HomeMy WebLinkAboutCCMinutes_2005_11_15 � 84
Brookings Ciry Council
Tuesday, November 15, 2005
Joint Chamber Board & City Council Meeting—4:00 p.m. The Brookings City Council held a
joint meeting with the Brookings Chamber Boaxd on Tuesday,November 15,2005 at 4:00 p.m.,at
City Hall with the following members present: Mayor Scott Munsterman,Council Members Tom
Bezdichek (arrived at 4:10 p.m.),Michael Bardey,Julie Whaley, Ginger Thomson,Tim Reed, and
Michael Reitz. Ciry Manager Alan Lanning,Ciry Attorney Steve Britzman,and City Clexk Shari
Thornes were also present.
The Chamber Boaxd requested ways to work together to maximize the Third B. The Council said
they are currendy evaluating the Event Center Board structure and won't be able to address use of
Third B funds until after that evaluation occurs. The Council is also considering the creation of a
new Promotions Board that would coordinate pxomotions and Third B spending.
It was noted that Resolution No. 83-04 established the funding fox the CVB,DBI,and BEDC.
Ladell Swiden, Chamber Boaxd President, said he would like to see a contract with the promotion
board or expand the CVB to handle the promotions. He referenced the bid submitted by the CVB.
A new Events Coordinator position was part of that bid but was not funded by the city in 2006.
It was noted that the Brookings CVB budget is much less to those of similar size communities in
South Dakota. T'here was discussion regarding the difference between events and promotions.
Promotions are not just filling hotel rooms.
Swiden noted that promotional groups in the Black Hills woxk seamlessly together to provide
hospitality services. An event coordinator in Brookings could provide that level of detail£or
successful event coorciination.
The concept of an events coordinator evolved fxom the Mayor's Ad Hoc Committee on
Promotions. Another recommendation of the group was a re-evaluation of the promotions
structure in Brookings,recommending a one-stop structure concept. The proposed Promotions
Board would serve as a"think tank" to kick around new and innovative ways to promote Brookings
resulting in economic development oppoxtunities. The group would research ideas and then hand
off to the events coordinatoz.
Spence Hawley commented that the Brookings CVB program is not properly funded or staffed.
Additional staffing is needed to make sure every event is covered. He recommended that the city
take what we currendy have and make it more effective rather than creating a new structure.
Munsterman requested the group return to the December 13�'Council meeting at 4:00 p.m. to
present their budget in gxeater detail. The Council needs to evaluate how to make the additional
funding from the Third B be the most effective for Brookings. A decision with the Event Centez
Board is also needed.
WQrk Session—5:00 ti.m.
November 15`�Agenda. The City ManageY xesponded to questions pertaining to the action items
on the agenda.
City Staff To�ic Introduction:
A. Brookings Munic�al Utilities. Craig Osvog,BMU Executive Director,made the
following announcement at the meeting. "Eaxlier this afternoon, a press conference took place at
BMU,at which time Board Pxesident Steve Myers and I announced the company's intention to offer
digital television service in Brookings. We are here tonight to inform you of this decision,and
answer any questions you might have at this time. I would like to share with you now the remaxks I
offered to the media...
Over the course of the past year the Brookings Municipal Utilities board has undertaken an
extensive study of the telecommunications industry. The board's study focused on the direction of
the telecommunications industry with respect to technology,regulation and services. It was no small
task. Their inquiry produced information that was detailed and profound,but also fundamental. It
was found that Swiftel provides essential communrcations services to this community,and that
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Swiftel provides these services with the pu ose ofmaximizing pvblic benefits. This means that
rates are not what the maxket will bear, the axe cost-based;profits are not maxirnized, they are
reasonable;and service levels are as high a possible.
The boa.rd learned that advancements in di 'ta1 technologies and fiber optics have enabled telephone
companies throughout the U.S. to add vid o service to their offerings. 'I'hose companies that offer a
full range of communications services—in luding voice,video, data and wireless—are most likely to
succeed.
Swiftel Communications has always stayed abreast of current technology and trends by providing
up-to-date telecommunications services. e added Internet and wireless services years ago.And
now we're at the point where digital video s the next product we need to offer to make the best use
of our infrastructure and resources.
And the success of Swiftel Communicatio s i.c important to everyone in our community.A recent
study commissioned by the utility board re ealed that ciry ownership of the telephone enterprise
benefits the Brookings community to the e of approximately$7 million every year.We intend to
continue providing those benefits to the ci ' ens of Brookings.
Swiftel pla.ns to deliver a premium digital t levision service using its fiber optic network,beginning
in early 2007.We began installing fiber sev ral years ago when it became clear that fiber technology
was the most cost effective solution for to ay's telecomxnunications needs. Because fibex's ability to
transfer data is virtually limidess,it provid s us oppoxtunities for many new services,including
cligital television.
The board has deterniined that Swiftel sho d offer video service,but before making commitments
to that end,the board will host public mee ' gs to explain our plan and allow opportunity for the
public to xegister its opinion.Those mee ' gs are scheduled for 7 p.m. on December 1,and 1 p.m.
on December 15.We hope to see you ther .
Review of ro ose Or 'nan e No. 34- 5. Lanning said that Ron Waltz,Interim Hospital
AdministYator,raised a concern eaxlier this year regarding the hospital ordinance, specifically board
appointments. The issues are the change f ownexship of the Brookings Medical clinic to Avera
Health Systems and the fact we have two ther new medical facilities in Brookings. Waltz felt there
was a need to assess the need for a medic physician on the board as a voting member and whether
or not to have all independent medical fac' 'ties xepresented. It was noted that Avera and Sioux
Valley are hospital based systems and are ' direct competition with the Brookings independent
hospital and these two health systems also wn and operate HMOs in the area. Due to competitive
and strategic planning which occuxs on o hospital board,there is concern about having directly
competing entities in on our decision proc ss.
Bardey asked if the Hospital Board addres ed these qu�stions. Is the physician position on the
Board a city or counry appointment? The ciry council makes that appointment.
Reed asked.if the Council should be appo' ting ex-officio positions,but noted that as non-voting
member that person would not be part of xecutive session discussions. Bartley commented that
physicians axe busy people and attending eetings as an ex-officio member may not be a high
pxiority.
