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HomeMy WebLinkAbout07-013 f CITY OF LAKEVILLE RESOLUTION Date: January 16, 2007. Resolution No. 07-13 RESOLUTION AWARDING SALE, PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR THE PAYMENT OF $2,265,000 GENERAL OBLIGATION TAX INCREMENT REFUNDING BONDS, SERIES 2007A BE IT RESOLVED by the City Council of the City of Lakeville, Minnesota (the City), as follows: SECTION 1. AUTHORIZATION AND SALE. 1.01. Authorization. This Council, by resolution adopted on December 18, 2006, authorized the issuance and sale of its General Obligation Tax Increment Refunding Bonds, Series 2007A (the Bonds) in the approximate principal amount bf $2,280,000. The proceeds of the Bonds will be used, together with any additional funds of the City which might be required, to refund in advance of maturity, and prepay on February 1, 2008, the 2009 through 2022 maturities, aggregating $2,220,000 in principal. amount, of the City's $2,495,000 General Obligation Tax Increment Bonds, .Series 1998A, dated May 1, 1998 in a "crossover refunding" as defined in Minnesota Statutes, Section 475.67, Subdivision 13. The City believes a substantial debt service savings can be achieved by the issuance and sale of the Bonds. The Refunded Bonds were issued to refinance bonds issued to temporarily finance certain public redevelopment costs of a redevelopment project denominated I-3SW Redevelopment Project No. 1 established by the Housing and Redevelopment Authority in and for the City of Lakeville, Minnesota (the Authority) and within which has been established Redevelopment District No. 10 (Fairfield Business Park) (the District). 1.02. Sale. Pursuant to the Terms of Proposal and the Official Statement prepared on behalf of the City by Springsted Incorporated, sealed proposals for the purchase of the Bonds were received at or before the time specified for receipt of proposals.- The proposals have been opened, publicly read and considered and the purchase price, interest rates and net interest cost under the terms of each proposal have been determined. The most favorable proposal received is that of Citigroup Global Markets, Inc., in Chicago, Illinois, and associates (the Purchaser), to purchase the Bonds at a price of $2,252,337.45 plus accrued interest on all Bonds to the day of delivery and payment, on the further terms and conditions hereinafter set forth. 1.03. Award. The sale of the Bonds is hereby awarded to the Purchaser and the Mayor and City Clerk are hereby authorized and directed to execute a contract on behalf of the City for the sale of the Bonds in accordance with the terms of the proposal. The good faith deposit of the Purchaser shall be retained and deposited by the City until the Bonds have been delivered, and shall be deducted from the purchase price paid at settlement. 1.04. Savings. It is hereby determined that: (a) by the issuance of the Bonds the City will realize a substantial interest rate reduction, a gross savings of approximately $158,524.88 and a present value savings (using the yield on the Bonds, computed in accordance with Section 148 of the Internal Revenue Code of 1986, as amended (the Code), as the discount factor) of approximately $119,038.43; and (b) as of the Crossover Date, the sum of (i) the present value of the debt service on the Bonds, computed to their stated maturity dates, after deducting any premium, using the yield of the Bonds as the discount rate, plus (ii) any expenses of the refunding payable from a source other than the proceeds of the Bonds or investment earnings thereon, is at least 3% lower than the present value of the debt service on the Refunded Bonds, computed to their stated maturity dates, using the yield of the Bonds as the discount rate. SECTION 2. BOND TERMS• REGISTRATION• EXECUTION AND DELIVERY. 2.01. Issuance of Bonds. All acts, conditions and things which are required by the Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be performed precedent to and in the valid issuance of the Bonds having been done, now existing, having happened and having been performed, it is now necessary for the City Council to establish the form and terms of the Bonds, to provide security therefor and to issue the Bonds forthwith. 2.02. Maturities; Interest Rates; Denominations and Pa ment. The Bonds shall be originally dated as of February 1, 2007, shall be in the denomination of $5,000 each, or any integral multiple thereof, of single maturities, shall mature on February 1 in the years and amounts stated below, and shall bear interest from date of issue until paid at the annual rates set forth opposite such years and amounts, as follows: Year Amount Rate Year Amount Rate 2009 $ 55,000 4.000% 2016 $220,000 4.000% 2010 55,000 4.000 2017 220,000 4.000 20.11 70,000 4.000 2018 230,000 4.000 2012 70,000 4.000 2019 240,000 4.000 2013 55,000 4.000 2020 245,000 4.125 2014 70,000 4.000 2021 260,000 4.125. 2015 210,000. 4.000 2022 265,000 4.200 The Bonds shall be issuable only in fully registered form. Interest shall be computed on the basis of a 360-day year composed of twelve 30-day months. The interest on and, upon surrender of each Bond, the principal amount thereof, shall be payable by check or draft issued by the Registrar described herein. 