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HomeMy WebLinkAboutResolution 145-1998� . , . RESOLUTION NO. 145-98 RESOLUTION GIVING APPROVAL TO THE ACQUISITION, CONSTRUCTION AND FINANCING OF A CITY PUBLIC LIBRARY PROJECT, GIVING APPROVAL TO THE ISSUANCE OF SALES TAX REVENUE BONDS TO FINANCE A PORTION OF THE COSTS OF SUCH PROJECT AND AUTHORIZING THE SALE OF SAID SALES TAX REVENUE BONDS WHEREAS, the City proposed to issue its Sales Tax Revenue Bonds, Series 1998, dated July 16, 1998, to finance its Public Library (the "Project"), but no advances were made thereunder, no indebtedness was incurred thereby, and no interest expense was incurred in connection therewith: and WHEREAS, the City authorized on November 17, 1998, the issuance of its $7,200,000 Sales Ta�c Revenue Bonds (the "Multi-Plex Bonds"), which will be secured by a first pledge on and lien against its Second Penny Sales Tax (referred to herein); and WHEREAS, subsequent to the issuance of the Multi-Plex Bonds,the City intends to issue a separate series of Sales Ta�c Revenue Bonds to be designated (Sales Tax Revenue Bonds, 1998 Series B (the"Series B. Bonds"), to provide financing for the Project; NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Brookings as follows: 1. Officers of the City are hereby authorized and directed to accept delivery of one or more cancelled instruments, confirming that no sales tax revenue bonds for the Project have to date been issued (or are to be issued until after the issuance of the Multi-Plex Bonds), and to file with the Internal Revenue Service and such other agencies or departments of the State of Federal governments, if any, as may be appropriate such reports or information as may be necessary or desirable to confirm the foregoing, in the opinion of Danforth, Meierhenry & Meierhenry, LLP, as bond counsel for the Series B Bonds. 2. Recitals. The City of Brookings (the "City") desired to make a capital improvement to and finance its Public Library (the "Project") which project has been approved prior hereto and copies of plans are on file with the Finance Officer open to public inspection. The City finds that the City is current in the payment of all Outstanding Bonds, as defined in Resolution No. 138-98, and is current in the accumulations required for the Principal and Interest Account and Reserve Account. For this Resolution, "Outstanding Bonds" shall mean these Bonds and any parity lien bonds herebefore issued or hereafter issued pursuant to this Bond Resolution or Resolution No. 138-98. The City finds that the Second Penny Sales Tax collected by the city in the preceding and current fiscal year is sufficient to cover 1.25 times the combined average annual principal and interest requirements on all Outstanding Bonds 2 3. Authoritv. The City is authorized to issue its Sales Tax Revenue Bonds, 1998 Series B, to finance the capital improvements pursuant to Section 10-52-2.10 of the South Dakota Codified Laws. Pursuant to Chapter 10-52 of the South Dakota Codified Laws (the "Act") the City proposes to issue municipal non ad valorem revenue bonds (as herein authorized, the Sales Tax Revenue Bonds, 1998 Series B, or the "Bonds") to finance the Project. The Bonds shall be issued on a parity basis with all Outstanding Bonds. The City is authorized by the Sales Tax Act to levy a"non ad valorem tax" (as defined by the Act) on the sale, use, storage, and consumption of items taxed under Chapters 10-45 and 10-46 of the South Dakota Laws, subject to certain, as amended, exceptions. 4. Sales Tax Ordinance Imposin� Second Penny. The City Common Council has adopted Ordinance No. 21-81, 25-96 and 20-98 which shall constitute the City's effective Sales Tax Ordinance (the "Sales T� Ordinance"). The Sales Tax Ordinance has been duly adopted pursuant to the Act and effectively and validly imposes the sales and use tax authorized by the Act within the City. The second 1% sales tax adopted pursuant to the Sales Tax Ordinance hereinafter referred to as the "Second Penny Sales Tax". 5. Cost of the Project. The cost of the Project is approximately $2,800,000 The City has prior to the construction made its official intent to finance an amount not to exceed $2,800,000 of the Project through the issuance of Sales Tax Revenue Bonds. 6. Findin�s. The City Common Council hereby finds and determines as follows: 6.1 The Project constitutes capital improvements which qualify for the financing under and pursuant to SDCL Chapter 10-52, and the Sales Tax Ordinance; and 6.2 The Sales Tax Revenue Bonds Authorized hereby are being issued to pay costs of the Project which have not been incurred or paid as of the date hereof and/or which the City has heretofore declared its intention to finance with the bond proceeds and for which the City has no other available means or source of financing. 6.3 It is in the best interests of the City to authorize the bonowing of funds to pay a portion of the costs of the Project by authorizing and issuing its Sales Tax Revenue Bonds, 1998 Series B, consistent with the terms approved hereby for an aggregate sum not in excess of the amount of$2,800,OQ0'. 7. Sale of Bonds. It is hereby determined to be necessary and in the best interests of the City and its inhabitants that this City Common Council authorize, issue and sell the Bonds (the "Bonds") in order to finance a portion of the cost of the Project. The Mayor and Finance Officer are authorized to negotiate the sale and terms of the Bonds subject to the limitations of the law and this resolution. 8. No Election Required. The Bonds may be issued by the City without an election pursuant to SDCL §10-52-2.10. 3 . 