Robertson said the Board was very conce ed about not having the doctoY as a voting member and
as an ex-officio they won't attend the mee ' gs. Bartley suggested a city appointment would have
more influence than a board appointment.
Munsterman noted that physicians axe acti e members of one clinic. The medical community is
competitive and the Brookings Hospital is an independent entity.
Munsterman also thought that if the ex-of cio membeY had a true interest for health of welfare of
people utilizing the hospital,they would s e out of that capacity voting ox not.
Munsterman asked if there axe any exampl s of independent hospitals with competing hospital.and
clinics in the same community. �He reques ed the hospital administrator research this issue.
It was clarified that one physician can't se e on the board and sit in on executive sessions due to
the competitive nature of the business.
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Baxdey asked the Hospital Board to review the issue and provide a recommendation.
Munsterman said Brookings has a unique opportunity to build a parmership model and thrive as a
health care system.
November 22"d Agenda Briefing. Shari Thornes,Brookings Ciry Clerk,provided a briefing on
the Novembex 22°d agenda items.,
Council Invita�ions. Thornes reviewed the City Council's upcoming invitations and obligations.
City Council Intxoduction of To�ics for Future Discussion. Munsterman requested the Council
schedule a discussion on promotions to include what the Council's thoughts are about outcome
measurements.
6:00 v.m_—Citv Council Meeting
Consent enda. A motion was made by Bartley,seconded by Whaleq,to amend the agenda to move the
discussion of Resolution No. 91-05 after the executive session. All present voted pes;motion carried. A
motion was made by Reitz,seconded by Whaley, to approve the consent agenda.as amended which
included:
A. Adoption of the agenda as amended.
B. Minutes. Appxoval of the October 27,2005 and November 3,2005 Council meeting
minutes.
C. Auuointment. Action to appxove Thomas R. Shaffer to the Brookings Committee for
People who have Disabilities filling the unexpired term of Jennifer Austin until Januaty 1,
2006.
D. Action on Resolution No. 89-05 declaring items surplus.
RESOLUTION NO.89-05 DECLARING SURPLUS PROPERTY
WHEREAS,the City of Brookings is the owner of the following described heavy equipment formerly
used at the City of Brookings Street Department:
One(1) 1993 John Deexe 544G serial#DW544GD540277 wheel loader with grapple fork
WF-�EREAS,the City of Bxookings is the owner of the following described heavy equipment formerly
used at the City of Brookings Landfill: One(1) 1973 Caterpillar 816 compactor and One(1)
Caterpillar 955 crawler loadex(1965-1970).
WHERF..AS,this property is no longer necessary or useful for City purposes and it is the desire of the
Ciry of Brookings to sell same as surplus property;
WHEREAS,the Ciry Manager is hereby authorized to appoint three qualified appraisers to appraise
the value of the propexty;
NOW,THEREFORE,BE IT RESOLVED by the governing body of the City of Bxookings,South
Dakota,that this pxoperty be declared surplus property according to SDCL Chapter 6-13.
E. Action on Resoludon No. 90-05, for an operating agreement renewal for the Lantern
Lounge.
• � . RESOLUTION NO.90-05
LANTERN LOUNGE OPERATING AGREEMENT
BE IT RESOLVED by the City of Brookings,South Dakota,that the City Council hereby approves a
Lease Agreement for the Operating Liquor Management Agreement between the City of Brookings
and the Lantern Lounge,Txoy Hicks,owner,fox the purpose of a liquor managex to opeiate the on-
sale establishment or business for and on behalf of the City of Brookings at the Lantem Lounge.
BE IT FURTHER RESOLVED that the City Managex be authorized to execute the Agreement on
behalf of the City,which shall be for a period of ten years with a renewal in five(5)yeaxs.
On the consent agenda,all present voted yes;motion carried
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Ordinance No. 32-05—Conditional Us . A public hearing was held on Ordinance No. 32-05,an
Ordinance for the application for a condi ' na1 use peYmit to establish an Outdoor Sales Use on Lots 1,AA,
B,C, 1, 1A, 2, 2A, 3 and 3A,Railroad Ad tion (214 Front Street). All present were given the opportunity
to be heard. A motion was made by Whal y, seconded by Reed, to appYOVe OYdinance No. 32-05. All
present voted yes;motion caxried.
Ordinance No. 33-05—Zonin�. A pubi hearing was held on Ordinance No. 33-05,an Ordinance
amending the Zoning Ordinance pertainin to signs. All present were given the opportunity to be heard. A
motion was made by Bartley, seconded by omson, to approve Ordinance No. 33-05. All present voted
yes;motion carried.
Resolution No. 92-05—Sales Ta�c Reve ue Bonds. A motion was made by Thomson, seconded
by Whaley,to approve Resolution No. 92- 5, a Resolution authorizing the execution,terms,
issuance, sale and payment of Sa1es Tax R enue Bonds in the aggregate principal amount of not to
exceed Two Million Seven Hundred Fifty housand Dollars ($2,750,000),plus Cost of Issuance and
the funding of a Reasonably Required Res rve of the City of Brookings of Brookings County,South
Dakota.
AMENDMENT: A motion was made b Bartley, seconded by Thomson, to amend the following
two sections per the Attorney recommend tion. On the amendment,all present voted yes;motion
carried.
ARTICLE I DEFINITIONS
Section 1.9. Defuution of Terms.
Sales Tax" means 2 % of the roceeds of the second ercent aft r th first erc nt of th
muxuci al retail occu ational sales an service tax imposed and collected in accordance with
SDCL Chapter 10-52 and Sections 7$- 2 throu h 78-38 of the City of Brookings Code of
Ordinances, as amended.
