HomeMy WebLinkAboutResolution 35-1998 � ,
. s `
, � .
� RESOLUTION NO. 35-98
RESOLUTION GNING APPROVAL TO THE ISSUANCE OF BOND ANTICIPATION NOTES
AND PROVIDING FOR THE SALE, TERMS AND CONDITIONS THEREOF
NOW, THEREFORE, BE IT RESOLVED AND ORDAINED by the City Commission of the
City of Brookings as follows:
1. Recitals. The City of Brookings ("City") authorizes the issuance of Sales Tax Revenue Bonds (the
"Bonds")pursuant to SDCL 10-52
2. Authoritv. The City is authorized to issue its Bond Anticipation Notes in the amount not to exceed
$2,800,000.00 (the"BANS") in anticipation of the issuance of the Bonds in the manner and subject to
the limitations set forth in SDCL §§ 6-8B-26 to 6-8B-29.
3. Amount and Term. The City may issue the BANS in a principal amount not exceeding the
authorized principal amount of the Bonds not to exceed $2,800,000.00. Such BANS shall mature not
later than three years after the date of issuance.
4. Exchange and Redemption of BANS. Any amount of the principal of or interest on any BANS
which cannot be paid at maturity from any other funds which are properly available and appropriated
by the City for that purpose shall be paid from the proceeds of the Bonds in anticipation for which the
BANS were issued.
4.1. Obli�ation to issue Bonds. The Cit�is hereby obligated to issue and sell the BONDS on or
before the maturity date of the BANS.
4.2 Rights of Holders where City Fails to issue Bonds. The holders of the BANS shall have the
right to require the offering of such bonds for sale, and, in the event such bonds are not sold on
or before the maturity date of the BANS, the holders of the BANS have the right to require
such bonds to be issued to them in exchange for the BANS,by lot, on a par for par basis. In
the event of such exchange, the bonds so issued shall bear interest at the maximum rate
permitted in the proceedings authorizing their issuance, shall mature serially over the
maximum number of years and shall be subject to the redemption on any interest payment date
without penalty. Thereafter,whenever there is sufficient amount of money in the sinking fund
established for bonds to prepay and redeem one or more bonds of the City shall prepay and
redeem such bonds or bonds on the next succeeding interest payment date for which notice of
redemption can be duly given.
5. Findin�s. The City Council hereby finds and determines as follows:
5.1. The City finds that all conditions precedent to the offering for sale of Bonds of the City have
been satisfied.
5.2 It is in the best interests of the City to authorize the borrowing of funds to pay a portion of the
costs of the Project by authorizing and issuing its BANS and thereafter the Bonds.
6. Sale of BANS. It is hereby determined to be necessary and in the best interests of the City and its
inhabitants that this City Council authorize, issue and sell the BANS in order to finance a portion of the
cost of the Project by private sale pursuant to SDCL 6-8-10. The Mayor and Finance Officer are
authorized to negotiate the private sale and terms of the BANS subject to the limitations of the law and
this resolution.
l
�
.
7. No Election Required. The BANS may be issued by the City without an election pursuant to SDCL
§10-52-2.10.
8. Form of BANS. The BANS shall be prepared in substantially the form on file with the Finance
Officer and open to public inspection.
9. Registration. The City hereby appoints its Finance Officer as paying agent, registrar and transfer
agent(the"Registrar") for the BANS.
9.1. Preparation and DeliverY The Bonds shall be prepared under the direction of the Finance
Officer and shall be executed on behalf of the City by the facsimile or manual signatures of the
Mayor and the Finance Officer and countersigned by the facsimile or manual signature of an
attorney actually residing in the State of South Dakota and duly licensed to practice therein.
10. Tax Matters: Certification of Proceedin�s and Miscellaneous.
10.1. Tax Matters. The City covenants and agrees with the registered owners from time to time
of the BANS that it will not take or permit to be taken by any of its officers, employees or
agents any action which would cause the interest on the BANS to become subject to
taxation under the Internal Revenue Code of 1986, as amended(the"Code"), and
applicable Treasury Regulations (the "Regulations"), and covenants to take any and all
actions within its powers to ensure that the interest on the BANS will not become subject
to taxation under the Code and the Regulations. The City will cause to be filed with the
Secretary of Treasury an information reporting statement in the form and at the time
prescribed by the Code.