9. Form of Bonds. The Bonds shall be prepared in substantially the form on file with the Finance Officer and open to public inspection. 10. Terms of Bonds. 10.1. Date, Amount, Maturities and Interest Rates.The City Common Council hereby authorizes the issuance of the Bonds. The Bonds shall be dated in 1998. The principal amount of the Bonds shall not exceed any statutory or constitutional debt limitation. The Bonds shall have maturities and interest rates as negotiated by the Mayor and Finance Officer. 10.2. Registration. The Bonds shall be registered in the same manner as provided in Resolution No. 138-98. 10.3. Securitv Provisions; Funds and Accounts and Other Covenants and Determinations. 10.3.1. Svecial Sales T� Fund. The Finance Officer is hereby directed to maintain the Special Tax Fund as a separate and special fund in the financial records of the City until all Bonds issued and made payable therefrom, and interest due thereon, have been duly paid or discharged. All collections of the Pledged Revenues, as hereinafter defined, shall be credited, as received, to the Special Tax Fund in accordance with Resolution 138-98 and this Bond Resolution. 10.3.2. Pledged Revenues. Pursuant to the Act and the Sales Tax Ordinance, the City has levied the Second Penny Sales T� on the sale, use , storage and consumption of items taxed under Section 10-45 and 10-46 of South Dakota Codified Laws, subject to certain exceptions. The proceeds of the Second Penny Sales Tax are irrevocably pledged and appropriated to, and shall be deposited to the Special Tax Fund. The total amount of Second Penny Sales T�es collected is referred to herein as the "Pledged Revenues". For purposes of this Resolution, "Outstanding Bonds" shall mean these Bonds and any parity lien bonds herebefore or hereafter issued pursuant to t�is Resolution. The Pledged Revenues and the Special Tax Fund shall be used and applied only in the manner and order hereinafter set forth. 10.3.3. Funds and Accounts and Other Covenants and Determinations. The various separate accounts to be maintained pursuant to Resolution No. 138-98 shall be used for the Bonds, as said Bonds are with the definition of Outstanding Bonds. 10.4. Covenants of the Citv. The City hereby inevocably covenants and agrees with each and every holder of the Bonds those covenants set forth in Resolution 138- 98. 4 10.5. Defeasance. When all the Bonds issued 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 City may discharge its obligations with respect to any Bonds which are due on any date by providing to the Paying Agent 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 providing to the Paying Agent a sum sufficient for the payment thereof in full with interest accrued to the date of such deposit. The City may also discharge its liability with reference to all Bonds which are called for redemption on any date in accordance with their terms by depositing funds with the Paying Agent on or before that date in accordance with their terms by depositing funds with the Paying Agent on or before that date, in an amount equal to the principal, interest, and premium, if any, which are then due thereon, provided that notice of such redemption has been duly given. The City may also at any time discharge this issue of Bonds in its entirety, 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 United States government obligations which are authorized by law to be so deposited, bearing interest payable at such times and at such rates and maturing on such dates as shall be required to provide funds (without an reinvestment) sufficient to pay all principal, interest and premiums, if any, to become due on all Bonds on and before maturity, or, if a Bond has been duly called for redemption, on or before the designated redemption date. 10.6. Tax Matters; Certification of Proceedings and Miscellaneous. 10.6.1. Tax Matters. The City covenants and agrees with the registered owners from time to time of the Bonds that it will not take or permit to be taken by any of its officers, employees or agents any action which would cause the interest on the Bonds to become 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 Bonds 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. 10.6.2. The Mayor and Finance Officer, 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 thereof a certificate in accordance with the provisions of Section 148 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 delivery of the Bonds which make it reasonable to expect that the proceeds 5 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. 10.6.3. 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 Bonds 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 costs of computing any such rebate or penalty amounts. 10.6.4. It is hereby determined that the Bonds are not and will not be "private activity bonds" as defined in Section 141(a) of the Code, and in support of such conclusion the City Common Council covenants, represents, and certifies as follows: 10.6.4.l.none of the proceeds of the Bonds 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; 10.6.4.2.no direct or indirect payments of the principal of or interest on the Bonds 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; 10.6.4.3.none of the proceeds of the Bonds are to be used, directly or indirectly, to make or finance loans to persons other than a state or local governmental unit; and 10.6.4.4.no user of any facilities or improvements financed with the proceeds of the Bonds 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. 10.6.5. 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 Bonds are hereby designated as "qualified tax-exempt 6 , . 