by the Registrar to the Holders not less than ten (10) days prior to the Special Record Date. • 13. Treatment of Registered Owner. The City and Registrar may treat the person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving payment of principal of and premium, if any, and interest(subject to the 2294541v1 13 • payment provisions in paragraph 12 above with respect to interest payment and record date) on such Certificate and for all other purposes whatsoever whether or not such Certificate shall be overdue, and neither the City nor the Registrar shall be affected by notice to the contrary. 14. Delivery Application of Proceeds. The Certificates when so prepared and executed shall be delivered by the Finance Director to the Purchaser upon receipt of the purchase price, and the Purchaser shall not be obliged to see to the proper application thereof. 15. Fund and Accounts. There is hereby created a special fund to be designated the "General Obligation Equipment Certificates of Indebtedness, Series 2009B Fund" (the "Fund")to be administered and maintained by the Finance Director as a bookkeeping account separate and apart from all other funds maintained in the official financial records of the City. The Fund shall be maintained in the manner herein specified until all of the Certificates and the interest thereon have been fully paid. There shall be maintained in the Fund two (2) separate accounts,to be designated the "Capital Account" and "Debt Service Account", respectively. (i) Capital Account. To the Capital Account there shall be credited the proceeds of the sale of the Certificates, less accrued interest received thereon, and less any amount paid for the Certificates in excess of$827,485. From the Capital Account there shall be paid all costs and expenses of acquiring and installing the equipment, including all costs incurred and to be incurred of the • kind authorized in Minnesota Statutes, Section 475.65; and the moneys in said account shall be used for no other purpose except as otherwise provided by law; provided that the proceeds of the Certificates may also be used to the extent necessary to pay interest on the Certificates due prior to the anticipated date of commencement of the collection of taxes herein levied. (ii) Debt Service Account. There are hereby irrevocably appropriated and pledged to, and there shall be credited to, the Debt Service Account: (a) all accrued interest received upon delivery of the Certificates; (b) all funds paid for the Certificates in excess of$827,485; (c) any collections of all taxes herein or hereafter levied for the payment of the Certificates and interest thereon; (d) all funds remaining in the Capital Account after the payment of all costs of acquiring and installing the Equipment; (e) all investment earnings on funds held in the Debt Service Account; and (f) any and all other moneys which are properly available and are appropriated by the governing body of the City to the Debt Service Account. The Debt Service Account shall be used solely to pay the principal and interest of the Certificates and any other general obligation certificates of the City hereafter issued by the City and made payable from said account as provided by law. No portion of the proceeds of the Certificates shall be used directly or indirectly to acquire higher yielding investments or to replace funds which were used directly or indirectly to acquire higher yielding investments, except(1)for a reasonable temporary period until such proceeds are needed for the purpose for which the Certificates were issued and (2) in addition to the above in an amount 22945410 14 • not greater than the lesser of five percent(5%) of the proceeds of the Certificates or$100,000. To this effect, any proceeds of the Certificates and any sums from time to time held in the Capital Account or Debt Service Account(or any other City account which will be used to pay principal or interest to become due on the certificates payable therefrom) in excess of amounts which under then-applicable federal arbitrage regulations may be invested without regard to yield shall not be invested at a yield in excess of the applicable yield restrictions imposed by said arbitrage regulations on such investments after taking into account any applicable "temporary periods" or "minor portion" made available under the federal arbitrage regulations. Money in the Fund shall not be invested in obligations or deposits issued by, guaranteed by or insured by the United States or any agency or instrumentality thereof if and to the extent that such investment would cause the Certificates to be "federally guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of 1986, as amended (the "Code"). 