ARTICLE VII
ADDITTONAL BONDS
No additional debt shall be issued, be m de payable from the Sales Tax or have a lien upon such
revenues or the sales tax fund which is riox to or superior to the lien of the Bonds authorized
herein. Nothing in this Resolution shall b construed in such manner as to prevent the issuance by
the City of additional bonds payable fro the Sa1es Tax and constituting a lien upon the Sa1es Tax
equal to or on a parity with the lien of e Bonds authorized herein (such additional bonds being
referxed to herein as "Additional Bonds"), rovided (i) the City is current in the payment of principal
and interest on the Outstanding Bonds an is current in the accumulations required for the payment
of principal and interest, (u) the City is in compliance with the covenants herein contained, and (ui)
the Sales Tax collected by the City in the last preceding fiscal years (as determined by the City) is
sufficient to cover 1.25 times the combin d avera e annual principal and intezest requirements on
the Outstanding Bonds, and the propos parity lien bonds or the estimated Sales Tax to be
collected in the fiscal ear in which the ro osed Pari Bonds will be issued shall be at least
e ual to 1.25 times the combined aver e annual rinci al and interest re uirements of the
Out tandi Bonds and the ro osed ari bonds. Nothing herein shall prevent the Ciry from
issuing Bonds payable from the Sa1es Tax or having a lien thereon which is junior and subordinate
to the lien of the Bonds authorized herein.
Di.rcu.r�ion: The Resolution authorizes and eclares the necessity to issue not to exceed$2,750,000
plus costs of issuance,plus cost to fund a easonably required xeserve of Sa1es Tax Revenue Bonds
of the City to be used for the property acq �sition and modification approved by Resolution 61-05
(the xesolution that approved purchase of art and Big"O"Property.). The resolution authorizes
the Mayor and Finance Officer to negotiat the final terms of the bonds to be evidence by a bond
purchase agreement. The resolution pledg s sales tax collected pursuant to SDCL 10-52 and 78-31
through 78-39 of the City Code of Ordin ces for the xepayment of the Bonds. T'he resolution also
sets forth certain tax matters which allow e bonds to be issued tax exempt.The resolution also sets
forth other terms and conditions that are mmonly found in tax exempt borrowings.
Reed expressed concern about receiving e Resolution at the meeting and requested more time for
review.
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ACTION: On the main motion as amended, all present voted yes, except Bezdichek voted no,motion
caxried.
RESOLUTION NO. 92-05
RESOLUTION AUTHORIZING THE EXECUTION,TERMS,ISSUANCE, SALE AND
PAYMENT OF SALES TAX REVENUE BONDS IN THE AGGREGATE PRINCIPAL
AMOUNT OF NOT TO EXCEED TWO MILLION SEVEN HUNDRED FIFTY
THOUSAND DOLLARS ($2,750,000), PLUS COST OF ISSUANCE AND THE
FUNDING OF A REASONABLY REQUIRED RESERVE OF THE CITY OF
BROOKINGS OF BROOKINGS COUNTY, SOUTH DAKOTA.
WHEREAS, the voters of the City of Brookings authorized and approved Ordinance No. 22-05 and
Resolution No. 61-05;and
WHEREAS, the Ciry of Brookin,gs is authorized by the provisions of SDCL �10-52-2.10 to issue
Sa1es Tax Revenue Bonds to fund the acquisition of real pxoperty authoxized by Resolution 61-05;
and
WHEREAS, the City Council has determined that the issuance of Sales Tax Revenue Bonds of the
Ciry is in the best interests of City;and
WHEREAS, the City Council has determined and does hereby declaxe that is necessary and in the
best intexest of the City to issue Sa1es Tax Revenue Bonds for the purpose of providing funds to (i)
acquire real property and alteration thereof; and (u) pay the Costs of Issuance of the Bonds
described herein.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
BROOKINGS OF BROOKINGS COUNTY,AS FOLLOWS: -
ARTICLE I
DEFINITIONS
Secrion 1.1. Definition of Terms.
In addition to the words and terms elsewhere defined in this Bond Resolution, the following words
and terms as used herein, whether or not the words have initial capitals, shall have the following
meanings, unless the context or use indicates another or different meaning ox intent, and such
defuutions shall be equally applicable to both the singular and plural forms of any of the words and
terms herein defined:
"Act" means collectively SDCL Chapter 6-8B and Chapter 10-52, as amended.
"Authorized Officer of the Citv" means the Mayor, City Manager, Ciry Clerk, and the Finance
Officer, or, in the case of any act to be performed or duty to be discharged, any other member,
officer, or employee of the Ciry then authorized to perform such act or discharge such duty.
"Bond Counsel" means Danforth & Meierhenry, LLP, a firm of attorneys recognized as having
experience in matters relating to the issuance of state or local governmental obligations.
"Book-Entty Form" or "Book-Entry System" means a form or system, as applicable, under which
physical certificates in fully registered form are issued to a Depository or to its nominee as
Registered Owner, with the certificated certificates being held by and "immobilized" in the custody
of such Depository, and under which records maintained by persons, other than the City or the
Registration Agent, constitute the written record that identifies, and xecords the transfer of the
beneficial"book-entry" interests in those Bonds.
"Bond Pavment Date" means such dates as are set forth ixi the Bond Purchase Agxeement.
"Bond Purchase Agreement" means the agreement between the City and the Underwriter for the
purchase of the Bonds. �
"Bond Resolution" means the within Resolution, duly adopted by the City Council on the date
hereof,as it may be amended from time to time.
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"Bondholder", "Holder" and "Re 'stered wner" means the registered owner of a Bond, including
any nominee of a Depository.
"Bonds" mean not to exceed $2,750,000, plus Cost of Issuance and cost of funding a Reasonably
Required Reserve, in aggYegate principal ount of Sales Tax Revenue Bonds Series 2005, dated the
Closing Date, or such other designation o date as shall be determuied by the City Council pursuant
to Section 8.1 hereof,authorized and issue under the Bond Resolution.
"C�" means the City of Brookings, Bro kings County, South Dakota, a home rule municipality
organized under the State of South Dakot .
"C� Council" means the City Council o the City elected pursuant to the provisions of the SDCL
Tide 9.
"Closing Date" means the date the Bonds e exchanged for value.
"Code" means the Internal Revenue Code of 1986, as amended, and the applicable xegulations of the
United States Department of Treasury pr mulgated thereunder as in effect on the date of issuance
of the Bonds.
"Costs of Issuance" means all costs, fee , charges and expenses incurred in connection with the
issuance of the Bonds.