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 ta�c-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". 10.6.6. 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 Bonds 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. 10.7. Certification of Proceedings and Resolution 138-98 open to Public Inspection. The officers of the City are authorized and directed to prepare and furnish to the purchasers of the Bonds certified copies of all proceedings and records of the City relating to the authorization and issuance of the Bonds and such other affidavits and certificates as may reasonably be required to show the facts relating to the legality and marketability of the Bonds 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. Resolution 138-98 is incorporated herein by reference as if in pertinent part stated in full. Resolution 138-98 is on file with the Business Manager and open to public inspection. Dated this 8``'day of December, 1998. `F�ac . ��'� es ` � :` Mayor �Pp� ,�p� �ri •°"• fficer 7 � " / , . "��1 � 5 1 � � `� / � , <' { ) i S i � 7 � � � Y" �,-s2 �c C� C �r � l �� L' �F 5 L.'� i�' � � ------- ---- - � ' __, I��� `�l � RESOLUTION NO. 48-98 � RESOLUTION GIVING APPROVAL TO FINANCING OF THE BROOKINGS PUBLIC LIBARY EXPANSION PROJECT, GIVING APPROVAL TO THE ISSUANCE OF SALES TAX REVENUE BONDS TO FINANCE A PORTION OF THE COSTS OF SUCH PROJECT AND AUTHORIZING . THE SALE OF SAID SALES TAX REVENUE BONDS NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Brookings as follows: I. RECITALS, AUTHORIZATION AND FINDINGS. A. Recitals. The City of Brookings (the "City") desires to make a capital improvement to and finance and the Brookings Public Library Expansion Project (the "Project"). B. Authoritv. The City is authorized to issue its Sales Tax Revenue Bonds, Series 1998, to finance the capital improvements pursuant to Section 10-52-2.10 of the South Dakota Codified Laws. Pursuant to Chapter 10-52 of the South Dakota Codified Laws (the "Act")the City proposes to issue municipal non ad valorem revenue bonds (as herein authorized, the Sales Tax Revenue Bonds, Series 1998, or the ("Bonds")to fmance the Project . The City is authorized by the Sales Tax Act to levy a "non ad valorem tax" (as defined by the Act) on the sale,use, storage, and consumption of items taxed under Chapters 10-45 and 10-46 of the South Dakota Laws, subject to certain, as amended, exceptions. The City Commission has adopted Ordinance No.25-46, a resolution giving approval to financing of the Brookings Public Library Expansion Project, giving approval to the issuance of sales tax revenue bonds to finance a portion of the costs of such project and authorizing the sale of said sales tax revenue bonds which constitutes the City's effective Sales Tax Ordinance (the "Sales Tax Ordinance"). The Sales Tax Ordinance has been duty adopted pursuant to the Act and effectively and validly imposes the sales and use tax authorized by the Act within the City, such tax being hereinafter referred to as the "Sales Tax". C. Findin s. The City Commission hereby finds and determines as follows: 1. The total cost of the Project is approximately$2,800,000.00. The City proposes to finance an amount not to exceed the cost of the.Project through the issuance of Sales Tax Revenue Bonds, Series 1998 (the "Bonds"). The Bonds shall be payable out of certain available sales tax receipts. Proceeds of the Bonds may also be used to reimburse the City for costs incurred for the Project pursuant to a reimbursement resolution passed in calendar year 1997. 2. The Project constitutes capital improvements which qualify for the financing under and pursuant to SDCL Chapter 10-52, and the Sales Tax Ordi.nance. 3. The Sales Tax Revenue Bonds authorized hereby are being issued to pay costs of the Project which have not been incurred or paid as of the date hereof and/or which the City has heretofore declared its intention to finance with bond proceeds and for which the City has no other available means or source of financing. 4. 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 Sales Tax Revenue Bonds, Series 1998, consistent with the terms approved hereby for an aggregate sum not in excess of the amount of $2,800,000.00. II. SALE, BOND PURCHASE AGREEMENT AND OFFICIAL STATEMENT. A. Sale. The Bonds authorized by this Resolution shall be issued in an aggregate principal amount not exceeding$2,800,000.00 shall he sold to the First National Bank in Brookings (the "Underwriter") at a purchase price and upon the terms specified in Exhibit A attached to the bond purchase agreement. B. Bond Purchase Agreement. The execution of a Bond Purchase Agreement setting forth such fmal terms by the Mayor and Finance Officer is hereby approved and such execution shall be conclusive evidence of such agreement and shall be binding upon the City. The provisions of the Bond Purchase Agreement of the Bond Purchase Agreement as so executed, including all Exhibits and Appendices thereto, are incorporated herein by reference. The law firm of Danforth, Meierhenry&Merierhenry, L.L.P., of Sioux Falls, South Dakota("Bond Counsel"), is hereby appointed as Bond Counsel for purposes of this issue of Bonds and the Mayor and Finance Officer axe authorized to execute such agreement and shall be binding upon the City. III. TERMS, FORM, EXECUTION AND DELIVERY. A. Date. Maturities and Interest Rates. The Bonds shall be issued in the denomination as agreed each, or any integral multiple thereof, shall mature on the dates and in the respective years and amounts, and shall bear interest from date of original issue until paid or duty called for redemption payable on the dates and at the respective annual rates stated opposite such