2.03. Dates and Interest Payment Dates. Upon initial delivery of the Bonds pursuant to Section 2.07 and upon any subsequent transfer or exchange pursuant to Section 2.06, the date of 2 authentication shall be noted on each Bond so delivered, exchanged or transferred. Interest on the Bonds shall be payable on February 1 and August 1 in each year, commencing August 1, 2007, each such date being referred to herein as an Interest Payment Date, to the persons in -whose names the Bonds are registered on the Bond Register, as hereinafter defined, at the Registrar's close of business on the fifteenth day of the calendar month next preceding such Interest Payment Date, whether or not such day is a business day. 2.04. Redemption. Bonds maturing in 2018 and later years shall be subject to redemption and prepayment at the option of the City, in whole or in part, in such order of maturity dates as the City may select and, within a maturity, by lot as selected by the Registrar (or, if applicable, by the bond depository in accordance with its customary procedures) in multiples of $5,000, on February 1,2017, and on any date thereafter, at a price equal to the principal amount thereof and accrued interest to the date of redemption. The City Administrator shall cause notice of the call for redemption thereof to be published as required by law, and at least thirty and not more than 60 days prior to the designated redemption date, shall cause. notice of call for redemption to be mailed, by first class mail, to the registered holders of any Bonds to be redeemed at their addresses as they appear on the bond register described in Section 2.6 hereof, but no defect in or failure to give such mailed notice of redemption shall affect the validity of proceedings for the redemption of any Bond not affected by such defect or failure. Official notice of redemption having been given as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption price therein specified and from and after such date (unless the City shall default in the payment of the redemption price) such Bonds or portions of Bonds shall cease to bear interest. Upon partial redemption of any Bond, a new Bond or Bonds will be delivered to the owner without charge, representing the remaining principal amount outstanding. 2:05. Appointment of Initial Re ig strar. The City hereby appoints U.S. Bank National Association in St. Paul, Minnesota, as the initial bond registrar, transfer agent and paying agent (the Registrar). The Mayor and City Clerk are authorized to execute and deliver, on behalf of the City, a contract with the Registrar. Upon merger or consolidation of the Registrar with another corporation, if the resulting corporation is a bank or trust company organized under the laws of the United States or one of the states of the United States and authorized bylaw to conduct such business, such corporation shall be authorized to act as successor Registrar. The City agrees to pay the reasonable and customary charges of the Registrar for the services performed.. The City reserves the right to remove the Registrar, effective upon not less than thirty days' written notice and upon the appointment and acceptance of a successor Registrar, in which event the predecessor Registrar shall deliver all cash and Bonds in its possession to the successor Registrar and shall deliver the Bond Register to the successor Registrar. 2.06. Registration. The effect of registration and the rights and duties of the City and the Registrar with respect thereto shall be as follows: (a) Re ig ster. The Registrar shall keep at its principal corporate trust office a register (the Bond Register) in which the Registrar shall provide for the registration of ownership of Bonds and the registration of transfers and exchanges of Bonds entitled to be registered, transferred or exchanged.- The term Holder or Bondholder as used herein 3 shall mean the person (whether a natural person, corporation, association, partnership, trust, governmental unit, or other legal entity) in whose name a Bond is registered in the Bond Register. (b) Transfer of Bonds. Upon surrender for transfer of any Bond duly endorsed by the registered owner thereof or accompanied by a written instrument of transfer, in form satisfactory to the Registrar, duly executed by the registered owner thereof or by an attorney duly authorized by the registered owner in writing, the Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Bonds of a like aggregate principal amount and maturity, as requested by the .transferor. The Registrar may, however, close the books for registration of any transfer after the fifteenth day of the month preceding each interest payment date and until such interest payment date. (c) Exchange of Bonds. Whenever any Bonds are surrendered by the registered owner for exchange the Registrar shall authenticate and deliver one or more new Bonds of a like aggregate principal amount and maturity, as requested by the registered owner or the owner's attorney in writing. (d) Cancellation. All Bonds surrendered for payment, transfer or exchange shall be promptly canceled by the Registrar and thereafter disposed of. The Registrar shall furnish the City at least once each year a certificate setting forth the principal amounts and numbers of Bonds canceled and destroyed. (e) Improper or Unauthorized Transfer. When any Bond is presented to the Registrar for transfer, the Registrar may refuse to transfer the same until it is satisfied that the endorsement on such Bond or separate instrument of transfer is valid and genuine and that the requested transfer is legally authorized. The Registrar shall incur no liability for the refusal, in good faith, to make transfers which it, in its judgment, deems. improper or unauthorized. (fj Persons Deemed Owners. The City and the Registrar may treat the person in whose name any Bond is at any time registered in the bond register as the absolute owner of the Bond, whether the Bond -shall be overdue or not, for the purpose of receiving payment of or on account of, the principal of and interest on the Bond and for all other purposes; and all payments made to any registered owner or upon the owner's order shall be valid and effectual to satisfy and discharge the liability upon Bond to the extent