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HomeMy WebLinkAboutResolution No. 620-15 - RPU:ElectricUtilityRevenueBondSeries2016ACITY OF ROCHESTER COUNTY OF OLMSTED STATE OF MINNESOTA RESOLUTION NO. RESOLUTION AUTHORIZING THE SALE OF THE CITY'S TEMPORARY SUBORDINATE ELECTRIC UTILITY REVENUE BOND, SERIES 2016A AND PROVIDING FOR THEIR ISSUANCE A. WHEREAS, the City owns and operates its municipal electric utility as a public utility (such electric utility and all properties of every nature constituting a part thereof which may now or hereafter be owned by the City, including all improvements and extensions thereof, all real and personal property comprising a part of said system, and all appurtenances, contracts, leases, franchises, and other intangibles relating thereto, are collectively hereinafter referred to as the "Electric Utility"). B. WHEREAS, the City, in cooperation with the Public Utility Board (the "Board") of Rochester Public Utilities ("RPU") established pursuant to the City's Home Rule Charter, have determined that it is in their best interests to provide to finance the acquisition, construction and equipping of certain capital improvements to the Electric Utility including without limitation, the proposed West Side Energy Station and a portion of RPU's percentage interest in the CapX 2020 Hampton to Rochester to La Crosse transmission line project (collectively, the "Improvements"). C. WHEREAS, the City does not currently have outstanding any electric utility revenue bonds, or similar obligations, which are payable from the revenues of the Electric Utility, except the portion of the City's Electric Utility Revenue Bonds, Series 2007C (the "Series 2007C Bonds") issued to refund the December 1, 2011 through December 1, 2030 maturities of the City's Electric Revenue Bonds, Series 2000 (the "Refunding Portion"), the City's Electric Utility Revenue Refunding Bonds, Series 2013A, dated February 26, 2013 (the "Series 2013A Bonds"), the City's Electric Utility Revenue Bonds, Series 2013B, dated May 29, 2013 (the "Series 2013B Bonds"), and the City's Electric Utility Revenue Refunding Bonds, Series 2015E, dated November 17, 2015 (the "Series 2015E Bonds" and, together with the Refunding Portion of the Series 2007C Bonds, the Series 2013A Bonds, the Series 2013B Bonds and the Series 2015E Bonds, the "Outstanding Debt"). D. WHEREAS, it is necessary and desirable to the sound financial management of the affairs of the City and of the Electric Utility that the City issue the Bond, pursuant to the Home Rule Charter of the City and the laws of the State of Minnesota, including the applicable provisions of Minnesota Statutes, Chapter 475, in order to temporarily finance the Improvements. E. WHEREAS, annual average of the Net Revenues of the Electric Utility for the two fiscal years immediately preceding the issuance of the Bond was $23,548,561. 466541v1 RC110-58 F. WHEREAS, the City has retained Springsted Incorporated, in Saint Paul, Minnesota ("Springsted"), as its independent financial advisor for the sale of the Bond and is therefore authorized to sell the Bond by private negotiation in accordance with Minnesota Statutes, Section 475.60, Subdivision 2 (9). G. WHEREAS, offers to purchase the Bond were solicited on behalf of the City by Springsted. NOW, THEREFORE, BE IT RESOLVED by the Common Council (the "Council") of the City of Rochester, Minnesota (the "City," which term, for purposes of this Resolution, shall include the Public Utility Board of Rochester Public Utilities), as follows: 1. Delegation to Pricing Committee; Purchase Agreement. The Common Council hereby delegates to a pricing committee comprised of the City Finance Director, or designee, and the General Manager, Director of Corporate Services and Manager of Finance/Accounting of RPU, after consultation with a representative of Springsted, the City's municipal advisor, will comprise the pricing committee (the "Pricing Committee"). The Pricing Committee is hereby authorized to select the purchaser of the Bond (the "Purchaser") and negotiate with the Purchaser as to: (i) the purchase price of the Bond, provided that the par principal amount of the Bond may not exceed $25,000,000, (ii) the maturity schedule for the Bond, including optional and mandatory sinking fund redemptions, provided that the final maturity date shall be not later than March 1, 2018, (iii) the rate of interest on the Bond, and whether such rate will be variable or fixed, provided that such rate shall not exceed 4.50% per annum, and (iv) other details of the Bond. The Mayor and City Clerk are authorized to execute and deliver a bond purchase agreement, if any. 2. Purpose. The Bond is being issued to provide funds to finance the Improvements. The total cost of the Improvements is estimated to be at least equal to the net proceeds of the Bond. The City has entered into or will enter into contracts for the construction the Improvements, and work on the Improvements shall proceed with due diligence to completion. 3. Redemption. The Pricing Committee shall determine the optional redemption date for the Bond. Redemption may be in whole or in part and if in part, at the option of the City and in such manner as the City will determine. Prepayments will be at a price of par plus accrued interest. Mailed notice of redemption shall be given to the registered holder of the Bond. The Bond Registrar may provide a conditional notice of redemption upon the direction of the City. If a conditional notice of redemption has been provided and the conditions are not satisfied, such notice of redemption shall be of no force and effect and the holder of the Bond shall be restored to its former position as though no such notice of redemption had been delivered. 