"Debt" means (1) indebtedness of the Ci for boxrowed money or for the deferred purchase price
of property or services, and expressly in uding the obligation to pay principal and interest on or
with xespect to revenue bonds, (2) the ob � tion of the City as lessee under leases which should be
recorded as capital leases under generally ccepted accounting principles, and (3) obligations of the
City under.direct ox indirect guarantees � respect of, and obligations, contingent ox otherwise, to
purchase or otherwise acquire, or oth 'se to assure a creditor against loss in respect of,
indebtedness or obligations of others of kinds referred to in subdivisions (1) and (2) above.
"De�ositor�" means any securities deposi ory that is a clearing agency under federal la.ws opexating
and maintaining,with its participants or o erwise, a Book-Entry System, including, but not limited
to DTC:
"DTC Partici�ant(sl" means securities b okers and dealers, banks, trust companies and clearing
corpoYations that have access to the DTC ystem.
"DTC" means the Depository Trust Com any, a limited purpose company organized under the laws
of the Sta.te of New York,and its successo s and assigns.
"Cit�Clexk" means the City Clerk of the iry appointed pursuant to the provisions of South Dakota
Codified Laws Tide 9 or, in the absen e of such appointment or in the event the person so
appointed is unable or incapable of acting ' such capacity, the person appointed by the City Council
to perform the duties otherwise performe by the Ciry Clexk, or his/her designee.
"Interest Pa�ment Dates" means such dat set forth in the Bond Purchase Agreement.
"Im�rovements" means the acquisition nd alteration of real property commonly known as the
Kmaxt—Big"O"Tire Propexties.
"Letter of Re�resentation" means the Iss eY Letter of Representations or Blanket Issuex Letter of
Representations to DTC of the City.
"Official Statement" and "Prelimin fficial Statement" means that Official Statement and
Preliminary Official Statement described � Section 8.2 hereof pertaining to the sale of the Bonds.
"Ori,ginal Issue Discount or O.I.D." me ns the diffeYence between the issue price and the sta.ted
redemption price at maturity. The stated edemption price is determined without regard to optional
call dates.
"Outstanding". "Bonds Outstanding", or "Outstanding Bonds" means, as of a particular date all
Bonds issued and delivered under this Bo d Resolution except: (1) any Bonds paid or redeemed or
othenvise canceled by the City at or befo such date; (2) any Bond for the payment of which cash,
equal to the principal amount thereof wi interest to date of maturity, shall have theretofore been
4. 9 0 .
deposited prior to maturity by the City for the benefit of the Owner thereof; (3) any Bond for the
Yedemption of which cash, equal to the redemption price thereof with interest to the redemption
date, shall have theretofore been deposited with the Registration Agent and for which notice of
xedemption shall have been mailed in accordance with this Bond Resolution; (4) any Bond in lieu of
or in substitution for which another Bond shall have been delivexed pursuant to this Resolution,
unless proof satisfactory to the City is presented that any Bond, for which a Bond in lieu of or in
substitution therefor shall have been delivered, is held by a bona fide purchaser, as that term is
defined in Article 8 of the Uniform Commercial Code of the State, as amended, in which case both
the Bond in lieu of or in substitution for which a new Bond has been delivexed and such new Bond
so delivered therefoY shall be deemed Outstanding; and, (5) any Bond deemed paid undex the
provisions of Axticle VII of this Resolution, except that any such Bond shall be considered
Outstanding until the maturity or redemption date thereof only for the purposes of being
exchanged, transferred, or Yegistered.
"Person" means an individual, paYtnership, corporation, trust, ox unincorporated organization, or a
governmental entity or agency ox political subdivision thereof.
"Ma�or" means the Mayor elected pursuant to the provisions of SDCL � 9-8-1 or his or her designee
acting on his ox her behalf pursuant to the Charter.
"President" means the President of the City Council who may act for the Mayor in the absence of
the Mayox.
"Purchase Agreement" means the Bond Purchase Agreement authorized pu.tsuant to and described
in Section 8.1 hereof by and between the City and the Underwriter.
"Record Date" means such dates set forth in the Bond Purchase Agreement.
"Registration A,gent" means Citq Clerk of the City of Brookings, South Dakota., or its successor or
successors hexeafter appointed in the manner provided in Article VI hereof.
"Resolution" means tlus Bond Resolution.
"Reasonabl� Rec�uixe Reserve" means an amount, if required, which will comply with the Internal
Revenue Regulations specifying the maximum amount in a reseroe fund permitted to be invested
without regaxd to investment yield.
Sa1es Tax" means 25% of the proceeds of the second pexcent after the first percent of the municipal
retail occupational sales and service tax imposed and collected in accordance with SDCL Chapter
10-52 and Sections 78-32 through 78-38 of the City of Brookings Code of Ordinances,as amended.
"Schedule"� the schedule which indicates the principal and interest payxnents on the Bonds as
follows:
"Underwriter" means such entity listed in the Bond Purchase Agreement, acting for and on behalf of
itself and such securities dealers as it may designate.
Section 1.2.References to Resolution.
The words "hereof', "herein", "hereunder",and other words of similar import refer to this Bond
Resolution as a whole.
Section 1.3. References to Articles, Sections,Etc.
References to Articles, Sections,and other subdivisions of this Bond Resolution are to the
designated Articles,Sections,and other subdivisions of this Bond Resolution as originally adopted.
Section 1.4. Headings. '
"The headings of this Bond Resolution are for convenience only and shall not defitie or limit the
pxovisions hereof.
ARTICLE II
FINDINGS
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Section 2.1
It is hereby found and determined by the City Council that all limitations upon the issuance of
Bonds have been met and the Bonds are being authorized, issued and solc� in accordance with the
provisions of the Act.
ARTICLE III
AUTHORITY, PLEDGE,AND L.EVY
Section 3.1 Authority.
In order to (i) fund the acquisition and construction of the Improvements and (u) pay Costs of
Issuance and fund a Reasonably Required Reserve,thexe shall be issued pursuant to,and in
accordance with,the provisions of the Act, the Bond Resolution,and other applicable provisions of
law,Sales Tax Revenue Bonds of the City in the aggregate principal amount as finalized by the Bond
Purchase Agreement.
Section 3.2 Pledge of Sales Tax.
The non-ad valorem taxing powers of the City imposed undex the authority of SDCL� 10-52-2 shall
be and they a.te hereby irrevocably pledged to the prompt and full payment of the principal,
premium and interest on each and all of said Bonds as such principal,premiu.nn and interest
respectively become due.