of the sum or sums so paid. (g) Taxes, Fees and Charges. For every transfer or exchange of Bonds (except for an exchange upon a partial redemption of a Bond), the Registrar may impose a charge upon the owner thereof sufficient to reimburse the Registrar for any tax, fee or other governmental charge required to be paid with respect to such transfer or exchange. (h) Mutilated, Lost, Stolen or Destroyed Bonds. In case any Bond shall become i mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like 4 i amount, number, maturity date and tenor in exchange and substitution for and upon ! cancellation of any such mutilated Bond or in lieu of and in substitution for any Bond destroyed, .stolen or lost, upon the payment of the reasonable expenses and charges of the Registrar in connection therewith; and, in the case of a Bond destroyed, stolen or lost, .upon filing with the Registrar of evidence satisfactory to it that the Bond was destroyed, stolen or lost, and of the ownership. thereof, and upon furnishing to the Registrar of an appropriate bond or indemnity in form, substance and amount satisfactory to it, in which both the City and the Registrar shall be named as obligees. All Bonds so surrendered to the Registrar shall be canceled by it and evidence of such cancellation shall be given to the City. If the mutilated, destroyed, stolen or lost Bond has already matured, it shall not be necessary to issue a new Bond prior to payment. (i) Authenticating Agent.. The Registrar is hereby designated authenticating agent for the Bonds, within the meaning of Minnesota Statutes, Section 475.55, Subdivision 1, as amended. (j) Valid Obli.atg ions. All Bonds issued upon any transfer or exchange of Bonds shall be the valid obligations of the City, evidencing the. same debt, and entitled to the same benefits under this Resolution as the Bonds surrendered. upon such transfer or exchange. 2.07. Execution, Authentication and Delivery. The-Bonds shall be prepared under the direction of the Clerk and .shall be executed on behalf of the City by the signatures of the Mayor and the Clerk, provided that the signatures maybe printed, engraved or lithographed facsimiles of the originals. In case any officer whose signature or a facsimile of whose signature shall appear on the Bonds shall cease to be such officer before the delivery of any Bond, such signature or facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. Notwithstanding such execution, no Bond shall be valid or obligatory for any purpose or entitled to any security or benefit under this resolution unless and until a certificate of authentication on the Bond has been duly executed by the manual signature of an authorized representative of the Registrar. Certificates of authentication on different Bonds need not be signed by the same representative. The executed certificate of authentication on each Bond shall be conclusive evidence that it has been authenticated and delivered under this resolution. When the Bonds have been prepared, executed and authenticated, the Clerk shall deliver them to the Purchaser upon payment ofthe purchase price in accordance with the. contract of sale heretofore executed, and the Purchaser shall not be obligated to see to the application of the purchase price. 2.09. Form of Bonds. The Bonds shall be prepared in substantially the following form: 5 UNITED STATES OF AMERICA STATE OF MINNESOTA CITY OF LAKEVILLE GENERAL OBLIGATION TAX INCREMENT REFUNDING BOND, SERIES 2007A Interest Rate Maturit~Date Date of Original Issue CUSIP No, February 1, 200- February 1, 2007 REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT:. THOUSAND DOLLARS THE CITY OF LAKEVILLE, MINNESOTA (the City), acknowledges itself to be indebted and hereby promises to pay to the registered owner named above, or registered assigns, the principal amount specified- above on the maturity date specified above, with interest thereon from the date hereof at the annual rate specified above, payable on February. l and August 1 in each year, commencing August 1, 2007, to the person in whose name this Bond is registered at the close of business on the fifteenth day (whether or not a business day) of the immediately preceding month. Interest hereon shall be computed on the basis of a 360-day year composed of twelve 30-day months. The interest hereon and, upon presentation and surrender hereof at the principal office. of the agent of the Registrar described below, the principal hereof are payable in lawful money of the United States of America by check or draft at the principal corporate trust office of U.S. Bank National Association in St. Paul, Minnesota, as bond registrar, transfer agent and paying agent, or its successor designated under the Resolution described herein (the Registrar), or its designated successor under the Resolution described herein. For the prompt and. full payment of such principal and interest as the same respectively become due, the full faith and credit and taxing powers of the City have been and are hereby irrevocably pledged. This Bond is one of an issue (the Bonds) in the aggregate principal amount of $2,265,000, issued pursuant to a resolution adopted by the City Council on January 16, 2007 (the Resolution) to refund certain outstanding general obligation tax increment bonds of the City and is issued pursuant to and in full conformity with the Constitution and laws of the State of Minnesota thereunto enabling, including Minnesota Statutes, Chapters 469 and 475. The Bonds are issuable only in fully registered form, in denominations of $5,000 or any integral multiple thereof, of single maturities. Bonds maturing in 2018 and later years shall be subject to redemption and prepayment at the option of the City, in whole or in part, in such order of