4. Bond Registrar. The City Finance Director is appointed to act as registrar and fiscal and transfer agent with respect to the Bond (the "Bond Registrar"), and shall do so unless and until a successor Bond Registrar is duly appointed, all pursuant to any contract the City and Bond Registrar shall execute, consistent with this Resolution. The Bond Registrar shall also serve as paying agent unless and until a successor paying agent is duly appointed. Principal of and interest on the Bond shall be paid to the registered owners of the Bond in the manner set forth in the form of Bond and Section 8 of this Resolution. 466541v1 RC110-58 2 5. Form of Bond. The Bond, together with the Bond Registrar's Certificate of Authentication, the form of Assignment and the registration information thereon, shall be in substantially the form set forth in Exhibit A hereto with such changes as are necessary and consistent with the determinations to be made by the Pricing Committee. 6. Execution; Temporary Bond. The Bond shall be executed and/or attested on behalf of the City by the manual or facsimile signatures of its Mayor and City Clerk and may be sealed with the official seal of the City; provided that the seal of the City may be omitted from the Bond, as permitted by law. In the event of disability or resignation or other absence of either such officer, the Bond 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 Bond shall cease to be such officer before the delivery of the Bond, 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 definitive bonds, one or more temporary bonds in substantially the form set forth above, with such changes as may be necessary to reflect more than one maturity in a single temporary bond. Such temporary bonds may be executed with photocopied facsimile signatures of the Mayor and City Clerk. Such temporary bonds shall, upon the preparation of the definitive bonds and the execution thereof, be exchanged therefor and cancelled. 7. Authentication. The Bond shall not be valid or obligatory for any purpose or be entitled to any security or benefit under this Resolution unless a Certificate of Authentication on the Bond, substantially in the form hereinabove set forth, shall have been duly and manually executed by the Bond Registrar. The Bond Registrar shall authenticate the signatures of officers of the City on the Bond by execution of the Certificate of Authentication on the Bond and by inserting as the date of registration in the space provided the date on which the Bond is authenticated, except that for purposes of delivering the original Bond to the Purchaser, the Bond Registrar shall insert as a date of registration the date of this issuance. The Certificate of Authentication so executed on the Bond shall be conclusive evidence that it has been authenticated and delivered under this Resolution. 8. Registration; Transfer; Exchange. The City will cause to be kept at the principal office of the Bond Registrar a bond register in which, subject to such reasonable regulations as the Bond Registrar may prescribe, the Bond Registrar shall provide for the registration of Bond and the registration of transfers of Bond entitled to be registered or transferred as herein provided. Upon surrender for transfer of the Bond at the principal office of the Bond Registrar, the City shall execute (if necessary), and the Bond Registrar shall authenticate, insert the date of registration of (as provided in Section 7) and deliver, in the name of the designated transferee or transferees, a new Bond of a like aggregate principal amount, having the same stated maturity and interest rate, as requested by the transferor; provided, however, that no Bond may be registered in blank or in the name of "bearer" or similar designation. The Bond surrendered upon any exchange or transfer provided for in this Resolution shall be promptly cancelled by the Bond Registrar and thereafter disposed of as directed by the City. 466541v1 RC110-58 3 If the new Bond delivered in exchange for or upon transfer of the old Bond shall be valid a obligation of the City evidencing the same debt and entitled to the same benefits under this Resolution as the old Bond surrendered for such exchange or transfer. Every Bond 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 Bond Registrar, duly executed by the registered owner thereof or the registered owner's attorney duly authorized in writing. The Bond 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 Bond and any legal or unusual costs regarding transfers and lost Bonds. Transfers shall also be subject to reasonable regulations of the City contained in any agreement with the Bond Registrar, including regulations which permit the Bond Registrar to close its transfer books between record dates and payment dates. 9. Rights Upon Transfer or Exchange. Each Bond delivered upon transfer of or in exchange for or in lieu of any other Bond shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Bond. 10. Interest Payment, Record Date. Interest on any Bond shall be paid on each Interest Payment Date by check or draft mailed to the person in whose name the Bond is registered (the "Holder") on the registration books of the City maintained by the Bond Registrar and at the address appearing thereon at the close of business on the 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 Bond Registrar whenever money becomes available for payment of the defaulted interest. Notice of the Special Record Date shall be given by the Bond Registrar to the Holders not less than 10 days prior to the Special Record Date. 11. Treatment of Registered Owner. The City and Bond Registrar may treat the person in whose name any Bond is registered as the owner of such Bond for the purpose of receiving payment of principal of and interest (subject to the payment provisions in Section 10 above) on such Bond and for all other purposes whatsoever, whether or not such Bond shall be overdue, and neither the City nor the Bond Registrar shall be affected by notice to the contrary. 