16. Tax Levy; Coverage Test. To provide moneys for payment of the principal and interest on the Certificates there is hereby levied upon all of the taxable property in the City a direct annual ad valorem tax which shall be spread upon the tax rolls and collected with and as part of other general property taxes in the City for the years and in the amounts as follows: Year of Tax Year of Tax • Levy Collection Amount 2008 2009 $ 2009 2010 2010 2011 2011 2012 2012 2013 2013 2014 2014 2015 2015 2016 2016 2017 2017 2018 The tax levies are such that if collected in full they,together with other revenues herein pledged for the payment of the Certificates, will produce at least five percent(5%) in excess of the amount needed to meet when due the principal and interest payments on the Certificates. The tax levies shall be irrepealable so long as any of the Certificates are outstanding and unpaid, provided that the City reserves the right and power to reduce the levies in the manner and to the extent permitted by Minnesota Statutes, Section 475.61, Subdivision 3. 17. Defeasance. When all Certificates have been discharged as provided in this paragraph, all pledges, covenants and other rights granted by this resolution to the registered holders of the Certificates shall cease. The City may discharge its obligations with respect to any • Certificates 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 Certificate should not be paid 2294541v1 15 . 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 at any time discharge its obligations with respect to any Certificates, subject to the provisions of law now or hereafter authorizing and regulating such action,by depositing irrevocably in escrow, with a suitable banking institution qualified by law as an escrow agent for this purpose, cash or securities described in Minnesota Statutes, Section 475.67, Subdivision 8,bearing interest payable at such times and at such rates and maturing on such dates as shall be required, subject to sale and/or reinvestment,to pay all amounts to become due thereon to maturity. 18. General Obligation Pledge. For the prompt and full payment of the principal and interest on the Certificates, as the same respectively become due, the full faith, credit and taxing powers of the City shall be and are hereby irrevocably pledged. If the balance in the Debt Service Account is ever insufficient to pay all principal and interest then due on the Certificates and any other certificates payable therefrom,the deficiency shall be promptly paid out of any other funds of the City which are available for such purpose, and such other funds may be reimbursed with or without interest from the Debt Service Account when a sufficient balance is available therein. 19. Certificate of Registration and Tax Lew. The Clerk is hereby directed to file a certified copy of this resolution with the County Auditor of Olmsted County, Minnesota, together with such other information as he or she shall require, and to obtain the County Auditor's certificate that the Certificate has been entered in the County Auditor's Register, and • that the tax levy required by law have been made. 20. Records and Certificates. The officers of the City are hereby authorized and directed to prepare and furnish to the Purchaser, and to the attorneys approving the legality of the issuance of the Certificates, certified copies of all proceedings and records of the City relating to the Certificates and to the financial condition and affairs of the City, and such other affidavits, certificates and information as are required to show the facts relating to the legality and marketability of the Certificates as the same appear from the books and records under their custody and control or as otherwise known to them, and all such certified copies, certificates and affidavits, including any heretofore furnished, shall be deemed representations of the City as to the facts recited therein. 21. Compliance with Reimbursement Regulations. The provisions of this paragraph are intended to establish and provide for the City's compliance with United States Treasury Regulations Section 1.150-2 (the "Reimbursement Regulations") applicable to the "reimbursement proceeds" of the Certificates,being those portions thereof which will be used by the City to reimburse itself for any expenditure which the City paid or will have paid prior to the Closing Date (a "Reimbursement Expenditure"). The City hereby certifies and/or covenants as follows: (a) Not later than sixty(60) days after the date of payment of a Reimbursement Expenditure,the City(or person designated to do so on behalf of the City) has . made or will have made a written declaration of the City's official intent(a"Declaration") which effectively(i) states the City's reasonable expectation to reimburse itself for the payment of the 22945410 16 . Reimbursement Expenditure out of the proceeds of a subsequent borrowing; (ii) gives a general and functional description of the property, project or program to which the Declaration relates and for which the Reimbursement Expenditure is paid, or identifies a specific fund or account of the City and the general functional purpose thereof from which the Reimbursement Expenditure was to be paid(collectively the "Project"); and (iii) states the maximum principal