maturity dates as the City may select and, within a maturity, by lot as selected by the Registrar (or, if applicable, by the bond depository in accordance with its customary procedures) in multiples of $5,000, on February 1, 2017, and on any date thereafter, at a price equal to the principal amount thereof and accrued interest to the date of redemption. The City shall cause notice of the call for redemption thereof 6 to be published as required by law, and at least thirty and not more than 60 days prior to the designated redemption date, shall cause notice of call for redemption to be mailed, by first class mail, to the registered holders of any Bonds, at the holders' addresses as they appear on the bond register maintained by the Bond Registrar, but no defect in or failure to give such mailed notice of redemption shall affect the validity of proceedings for the redemption of any Bond not affected by such defect or failure. Official notice of redemption having been. given as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption price therein specified and from and after such date (unless the City shall default in the payment of the redemption price) such Bonds or portions of Bonds shall cease to bear interest. Upon partial redemption of any Bond, a new Bond or Bonds will be delivered to the owner without charge, representing the remaining principal amount outstanding. As provided in the Resolution and subject to certain limitations set forth therein, this Bond is transferable upon the books of the City at the principal office of the Registrar, by the registered owner hereof in person or by the owner's attorney duly authorized in writing upon surrender hereof together with a written instrument of transfer satisfactory to the Registrar, duly executed by the registered owner or the owner's attorney; and may also be surrendered in exchange for Bonds of other authorized denominations. Upon such transfer or exchange the City will cause a new Bond or Bonds to be issued in the name of the transferee or registered owner, of the same aggregate principal amount, bearing interest at the same rate and maturing on the same date, subject to reimbursement for any tax, fee or governmental charge required to be paid with respect to such transfer or exchange. The City and the Registrar may deem and treat the person in whose name this Bond is registered as the absolute owner hereof, whether this Bond is overdue or not, for the purpose of receiving payment and for all other purposes, and neither the City nor the Registrar shall be affected by any notice to the contrary. IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts, conditions and things required by the Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be performed preliminary to and in the issuance of this Bond in order to make it a valid and binding general obligation of the City in accordance with its terms, have been done, do exist, have happened and have been performed as so required; that the City has established its General Obligation Tax Increment Refunding Bonds, Series 2007A Bond Fund and has appropriated thereto certain ad valorem tax increments from Redevelopment District No. 10 (Fairfield Business Park) to be received by the City, which tax increments are estimated to be receivable in years and amounts. not less than five percent in excess of the amounts required to pay the principal of and interest on the Bonds when due; that if necessary for the payment of such principal and interest,. ad valorem taxes are required to be levied upon all taxable property in the City, without limitation as to rate or amount; and that the issuance of this Bond does not cause the indebtedness of the City to exceed any constitutional or statutory limitation of indebtedness. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Resolution until the Certificate of Authentication hereon shall have been executed by the manual signature one of its authorized representatives. 7 IN WITNESS WHEREOF, the City of Lakeville, Minnesota, by its City Council, has caused this Bond to be executed on its behalf by the facsimile signatures of the Mayor and Clerk. Date of Authentication: CITY OF LAKEVILLE, MINNESOTA City Clerk Mayor CERTIFICATE OF AUTHENTICATION This is one of the Bonds delivered pursuant to the Resolution mentioned within. U.S. BANK NATIONAL ASSOCIATION, as Registrar The following abbreviations, when used in the inscription on the face of this Bond, shall be construed as though they were written out in full according to the applicable laws or regulations: TEN COM as tenants in common UTMA as Custodian for (Gust) (Minor) under Uniform Transfers to Minors Act TEN ENT as tenants by the entireties (State) JT TEN as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used. ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and all rights thereunder, and does hereby irrevocably constitute and appoint attorney to transfer the said Bond on the books kept for registration of the within Bond, with full power of substitution in the premises. Dated: 8 NOTICE: The assignor's signature to this assignment must correspond. with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatsoever. Signature Guaranteed: Signature{s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in STAMP or such other "signature guaranty program" as maybe determined by the Registrar in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. Please insert social security or other identifying number of assignee: [end of bond form] SECTION 3. USE OF PROCEEDS.. Upon payment for the Bonds by the Purchaser, Bond proceeds shall be used as follows: (i) an amount not to exceed $2,225,051.08 is irrevocably appropriated for the payment of interest to become due on-the Refunding Bonds to and including the