12. Delivery; Application of Proceeds. The Bond when so prepared and executed shall be delivered by the City 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. 13. Income and Revenue Funds. Pursuant to and as required by Section 11.08 of the City's Home Rule Charter, the City has heretofore established, and shall continue to maintain as long as the Bond, the Outstanding Debt or any additional obligations issued on a parity as to pledge and lien with the Outstanding Debt ("Additional Parity Bonds" and, together with the 466541v1 RC110-58 11 Outstanding Debt, the "Senior Bonds")) are Outstanding (as defined below), a separate City fund for the Electric Utility (the "Electric Utility Fund"), into which all of the income and revenues from the operation of the Electric Utility are and shall continue to be deposited and segregated from all other City funds. As used in this Resolution, the term "Outstanding" when used as of any particular time with reference to the Bond or any Senior Bonds means the Bond or any Senior Bonds theretofore authenticated and delivered by the Bond Registrar except: (i) the Bond or any Senior Bonds theretofore canceled by the Bond Registrar or surrendered to the Bond Registrar for cancellation; (ii) the Bond or any Senior Bonds which shall have been defeased within the meaning of Section 26 of this Resolution; and (iii) the Bond or any Senior Bonds in lieu of or in substitution for which another Bond or any Senior Bonds shall have been authenticated and delivered pertaining to replacement of the Bond or any Senior Bonds. As used in this Resolution, the term "Gross Revenues" of the Electric Utility means all income and revenue of any nature derived from the operation or use of the Electric Utility, investment earnings on funds held in the Electric Utility Fund (except to the extent explicitly reserved for other purposes in this Resolution) and all other funds specifically declared in this Resolution to constitute Gross Revenues, and the term "Net Revenues" of the Electric Utility means the Gross Revenues minus the Operation and Maintenance Expenses of the Electric Utility (defined in Section 14(a) below). (a) Gross Revenues of the Electric Utility shall first be used to make full and timely payment, when due, of the current "Operation and Maintenance Expenses" of the Electric Utility. As used in this Resolution, the term "Operation and Maintenance Expenses" means the reasonable and necessary costs of operating and maintaining the Electric Utility, including but not limited to salaries, wages, contractual and professional service costs, costs of materials and supplies, insurance and audits, costs of purchasing, producing and delivering electric power and energy, specifically including fuel costs, costs of transmission service, reserve service, interchange service and all other costs of purchased power; provided that Operation and Maintenance Expenses shall not include interest costs, depreciation, accumulations of reserves for capital replacements, capitalized leases or the "contributions in lieu of taxes" paid to the City out of the Electric Utility Fund. (b) Net Revenues of the Electric Utility in amounts sufficient to pay the principal of and the interest on the Senior Bonds, as and when due, shall next be set aside into the "Electric Utility Revenue Bond Debt Service Account" (the "Debt Service Account") heretofore created as a separate account within the Electric Utility Fund to be held and applied only to the payment of the principal of and interest on the Senior Bonds. Such monies required to be deposited into the Debt Service Account are hereby irrevocably pledged to the payment of the principal of and interest on the Senior Bonds, when due. (c) Net Revenues in excess of the amounts required to be maintained in the funds and accounts of the Electric Utility under the resolutions authorizing the Senior Bonds shall next be set aside into the "Subordinate Electric Utility Revenue Bond Debt 466541v1 RC110-58 5 Service Account" (the "Subordinate Debt Service Account") hereby created as a separate account within the Electric Utility Fund to be held and applied only to the payment of the principal of and interest on the Bond and additional bonds made payable therefrom. Such monies required to be deposited into the Debt Service Account are hereby irrevocably pledged to the payment of the principal of and interest on the Bond and on any and additional bonds made payable therefrom, when due. (d) Net Revenues in excess of the amounts required to be maintained in the funds and accounts of the Electric Utility under this Resolution are not restricted by the terms hereof and may be used by the City for such other purposes and at such times as may be permitted by law. It is the express intent and determination of the Council (i) that the amount of the Net Revenues to be set aside and paid into the Debt Service Account (including the Reserve Account heretofore created therein) shall in any event be sufficient to pay the principal of and interest on the Senior Bonds, when due, and to meet reserve requirements, and (ii) that the amount of the Net Revenues to be set aside and paid into the Subordinate Debt Service Account shall in any event be sufficient to pay the principal of and interest on the Bond and on any and additional bonds made payable therefrom, when due, and (iii) the City Finance Director shall from time to time deposit sufficient Net Revenues in said funds for such purposes. The Debt Service Account shall be used for no purpose other than the payment of interest on and principal of the Senior Bonds promptly as the same become due and payable or to pay redemption premiums, if any. The Subordinate Debt Service Account shall be used for no purpose other than the payment of interest on and principal of the Bond and on any and additional bonds made payable therefrom promptly as the same become due and payable