Section 3.3. Collection of Taxes.
Putsuant to SDCL � 10-52-2.10, the City does hereby pledge,provide and agree that it will continue
to impose and collect the non-ad valorem tax so long as the $onds are outstanding. The governing
body shall also pledge 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 esta,blished
for the Bonds.
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ARTICLE IV
FOBM, TERMS,EXECUTION,AND TKANSFEB OF BONDS
Section 4.1.Authorized Bonds.
The aggregate principal amount of Bonds that may be issued under the Bond Resolution shall not
exceed Two Million Seven Hundred Fifty Thousand and No/100 Dollars ($2,750,000),plus Costs of
Issuance and cost to fund a Reasonably Required Reserve.
Section 4.2. Form of Bonds;Execution.
(a) The Bonds axe issuable only as fully registered Bonds,without coupons,in any denomination. All
Bonds issued under the Resolution shall be substantially in the form set forth in Exhibit A attached
hereto, and by this reference incorporated herein as fully as though copied.
(b) The Bonds shall be executed in such manner as may be prescribed by applicable la.w in the name
and on behalf of the City with the manual or facsimile signature of the Mayor, attested bp the
manual or facsimile signature of the Ciry Clerk, and approved as to form and countersigned by a
Resident Attorney by his manual or facsimile signature.
(c) In the event any officer whose manual or facsimile signature shall appear on any Bonds shall
cease to be.such officer before the delivery of such Bonds, such manual or such facsimile signature
shall nevertheless be valid and sufficient for all purposes as if he oz she had remained in office until
such delivery.Any Bonds may bear the facsimile signature of, or may be manually signed by, such
individuals who, at the actual time of the execution of such Bonds,were the proper officers of the
City to sign such Bonds, although on the date of the adoption by the City of this Resolution,such
individuals may not have been such officexs.
Section 4.3 Maturities, Interest Rates,and Certain Other Provisions of Bonds.
(a) The Bonds shall become due and payable and be subject to the terms and conditions as are set
forth in the Bond Purchase Agreement.
(b) The Bonds shall be designated "Sales Tax Revenue Bonds, Series 2005," or such other
designation as shall be determined by the City Council pursuant to Section 8.1 hereof. The Bonds
shall beax interest from their date or from the most recent interest payment date to which interest
has been paid or duly provided for, until the principal amount of the Bonds is paid, such intexest
(computed upon the basis of a 360-day year of twelve 30-day months) being payable on Interest
Payment Dates. Interest on each Bond shall be paid by wite transfer, check or draft of the Paying
Agent, payable in lawful money of the United States of America, to the person in whose name such
Bond is registered at the close of business on the Record Date. The principal of the Bond shall be
payable in lawful money of the United States of America at the principal office of the Paying Agent
on the Bond Payment Date. Each Bond shall state that it is issued pursuant to the Act.
(c) The Registration Agent shall make all interest payments with respect to the Bonds on each
interest payment date direcdy to the registered owners as shown on the bond registration records
maintained by the Registration Agent as of the close of business on the Record Date by wire
transfer, check or draft mailed to such owners at their addresses shown on said bond registration
records, witl�out, except fox final payment, the presentation or surrender of such xegistered Bonds,
and all such payments shall discharge the obligations of the City in respect of such Bonds to the
extent of the payments so made. Payment of principal and premium, if any, on the Bonds shall be
made upon presentation and surxender of such Bonds to the Registration Agent as the same shall
become due and payable.
Section 4.4 Negotiability of Bonds.
All Bonds issued under this Resolution shall be negotiable, subject to the provisions for registration
and transfer contained in this Resolution and in the Bonds.
Section 4.5 Regisfration,Transfer and Exchange of Bonds.
(a) The Bonds are transferable only by pxesentation to the Registration Agent by the registered
owner, or his legal representative duly authorized in writing, of the registered bond(s) to be
transferred with the form of assignment on the xeverse side thereof completed in full and signed
with the name of the registered owner as it appears upon the face of the bond(s) accompanied by
appropriate documentation necessary to prove the legal capacity of any legal repxesentative of the
registered owner. Upon receipt of the bond(s) in such form and with such docuxnentation, if any,
the Registration Agent shall issue a new bond or bonds to the assignee(s) in $5,000 denominations,
493
or integral multiples thereof, as requested by the registered owner requesting transfer. The
Registration Agent shall not be required to transfer or exchange any bond during the period
commencing on a Record Date and ending on the corxesponding interest payment date of such
bond, nor to transfer or exchange any bond after the publication of notice calling such bond for
redemption has been made, noY to transfer ot exchange any bond during the period following the
Yeceipt of instructions from the City to call such bond for redemption; provided, the Registration
Agent, at its option, may make transfers after any of said dates. No charge shall be made to any
registexed owner for the privilege of transfexring any Bonds, pxovided that any transfer tax relating
ta such transaction shall be paid by the registered owner requesting transfer. The person in whose
name any bond shall be registered shall be deemed and regarded as the absolute owner thereof for
all purposes and neitheY the City nor the Registration Agent shall be affected by any notice to the
conttary whether or not any payments due on the Bonds shall be overdue. Bonds,upon surrender to
the Registration Agent, may, at the option of the registered owner, be exchanged for an equal
aggregate principal amount of Bonds of the same maturity in any authorized denomination or
denominations.