maturity years as shown on Exhibit A to the Bond Purchase Agreement. The Bonds shall be issuable only in fully registered form. The interest thereon and,upon surrender of each Bond, the principal amount thereof, shall be payable by check or draft issued by the Registrar described herein. B. Dates and Interest Payment Dates. Each Bond shall bear a date of original issue as of the fifteenth day of the month in which the Bonds are delivered to the Underwriter upon the initial delivery of the Bonds and upon any subsequent transfer or exchange, the date of authentication shall be noted on each Bond so delivered, exchanged or transferred. The interest on the Bonds shall be payable on the interest payment dates specified in the Bond Purchase Agreement(the "Interest Payment Dates") to the owner of record thereof as the close of business on the last or fifteenth day of the immediately preceding month (the "Record Date"), whether or not such day is a business day. C. Redemption. The Bonds shall be subject to redemption prior to maturity, at the option of the City, in the years and at the redemption prices set forth in Exhibit A to the Bond Purchase Agreement in such order of maturities as may be designated by the City and, within any maturity, in principal amounts as agreed selected by the Registrar by lot, assigned in proportion to their principal amounts. 1. The Finance Officer shall cause notice of the call for redemption thereof to be published as and if required by law, and, at least thirty days prior to the designated redemption date, shall cause notice of the call thereof for redemption to be mailed,by first class mail, to the registered owners of any Bonds to be redeemed at their addresses m they appear on the bond register. but no defect to or failure to give such mailed notice shall affect the validity of proceedings for the redemption of any Bond not affected by such defect or failure. The notice of redemption shall specify the redemption date,redemption price,the numbers, interest rates and CUSIP numbers of the Bonds, if any to be redeemed and the place at which the Bonds are to be surrendered for payment which is the principal office of the Registrar. 2. 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 registered owner without charge, representing the remaining principal amount outstanding. D. Execution, Authentication and Deliverv, The Bonds shall be prepared under the direction of the Finance Officer and shall be executed on behalf of the City by the signatures of the Mayor and the Finance officer, and countersigned by an attorney actually residing in the State of South Dakota and duty licensed to practice therein, and shall be sealed with the official corporate sea; of the City; provided that all signatures may be printed, engraved or lithographed facsimiles of the originals. In case any officer whose signature or a facsimile of whose signature shall appear on the Bonds shall cease to be such officer before the delivery of any Bond, such signature or facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he�had remained in office until delivery. Notwithstanding such execution, no Bond shall be valid or obligatory for any purpose or entitled to any security or benefit under this Resolution unless and until a certificate of authentication on such Bond has been duly executed by the Registrar by the manual signature of its authorized representative. Bonds 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 so prepared, executed and authenticated, the Finance Officer shall deliver the same to the Underwriter thereof upon payment of the purchase price in accordance with the provisions of the Bond Purchase Agreement and the Uriderwriter shall not be obligated to see to the application of the purchase price. Upon delivery of the Bonds to the Underwriter, the Finance officer shall file with the Secretary of State, on the form provided by the Secretary of State, the information required by SDCL, Section 6§B-19. E. Form of Bond. The Bonds shall be printed in substantially the form on file with the finance officer. IV. APPOTNTMENT OF REGISTRAR AND REGISTRATION. A. Appointment of Initial Re is�trar. The City hereby appoints the fmance officer of the City of Brookings as bond registrar, transfer agent and paying agent (the"Registrar") for the Bonds. 'The Mayor and the Finance Officer are authorized to execute and deliver, on behalf of the City, a contract with the Registrar or any successor Register. Upon merger or consolidation of the Registrar with another corporation, if the resulting corporation is a bank or trust company authorized by law 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 upon thirty(30) days' notice and upon the appointment 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. No resignation or removal of the Registrar shall become effective until a successor Registrar has been appointed and has accepted such appointment. The Registrar may appoint an operations agent to perform any of its functions hereunder. B. Registration. The effect of registration and the rights and duties of the City and the Registrar with respect thereto shall be as follows: 1. Re ister: The Registrar shall keep at its principal office or corporate trust office a bond register in which the Registrar shall provide for the registration of ownership of Bonds and the registration of transfers and exchanges of Bonds entitled to be registered, transferred or exchanged. 2. 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 designed 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 last day of the month preceding each interest payment date and until such interest payment date. � 3. Exchan�e 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, interest rate and maturity, as requested by the registered owner or the owner's attorney duly authorized in writing. 