or to pay redemption premiums, if any. 14. Investment Restrictions. No portion of the proceeds of the Bond 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 for an available and reasonable "temporary period" until such proceeds are needed for the purpose for which the Bond was issued, and for any available "minor portion." To this effect, any proceeds of the Bond and any sums from time to time held in the Subordinate Debt Service Account (or any other City account which will be used to pay principal of or interest on the Bond) 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 the arbitrage regulations on such investments, after taking into account any applicable "temporary periods" or "minor portion" under the federal arbitrage regulations. In addition, the proceeds of the Bond and the monies in the above referenced funds and accounts 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 Bond to be "federally guaranteed" within the meaning of Section 149(b) of the Code. 15. Operation of System; City Covenants. The City covenants and agrees with the registered owners of the Bond that: 466541v1 RC110-58 6 (a) The City will faithfully and punctually perform all duties with reference to the Electric Utility required by the Constitution and laws of the State of Minnesota and the Home Rule Charter of the City, including the making and collecting of reasonable and sufficient rates lawfully established for services rendered by the Electric Utility, and the City will segregate and apply the revenues of the Electric Utility as provided herein; (b) The City will not mortgage, sell, lease, or in any manner dispose of the Electric Utility, including any part thereof or any additions or extensions that may be made part thereto, except that the City shall have the right to sell, lease or otherwise dispose of any property of the Electric Utility found by the City to be neither necessary nor useful in the operation of the Electric Utility, provided the proceeds received from such sale, lease or disposal shall be applied to the acquisition or construction of such capital facilities as the City may reasonably determine to be necessary for the normal operation of the Electric Utility and, to the extent not needed for said purposes, such proceeds shall be treated as Gross Revenues of the Electric Utility; (c) The City will pay or cause to be paid all lawful taxes, assessments, governmental charges, and claims for labor, materials or supplies which if unpaid could become a lien upon the Electric Utility or its revenues or could impair the security of the Bond; (d) The City will continue to operate the Electric Utility, will maintain it in good repair and condition and will establish, charge and collect such lawfully established rates and charges for the service rendered by the Electric Utility so that (1) the annual Net Revenues shall not be less than 120% of the average of the unpaid annual debt service requirements of the Senior Bonds; and (2) the Net Revenues of the Electric Utility herein agreed to be set aside to provide for the prompt and full payment, when due, of the principal of and interest on the Senior Bonds will be sufficient for such purposes (and will also be sufficient to restore any deficiency in the Reserve Account); and (3) the Net Revenues of the Electric Utility herein agreed to be set aside to provide for the prompt and full payment, when due, of the principal of and interest on the Bond will be sufficient for such purposes; (e) The City will cause a budget for the Electric Utility to be prepared at least annually, and, in the event such budget indicates that Net Revenues for each year will not exceed debt service for each corresponding year by the proportion stated hereunder, the City will take any and all steps permitted by law to increase rates so that the aforementioned proportion of Net Revenues to debt service shall be accomplished as promptly as possible; and (f) The City will proceed with due diligence to obtain and retain in effect all state, federal and/or local permits, licenses, and/or other approvals necessary for the City's ownership, construction; maintenance and continued, operation of the Electric Utility, including without limitation the Improvements. 16. Books and Accounts; Inspection. The City will keep proper books and accounts relative to the Electric Utility separate from all other records of the City and will cause such 466541v1 RC110-58 books and accounts to be audited annually by a recognized independent firm of certified public accountants, including a balance sheet and a profit and loss statement of the Electric Utility as certified by such accountants. Each such audit, in addition to whatever matters may be deemed proper by the accountants to be included therein, shall include a statement in detail of the revenues and expenditures of the Electric Utility for the fiscal year and a balance sheet as of the end of such fiscal year. The registered owners of the Bond shall have at all reasonable times the right to inspect the Electric Utility and the records, accounts, accountants' reports and data of the City relating thereto. 17. Insurance. So long as any portion of the Bond is Outstanding the City will cause to be carried (a) adequate and customary casualty insurance on the Electric Utility, (b) adequate and customary insurance against loss of use and occupancy resulting from such casualties; (c) adequate and customary public liability insurance; and (d) insurance of the kinds and in the amounts normally carried by municipal utilities engaged in the operation of similar systems. All monies received for loss of use and occupancy shall be considered Gross Revenues of the Electric Utility. All money received for losses under any of such casualty policies, except those specified in (b) above, shall be used to the extent needed in repairing the damage or in replacing the property destroyed; provided that if the City shall find that it is inadvisable to repair such damage or replace such property and that the operation of the Electric Utility has not been impaired thereby, such money shall also be considered Gross Revenues of the Electric Utility. 