(b) Except as otherwise pxovided in this subsection or in the Bond Purchase Agreement, the Bonds
shall be registered in the name of Cede & Co., as nominee of DTC, which will act as securities
depository fox the bond. RefeYences in this Section to a Bond or the Bonds shall be construed to
mean the Bond or the Bonds that are held under the Book-Entry System. One Bond fox each
maturity shall be issued to DTC and immobilized in its custody. Unless otherwise provided herein,a
Book-Entry System shall be employed, evidencing ownership of the Bonds in authorized
denominations,with transfers of beneficial ownership affected on the records of DTC and the DTC
Participants pursuant to rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the amount of such DTC
Participant's interest in the Bonds. Beneficial ownership interests in the Bonds may be purchased by
or through DTC Participants. The holders of these beneficial ownership interests are herein refexred
to as the "Beneficial Owners." The Beneficial Owners shall not receive the Bonds representing their
beneficial ownexship interests. The ownership interests of each Beneficial Owner shall be recorded
through the records of the DTC Participant from which sucla Beneficial Owner purchased its
Bonds. TYansfers of ownership interests in the Bonds shall be accomplished by book entries made
by DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO LONG AS
CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE BONDS
THE REGISTRATION AGENT SHALL TREAT CEDE&CO.,AS THE ONLY HOLDER OF
THE BONDS FOR ALL PURPOSES UNDER THIS RESOLUTION, INCLUDING RECEIPT
OF ALL PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS,
RECEIPT OF NOTICES, VOTING AND REQUESTING OR DIRECTING THE
REGISTRATION AGENT TO TAKE OR NOT TO TAKE, OR CONSENTING TO,
CERTAIN ACTIONS UNDER THIS BOND RESOLUTION.
Payments of principal,inteYest, and redemption pxemium, if any,with xespect to the Bonds, so long
as DTC is the only owner of the Bonds, shall be paid by the Registration Agent direcdy to DTC or
its nominee, Cede & Co., as provided in the Letter of Representation. DTC shall remit such
payments to DTC Participants, and such payments thexeafter shall be paid by DTC Participants to
the Beneficial Owners. Neither the City nor the Registtation Agent shall be responsible or liable for
payment by DTC or DTC Participants, for sending transaction statements or for mainta.iiung,
supervising or reviewing records maintained by DTC or DTC Parricipants.
In the event that (1) DTC determines not to continue to act as securities depository for the Bonds
or (2) the City determuies that the continuation of the Book-Entry System of evidence and transfer
of ownership of the Bonds would adversely affect their interests or the interests of the Beneficial
Owners of the Bonds, the City may discontinue the Book-Entry System with DTC. If the City fails
to idenrify another qualified securities depository to replace DTC, the City shall cause the
Registration Agent to authenticate and deliver replacement Bonds in the form of fully registered
Bonds to each Beneficial Owner.
NEITHER THE CITY NOR THE REGISTRATION AGENT SHALL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIP.ANT OR ANY
BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF
ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (iri) THE
PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY
BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OF AND INTEREST ON THE
BONDS; (iv) THE DELNERY OR TIMELINESS OF DELNERY BY DTC OR ANY DTC
494
PARTICIPANT OF ANY NOTICE DUE TO ANY BENEFICIAL OWNER THAT IS
REQUIRED OR PERMITTED UNDER THE TERMS OF THIS BOND RESOLUTION TO
BE GIVEN TO BENEFICIAL OWNERS, (v) THE SELECTION OF BENEFICIAL OWNERS
TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE
BONDS; OR (vi) ANY CONSENT GNEN OR OTHER ACTION TAKEN BY DTC, OR ITS
NOMINEE, CEDE&CO.,AS OWNER.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF
OWNERSHIP OF ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH,
THE PROVISIONS OF THIS RESOLUTION RELATING TO THE DELNERY OF
PHYSTCAL BONDS SHALL BE DEEMED INAPPLICABLE OR BE OTHERWISE SO
CONSTRUED AS TO GIVE FULL EFFECT TO SUCH BOOK-ENTRY SYSTEM. IF THE
PROVISIONS OF THE LETTER OF REPRESENTATION SHALL BE IN CONFLICT WITH
THE PROVISIONS OF THIS RESOLUTION AS SAID PROVISIONS RELATE TO DTC,
THE PROVISIONS OF THE LETTER OF REPRESENTATION SHALL CONTROL.
Section 4.6 Mutilated,Lost, Stolen, or Destroyed Bonds.
(a) In the event any bond is mutilated,lost, stolen, or destroyed, the City may execute,and upon the
request of an Authorized Officer of the Ciry the Registtation Agent shall authenticate and deliver, a
new bond of like maturity, interest rate, and principal amount, and bearing the same number (but
with appxopriate designation indicating that such new bond is a replacement bond) as the mutilated,
destroyed, lost, or stolen bond, in exchange for the mutilated bond or in substitution for the bond
so destroyed, lost, or stolen. In every case of exchange or substitution, the bondholder shall furnish
to the City and the Registration Agent: (1) such security or indemnity as may be required by them to
save each of them harmless from all risks, however remote; and, (2) evidence to their satisfaction of
the mutilation, destruction, loss, or theft of the subject bond and the ownership thereo£ Upon the
issuance of any bond upon such exchange or substitution, the City and the Registration Agent may
requixe the Owner thereof to pay a sum sufficient to defxay any t� or other governmental charge
that may be ixnposed in relation thereto and any othex expenses,including printing costs and counsel
fees, of the City and the Registration Agent. In the event any bond which has matured or is about to
mature shall become mutilated or be destroyed, lost, or stolen, the City may, instead of issuing a
bond in exchange or substitution therefor, pay or authorize the payment of the same (without
suYrender thereof except in the case of a mutilated bond) if the Owner theYeof shall pay all costs and
expenses, including attorneys fees, incurred by the City and the Registration Agent in connection
herewith, as well as a sum sufficient to defray any tax or other governmental charge that may be
imposed in relation thereto and shall furnish to the City and the Registration Agent such security or
indexnniry as they may require to save them ha.rmless and evidence to the satisfaction of the City and
the Registration Agent the mutilation, destruction,loss, or theft of such bond and of the ownership
thereof.
(b) Every bond issued pursuant to the provisions of this section shall constitute an additional
contractual obligation of the City (whether or not the destroyed, lost, ox stolen bond shall be found
at any time to be enforceable) and shall be entided to all the benefits of this Bond Resolution equally
and proportionately with any and all other Bonds duly issued under this Bond Resolution.
(c) All Bonds shall be held and owned upon the express condition that the provisions of this Section
are exclusive,with respect to the replacement ox payment of mutilated,destroyed,lost,ox stolen
Bonds,and, to the maxitnum extent legally permissible, shall preclude all other rights or remedies,
notwithstanding any law or statute now existing or hereafter enacted to the contrary.
Section 4.7 Authentication.