4. Cancellation. All Bonds surrendered upon any transfer or exchange shall be promptly canceled by the Registrar and thereafter disposed of as directed by the City. 5. Im�,roper 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. 6. 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 such Bond, whether such Bond shall be overdue or not for the purpose of receiving payment of, or on account of, the principal of and interest on such Bond and for all other purposes, and all such payments so made to any such registered owner or upon the owner's order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. 7. Taxes, Fees and Charges. For every transfer or exchange of Bonds, 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. 8. Mutilated, Lost, Stolen or Destroved Bonds. In case any Bond shall become mutilated or be destroyed, stolen or lost, the Registrar shall deliver a new Bond of like amount,number,maturity date and tenor in exchange and substitution for and upon cancellation of any such mutilated Bond or in lieu of and in substitution for any such Bond 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 such 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 w 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 or been called for redemption in accordance with its terms it shall not be necessary to Issue a new Bond prior to payment. V. SECURITY PROVISIONS; FUNDS AND ACCOUNTS AND OTHER COVENANTS AND DETERMINATIONS. `�A. Sales Tax Revenue Bond Fund. The Finance Officer is hereby authorized and directed to ._ establish and shall maintain the Sales Tax Revenue Bond Fund as a separate and special fund in the financial records of the City until all Bonds issued and made payable therefrom, and interest due thereon, have been duly paid or discharged. All collections of the Pledged Revenues, as hereinafter defined, shall be credited, as received;to the Sales Tax Revenue Bond Fund. The City covenants and agrees to impose and collect Sales Tax so long as the bonds are outstanding. The City pledges so much of the collections of the taxes as may be necessary to pay the principal,premium and interest on the bonds and to maintain any debt service reserve, if any, established for the bonds. Within the Sales Tax Revenue Bond Fund are various separate accounts to be maintained by the City. B. Pledged Revenues. Pursuant to the Act and the Sales Tax Ordinance, the City has levied the Sales Tax on the sale, use, storage and consumption of items taxes under Section 10-45 and 10-46 of South Dakota Codified Laws, subject to certain exception. The proceeds of the Sales Tax are . irrevocably pledged and appropriated to, and shall be deposited to the Sales Tax Revenue Bond Fund. The total amount of Sales Taxes collected is referred to herein as the "Pledged Revenues". The Pledged Revenues and the Sales Tax Revenue Bond Fund shall be used and applied only in the manner and order hereinafter set forth. C. Construction Account. There is hereby created and established as an account of the Sales Tax Revenue Bond Fund, a"Construction Account". There shall be credited to the Construction Account the proceeds from the sale of the Bonds remaining after payment of the expenses of issuing the Bonds. All moneys credited to the Construction Account shall be applied solely to the payment or the costs of the Project. For the purposes of this Resolution, "costs of the Project" shall include costs of acquiring, construction, installing, equipping and furnishing the Project including cost cf labor, services, materials and supplies, financial, azchitectural, engineering, legal, accounting and other professional expenses relating to the Project, including reimbursement of the City for costs incurred, the costs of acquisition or properties, rights, easements, or other interest in properties, insurance premiums, and the costs of publishing, posting or mailing notices in connection with the Project. All sums derived from the investment of moneys in the Construction Account shall remain in and become part of such account. Upon completion of the Project and when all costs of the Project have been paid, any balance remaining in the Construction Account shall be credited to the Principal and Interest Account hereinafter established. D. Principal and Interest Account. There is hereby created and established as an account of the Sales Tax Revenue Bond Fund, a "Principal and Interest Account". Immediately upon delivery of the Bonds, there shall be credited to the Principal and Interest Account the amount of any accrued interest received from the Purchaser. Commencing on the first day of the month following the month in which the Bonds are delivered to the Purchaser,there shall be withdrawn from the Sales Tax Revenue Bond Fund , at least monthly and credited to the Principal and Interest Account an amount which will equal at least one over the number of months between interest payments of the interest becoming due on the next succeeding interest payment date with respect to the Outstanding Bonds issued. Commencing on the first day of the month following the month in which the Bonds are delivered to the Purchaser, there shall be withdrawn from the Sales Tax Revenue Bond Fund at least monthly and credited to the Principal and Interest Account, an amount which will equal at least one over the number of months between pri.ncipal payments of the principal becoming due on the next succeeding principal payment date with respect to the Outstanding Bonds. In all events there shall be