amount of debt expected to be issued by the City for the purpose of financing the Project; provided,however, that no such Declaration shall necessarily have been made with respect to: (i) "preliminary expenditures" for the Project, defined in the Reimbursement Regulations to include engineering or architectural, surveying and soil testing expenses and similar prefatory costs, which in the aggregate do not exceed 20% of the "issue price" of the Certificates, and(ii) a de minimis amount of Reimbursement Expenditures not in excess of the lesser of$100,000 or 5% of the proceeds of the Certificates. (b) Each Reimbursement Expenditure is a capital expenditure or a cost of issuance of the Certificates or any of the other types of expenditures described in Section 1.150- 2(d)(3) of the Reimbursement Regulations. (c) The "reimbursement allocation" described in the Reimbursement Regulations for each Reimbursement Expenditure shall and will be made forthwith following (but not prior to)the issuance of the Certificates and in all events within the period ending on the date which is the later of three years after payment of the Reimbursement Expenditure or one year after the date on which the Project to which the Reimbursement Expenditure relates is first placed in service. (d) Each such reimbursement allocation will be made in a writing that evidences the City's use of Certificate proceeds to reimburse the Reimbursement Expenditure and, if made within thirty (30) days after the Certificates are issued, shall be treated as made on the day the Certificates are issued. Provided, however, that the City may take action contrary to any of the foregoing covenants in this paragraph 21 upon receipt of an opinion of its Bond Counsel for the Certificates stating in effect that such action will not impair the tax-exempt status of the Certificates. 22. Negative Covenant as to Use of Proceeds and Equipment. The City hereby covenants not to use the proceeds of the Certificates or the Equipment or to cause or permit them to be used, or to enter into any deferred payment arrangements for the cost of the Equipment, in such a manner as to cause the Certificates to be "private activity bonds" within the meaning of Sections 103 and 141 through 150 of the Code. 23. Tax Exempt Status of the Certificates, Rebate. The City shall comply with requirements necessary under the Code to establish and maintain the exclusion from gross income under Section 103 of the Code of the interest on the Certificates, including without limitation(1) requirements relating to temporary periods for investments, (2) limitations on amounts invested at a yield greater than the yield on the Certificates, and (3)the rebate of excess investment earnings to the United States. The City expects to satisfy the 6 month expenditure exemption for gross proceeds of the Certificates as provided in Section 148(f)(4)(B) of the Code. 2294541v1 17 • 24. Continuing Disclosure. (a) The City is the sole obligated person with respect to the Certificates. The City hereby agrees, in accordance with the provisions of Rule 15c2-12 (the "Rule"),promulgated by the Securities and Exchange Commission(the "Commission")pursuant to the Securities Exchange Act of 1934, as amended, and a Continuing Disclosure Undertaking (the "Undertaking")hereinafter described to: (1) provide or cause to be provided to each nationally recognized municipal securities information repository ("NRMSIR") and to the appropriate state information depository ("SID"), if any, for the State of Minnesota,through and including June 30, 2009 and thereafter to the Electronic Municipal Market Access system at www.emma.msrb.ory, ("EMMA"), in each case as designated by the Commission in accordance with the Rule, certain annual financial information and operating data in accordance with the Undertaking. (2) Provide or cause to be provided, in a timely manner, (i)through and including June 30, 2009 to each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and any SID, and (ii)thereafter to EMMA, notice of the occurrence of certain material events with respect to the Certificates in accordance with the Undertaking. (3) Provide or cause to be provided, in a timely manner, (i)through • and including June 30, 2009 to each NRMSIR or to the MSRB and any SID, and (ii)thereafter to EMMA, notice of a failure by the Issuer to provide the annual financial information with respect to the Issuer described in the Undertaking. (4) The City agrees that its covenants pursuant to the Rule set forth in this paragraph and in the Undertaking are intended to be for the benefit of the holders and any other beneficial owners of the Certificates and shall be enforceable on behalf of such holders and beneficial owners;provided that the right to enforce the provisions of these covenants shall be limited to a right to obtain specific enforcement of the City's obligations under the covenants. (b) The Mayor and Clerk of the City, or any other officer of the City authorized to act in their place, (the "Officers") are hereby authorized and directed to execute on behalf of the City the Undertaking in substantially the form presented to the Common Council, subject to such modifications thereof or additions thereto as are (i) consistent with the requirements under the Rule, (ii)required by the purchaser of the Certificates and (iii) acceptable to the Officers. 