18. Limitation, Bond Not Debt. The Bond shall not constitute in any manner indebtedness, bonds or certificates of indebtedness of the City within the meaning of any provision of state law limiting the amount or method of incurring such indebtedness, and shall be payable solely from the Net Revenues of the Electric Utility which are pledged and appropriated for that purpose in this Resolution, and the taxing powers of the City are not pledged in any manner for the payment thereof, except as may be needed for the payment of reasonable charges for Electric Utility service and benefits rendered and available to the City; provided, however, that the City covenants and agrees with the holder of the Bond that if the Bond cannot be paid at maturity from the proceeds of the Net Revenues or from other funds appropriated by the Common Council, the Bond will be paid from the proceeds of definitive or additional temporary bonds that will be issued and sold prior to the maturity date of the Bond, in accordance with the resolutions authorizing the Senior Bonds. 19. Competing Service. To the extent permitted by law, the City will not grant a franchise for, establish or authorize the establishment of any other system for the public supply of service or services in competition with any or all of the services supplied by the Electric Utility. 20. Additional Bonds. Nothing contained in this Resolution or in the Bond shall be construed to preclude the City from issuing additional bonds when necessary for the enlargement, improvement or extension of the Electric Utility in accordance with the resolutions authorizing the Senior Bonds. 466541v1 RC110-58 8 21. Amendments Without Bondholder Consent. The City reserves the right to amend this Resolution from time to time and at any time, for the purpose of curing any ambiguity or of curing, correcting or supplementing any defective provision contained herein, or of making such provision with regard to matters or questions arising hereunder as the Common Council may deem necessary or desirable and not inconsistent with this Resolution, and which shall not adversely affect the interests of the holder of the Bond issued hereunder, or for the purpose of adding to the covenants and agreements herein contained, or to the Gross Revenues herein pledged, other covenants and agreements thereafter to be observed and additional Gross Revenues thereafter appropriated to the Electric Fund, for the purpose of surrendering any right or power herein reserved to or conferred upon the City or for the purpose of authorizing the issuance of additional bonds in the manner and subject to the terms and conditions prescribed in the resolutions authorizing the Senior Bonds. Any such amendment may be adopted by resolution, without the consent of the holder of the Bond. 22. 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 Bond, certified copies of all proceedings and records of the City relating to the Bond, 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 Bond 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. 23. Negative Covenant as to Use of Proceeds and Improvements. The City hereby covenants not to use the Electric Utility or to cause or permit the Electric Utility to be used, or to enter into any deferred payment arrangements for the cost of any property financed or refinanced by the Bond, in such a manner as (or to take any action or permit any other circumstance to exist or any action to be taken, the effect to which would be) to cause the Bond to be a "private activity bond" within the meaning of Sections 103 and 141 through 150 of the Code. In particular, but without limitation, the City covenants to forebear the implementation, effectuation or enforcement of any and all contracts or other agreements respecting the Electric Utility or any property benefitted thereby or assessed with respect thereto, which it may now or in the future have with developers, contractors, owners or any other person or parties to the extent that such implementation, effectuation or enforcement would (individually or in the aggregate) cause the Bond to become such a "private activity bond," and to said limited extent the City would and hereby does (solely for the benefit of the owners of the Bond) disavow any and all such provisions, entitlements and enforcements which would or could become so offending. Without limitation of the foregoing, the City shall not enter into any use agreement, management or operation contract or other agreement respecting the Electric Utility which would adversely affect the exemption from federal income tax of the interest on the Bond, taking into account and observing the requirements of Revenue Procedure 97-13 of the Internal Revenue Service, as amended by Revenue Procedure 2001-39, and any similar or other applicable revenue procedures or guidelines relating to management contracts and service contracts involving facilities financed with tax-exempt obligations. 