credited to the Principal and Interest Account amounts sufficient to pay the principal of and interest on the Outstanding Bonds as the same become due. E. Subordinate Lien Bonds. After making the above required payments, any remaining Pledged Revenues shall be used for the payment of the principal of and interest on any additional sales tax revenue bonds having a lien which is subordinate to the lien of the Outstanding Bonds, and for a reserve fund as additional security for the payment of such subordinate lien bonds. F. Inter-fund Transfer. So long as the revenues from the Sales Tax am sufficient to make all required deposits to the Principal and Interest Account, the City may deposit the excess revenues from the Sales Tax to the general fund or any other City fund as determined by the City and as permitted by law. G. Deposit and Investment of Funds. The Finance officer shall cause all moneys pertaining to the Fund to be deposited as received with one or more banks which are duly qualified public depositories under the provisions of Chapter 4-6A, South Dakota Codified Laws, in a deposit account or accounts, which shall be maintained separate and apart from all other accounts of the City, so long as any of the Bonds and the interest thereon shall remain unpaid. Any of such moneys not necessary for immediate use may be deposited with such depository banks in savings or time deposits. No moneys shall at any time be withdrawn from such deposit accounts except for the purposes of the Fund as authorized in this Resolution; except that moneys from time to time on hand in the Fund may at any time, in the discretion of this Commission, be invested in securities permitted by the Provisions of Section 4-5-6, South Dakota Codified Laws, maturing and beariug interest at the times and in the amounts estimated to be required to provide cash when needed for the purposes of the respective accounts. Income received from the deposit or investment of moneys shall be credited to the account from whose moneys the deposit was made or the investment was purchased, and handled and accounted for in the same manner as other moneys in that account. VI. COVENANTS OF THE CITY A. The City hereby irrevocably covenants and agrees with each and every holder of the Bonds that so long as any of the Bonds remain outstanding: 1. .It will not amend or repeal the Sales Tax Ordinance relating to the Sales Tax by decreasing the Sales Tax rate or the allocation of revenues thereof to the Sales Tax Revenue Bond Fund, or in any way that would adversely affect the amount of Sales Tax revenues which would otherwise be collected and deposited to the Sales Tax Revenue Bond Fund. However, nothing shall prevent the City from amending the Sales Tax Ordinance in order to make certain changes in the administration, collection or enforcement of the Sales Tax, provided that such changes would not materially adversely affect the owners of the Bonds. 2. It will administer, enforce, and collect, or cause to be administered, enforced or collected, the Sales Tax authorized by the Sales Tax Ordinance and shall take such necessary action to collect delinquent payments in accordance with law. 3. It will keep or cause to be kept such books and records showing the proceeds of the Sales Tax, in which complete entries shall be made in accordance with standard principles of accounting, and any owner of any Bond shall have the right at all reasonable times to inspect the records and accounts relating to the collection and receipts of such Sates Tax. B. Defeasance. When all the Bonds issued 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 City may discharge its obligations with respect to any Bonds which are due on any date by providing to the Paying Agent on or before that date a sum sufficient for the payment thereof in full; or, if the any Bond should not be paid when due, it may nevertheless be discharged by providing to the Paying Agent a sum sufficient for the payment thereof in full with interest accrued to the date of such deposit. The City may also discharge its liability with reference to all Bonds which are called for redemption on any date in accordance with their terms by depositing funds with the Paying Agent on or before that date in accordance with their terms by depositing funds with the Paying Agent on or before that date, in an amount equal to the principal, interest, and premium, if any, which are then due thereon, provided that notice of such redemption has been duty given. The City may also at any time discharge this issue of Bonds in its entirely, 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 United States government obligations which are authorized by law to be so deposited, bearing interest payable at such times and at such rates and maturing on such dates as shall be required to provide funds (without an reinvestment) sufficient to pay all principal, interest and premiums, if any, to become due an all Bonds on and before maturity, or, if a Bond has been duty called for redemption, on or before the designated redemption date. VII. TAX MATTERS; CERTIRCATION OF PROCEEDINGS AND MISCELLANEOUS- A. Tax Matters. The City covenants and agrees with the registered owners from time to time of the Bonds that it will not take or permit to be taken lay any of its officers, employees or agents any action which would cause the interest on the Bonds to become subject to motion 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 Bonds 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. B. The Mayor and Finance Officer,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 thereof a certificate in accordance with the provisions of Section 148 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 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. C. 