25. Designation of Qualified Tax-Exempt Obligations. In order to qualify the Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the Code,the City hereby makes the following factual statements and representations: • (a) the Certificates are issued after August 7, 1986 and after December 31, 2008; 2294541v1 18 a Y • (b) the Certificates are not "private activity bonds" as defined in Section 141 of the Code; (c) the City hereby designates the Certificates as "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code; (d) the reasonably anticipated amount of tax-exempt governmental obligations which will be issued by the City(and all entities treated as one issuer with the City, and all subordinate entities whose obligations are treated as issued by the City) during this calendar year 2009 will not exceed $30,000,000; (e) not more than $30,000,000 of obligations issued by the City during this calendar year 2009 have been designated for purposes of Section 265(b)(3) of the Code; (f) the aggregate face amount of the Certificates does not exceed $30,000,000; and 26. Severabilily. If any section,paragraph or provision'of this resolution shall be held to be invalid or unenforceable for any reason,the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this resolution. 27. Headings. Headings in this resolution are included for convenience of reference only and are not a part hereof, and shall not limit or define the meaning of any provision hereof. PASSED AND ADOPTED BY THE fffi�ENT ON COUNCIL OF THE CITY OF ROCHESTER,MINNESOTA, THIS 2°d DAY OF ,2009. Y PR OF SAID COMMON COUNCIL ATTEST: CIT�CLE Approved this day of /.1gAe 1 , 2009. MAYOR OF SAID CITY (Seal of the City of Rochester, Minnesota) • 2294541v1 19 • CERTIFICATION I,the undersigned City Clerk of the City of Rochester,Minnesota, do hereby certify the following: The foregoing is true and correct copy of a Resolution on file and of record in the offices of the City, which Resolution relates to the issuance by the City of its General Obligation Equipment Certificates of Indebtedness, Series 2009B. Said Resolution was duly adopted by the Rochester Common Council at a regular or special meeting of the Council held on March 2, 2009. Said meeting was duly called and regularly held and was open to the public and was held at the place at which meetings of the Council are regularly held, a quorum of the Council being present and acting throughout. Councilmember Gbjcik moved the adoption of the Resolution,which motion was seconded by Councilmember Nadcld . A vote being taken on the motion,the following members of the Council voted in favor of the Resolution: President Damds Imo, Ca x cilmmbers NTk Bi ldahac , Fd lhiska, Sandra Nhans, Bob I3aricki, Bnre Snyder, Kchsel �bjcik and the following voted against the same: Nam Whereupon said Resolution was declared duly passed and adopted. The Resolution is in full force and effect and no action has been taken by the Council which would in any way alter or amend the Resolution. . WITNESS MY HAND officially as the City Clerk of the City of Rochester, Minnesota,this day of March, 2009. City Clerk City of Rochester, Minnesota • 22945410 20 STATE OF MINNESOTA COUNTY AUDITOR'S CERTIFICATE COUNTY OF OLMSTED AS TO TAX LEVY AND REGISTRATION I,the undersigned,being the duly qualified and acting County Auditor of Olmsted County, Minnesota, DO HEREBY CERTIFY that on the s 1 ` day of /1 ` -- k , 2009, there was filed in my office a certified copy of a resolution adopted on March 2,2009,by the Common Council of the City of Rochester of said County, authorizing the issuance of$835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B of said City and levying a tax for the payment thereof,together with full information regarding the obligations for which the tax was levied; and said obligations have been entered in my Register and the tax levy required by law has been made. WITNESS my hand this f k day of k 92009. i i County Auditor 2294541v1 o • -- - -- --SIGNATURE AND NONLITIGATION CERTIFICATE - STATE OF MINNESOTA COUNTY OF OLMSTED CITY OF ROCHESTER We,the undersigned, being respectively the duly qualified and acting Mayor and Clerk of the City of Rochester, Olmsted County, Minnesota, DO HEREBY CERTIFY that we did, in our official capacities as such officers, sign our own proper names by facsimile signature, attested by the manual signature of a person or persons authorized on behalf of the City Finance Director in Rochester, Minnesota, duly designated by the Common Council as Registrar and authenticating agent(the corporate seal of the City having been intentionally omitted as permitted by law) on the City's $835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B (the "Certificates"), dated March 15, 2009, as the date of original issue, and numbered from R-1 upward, each in the denomination of$5,000 or any integral multiple thereof. The Certificates mature on February 1 in the years and amounts and bear interest until paid or discharged as follows: Year Amount Rate 2010 $80,000 % 2011 75,000 2012 75,000 2013 80,000 2014 80,000 2015 85,000 2016 85,000 2017 90,000 2018 90,000 2019 95,000 WE FURTHER CERTIFY that the signature of Dale Martinson affixed hereto is the true and proper signature of the qualified and acting Finance Director of the City. WE FURTHER CERTIFY that we are now and were on the date of signing the Certificates,the duly qualified and acting officers therein indicated, and duly authorized to execute the same, and that the City Finance Director has been duly authorized to authenticate the Certificates, and we hereby ratify, confirm, and adopt our facsimile signatures on the Certificates as the true and proper signatures for the execution thereof. WE FURTHER CERTIFY that the Certificates have been in all respects duly executed for delivery pursuant to authority conferred upon us as such officers; and no obligations other than those above described have been issued pursuant to such authority, and that none of • the proceedings or records which have been certified to the purchasers of the Certificates or the attorneys approving the same have been in any manner repealed, amended or changed, and that 2294541v1 • a • there has been no change in the financial condition of the City, or of the facts affecting the Certificates, except as shown by the proofs furnished. WE FURTHER CERTIFY that, for the purpose of Completing Form 8038-G Information Return for Tax Exempt Governmental Bond Issues for the certificates (a)the City's name and address, including zip code, is City of Rochester, City Hall, 101 Fourth Street East, Rochester, Minnesota 55033; (b)the City's federal employer identification number (EIlN) is 41- ; and (c)the report number of the;Form 803 8-G for the certificates, which is consecutively based on the filing date(not the date of issue), is 301. WE FURTHER CERTIFY that the Official Statement prepared for the issuance of the Certificates as of its date and the date hereof, did not and does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. WE FURTHER CERTIFY that there is no litigation pending or,to our knowledge, threatened questioning the organization or boundaries of the City, or the right of any of us to our respective offices, or in any manner questioning our right and power to execute and deliver the Certificates, or otherwise questioning the validity of the Certificates or the levy of taxes for the payment of the Certificates and the:interest thereon. WITNESS our hands this day of , 2009. CITY OF ROCHESTER, MINNESOTA Mayor Clerk Tlr�ce Director • 22945410 2 FINANCE DIRECTOR'S RECEIPT STATE OF MINNESOTA COUNTY OF OLMSTED -- - CITY OF ROCHESTER I, the undersigned,being the duly qualified and acting Finance Director of the City of Rochester, Olmsted County,Minnesota, DO HEREBY CERTIFY AND ACKNOWLEDGE that on the day of ,2009, I received from ,the purchaser of$835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B, dated March 15, 2009, as the date of original issue, the purchase price thereof,which purchase price;is as follows: Par Value $835,000.00 Discount Subtotal Accrued interest from March • 15, 2009,to date hereof TOTAL $— and I did thereupon deliver said Certificates to said purchaser. WITNESS my hand this day of , 2009. CITY OF ROCHESTER, MINNESOTA. ZcLeDee=ctor $8,350 of said purchase price was received earlier as the good faith deposit for said Certificates. 2294541v1 • CITY OF ROCHESTER, MINNESOTA $835,000 GENERAL OBLIGATION EQUIPMENT CERTIFICATES OI, INDEBTEDNESS, SERIES 2009B Certificate of City Finance Director, as Registrar I, Dale Martinson, DO HEREBY CERTIFY that I am the duly qualified and acting Finance Director of the City of Rochester, Minnesota, and as such official DO HEREBY FURTHER CERTIFY as follows: 1. I am the official charged with the responsibility of acting as Registrar for, and authenticating and registering the ownership and transfer of, the $835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B, dated March 15,2009 (the "Certificates"), of the City of Rochester, Minnesota. 2. On the date hereof I have authenticated and registered each of said Certificates delivered this day. 3. The CUSIP number for the final maturity of the Certificates is 4. Attached hereto is a true and correct copy of my Register for said Certificates. IN WITNESS WHEREOF I have set forth my hand this day of 32009. Pman;c�eDector Rochester, Minnesota • 2294541v1 • .. --- -----REGISTER - - -.