The Registration Agent is hereby authorized to authenticate and deliver the Bonds to the
Underwriter or as it may designate upon receipt by the City of the proceeds of the sale thereof, to
authenticate and deliver Bonds in exchange for Bonds of the saxne principal amount delivered for
txansfer upon receipt of the bond(s) to be transferred in proper foYm with proper documentation as
hereinabove described.The Bonds shall not be valid fox any purpose unless authenticated by the
Registration Agent by the manual signature of an officer thereof on the certificate set forth herein
on the bond form.
Section 4.8 Qualification for DTC.
The Registration Agent is hereby authorized to take such actions as may be necessary from time to
time to qualify and maintain the Bonds fox deposit with DTC, including but not limited to, wire
transfers of interest and principal payments with respect to the Bonds, utilization of electronic book
, � 495
entry data received from DTC in place of actual delivery of Bonds and provision of notices with
respect to Bonds registered by the DTC (or any of its designees identified to the Registration Agent)
by overnight delivery, couxier service, telegram, telecopy or other similar means of communication.
No such asrangements with DTC may advexsely affect the interest of anp of the Owners of the
Bonds, provided, however, that the Registration Agent shall not be liable with respect to any such
arrangements it may make pursuant to this section.
ARTICLE V
REDEMPT70N OF BONDS PBIOB TO MATUKITY
Section 5.1 Redemption.
(a) Redemption. The Bonds shall be redeemable as set forth in the Bond Purchase Agreement.
AR.TICLE VI
KEGIS'IRAT70NAGENT
Section 6.1.Appointment and Acceptance of Duties.
(a) The City hereby authorizes the City Clerk to appoint the Registration Agent with respect to
the Bonds and authorizes and directs the Registration Agent to maintain bond registration records
with respect to the Bonds, to authenticate and deliver the Bonds as provided herein, either at
original issuance, upon transfer, or as otherwise directed by the Ciry, to effect transfers of the
Bonds, to give all notices of redemption as required herein, to make all papments of pxincipal and
interest with respect to the Bonds as pxovided herein, to cancel and destroy Bonds which have been
paid at maturity oY upon eaxlier redemption or submitted for exchange or transfer, to furnish the
City at least annually a certificate of destruction with respect to Bonds canceled and destroyed, and
to fuYnish the City at least annuallq an audit confirmation of Bonds paid, Bonds Outstanding and
payments made with respect to interest on the Bonds. The Mapor and the City Clexk, or either of
them is hereby authorized to execute and the City Clerk is hereby authorized to attest such written
agreement between the City and the Registration Agent as they shall deem necessary or propex with
Yespect to the obligations, duties and rights of the Registration Agent. The payment of all reasonable
fees and expenses of the Registration Agent for the dischaxge of its duties and obligations hexeunder
or under any such agreement is hexeby authorized and directed.
Section 6.2. Permitted Acts and Functions.
The Registxation Agent may become the Owner of any Bonds,with the same rights as it would have
if it were not a Registration Agent. The Registration Agent may act as an underwriter or fiscal agent
in connection with the sale of the Bonds ox of any other securities offered or issued by the City.
Section 6.3. Resignation or Removat of the Registration Agent and Appointment of Successors.
(a) The Registration Agent may at any time xesign and be dischaxged of the duties and obligations
created by the Bond Resolution by giving at least sixty (60) calendar days'written notice to the City
Clerk. The Registration Agent may be removed at any time by the City Clerk, provided that such
removal does not constitute a breach of any contractual agreement with any such Registration
Agent, by filing written notice of such rernoval with such Registration Agent. Any successor
Registration Agent shall be appointed by the City Clexk and shall be a trust company or a bank
having the powers of a trust company, having a combined capital, surplus, and undivided profits
aggxegating at least Forty Million Dollars ($40,000,000), willing to accept the office of Registration
Agent on reasonable and customaxy terms and authorized by law to perform all the duties imposed
upon it by the Bond Resolution.
(b) In the event of the xesignation or removal of the Registration Agent, such Registration Agent
shall pay over, assign and deliver any monies and securities held by it as Registration Agent, and all
books and records and other propexties held by it as Registration Agent, to its successor, or if there
be no successor then appointed, to the City Clerk until such successor be appointed.
Section 6.4. Merger or Consolidation of Registration Agent.
Any corporation or association into which the Registration Agent may be converted or merged,or
with which it may be consolidated, or to which it may sell or ttansfer its trust business and assets as
a whole, or substantially as a whole, ox any corporation or association resulting fxom any such
conversion, sa1e,merger, consolidation, or transfer to which it is a party shall be and become
successor Registration Agent hexeunder and shall be vested with all the trusts,powexs,discretion,
immunities,privileges,and other matters as was its predecessor,without the execution or filing of
49s
any instnunent or any further act, deed, or conveyance on the part of any of the parties hereto,
anything herein contained to the contrary notwithstanding. Upon any such conversion,merger,
consolidation,sale or transfer, the City Clerk shall have the right and option,upon notice to such
converted,merged, consolidated or acquiruig entity, to remove such entity and appoint a successor
thereto pursuant to the procedures and requixements set forth in Section 6.3 hereof.
ARTICLE VII
ADDITTONAL BONDS
No additional debt shall be issued, be made payable from the Sales Tax or have a lien upon such
revenues or the sales tax fund which is prior to or supexior to the lien of the Bonds authorized
herein. Nothing in this Resolution shall be construed in such manner as to prevent the issuance by
the City of additional bonds payable from the Sales Tax and constituting a lien upon the Sales Tax
equal to or on a parity with the lien of the Bonds authorized herein (such additional bonds being
referred to herein as "Additional Bonds"),provided (i) the City is current in the payment of principal
and intexest on the Outstanding Bonds and is current in the accumulations xequired for the payment
of principal and interest, (u) the City is in compliance with the covenants herein contained, and (ui)
the Sa1es Tax collected by the City in the last preceding fiscal yeaxs (as determined by the City) is
sufficient to cover 1.25 times the combined average annual principal and interest requirements on
the Outstanding Bonds, and the pxoposed parity lien bonds or the estimated Sales Tax to be
collected in the fiscal year in which the proposed Parity Bonds will be issued shall be at least equal to
1.25 times the combined average annual principal and interest requirements of the Outstanding
Bonds and the proposed parity bonds. Nothing herein shall prevent the City from issuing Bonds
payable from the Sales Tax or having a lien thereon which is junior and subordi.nate to the lien of
the Bonds authorized herein.