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 Bonds 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 costs of computing any such rebate or penalty amounts. The City anticipates that it will not issue more than $5,000,000 worth of securities in the current calendar year. D. It is hereby determined that the Bonds we not and will not be "private activity bonds" as defined in Section 141(a) of the Code, and in support of such conclusion the City Commission covenants, represents, and certifies as follows: 1. none of the proceeds of the Bonds 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 govemmental unit; 2. no direct or indirect payments of the principal of or interest on the Bonds will be derived from. payments (whether or not to the City), in respect of Property, at bonowed money,used or to be used for a private business use by any person other than a state or local governmental unit; 3. none of the proceeds of the Bonds are to be used, directly or indirectly, to make or finance loans to persons other than a state or local governmental unit; and 4. no user of any facilities or improvements financed with the proceeds of the Bonds 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. E. The City reasonably anticipate 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 Bonds 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". F. 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 Bonds 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 witli such advice as may be given; (3) to file such forms, statements and supporting documents as may be required and to de so in a timely manner, and(4) if deemed necessary or advisable by its officers, to employ and pay fiscal agents, financial advise, attorneys, and other persons to assist the City in such compliance. G. Certification of Proceedin�s. The officers of the City are authorized and directed to prepa're and furnish to the purchasers of the Bonds certified copies of all proceedings and records of the City relating to the authorization and issuance of the Bonds and such other affidavits and certificates as may reasonably be required to show the facts relating to the legality and marketability of the Bonds 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, VIII. AMENDMENT. A. Amendment. This resolution may be amended at any time prior to issuance of the Bonds by adoption of an administrative resolution. Passed and approved this 19th day of May, 1998. (� L Mayor ST: �FpOKIA1Gs �C .Q��tATED�'• �� �$n�t�9 �x :`1� --� \.;�,. � �p S ' � Finance Officer STATE OF SOUTH DAKOTA :SS COUNTY OF BROOKINGS The undersigned,being the duty qualified and acting Finance Officer of the City of Brookings, South Dakota, do hereby certify that the attached and foregoing is a full, true and complete transcript of the Minutes of a meeting of the City Commission held on the 19th day of May, 1998, insofar as the original meeting relates to proceedings for: RESOLUTION N0.48-98 RESOLUTION GIVING APPROVAL TO FINANCING OF THE PROJECT, GIVING APPROVAL TO THE ISSUANCE OF SALES TAX REVENUE BONDS TO FINANCE A PORTION OF THE COSTS OF SUCH PROJECT AND AIJTIIORIZING THE SALE OF SAID SALES TAX REVENUE BONDS WI'INESS my hand and official seal of this said City this day of , 1998. Finance Officer City of Brookings, South Dakota LTNITED STATES OF AMERICA STATE OF SOUTTI DAKOTA BROOKINGS COUNTY CITY OF BROOHINGS BROOHINGS COUNTY, SOUTH DAKOTA SALES TAX REVENUE BONDS, SERIES 1998 R- $ Rate of Interest Maturity Date Date of Original Issue ,1998 Registered Owner: Principal Amount: and NO\100 DOLLARS REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THE BOND SET FORTH ON THE FOLLOWING PAGES,WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFE�T AS IF SET FORTIi AT THIS PLACE. It is hereby certified and recited that all conditions, acts and things required by law to exist or to be done precedent to and in the issuance of this Bond did exist, have happened,been done and performed in regulaz and due form and time as required by law. This Bond is issued in full conformity with the Uniform Municipal Non-Ad Valorem Tax Law This Bond shall not be valid or become obligatory for any purpose or be entitled to any benefit or security under the Resolution until it shall have been authenticated by the execution by the Registrar of the Bond of authentication endorsed hereon IN WITNESS WHEREOF,the City has caused this Bond to be signed by the manual or facsimile signature of its Mayor of the City and to be countersigned by the manual or facsimile signature of its Finance Officer all as of the Bond Date specified above. ATTEST Finance Officer COUNTERSIGNED: Resident Attorney City of Brookings, South Dakota By: Mayor CERTIFICATE OF AUTHENTICATION This Bond is a Bond of the series designated therein and has been issued under the provisions of the within-mentioned Resolution and the date of its authentication is , 1998. Finance Officer , City of Brookings, South Dakota Bond Registrar and Paying Agent By: Authorized Officer KNOW ALL MEN BY THE5E PRESENTS: That the City of Brookings, Brookings, South Dakota (the "City"), in Brookings County, South Dakota,hereby acknowledges itself to owe and for value received promises to pay, solely from the funds provided therefore as hereinafter set forth, to the Registered Owner mentioned above in lawful money of the United States of America, together with interest thereon from the Date of Original Issue mentioned above at the Rate of Interest mentioned above. The interest hereon is payable , , and semiannually thereafter on and