466541v1 RC110-58 9 24. Tax -Exempt Status of the Bond; 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 Bond, 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 Bond, and (3) the rebate of excess investment earnings to the United States, if and to the extent applicable. The City may avail itself of such other exceptions to arbitrage rebate as may under the Code be applicable to the Bond, in whole or in part. 25. No Designation of the Bond as a Qualified Tax -Exempt Obligations. The Bond is not being designated as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the -Code. 26. Defeasance. When the Bond has been discharged as provided in this Section, all pledges, covenants and other rights granted by this Resolution to the registered owner of the Bond (with respect to the amount thereof so defeased) shall, to the extent permitted by law, cease. The City may at any time discharge any or all of such obligation(s) with respect to the Bond, subject to the provisions of law now or hereafter authorizing or regulating such action, by depositing irrevocably in escrow, with a suitable institution qualified by law as an escrow agent for this purpose, cash or securities which are backed by the full faith and credit of the United States of America, or any other security authorized under Minnesota law for such purpose, bearing interest payable at such times and at such rates and maturing on such dates and in such amounts as shall be required and sufficient, subject to sale and/or reinvestment in like securities, to pay said obligation(s), which may include any interest payment on the Bond and/or principal amount due thereon at a stated maturity (or if irrevocable provision shall have been made for permitted prior redemption of such principal amount, at such earlier redemption date). 27. Approval of Agreements; Execution, Changes in Forms Approved. The Mayor and City Clerk are hereby authorized and directed to execute a Loan Agreement with the Purchaser, if required by the Purchaser and approved by the Pricing Committee in consultation with Springsted and the City's bond counsel, and such other documents and certificates on behalf of the City and to carry out, on behalf of the City, the City's obligations thereunder. The approval hereby given to the various documents referred to above includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the Pricing Committee in consultation with Springsted and the City's bond counsel and by the officers authorized herein to execute said documents prior to their execution; and said officers are hereby authorized to approve said changes on behalf of the City. The execution of any instrument by the appropriate officers of the City herein authorized shall be conclusive evidence of the approval of such document in accordance with the terms hereof. In the absence of the Mayor or City Clerk, any of the documents authorized by this resolution to be executed may be executed by any duly designated acting official, or by such other officer or officers of the City as, in the opinion of the City Attorney, may act in their behalf. 466541v1 RC110-58 10 28. Severability. 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. 29. 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. 466541v1 RC110-58 11 PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER, MINNESOTA, THIS 21st DAY OF DECEMBER, 2015. PRESIDENT OF SAID COMMON COUNCIL ATTEST: CITY CLERK MAYOR OF SAID CITY (Seal of the City of Rochester, Minnesota) 466541v1 RC110-58 S-1 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 Temporary Subordinate Electric Utility Revenue Bonds, Series 2016A. Said Resolution was duly adopted by the Rochester Common Council at a regular or special meeting of the Council held on December 21, 2015. 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 moved the adoption of the Resolution, which motion was seconded by Councilmember . A vote being taken on the motion, the following members of the Council voted in favor of the Resolution: President , Councilmembers and the following voted against the same: 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 , 2015. (SEAL) City Clerk City of Rochester, Minnesota 466541v1 RC110-58 S-2 EXHIBIT A FORM OF BOND No. T-1 [$25,000,000] UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF OLMSTED CITY OF ROCHESTER TEMPORARY SUBORDINATE ELECTRIC UTILITY REVENUE BOND, SERIES 2016A INTEREST MATURITY DATE OF RATE DATE ORIGINAL ISSUE REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS KNOW ALL BY THESE PRESENTS that the City of Rochester, Olmsted County, Minnesota (the "City"), acknowledges that it is indebted and, for value received hereby promises to pay to the registered owner specified above, or registered assigns, in the manner hereinafter set forth, the principal amount specified above, or so much thereof as has been advanced and remains unpaid on the maturity date specified above, unless called for earlier redemption, and to pay interest thereon semiannually on 1 and 1 of each year (each, an "Interest Payment Date"), commencing 1, 2016, [at the per annum rate of interest specified above]/[at a variable rate determined as provided in Exhibit A hereto] (calculated on the basis of a 360 day year consisting of twelve 30 day months) until the principal sum is paid or has been provided for. This Bond 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 this Bond is payable upon presentation and surrender hereof at the office of the City Finance Director, in Rochester, Minnesota (the "Bond Registrar"), acting as paying agent, or any successor paying agent duly appointed by the City. Interest on this Bond will be paid on each Interest Payment Date by check or draft mailed to the person in whose name this Bond is registered (the "Registered Owner") on the registration books of the City maintained by the Bond Registrar and at the address appearing thereon at the close of business on the 15th 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 that is the Registered Owner hereof as of the Regular Record Date and shall instead be payable to the person that is the Registered Owner hereof at the close of business on a date (the "Special Record Date") fixed by the Bond Registrar whenever money becomes available for payment of the defaulted interest. Notice of the Special Record Date shall be given to registered owners of A-1 472343v1 RC110-62 the Bond not less than 10 days prior to the Special Record Date. The principal of and interest on this Bond are payable in lawful money of the United States of America. Redemption. The City may