Crossover Date and for -the payment and redemption of the outstanding principal of the Refunded Bonds on the Crossover Date; (ii) $29,470.25 shall be applied to pay the costs of issuance of the Bonds; and (iii) $1,129.72 shall be deposited into the Bond Fund for the Bonds created pursuant to Section 4 hereof. The Clerk is hereby authorized and directed, simultaneously with the delivery of the Bonds, to deposit the proceeds thereof, to the extent described above, in escrow with U.S. Bank National Association, in St. Paul, Minnesota, a banking institution whose deposits are insured by the Federal Deposit Insurance Corporation and whose combined capital and surplus is not less than $500,000, and shall invest the funds so deposited in securities authorized for such purpose by Minnesota Statutes, Section 475.67, subdivision 8, maturing on such dates and bearing interest at such rates as are required to provide funds sufficient, with cash retained in the escrow account, to make the above-described payments. The Mayor and Clerk are hereby authorized to enter into an escrow agreement with said bank establishing the terms and conditions for the escrow account in accordance with Minnesota Statutes, Section 475.67. SECTION 4. GENERAL OBLIGATION TAX INCREMENT REFUNDING BONDS SERIES 2007A BOND FUND. The Bonds shall be payable from a separate and special General Obligation Tax Increment Refunding Bonds, Series 2007A Bond Fund (the Bond Fund) of the City, which the City agrees to maintain until the Bonds have been paid in full. If the money in the-Bond Fund should at any time be insufficient to pay principal and interest due on the Bonds, such amounts shall be paid from other moneys on hand in other funds of the City, which other funds shall be reimbursed therefor when sufficient money becomes available in the Bond Fund. The moneys on hand in the Bond Fund from time to time shall be used only to pay the principal of and interest on the Bonds. Into the Bond Fund shall be paid: (a) any amount appropriated thereto pursuant to Section 3 hereof; (b) the ad valorem tax increments described in Section 5 hereof; and {c) any other funds appropriated by the Council for the payment of the Bonds 9 SECTION 5. PLEDGE OF TAX INCREMENTS AND TAXING POWERS. The Bonds shall be paid primarily from ad valorem tax increments to be received by the City from the Authority pursuant to a Tax Increment Pledge Agreement (the Agreement) to be executed by and between the City and the Authority, pursuant to which Agreement the Authority shall agree to pay to the City sufficient tax increments derived from the District to pay principal of and interest on the Bonds when due. The Mayor and City Clerk are authorized and directed to execute the Agreement on behalf of the City. All tax increments received by the City pursuant to the Agreement shall be deposited in the Bond Fund. For the prompt and full payment of the principal of and interest on the Bonds as such payments respectively become due, the full faith, credit, and unlimited taxing powers of the City shall be and are hereby irrevocably pledged. It is` hereby estimated that the amounts available to be received by the City pursuant to the Agreement will be not less than 5% in excess of the amounts needed to meet when due the principal and interest payments on the Bonds, and therefore no ad valorem taxes are required to be levied at this time. SECTION 6. DEFEASANCE. When all of the Bonds have been discharged as provided in this section, all pledges, covenants and other rights granted by this Resolution to the registered owners of the Bonds shall cease: The Issuer may discharge its obligations with respect to any Bonds which are due on any date by depositing with the Registrar on or before that date a sum sufficient for the payment thereof in full; or, if any Bond should not be paid when due, it may nevertheless be discharged by depositing with the Registrar a sum sufficient for the payment thereof in full with interest accrued from the due date to the date of such deposit. The Issuer may also at any time discharge its obligations with respect to any Bonds, subject to the provisions of law now or hereafter authorizing and regulating such action, by depositing irrevocably in escrow, .with a bank qualified by law as an escrow agent for this purpose,. cash or securities which are authorized bylaw to be so deposited, bearing interest payable at such time and at such rates and maturing or callable at the holder's option on such dates as shall be required to pay all principal and interest to become due thereon to maturity or, if notice of redemption as herein required has been irrevocably provided for, to an earlier designated redemption date. SECTION 7. CERTIFICATION OF PROCEEDINGS. 7.01. Rye istratioa of Bonds. The Clerk is hereby authorized and directed to file a certified copy of this resolution with the County Auditor of Dakota County and obtain certificates that the Bonds have been duly entered upon the Auditor's bond register. 7.02. Authentication of Transcript. The officers of the City and the County Auditor are hereby authorized and directed to prepare and furnish to the Purchaser and to Dorsey & Whitney LLP, Bond Counsel, certified copies of all proceedings and records relating to the Bonds and such other affidavits, certificates and information as may be required to show the facts relating to the legality and marketability of the Bonds, as the same appear from the books and records in their custody and control or as otherwise known to them, and all such certified copies, affidavits and certificates, including any heretofore furnished, shall be deemed representations of the City as to the correctness of all statements contained therein. 