-- =-- - $835,000 GENERAL OBLIGATION EQUIPMENT CERTIFICATES OF INDEBTEDNESS, SERIES 2009B OF THE CITY OF ROCHESTER, MINNESOTA This Register is maintained for the above issue of Certificates by the City Finance _ Director of the City of Rochester,Minnesota, as Registrar. The ownership of the Certificates of the above issue and the interest accruing thereon is registered on the books of the City of Rochester,Minnesota, in the names of the holders noted below. "Notations of Interest" may include cancellation, date of cancellation, date of transfer, numbered certificate replacing, amount after partial prepayment, etc. Certificate Maturity Principal Date of Name and Address of Signature of Notations Number Date Amount Registration Registered Owner Finance of Interest Director Cede&Co. P.O.Box 222 Bowling Green Station ���� , R-1 2-1-10 $80,000 3-15-09* New York NY 10274 Cede&Co. P.O.Box 222 • Bowling Green Station R_2 2-1-11 $75,000 3-15-09* New York NY 10274 CP4 ac Cede&Co. P.O.Box 222 Bowling Green Station 4 ,� � R-3 2-I-12 $75.000 3-15-09* New York NY 10274 � �— Cede&Co. P.O.Box 222 Bowling Green Station�� R-4 2-1-13 $80.000 3-15-09* New York NY 10274 Cede&Co. P.O.Box 222 Bowling Green Statio R-5 2-1-14 $80,000 3-15-09* New York NY 10274 Cede&Co. P.O.Box 222 Bowling Green Statio2 Q/ � R-6 2-1-15 $85,000 3-15-09* New York NY 10274 �,/ Cede&Co. P.O.Box 222 Bowling Green Station New York NY 10274(� �� R_7 2-1-16 $85.000 3-15-09* — Cede&Co. P.O.Box 222 Bowling Green Station A p Q 7,1 ail R-8 2-1-17 90 000 3-15-09* New York NY 10274 Additional Notations: Actual date was date of delivery,3/ /09 2294541v1 ! Certificate Maturity Principal Date of — - Name and Address of Signature of Notations Number Date Amount Registration Registered Owner Finance of Interest Director Cede&Co. P.O.Box 222 Bowling Green Station R-9 2-1-18 $90,000 3-15-09* New York NY 10274 Cede&Co. P.O.Box 222 Bowling Green Station R-10 2-1-19 $95,000 3-15-09* New York NY 10274 Additional Notations: Actual date was date of delivery,3/ /09 • • 2294541vl 2 • CITY OF ROCHESTER MINNESOTA $835,000 GENERAL OBLIGATION EQUIPMENT CERTIFICATES OF INDEBTEDNESS, SERIES 2009B CERTIFICATE OF PURCHASER I, ,hxiv Kay SCI= , do hereby certify that I am the duly qualified and acting City Clerk of CLty of Rochester , in Raster NHrTesota (the 'Purchaser"), and as such officer I do hereby further certify as follows: 1. The Purchaser is purchasing on the date hereof$835,000 General Obligation Equipment Certificates of Indebtedness, Series 2009B (the "Certificates") of the City of Rochester, Minnesota(the "Issuer"). 2. The Internal Revenue Code of 1986 as amended(the "Code") requires that the yield on the Certificates is to be determined on the basis of the issue price (within the meaning of Sections 1273 or 1274 of the Code). 3. Section 1273(b) of the Code defines the "issue price" as "the initial offering price to the public (excluding bond houses and brokers) at which price a substantial amount of such debt instruments was sold." As of the date of sale,the Purchaser reasonably expected to offer all the Certificates to the general public(excluding, to the best of our knowledge, bondhouses, brokers, or similar persons acting in the capacity of underwriters or wholesalers) in a bona fide public offering, and the Purchaser reasonably expected that the first prices at which at least 10% of each maturity of the Certificates would be sold by the Purchaser to the general public were the prices shown on the cover of the Official Statement for the Certificates or in the case of obligations sold on a yield basis, at the respective yields shown on the cover of the Official Statement(the "Initial Offering Prices"). The aggregate of the Initial Offering Prices is $ 4. Based upon our records and other information available to us which we have no reason to believe is not correct: (a) All of the Certificates have been the subject of a bona fide initial offering to the public (excluding bond houses,brokers or other persons or organizations acting in the capacity of underwriters or wholesalers) at the issue price by each maturity shown on Exhibit A attached hereto. (b) At the time we agreed to purchase the Certificates, based upon the then prevailing market conditions,we had no reason to believe that any of the Certificates would be initially sold to the public (excluding bond houses, brokers or other persons or organizations acting in the capacity as underwriters or wholesalers) at a price greater than the price, or a yield less than the yield, shown on Exhibit A attached hereto. • 5. This certificate is given as a representation of the Purchaser, and may be relied upon by the Issuer. 2294541v1 • 2009. In Witness Whereof, I have set my hand this day of , t C. C! 2294541v1 2 4 J EXHIBIT A Sale Price* (Exclusive of Maturity Accrued Interest) 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 SUBTOTAL $ PLUS ACCRUED` INTEREST $ ISSUE PRICE" • (AGGREGATE) $ Assuming deliveries to customers on the date of delivery to the Purchaser by the Issuer. `rt Issue Price is the price to customers, and includes accrued interest. This Exhibit A assumes the use of a typical cost formula for customers such as par or a percent of par, plus accrued interest. 2294541v1