elect on [March 1, 2016], and on any day thereafter to prepay the Bond upon 15 days' prior written notice to the Registered Owner. Redemption may be in whole or in part and if in part, at the option of the City and in such manner as the City will determine and within a maturity by lot as selected by the Bond Registrar. Prepayments will be at a price of par plus accrued interest. Issuance; Purpose; Special Obligation. This Bond has been issued for public purposes pursuant to and in full conformity with the Constitution and laws of the State of Minnesota and the Home Rule Charter of the City and pursuant to a certain resolution adopted by the Common Council, the governing body of the City on December 21, 2015 (the "Resolution") and a concurring resolution of the Public Utility Board of Rochester Public Utilities on December 15, 2015. The Bond has been issued to finance the acquisition construction and equipping certain capital improvements to the City's municipal electric utility (the "Electric Utility") including without limitation, the proposed West Side Energy Station and a portion of RPU's percentage interest in the CapX 2020 Hampton to Rochester to La Crosse transmission line project. The Bond is issued on a subordinate basis to the outstanding maturities of unrefunded portion of the City's Electric Utility Revenue Bonds, Series 2007C, the City's Electric Utility Revenue Refunding Bonds, Series 2013A, the City's Electric Utility Revenue Bonds, Series 2013B, and the City's Electric Utility Revenue Refunding Bonds, Series 2015E (the "Senior Bonds"). The Bond is a special, limited revenue obligation of the City, payable solely from a special debt service account described in the Resolution for the purpose of paying the principal of and interest on the Bond, and the City has in the Resolution pledged to said fund and to the payment of the Bond certain surplus net revenues of the Electric Utility, but the Bond does not otherwise constitute indebtedness of the City; provided, however, that the City covenants and agrees with the holder of the Bond that if the Bond cannot be paid at maturity from the proceeds of such surplus net revenues of the Electric Utility or from other funds appropriated by the Common Council, the Bond will be paid from the proceeds of definitive or additional temporary bonds that will be issued and sold prior to the maturity date of the Bond in accordance with the resolutions authorizing the Senior Bonds. Pursuant to the Resolution, and upon the satisfaction of certain conditions, the City has reserved the right to issue additional bonds on a parity with the Senior Bonds and senior to the Bond. Reference is hereby made to the Resolution, copies of which are on file at the principal office of the Bond Registrar, for a full statement of the provisions relating to the Bond and the monies pledged to its payment, the covenants made with respect to the operation and maintenance of the Electric Utility, the terms upon which the City may issue additional bonds on a parity with or senior to the Bond, and the rights and duties of the Bond Registrar. Denominations; Exchange; Resolution. This Bond is issuable solely as a fully registered bond in the denomination of the principal amount. Reference is hereby made to the Resolution A-2 472343v1 RC110-62 for a description of the rights and duties of the Bond Registrar. Copies of the Resolution are on file in the principal office of the Bond Registrar. Transfer. This Bond is transferable by the Registered Owner in person or by the Registered Owner's attorney duly authorized in writing at the principal office of the Bond Registrar upon presentation and surrender hereof to the Bond Registrar, all subject to the terms and conditions provided in the Resolution and to reasonable regulations of the City contained in any agreement with the Bond Registrar. Thereupon the City shall execute, and the Bond Registrar shall authenticate and deliver, in exchange for this Bond, one new fully registered Bond in the name of the transferee (but not registered in blank or to "bearer" or similar designation), in aggregate principal amount equal to the outstanding principal amount of this Bond, of the same maturity and bearing interest at the same rate. Fees upon Transfer or Loss. The Bond 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 Bond and any legal or unusual costs regarding transfers or a lost Bond. Treatment of Registered Owners. The City and Bond Registrar may treat the person in whose name this Bond is registered as the owner hereof for the purpose of receiving payment as herein provided (except as otherwise provided herein with respect to the Record Date) and for all other purposes, whether or not this Bond shall be overdue, and neither the City nor the Bond Registrar shall be affected by notice to the contrary. Authentication. This Bond 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 manually executed by the Bond Registrar. No Designation of Bond as a Qualified Tax -Exempt Obligation. This Bond has NOT been designated by the City as "qualified tax-exempt obligations" 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 and laws of the State of Minnesota and the Home Rule Charter of the City to be done, to have happened and to be performed precedent to and in the issuance of this Bond have been done, have happened and have been performed in regular and due form, time and manner as required by law, and that this Bond, together with all other indebtedness of the City outstanding on the date of original issue hereof and on the date of its actual issuance and delivery to the Registered Owner, does not exceed any constitutional, statutory or Charter limitation of indebtedness. A-3 472343v1 RC110-62 IN WITNESS WHEREOF, the City of Rochester, Olmsted County, Minnesota, by its Common Council, has caused this Bond to be executed on its behalf by the facsimile signature of its