10.2 The Mayor and Finance Officer,being the officers of the City charged with the
responsibility for issuing the BANS pursuant to this resolution, are authorized and directed
to execute and deliver to the purchaser thereof a certificate in accordance with the
provisions of Section 48 of the Code and Sections 1.103-13, 1.103-14 and 1.103-15 of the
Regulations, stating the facts estimates and circumstances in existence on the date of issue
and deliver of the Bans which make it reasonable to expect that the proceeds of the BANS
will not be used in a manner that would cause the BANS to be arbitrage BANS within the
meaning of the Code and Regulations.
10.3 The City recognizes its obligation to comply with the provisions of Section 148(� of the
Code relating to the rebate of certain amounts to the United States, and covenants that it
will take or refrain from any actions,the result of which would be to cause the interest on
the BANS to become subject to federal income taxation as a result of the failure to comply
with Section 148(� of the Code and applicable Treasury Regulations. The City will take all
actions necessary to comply with the rebate requirement, including making or causing to be
made the computations of rebate or penalty amounts. The City will make any payments of
rebate or penalty amounts, and will pay the cost of computing any such rebate or penalty
amounts.
10.4 It is hereby determined that the BANS are not and will not be "private activity Bonds"as
defined in Section 141(a) of the Code, and in support of such conelusion the City
Commission covenants, represents, and certifies as follows:
�
,
� 10.4.1 none of the proceeds of the BANS will be used, directly or indirectly, or will be used to
replace funds which were used, in any trade or business carried on by any person other
than a state or local governmental unit;
10.4.2 no direct or indirect payments of the principal of or interest on the BANS will be
derived from payments (whether or not to the City), in respect of property, or borrowed
money,used or to be used for a private business use by any person other than a state or
local governmental unit;
10.4.3. none of the proceeds of the BANS are to be used, directly or indirectly, to make or
finance loans to persons other than a state or local governmental unit; and
10.4.4. no user of any facilities or Improvements financed with the proceeds of the BANS will
use the same on any basis other than the same basis as the general public; and no person
other than the City will be a user of said, facilities as a result of(i)ownership; (ii)
actual or beneficial use pursuant to a lease or a management or incentive payment
contract; or(iii) any other arrangement.
10.5 The City reasonably anticipates that the amount of tax exempt obligations which will be issued
by the City and all entities subordinate to, or treated as one issuer with,the City during calendar
year 1998 will not exceed$10,000,000. The BANS are hereby designated as "qualified tax-
exempt obligations"within the meaning of Section 265(b)(3) of the Code. The City will not
designate, or cause any subordinate entity or request any other governmental entity to designate
on its behalf more than $10,000,000 of its obligations as "qualified tax-exempt obligations"in
calendar year 1998. The City does not reasonably expect that it or any subordinate entity will
issue, and will not request any other governmental entity to issue on its behalf, in calendar year
1998, more than $10,000,000 of obligations which it or any such entity could designate as
"qualified tax-exempt obligations".
10.6 If the City agrees to comply with all provisions of the Code, which if not complied with by the
City, would cause the interest on the BANS not to be tax-exempt in the hands of a holder who
is a natural person, including, if determined to be necessary upon advice of bond counsel,the
payment of any rebate amount necessity to preserve such tax exemption pursuant to Section 148
of the Code. The City further agrees: (1)through its officers,to make such further specific
covenants,representations as shall be truthful, and assurances as may be necessary or advisable;
(2)to consult with bond counsel and to comply with such advice as may be given; (3)to file
such forms, statements, and supporting documents as may be required and to do so in a timely
manner; and(4) if deemed necessary or advisable by its officers, to employ and pay fiscal
agents, financial advisors, attorneys, and other persons to assist the City in such compliance.
,
�. .