10 7.03. Official Statement. The Preliminary Official Statement relating to the Bonds, dated January 5, 2007, relating to the Bonds prepared and distributed by Springsted Incorporated is hereby approved. Springsted Incorporated, is hereby authorized on behalf of the City to prepare and distribute to the Purchaser within seven business days from the date hereof, a supplement to the Official Statement listing the offering price, the interest rates, selling compensation,. delivery date, the underwriters and such other information relating to the Bonds required to be included in the Official Statement by Rule 15c2-12 adopted by the Securities and .Exchange Commission (the SEC) under the Securities Exchange Act of 1934. The officers of the City are hereby authorized and directed to execute such certificates as maybe appropriate concerning the accuracy, completeness and sufficiency of the Official Statement. SECTION 8. SECTION 8. TAX COVENANTS• ARBITRAGE MATTERS• AND CONTINUING DISCLOSURE. 8.01. General Tax Covenant. The City covenants and agrees with the registered owners of the Bonds that it will not take, or permit to be taken by any of its officers, employees or agents, any actions that would cause interest on the Bonds to become includable in gross income of the recipient under the Internal Revenue Code of 1986, as amended (the Code) and applicable Treasury Regulations (the Regulations), and covenants to take any and all actions within its powers to ensurethat the interest on the Bonds will not become includable in gross income of the. recipient under the Code and the Regulations. It is hereby certified that the proceeds of the Refunded Bonds (or bonds refunded thereby) were used for the acquisition and betterment of municipal infrastructure improvements owned and maintained by the City and available for use by members of the general public on substantially equal terms, and the City covenants and agrees that, so long as the Bonds are outstanding, the City shall not enter into any lease, management agreement, use agreement or other contract with any nongovernmental entity relating to the improvements so financed which would cause the Bonds to be considered "private activity bonds" or "private loan bonds" pursuant to Section 141 of the Code. 8.02. Arbitrage Certification. The Mayor and City Clerk being the officers of the City charged with the responsibility for issuing the Bonds pursuant to this resolution, are authorized and directed to execute and deliver to the Purchaser a certificate in accordance with Section 148 of the Code, and applicable Regulations, stating the facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds which make it reasonable to expect that the proceeds of the Bonds will not be used in a manner that would cause the Bonds to be "arbitrage bonds" within the meaning of the Code and Regulations. 8.03. Arbitrage Rebate. The City acknowledges that the Bonds are subject to the rebate requirements of Section 148(f) of the Code. The City covenants and agrees to retain such records, make such determinations, file such reports and documents and pay such amounts at such times as are required under said Section 148(f) and applicable Regulations to preserve the exclusion of interest on the Bonds from gross. income for federal income tax purposes, unless the Bonds qualify for an exception from the rebate requirement pursuant to one of the spending exceptions set forth in Section 1.148-7 of the Regulations and no "gross proceeds" of the Bonds (other than amounts constituting a "bona fide debt service fund") arise during or after the expenditure of the original proceeds thereof.. 11 8.04. Not Qualified Tax-Exempt Obli ations. The Bonds are not "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code relating to the disallowance of interest expense for financial institutions. S.OS. Continuing_Disclosure. (a) Purpose and Beneficiaries. To provide for the public availability of certain information relating to the Bonds and. the security therefor and to permit the Purchaser and other participating underwriters in the primary offering of the Bonds to comply with amendments to Rule 15c2-12 promulgated by the SEC under the Securities Exchange Act of 1934 (17 C.F.R. § 240.15c2-12), relating to continuing disclosure (as in effect and interpreted from time to time, the: Rule), which will enhance the marketability of the Bonds, the City hereby makes the following covenants and agreements for the benefit of the Owners (as hereinafter defined) from time to time of the Outstanding Bonds. The City is the only obligated person in respect of the Bonds within the meaning of the Rule for purposes of identifying the entities in respect of which continuing disclosure must be made. The City has complied in all material respects with any undertaking previously entered into by it under the Rule.. If the City fails to comply with any provisions of this section, any person aggrieved thereby, including the Owners of any Outstanding Bonds, may take whatever action at law or in equity may appear necessary or appropriate to enforce performance and observance of any agreement or covenant contained in this section, including an action for a writ of mandamus or specific performance. Direct, indirect, consequential and punitive damages shall not be recoverable for any default hereunder to the extent permitted by law. Notwithstanding anything to the contrary contained herein, in no event shall a default under this section constitute a default under the Bonds or under any other provision of this resolution. As used in this section, Owner or Bondowner means, in respect of a Bond, the registered owner or owners thereof appearing in the bond register maintained by the Registrar or any Beneficial Owner (as hereinafter defined) thereof, if such Beneficial Owner provides to