in each year to maturity or earlier redemption by check or drift mailed to the Registered Own it his address as it appears on the Bond registration books of the City maintained by City, Finance Officer, Brookings, South Dakota, as Bond registrar and paying agent(the "Registrar"), on the close of business on the business business day in the month immediately preceding the interest payment date (the "Record Date"). The principal hereof due at maturity or upon redemption prior to maturity are payable at the office of Registrar upon presentation and surrender of this Bond at maturity or upon earlier redemption. The principal of,premium (if any) and interest on this Bond is payable in any coin or currency of the United Stiles of America which, at the time of payment. is legal tender for the payment of public and private debts. This Bond is one of an authorized issue of Bonds limited in aggregate principal amount to a maximum of$ (the "Bonds") all of like date and tenor except as to maturity, interest rates and privileges of redemption, issued to pay a portion of the cost of construction of a new city hall and police station and to furnish pursuant to a resolution duly and regularly adopted by the City on , 1998, and are subject to all the provisions and limitations of Chapters 10-52 and 6-8B, South Dakota Codified Laws, as amended. � The City has irrevocably appropriated and pledged pursuant to SDCL §10-52-2.10 for the payment of this Bond non ad valorem taxes imposed by Chapter of the Municipal Code of the City which constitutes the City's effective Sales Tax Ordinance (the "Sales Tax Ordiriance"). The Sales Tax Ordinance has been duly adopted pursuant to the Act and effectively validly imposes the sales and use tax authorized by SDCL §10-45 §10-46 and 10-52 (the "Act") within the City, such tax being hereinafter referred to as the "Sales Tax". The Sales Tax shall be collected and placed into the Sales Tax Revenue Bond Fund(the "Bond Fund") to be used and applied in payment of the costs thereof for the payment of principal of and interest on the Bonds issued hereunder and to be used as hereinafter provided. The proceeds of such Sales Tax will be sufficient to provide for the payment of interest upon the Bonds issued hereunder when due to create a sinking fund to pay the principal thereof as and when the same become due. The Sales Tax shall be imposed and collected in conformance with the Act so long its Bonds remain outstanding. Al1 Bonds maturing on or after are subject to redemption in inverse order of maturity at The option of the City, with no less than 30 days written notice, on or after , and any date thereafter at par and accrued interest to date set for redemption. If fewer than all of the Bonds of anyone maturity of this issue shall be called for redemption,the Boi�ds to be redeemed shall be selected by lot. In selecting Bonds for redemption the Paying Agent shall treat each Bond as representing that number of Bonds which is equal to the principal amount of such Bond divided by$5,000 When less than all of a Bond issued in a denomination greater than $5,000 shall be so redeemed,then, upon the surrender of such Bond, there shall be issued to the registered owner thereof, without charges, for the unredeemed balance of the principal amount of such Bond a registered Bond in any authorized denomination in an aggregate principal amount equal to the unredeemed balance of the Bond, so surrendered,bearing the same interest rate and maturing on the same date as the surrendered Bond. This Bond is transferable by the registered holder hereof in person or bv his attorney duty authorized in writing at the office of the Bond Registrar in Brookings, Brookings,but only in the manner, subject to the limitations and upon payment of the charges provided in the Bond Resolution, and upon surrender and cancellation of this Bond. Upon such transfer a new Bond or Bonds of authorized denomination of the same maturity and for the same aggregate principal amount will be issued to the transferee in exchange therefore. The City and the Bond Registrar may deem and treat the registered holder hereof as the absolute owner hereof and neither the City nor the Bond Registrar shall be affected by any notice to the contrary. The City has in the Resolution designated such issue of Bonds as "qualified tax-exempt obligations" pursuant to Section 265(b)(3)(B)(i) of the Internal Revenue Code of 1986, as amended. � { . (Form of Assignment) FOR VALUE RECEIVED the undersigned hereby sells. assigns and transfers onto the within Bond and all rights thereunder and hereby irrevocably constitutes and appoints attomey to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: NOTICE: The 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 of any change whatever. Adopted: , 1998 Approved: , 1998 Published: , 1998 The motion for adoption of the foregoing resolution was duly seconded by Alderman , and upon vote being taken thereof,the following voted YEA: and the following voted NAY: Whereupon said resolution was declared duly passed and adopted. ATTEST: Mayor Finance Officer 8 STATE OF SOUTH DAKOTA ) :SS COUNTY OF BROOKINGS ) I, the undersigned, being the duly qualified and acting Finance Officer of the City of Brookings, South Dakota, do hereby certify that the attached and foregoing is a full, true and complete transcript of the Minutes of a meeting of the City Common Council held on the day of , 1998, insofar as the original meeting relates to proceedings for the Resolution Authorizing the Sale of Said Sales Tax Bonds. WITNESS my hand and official seal of this said City this day of , 1998. Finance Officer City of Brookings, South Dakota 9