11. Certification of Proceedin�s. The officers of the City are authorized and directed to prepare and
furnish to the purchasers of the BANS certified copies of all proceedings and records of the City
relating to the authorization and issuance of the BANS and such other affidavits and certificates as may
reasonably be required to show the facts relating to the legality and marketability of the BANS as such
facts appear from the officer's books and records or are otherwise known to them. All such certified
copies, certificates and affidavits, including any heretofore fizrnished, shall constitute representations of
the City as to the correctness of the facts recited therein and the action stated therein to have been
taken.
/Y'
Mayor
�TTE �.�ti
�: ;�S�;FFo.�''tr
, MAR.9 !,
1 �
op
Finance Officer
' � • . ,
Wk�ereupon said resolution was deciared duly passed and adopted.
�
N�ayor
���;� • ° �
,��
�::
�
0
m�': o<
o ,�.
Fin e Officer
STA'�'E OF SOUTH AAKOTA )
:SS
COUNT'Y OF DAVISON)
I,the undersigned,being the duly quali�ed and �inance Officer of the City of Brook�wgs,
Soutb� Dakvta, do b�ereby certify that t�,e attached and foregoing is a fu11, tzue and��om.plete
scz�pt pf the Minutes of a meeting of the City Counci� held on the 2g - day of
* 1 , 1»8,insofar as the oziginal meeting relates to pxoceediatgs for the Resolutio�
A,uthorizi,ng the Sale o£Said Bond A�nticipation Notes.
WITNESS zny hand an.d official sea� of this said City this .2g� day of
r ; 1998. —
Finance O�icer
City of Broo]ci�ngs, South Dakota
5
CF.R'i'fFICp►TE
'1`hc ur�dersigncd,lxiag thc duly qua].i8ed aad ack�zag SecretaTy of t[ae Veiliry
Haard of the�rooku�gs Mamicipa!Utiliti,es.het�ehy a�ti�iea that the abw�e resolution is a we
and�oaeclt copy of the resolution�s adopt�d by ihe iJtt�ity'�oard on dctober 13. ]947.
WITNESS�uy haud ufi5ciaily as sn�h 5�x�atary this day of
. I998. �
Sei:ie,tet}►
!
�-
. • � '
DORSEY & WHITNEY LLP
MINNEAPOLIS PILLSBURY CEIVTER SOUTH NEW YORK
WASHINGTON,D.c. 220 SOUTH SIXTH STREET DENVF.R
LONDON MINNEAPOLIS, MINNESOTA 55402-1498 SEATTLE
BRUSSELS TELEPHONE: �612� 340-2600
FARGO
HONG KONG Fnx: (612) 340-2868
BILLINCS
DES MOINES
ROCHESTER MISSOULA
VERLANE L.ENDORF GREAT FALLS
COSTA MESA (612)340-2651
Fax(612)340-2644
endorf.lynn @ dorseylaw.com
May 22, 1998
BY FEDERAL EXPRESS
Mr. Theodore Kryger
City of Brookings
311 Third Avenue
Brookings, SD 57006-0270
Re: Remarketing of Series 1997 Certificates of Participation
Dear Mr. Kryger:
Enclosed are copies of the Resolution which I f�ed to the City today. Please have the
Resolutions executed and returned to me. If you have any questions, please feel free to call me.
Very truly yours,
Verlane L. Endorf
VLE/pmh
Enclosures
cc: Ray Woodsend (w/encl)
Walter Parkins (w/encl)
Stephen Rosholt, Esq. (w/encl)
, �
RESOLUTION NO. 35-98
�
RESOLUTION GNING APPROVAL TO THE ISSUANCE OF BOND ANTICIPATION NOTES
AND PROVIDING FOR THE SALE, TERMS AND CONDITIONS THEREOF
NOW, THEREFORE, BE IT RESOLVED AND ORDAINED by the City Commission of the
City of Brookings as follows:
1. Recitals. The City of Brookings ("City") authorizes the issuance of Sales Tax Revenue Bonds (the
"Bonds")pursuant to SDCL 10-52
2. Authoritv. The City is authorized to issue its Bond Anticipation Notes in the amount not to exceed
$2,800,000.00 (the "BANS") in anticipation of the issuance of the Bonds in the manner and subject to
the limitations set forth in SDCL §§ 6-8B-26 to 6-8B-29.