the Registrar evidence of such beneficial ownership in form and substance reasonably satisfactory to the Registrar. As used herein, Beneficial Owner means, in respect of a Bond, any person or entity which (i) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, such Bond (including persons or entities holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of the Bond for federal income tax purposes. (b) Information To Be Disclosed. The City will provide, in the manner set forth in subsection (c) hereof, either directly or indirectly through an agent designated by the City, the following information at the following times: (1) on or before 365 days after the end of each fiscal year of the City, commencing with the fiscal year ending December 31, 2006, the following financial information and operating data in respect of the City (the Disclosure Information): (A) the audited financial statements of the City for such fiscal year, containing balance sheets as of the end of such fiscal year and a statement of operations, changes in fund balances and cash flows for the fiscal year then ended, showing in comparative form such figures for the preceding fiscal year of the City, prepared in accordance with generally accepted accounting principles 12 promulgated by the Financial Accounting Standards Board as modified in accordance with the governmental accounting standards promulgated by the Governmental Accounting Standards Board or as otherwise provided under Minnesota law, as in effect from time to time, or, if and to the extent such financial statements have not been prepared in accordance with such generally accepted accounting principles. for reasons beyond the reasonable control of the City, noting the discrepancies therefrom and the effect thereof, and certified as to accuracy and completeness in all material respects by the fiscal officer of the City; and (B) to the extent not included in the financial statements referred to in paragraph (A) hereof, the information for such fiscal year or for the period most recently available of the type contained in the Official Statement under headings: City Property Values; City Indebtedness; and City Tax Rates, Levies and Collections. Notwithstanding the foregoing paragraph, if the audited financial statements are not available by the date specified, the City shall provide on or before such date unaudited financial statements in the format required for the audited financial statements as part of the Disclosure Information and, within 10 days after the receipt thereof, the City shall provide the audited financial statements. Any or all of the Disclosure Information maybe incorporated by reference, if it is updated as required hereby,. from. other documents, including official statements, which have been submitted to each of the repositories hereinafter referred to under subsection (c) or the SEC. If the document incorporated by reference is a final official statement, it must be available from the Municipal Securities Rulemaking Board. The City shall clearly identify in the Disclosure Information each document so incorporated by reference. If any part of the Disclosure Information can no longer be generated because the operations of the City have materially changed or been discontinued, such Disclosure Information need no longer be provided if the City includes in the Disclosure Information a statement to such effect; provided, however, if such operations have been replaced by other City operations in respect of which data is not included in the Disclosure Information and the City determines that certain specified data regarding such replacement operations would be a Material Fact (as defined in paragraph (2) hereof), then, from and after such determination, the Disclosure Information shall include such additional specified data regarding the replacement operations. If the Disclosure Information is changed or this section is amended as permitted by this paragraph (b)(1) or subsection (d), then the City shall include in the next Disclosure Information to be delivered hereunder, to the extent necessary, an explanation of the reasons for the amendment and the effect of any change in the type of financial information or operating data provided. (2) In a timely manner, notice of the occurrence of any of the following events which is a Material Fact (as hereinafter defined): (A) Principal and- interest payment delinquencies; (B) Non-payment related defaults; (C) Unscheduled draws on debt service reserves reflecting financial difficulties; (D) Unscheduled draws on credit enhancements reflecting financial difficulties; 13 (E) Substitution of credit or liquidity providers, or their failure to perform; (F) Adverse tax opinions or events affecting the tax-exempt status of the security; (G) Modifications to rights of security holders; (H) Bond calls; (I) Defeasances; (J) Release, substitution, or sale. of property securing repayment of the securities; and (K) Rating changes. As used herein, a Material Fact is a fact as to which a substantial likelihood exists that a reasonably prudent investor would attach importance thereto in deciding to buy, hold. or sell a Bond or, if not disclosed, would significantly alter the total information otherwise available to an investor from the Official Statement, information disclosed hereunder or information generally available to the public. Notwithstanding the foregoing sentence, a Material Fact is also an event that would be deemed material for purposes of the purchase, holding or sale of a Bond within the meaning. of applicable federal securities laws, as interpreted at the time of discovery of the occurrence of the event. (3) In a timely manner, notice of the occurrence of any of the following events or conditions: (A) the