Mayor and attested by the facsimile signature of its City Clerk; has caused the corporate seal of the City to be intentionally omitted herefrom, as permitted by law; and has caused this Bond to be executed manually by the Bond Registrar, acting as the City's duly appointed authenticating agent for the Bond. Date of Registration: BOND REGISTRAR'S CERTIFICATE OF AUTHENTICATION Registrable by: City Finance Director Payable at: Office of the City Finance Director CITY OF ROCHESTER OLMSTED COUNTY, MINNESOTA Mayor This bond is the Bond described in the Resolution ATTEST: mentioned within. City Clerk CITY FINANCE DIRECTOR Bond Registrar Bv: Authorized Signature A-4 472343v1 RC110-62 ABBREVIATIONS 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 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. A-5 472343v1 RC110-62 ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and does hereby irrevocably constitute and appoint as attorney to transfer the Bond 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 Bond 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 Bond Registrar will not effect transfer of this Bond unless the information concerning the transferee requested below is provided. Name and Address: (Include information for all joint owners if the Bond is held by joint account.) A-6 472343v1 RC110-62 Resolution Approving and Consenting tothe Issuance of Temporary Subordinate Electric Utility Revenue Bond, Series 2016A by the City of Rochester, Minnesota BE IT RESOLVED By the Public Utility Board (the "Board") of Rochester Public Utilities ("RPU") as follows: 1. Recitals. (a) The Board has determined that it is in the best interests of RPU and the City of Rochester, Minnesota (the "City") to provide for the issuance of the City's Temporary Subordinate Electric Utility Revenue Bond, Series 2016A in an aggregate principal amount not to exceed $25,000,000 (the "Bond") to provide funds to finance the acquisition construction and equipping certain capital improvements to the City's municipal electric utility (the "Electric Utility") including without limitation, the proposed West Side Energy Station and a portion of RPU's percentage interest in the CapX 2020 Hampton to Rochester to La Crosse transmission line project (collectively, the "Improvements"); and (b) On July 28, 2015, in accordance with Treasury Regulations, Section 1.150-2 promulgated under the Internal Revenue Code of 1986, as amended, the Board adopted a declaration of its intent to reimburse itself for expenditures incurred in connection with the Improvements. 2. Request, Consent and Approval. (a) The Board hereby requests that on December 21, 2015, or as soon thereafter as possible, the Rochester Common Council (the "Council") consider a Resolution Authorizing the Sale of the City's Temporary Subordinate Electric Utility Revenue Bond, Series 2016A and Providing for Their Issuance (the "Resolution") to provide funds to finance the Electric Utility; (b) The Resolution would, upon its adoption, (1) authorize the issuance of the Bond in an aggregate principal amount not to exceed $25,000,000, and delegate to a pricing committee the authority to select the purchaser of the Bond (the "Purchaser") and negotiate with the Purchaser as to: (i) the maturity schedule for the Bond with a final maturity no later than March 1, 2018, (ii) the rate of interest on the Bond and whether such rate will be variable or fixed, provided that such rate shall not exceed 4.50% per annum, (iii) any redemption provisions, and (iv) other details of the Bond, (II) pledge the Net Revenues of the Electric Utility for the payment of the Bond on a basis subordinate to the City's outstanding electric utility revenue bonds, and (III) set forth other covenants and obligations of the City relating to the Electric Utility; and (c) The Resolution, in the form actually adopted, is hereby incorporated into this Resolution to the same extent as though set forth in full herein, and each capitalized term which is used in this Resolution but not otherwise defined herein shall have the meaning given to that term in the Resolution. (d) The Board hereby consents to and approves the issuance of the Bond, and determines that the issuance of the Bond by the City is necessary and desirable and that the issuance of the Bond is appropriate for the purposes for which the Bond is issued and hereby authorizes and requests that City issue the Bond. (e) The Board hereby concurs in the award, issuance and sale of the Bond and joins in and concurs in the adoption of the Resolution, and adopts all of the covenants and agreements contained therein with the same force and effect as if said Resolution had been adopted by the Board. (f) The approval hereby given to the Resolution includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the Pricing Committee described therein. (g) The Board hereby covenants and pledges to cooperate with the Council (and to take such actions, or refrain from acting, as the case may be, as may be necessary) in order to fully effectuate the intent, purposes and obligations of the City under the Resolution. Passed by the Public Utility Board of th December, 2015. STATE OF MINNESOTA CITY OF ROCHESTER PUBLIC UTILITY BOARD 1, the undersigned, being the duly qualified and acting Secretary of the Public Utility Board of the City of Rochester, Minnesota, DO HEREBY CERTIFY that I have carefully compared the attached and foregoing extract of minutes with the original minutes of a meeting of the Board duly called and held on the date therein indicated, which are on file and of record in my office, and the same is a full, true and complete transcript therefrom approving the issuance and sale by the City of Rochester of its Temporary Subordinate Electric Utility Revenue Bond, Series 2016A. WITNESS my hand as such Secretary this 15 th day of December, 2015. Secretary Rochester Public Utility Board