3. Amount and Term. The City may issue the BANS in a principal amount not exceeding the
authorized principal amount of the Bonds not to exceed$2,800,000.00. Such BANS shall mature not
later than three years after the date of issuance.
4. Exchan�e and Redemption of BANS. Any amount of the principal of or interest on any BANS
which cannot be paid at maturity from any other funds which are properly available and appropriated
by the City for that purpose shall be paid from the proceeds of the Bonds in anticipation for which the
BANS were issued. �
4.1. Obligation to issue Bonds. T'he Cit3�is hereby obligated to issue and sell the BONDS on or
before the maturity date of the BANS.
4.2 Rights of Holders where City Fails to issue Bonds. The holders of the BANS shall have the
right to require the offering of such bonds for sale, and, in the event such bonds aze not sold on
or before the maturity date of the BANS,the holders of the BANS have the right to require
such bonds to be issued to them in exchange for the BANS,by lot, on a par for par basis. In
the event of such exchange, the bonds so issued shall bear interest at the maximum rate
permitted in the proceedings authorizing their issuance, shall mature serially over the
maximum number of years and shall be subject to the redemption on any interest payment date
without penalty. Thereafter, whenever there is sufficient amount of money in the sinking fund
established for bonds to prepay and;redeem one or more bonds of the City shall prepay and
redeem such bonds or bonds on the next succeeding interest payment date for which notice of
redemption can be duly given.
5. Findin�s. The City Council hereby finds and determines as follows:
5.1. The City finds that all conditions precedent to the offering for sale of Bonds of the City have
been satisfied.
5.2 It is in the best interests of the City to authorize the borrowing of funds to pay a portion of the
costs of the Project by authorizing and issuing its BANS and thereafter the Bonds.
6. Sale of BANS. It is hereby determined to be necessary and in the best interests of the City and its
inhabitants that this City Council authorize, issue and sell the BANS in order to finance a portion of the
cost of the Project by private sale pursuant to SDCL 6-8-10. The Mayor and Finance Officer are
authorized to negotiate the private sale and terms of the BANS subject to the limitations of the law and
this resolution.
7. No Election Reauired. The BANS may be issued by the City without an election pursuant to SDCL
§10-52-2.10.
8. Form of BANS. The BANS shall be prepared in substantially the form on file with the Finance
Officer and open to public inspection.
9. ReQistration. The City hereby appoints its Finance Officer as paying agent, registrar and transfer
agent(the "Registrar") for the BANS.
9.1. Preparation and Delivery_ The Bonds shall be prepared under the direction of the Finance
Officer and shall be executed on behalf of the City by the facsimile or manual signatures of the
Mayor and the Finance Officer and countersigned by the facsimile or manual signature of an
attomey actually residing in the State of South Dakota and duly licensed to practice therein.
10. Tax Matters: Certification of Proceedin�s and Miscellaneous.
10.1. Tax Matters. The City covenants and agrees with the registered owners from time to time
of the BANS that it will not take or permit to be taken by any of its officers, employees or
agents any action which would cause the interest on the BANS to become subject to
taxation under the Internal Revenue Code of 1986, as amended(the "Code"), and
applicable Treasury Regulations (the"Regulations"), and covenants to talce any and all
actions within its powers to ensure that the interest on the BANS will not become subject
to taxation under the Code and the Regulations. The City will cause to be filed with the
Secretary of Treasury an information reporting statement in the form and at the time
prescribed by the Code.
10.2 The Mayor and Finance Officer,being the officers of the City charged with the
responsibility for issuing the BANS pursuant to this resolution, are authorized and directed
to execute and deliver to the purchaser thereof a certificate in accordance with the
provisions of Section 48 of the Code and Sections 1.103-13, 1.103-14 and 1.103-15 of the
Regulations, stating the facts estimates and circumstances in existence on the date of issue
and deliver of the Bans which make it reasonable to expect that the proceeds of the BANS
will not be used in a manner that would cause the BANS to be arbitrage BANS within the
meaning of the Code and Regulations.