failure of the City to provide the Disclosure Information required under paragraph (b)(1) at the time specified thereunder; . (B) the amendment or supplementing of this section pursuant to subsection (d), together with a copy of such amendment or supplement and any explanation provided by the City under subsection (d)(2); (C) the termination of the obligations of the City under this section pursuant to subsection (d); (D) any change in the accounting principles pursuant to which the financial statements constituting a portion of the Disclosure Information are prepared; and (E) any change in the fiscal year of the City. (c) Manner of Disclosure. The City agrees to make available the information described in subsection (b) to the following entities by telecopy, overnight delivery, mail or other means, as appropriate: (1) .the information described in paragraph (1) of subsection (b), to each then nationally recognized municipal securities information repository under the Rule and to any state information depository then designated or operated by the State of Minnesota as contemplated by the Rule (the State Depository), if any; (2) the information described in paragraphs (2) and (3) of subsection (b), to the Municipal Securities Rulemaking Board and to the State Depository, if any; and 14 • (3) the information described in subsection (b), to any rating agency then maintaining a rating of the Bonds at the request of the City and, at the expense of such Bondowner, to any Bondowner who requests in writing such information, at the time of transmission under paragraphs (1) or (2) of this subsection (c), as the case maybe, or, if such information is transmitted with a subsequent time of release, at the time such information is to be released. (d) Term; Amendments; Interpretation. (1) The covenants of the City in this section shall remain in effect so long as any Bonds are Outstanding. Notwithstanding the preceding sentence, however, the obligations of the City under this section shall terminate and be without further effect as of any date on which the City delivers to the Registrar an opinion of Bond Counsel to the effect that, because of legislative action or final judicial or administrative actions or proceedings, the failure of the City to comply with the requirements of this section will not cause participating underwriters in the primary offering of the Bonds to be in violation of the Rule or other applicable requirements of the Securities Exchange Act of 1934, as amended, or any statutes or laws successory thereto or amendatory thereof. (Z) This section (and the form and requirements of the Disclosure Information) maybe amended or supplemented by the City from time to time, without notice to (except as • provided in paragraph (c)(3) hereof) or the consent of the Owners of any Bonds, by a ` resolution of this Council filed in the office of the recording officer of the City accompanied by an opinion of Bond Counsel, who may rely on certificates of the City and others and the opinion maybe subject to customary qualifications, to the - effect that: (i) such amendment or supplement (a) is made in connection with a change in circumstances that arises from a change in -law or regulation or a change in the identity, nature or status of the City or the type of operations conducted by the City, or (b) is required by, or better complies with, the provisions of paragraph (b)(5) of the Rule; (ii) this section as so amended or supplemented would have complied with the requirements of paragraph (b)(5) of the Rule at the time of the primary offering of the Bonds, giving effect to any change in circumstances applicable under clause (i)(a) and assuming that the Rule as in effect and interpreted at the time of-the amendment or supplement was in effect at the time of the primary offering; and (iii) such amendment or supplement does not materially impair the interests of the Bondowners under the Rule. If the Disclosure Information is so amended, the City agrees to provide, contemporaneously with the effectiveness of such amendment, an explanation of the reasons for the amendment and the effect, if any, of the change in the type of financial information or operating data being provided hereunder. (3) This section is entered into to comply with the continuing disclosure provisions of the Rule and should be construed so as to satisfy the requirements of paragraph (b)(5) of the Rule. 15 SECTION 9. REDEMPTION OF REFUNDED BONDS. The Clerk is hereby directed to advise U.S. Bank National Association, St. Paul, Minnesota, successor to U.S. Bank Trust National Association, as paying agent. for the Refunded Bonds, to call the Refunded Bonds for redemption and prepayment at their earliest permissible redemption date on February 1, 2008, and to give thirty day's mailed Notice of Redemption, all in accordance with the provisions of the resolution authorizing the issuance of the Refunded Bonds. APPROVED AND ADOPTED this 16~' day of January, 2007. CITY O LAKEVILLE By: Ho Dah M yo ATTEST: • Charlene Friedges, City Cl k 16 • DAKOTA COUNTY TREASURER-AUDITOR'S CERTIFICATE AS TO REGISTRATION The undersigned, being the duly qualified and acting County Treasurer-Auditor of Dakota County, Minnesota, hereby certifies that there has been filed in my office a certified copy of a resolution duly adopted on January 16, 2007, by the City Council of the City of Lakeville, Minnesota, setting forth the form and details of an issue of $2,265,000 General Obligation Tax Increment Refunding Bonds, Series 2007A, dated as of February 1, 2007. I further certify that the issue has been entered on my bond register as required by Minnesota Statutes, Sections 475.62 and 475.63. WITNESS my hand officially this day of , 2007. • Dakota County Treasurer-Auditor (SEAL)