10.3 The City recognizes its obligation to comply with the provisions of Section 148(� of the
Code relating to the rebate of certain amounts to the United States, and covenants that it
will take or refrain from any actions, the result of which would be to cause the interest on
the BANS to become subject to federal income taxation as a result of the failure to comply
with Section 148(fl of the Code and applicable Treasury Regulations. The City will take all
actions necessary to comply with the rebate requirement, including making or causing to be
made the computations of rebate or penalty amounts. The City will make any payments of
rebate or penalty amounts, and will pay the cost of computing any such rebate or penalty
amounts.
10.4 It is hereby determined that the BANS are not and will not be "private activity Bonds" as
defined in Section 141(a) of the Code, and in support of such conelusion the City
Commission covenants, represents, and certifies as follows:
10.4.1 none of the proceeds of the BANS will be used, directly or indirectly, or will be used to
� replace funds which were used, in any trade or business carried on by any person other
than a state or local governmental unit;
10.4.2 no direct or indirect payments of the principal of or interest on the BANS will be
derived from payments (whether or not to the City), in respect of property, or borrowed
money, used or to be used for a private business use by any person other than a state or
local governmental unit;
10.4.3. none of the proceeds of the BANS are to be used, directly or indirectly,to make or
finance loans to persons other than a state or local governmental unit; and
10.4.4. no user of any facilities or Improvements financed with the proceeds of the BANS will
use the same on any basis other than the same basis as the general public; and no person
other than the City will be a user of said, facilities as a result of(i)ownership; (ii)
actual or beneficial use pursuant to a lease or a management or incentive payment
contract; or(iii) any other arrangement.
10.5 The City reasonably anticipates that the amount of tax exempt obligations which will be issued
by the City and all entities subordinate to, or treated as one issuer with, the City during calendar
year 1998 will not exceed$10,000,000. The BANS are hereby designated as "qualified tax-
exempt obligations"within the meaning of Section 265(b)(3) of the Code. The City will not
designate, or cause any subordinate entity or request any other governmental entity to designate
on its behalf more than$10,000,000 of its obligations as "qualified tax-exempt obligations"in
calendar year 1998. The City does not reasonably expect that it or any subordinate entity will
issue, and will not request any other governmental entity to issue on its behalf, in calendar year
1998, more than $10,000,000 of obligations which it or any such entity could designate as
"qualified tax-exempt obligations".
10.6 If the City agrees to comply with all provisions of the Code,which if not complied with by the
City,would cause the interest on the BANS not to be tax-exempt in the hands of a holder who
is a natural person, including, if determined to be necessary upon advice of bond counsel,the
payment of any rebate amount necessity to preserve such tax exemption pursuant to Section 148
of the Code. The City further agrees: (1)through its officers, to make such further specific
covenants, representations as shall be truthful, and assurances as may be necessary or advisable;
(2) to consult with bond counsel and to comply with such advice as may be given; (3)to file
such forms, statements, and supporting documents as may be required and to do so in a timely
manner; and(4) if deemed necessary or advisable by its officers, to employ and pay fiscal
agents, fmancial advisors, attorneys, and other persons to assist the City in such compliance.
11. Certification of Proceedings. The offtcers of the City are authorized and directed to prepare and
fumish to the purchasers of the BANS certified copies of all proceedings and records of the City
relating to the authorization and issuance of the BANS and such other affidavits and certificates as may
reasonably be required to show the facts relating to the legality and marketability of the BANS as such
facts appear from the officer's books and records or are otherwise known to them. All such certified
copies, certificates and affidavits, including any heretofore furnished, shall constitute representations of
the City as to the correctness of the facts recited therein and the action stated therein to have been
taken.
Mayor
F �ro
`,�`o�o�; �
� ���g �
0
m ''`
�r o��
Finance Officer
.
Wk�ereu�oz�saicl reso�ution.was dec�ared dul}�passed and adopted.
F gF001{�il C�
,�i� Reowi'•.;CS
�;,�����; Mayor
M"R
� ;�
c�'; 1883 :�o
�o.,
°�`'• • Jl _
Finance Offi�cer
STA'�'E OF SOLTTH DAKOTA )
:SS
COUNT'Y OF D.AVISON)
I,the uudersigned,being the duly quali�Zed and Finance Officer of the City of Brookangs,
South Dak�ta, do b,ereby certify that t�e attached and foregoing 15 a full, true and complete
scx�pt of the Mi�autes a� a meeting of the City Counci� held on the ��- day of
; � 1998, insofar as the o�riginal uneeting relates to pxoceedi.ztgs for the Resolutiom
,A,u orizi,ng the Sale of Said Bond Aniicipat�on Notes.
WITNESS zny hand and of�icial sea� of this saiid City this 2S ��aY of
�' 1998. � '
Finance O£ficer
City o£Hrookings, South Dakota
5
04/28/1998 14:15 605-336-2593 MEIERHENRY LAW FIRM PAGE 02
�
�SOz.U�zo�v�vo. �--��
RESOLU�'I0�1 GIVING APPROVAL TO T�TE �SSU.ANCE OF BOND
ANTICIPATION NOTES AND PROVIDTNG FOR THE SALE , TERMS AND
CONDITIONS THEREOF
�TOW, THEREFORE,BE IT RESOLVED AND ORDAINED by the City Council of the
City of brookuags as�o�ows:
1. Recitals. The City o��zoo�iaags ("City") autbioz�zes tl�e xssuance v�Sa�es �'aac Reve�ue
Bonds(the"Bonds)pursuant to SDCL 10-52.
2. Authoritv. The City is authorized to issue its Bond Anticipation Notes in the amount xzvt
to exceed $ Z, gDO�00U (tbe "BANS") in anticipation of the issuance of the
Bonds in the manner and subject to the limitations set forth in SDCL §§ 6-8B-26 to 6-8�-
29.
3. Amount and Term. The City may issue the BANS in an.pxax�cipal amount x�ot eMceedivag
the authorized princi�al amount of the $onds not to exceed
$ ���p0 4,�,jvv Such BANS shall maturc not later than three years
after the date o�zssua�,ce.
4. Exchan�e and Redeznptioz�o�BANS. Any amount of the �rinci�al of or interest on any
BANS which cannot be paid at maturity from any other funds which are pzoperly
availab�e an�d appzopriated b�the City for that�ur�ose shall be paid from the proceeds of
the Sonds in anticipation for which the BA�1S�vexe issued.
4.�. ObIigation to issue Bonds. The City is hereby obligated to issue and sell the
$ONDS on or befare the maturity dat�of the BANS.
4.2. RiQhts of Holders where Citv fails to issue Bonds. The holders of the B.A.NS shall
have the right to zequi�e t�e o£�ering o�such bonds for sale, and, in tho event such
bonds aze not sold on or be:Fore tkxe z�aatuzity date of tb�e BANS,the holders of the
BANS have the right to require such bonds to be issued to tb�eaa in excb�a�z►ge �or
the BANS, by lot, on a par for par basis. In the event of azxy such exck�ange, the
bo�nds so issued shall bear interest at the maximum rate pezmitted iva the
proceedings authorizing t�;eix issuance, shall mature serially over the maxivazuYm
z�umber of years and shall be subject to tlae redemption on any interest payment
date without pezzalty. Thereai�er, whenever there is sufficient azn�vunt o£money in
the sinking fund established for t�,e bonds to prepay and redeem one or more
bor�ds of the City shall prepay and redeem such bonds or bonds on the ne�
succeeding interest �ayment date for which z�otice o� redemption ean be duly
given.
5. Findines. '�`b.e City Council hereby finds and determ�ines as £Qllows:
1
04/28/1998 14:15 605-336-2593 MEIEP.HENRY LAW FIRM PAGE 03
>
5.1. The City finds that all conditions precedez�t to the offerin��or sale of Bvnds of the
Caty have been sat�sfied.
5.2. It is i.zi the best i�terests of the Cxty to authorize t�,e borrowing of fiin.ds to �ay a
portion of the costs o� the Project by authorizing and issuing its B.ANS and
tk�ereafter the Honds.
6. S e of BANS. Ic is hereby determined to be necessary aztd in the best iunterests of the
City and its inhabitants that this City Council aut�orize, issue and sell the BANS xz�order
tv �n.ance a poztzon of the cvst of the Project by private sale pursuant to SDCL 6-8B-10.
'Y"b.e Mayor and Fiuxance officez ace authorized to negotiate t.tae private sale a�ad terms of
the B.ANS subject to the limitatAoz�s of the law a.z�d this resolutiozz.
7. No Electioz� Required- The BANS may be issued by the Cxty without an election
pursuant to SDC�, §10-52-2.10.
8. Foz�ai. of BANS. The BANS shall be prepazed in substantially the fozm on file with the
Finance O£�icer and ope�to public inspection.
9. Registrativx�. The Cxty hereby appoixzts its Finan,ce Officer as paying agent,registraz and
transfer agent(th�"RegisUrar")for the BANS.
9.I. P e ara 'on and Delave . The Bonds shall be pz�epared undez the direct�om o�the
�i,�p,ance Officer and shall be executed on behalf of the City by t�e facsimile or
manual signatures of the Mayor and the Finance Officer and covntersigned by the
facsi,z�ai�e or manual signature o£an attorney actually resxding in the State of South
Dakota and duly licensed to�ractice therein.
10. Tax N�atters• Certification of Proceedin¢s and Miscellaneous.
J,0.1. Tax atters. The City covenants and agz�ees with the zegistered owners from t�me
to time o�the BANS that it will ,not take or permit to be taken by az�y of its
office�rs, employees or agents any aetion which wou�d cause the xnterest on the
BANS to become subjeet to taxation under the Internal Revenue Code oF 1986, as
arnez�ded (the "Code"), and ap�licable '�'reasury Regulations (tbie "Regulations"),
and cvvenants to take any aud alt activms within xts powers to ensure that the
interest on the BANS will not become subject to taxatiozz under the Code and the
Regulations. The City v�%ill cause to be filed with the Secretary o�'Zkeasury an
inforzxxation reporting statez�nent in t�.e form and at the ti.zx�e prescribed by the
Code.
10.2. '�'k�e Mayoz and Finance Officer, being the o�icers of the City charged with the
responsibility:For issuing the BANS pursuant tv this resolutiaz�, are authozazed and
directed to execute and deliver to the puxchaser thereof a certificate in accozdance
with the pzovisions o�Section 148 of t'he Code. and Sectio�as 1.103-13, 1.103-14
aiad 1.103-15 0�the Regulations, stating the facts estimates and circuxnstances ini
2 .
64/28/1998 14:15 605-336-2593 MEIERHENP.Y LAW FIRM PAGE 04
�
existence oz�the date of issue and delivery of the BANS wk�ich mike it reasvuable
to ez�pect that the proceeds of the BANS wi��not be used in a manner that would
cause the BANS ta be azbatrage B.A,NS witk�i�n the meaning of tb�e Code and
�tegulatio�s.
103. The City recognizes its obligation to comply with the provisions o£Section �48(fl
of the Code relating to tk�e rebate o£certain amounts to the United States, and
covenants that it will take or refrain frozzi any actioias, the result of wluch would
be to cause the i.z�terest on t.�e BANS to beconae subject to federal az�come taxation
as a result a�the failwce to coz�piy with Section 1�8(� of tlxe Code and applicabae
Treasury Regulations. '�7ae City will take all actions necessary to comply wS,th the
rebate requiremez►t, including making or causing to be made the connputatioz�s of
rebate or pec�alty amounts. The City wil� make ac�y payments of rebate or penalty
amounts, and will pay tk�e costs o�computiung any sucb rebate oz penalty amounts-
�0.4. �t is hereby deternrzi.ned that the BANS aze not and wil� not be "private activity
Bonds" as de�ned in Section 141(a) o� the Code, and im support of suc}�
conclusxon the City Counci�covena�ts,re�rese�ts,and certifies as follows:
10.4.1. none of`the proceeds of the BANS will be used, dairectly or iuidirectly, or
vvill 1ae used to re�lace �unds whach were used, in a�ay trade or busin�ess
carried on by anry person other than a state or local gove�amental unit;
10.4.2.no dxrect or iz�dxrect payznents of the principal of or iuiterest on the B,A,�iS
wx1l be dez�ved fro�on payments (whetk�er or nvt to the City), in respect of
prvperiy,or borrowed naoney,used or to be used for a private business use
by any person other than a state or local governz�ental uzut;
10.4.3.n�one of the proceeds of the B.ANS are to be used. directly or ind.irectly,to
make or finamce loans to persons other tlaan a state or local govemmental
unit; at�d
10.4.4.no user of any�acilities oz Im�rovements f z�anced wi�th the proceeds of the
B�1NS wi�l use tk�e same vn any basis othez than the same baszs as the
gemeral public; and ao person other thaia the City will be a user vf said,
facitities as a zesult of(i) ownersk�xp; (ii) actual or beneficial use �ursuant
to a lease or a z�n�nagemez�t or incentive payment contract; or (iii) any
otk�er arratxgement.
10.5. The City reasoziably az�tieipates that the amount o£tax exe�npt obligations which
will be xssued by the City and all entities subordinate to, or treated as one issuer
with,the City duzang caleradar year 1998 wi�l�not exceed$10,�00,000, The BANS
are bereby designated as "qua�xfied tax-exempt vbligatioz�s" witbdu the meaning of
Section 265(b)(3) o� the Code. The Cxty will not desxgnate, vr cause any
subordinate entity or request any other governmental entity to designate on its
behalf. moze than $10,000,000 of its obligations as "qual.ifiecl ta�-exempt
3
04/28/1998 14:15 605-336-2593 MEIEP.HENRY LAW FIRM PAGE 65
�
obligations" in calez�dar yeax 1998. The Caty does not reasonably exQect that it or
any subordinate entity will issue, and will not request any other governmental
e�.tity to issue vn its be�alf, in calendar yeaz 1998, zx�ore tha�n 10,000,000 of
obligations whick� it or any such entity could designate as "quali�ied taX exempt
obligations".
10.6. I� the City agxees to comply with all �rovisions of the Code, which if mot
cozx�plied with by the City, would cause tk�e interest on tb,e BANS not to be tax-
exempt in the hands of a holder who is a natural pezson, inc�uding, xf deternnined
to be necessary upon advice of bond counsel, tk�e �ayment of any rebate amouz�t
necessity to �resez�ve such tax exemptioz� pursua�at to Section 1�8 of the Code.
The City fuzcher agrees: (1) through. its offiicers, to make such further specific
covenants,representations as shall be truthful, azxd assurances as�nay be necessazy
or advisab�e; (2) to consult with bvnd counsel and to com�ply with such advice as
may be given; (3) to file such forms, statenaents, az�d supporting documents as
may be required a�d to do so in a timely manner; and (4) i�deemed necessary or
advisable by xts officers, to employ and pay fiscal agents, financia� advisors,
attorneys,and ot�er persons to assist the City in.such conapliance.
��. Ceztificatio�of pzoceedi�a�s. The officers Qf the Cxty are authorized and d'azected to
prepare and furx�ish to the purchasers o£the B.ANS certified copi�s of a�l�roceedings azid
records vf the City relating to the authorization azxd issuance of the BANS and such othez
affidavits and certif cates as�tnay reasonably be requiz�d to show the facts relating to the
legality azxd marketability of the BANS as such facts appear from th�officer's boolcs and
recoxds or are otherwxse know�n.to them. All such certit�'ied copies,ceztificates and
affidavits,inc�uding any heretofore furnished,shall constitute xepresentations o�the City
as to tlae correct�ess o�the facts recited tberein alad the action stated thereiu�to have been
tal�cen.
AT'TEST:
Mayor
Fi.nan,ce Officez�
Adopted: , 1998 /
A,pproved: . 1998
Published: � 1998
'�'k�e mot�on for adoption of tb,e foregoing resolution. was du�y secomded by ,Aldencnan
.arnd upon wote bei�z�g taken thereof,the following voted XEA:
a.n�d the followivag voted NAY_
4