ARITCLE VIII
S.ALE OF BONDS AND DEPOSIT OF PKOCEEDS
Section 8.1. Sa1e of Bonds.
'The Bonds shall be sold to the Underwriter at a price of not less than 98.00% of par less any
Original Issue Discount on the Bonds plus accrued interest. The Mayor, the City Manager, and the
Finance Officer, or either of them,in consultation with the Underwriter,is authorized to make such
changes in the sttuctuting of the terms and sale of the Bonds as they shall deem necessaxy. In this
regard, they, or either of them, in consultation with the Underwriter, are authorized to cause to be
sold an aggregate principal amount of the Bonds less than that authorized herein, to sell any or all of
the Bonds as tertn Bonds with annual mandatory redemption requirements which will produce
substantially the same annual principal reductions as authorized herein, to change the dated date of
the Bonds, and to adjust principal and interest payment dates and redemption dates of the Bonds.
'The form of the bond set forth in Exhibit A attached hereto shall be conformed to reflect any
changes, if anp, as hereinbefore mentioned. The Mayor and the Ciry Clerk, or eithex of them, are
hereby authorized to execute and the City Clexk is authorized to attest the Bond Purchase
Agreement with the Undenvriter providing for the purchase and sale of the Bonds. The Bond
Purchase Agreement shall be in form and content acceptable to the Mayor and City Clerk, the
execution thereof by either of them to constitute conclusive evidence thereof, and approved as to
form and legality by the City's attorney; provided the Bond Purchase Agreement effects the sale of
the Bonds in accordance with the provisions of this Resolution, and is not inconsistent with the
terms hereof. The Mayor and the City Clerk are authorized to cause the Bonds to be authenticated
and delivered by the Registration Agent to the Underwriter and to execute, publish, and deliver all
Bonds and documents, including the Official Statement, and closing Bonds and documents, as they
shall deem necessary in connection with the sale and delivery of the Bonds.
Section 8.2. Official Statement.
The Mayor, City Clerk, and the Underwxiter are hereby authorized and directed to provide for the
preparation and distribution of a Preliminary Official Statement describing the Bonds to be filed
with the City Clerk and open to public inspecrion and by this reference made a part hereof (the
"Preliminary Official Sta.tement"). After the Bonds have been sold, the Mayor and City Clerk shall
make such completions, omissions,insertions and changes in the Preliminary Official Statement not
inconsistent with this xesolution as are necessary or desirable to complete it as a final Official
Statement for purposes of Rule 15c2-12(e)(3) of the Securities and Exchange Convnission. The
Mayor and City Clexk shall arrange for the delivery to the successful bidder on the Bonds of a
reasonable numbex of copies of the Official Statement within seven business days after the Bonds
have been sold for delivery by the Underwriter to each potential investor requesting a copy of the
Official Statement.
. 497
The Mayor and City Clerk are authorized, on behalf of the Ciry, to deem the Prelimuiary Official
Statement and the Official Statement in final forin, each to be final as of its date within the meaning
ofRule 15c2-12(b)(1), except for the omission in the Preliminary Official Statement of certain
pricing and other information allowed to be omitted pursuant to such Rule 15c2-12(b)(1).The
distribution of the Preliminary Official Statement and the Official Statement in final form shall be
conclusive evidence that each has been deemed in final form as of its date by the City except for the
omission in the Preliminary Official Statement of such pricing and other information.
Section 8.3. Disposition of Bond Proceeds.
The proceeds of the sale of the Bonds shall be deposited in the Sa1es Tax Fund. The cost shall
include costs incident to the issuance and sale of the Bonds pursuant to SDCL 6-8B-20 and
capitalized interest,if any.
Section 8.4.Tax Matters.
(a) The Ciry covenants and agrees with the registered owners from time to time of the Bonds that it
will not take or permit to be faken by any of its officers, employees or agents any action which
would cause the interest on the Bonds to becorne includable in gross income for federal income tax
purposes under the Code and applicable Treasury Regulations (the "Regulations"), and covenants to
take any and all actions within its powers to ensure that the basic interest on the Bonds will not
become includable in gxoss income for federal income tax puxposes under the Code and the
Regulations.
(b) 'The Mayor and the Ciry Clerk, being the officexs of the City chaxged with the responsibility for
issuing the Bonds pursuant to this Resolution are hereby authorized and dixected to execute and
deliver to the Underwriter thereof a certificate in accordance with the provisions of Section 148 of
the Code, and Section 1.148-2(b) of the Regulations, stating that on the basis of facts, estimates and
circumstances in e�ristence on the date of issue and delivery of the Bonds, it is reasonably expected
that the proceeds of the Bonds will be used in a manner that would not cause the Bonds to be
"arbitxage bonds" within the meaning of Section 148 of the Code and the Regulations.
(c) The City shall file with the Secretary of the Treasury a statement concerning the Bonds
containing the information required by Section 149(e) of the Code.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Failure to Present Bonds.
(a) Subject to the provisions of Section 4.7 hereof,in the event any Bond shall not be presented for
payment when the principal or redemption price hereof becomes due,either at maturity or at the
date fixed for prior redemption thereof or otherwise,and in the event monies sufficient to pay such
Bond shall be held by the Registration Agent for the benefit of the Owner thereof,all liability of the
City to such OwneY for the payment of such$ond shall forthwith cease, determine, and be
completely discharged.Whereupon, the Registration Agent shall hold such monies,without liability
for interest thereon, for the benefit of the OwneY of such Bond who shall thereafter be restricted
exclusively to such monies for any claim under the Resolution or on, or with respect to, said Bonds.
(b) If any Bond shall not be pzesented for payment within a period of five yea.ts following the date
when such Bond becomes due,whether by maturity or otherwise, the Registration Agent shall,
subject to the provisions of any applicable escheat ox other similar law,pay to the Ciry any monies
then held by the Registration Agent for the payment of such Bond and such Bond shall (subject to
the defense of any applicable statute o£limitation) thereaftex constitute an unsecured obligation of
the Ciry.
Section 9.2. Payments Due on Saturdays,Sundays, and Holidays.
In any case where the date of maturiry or interest on or princ�pal of any Bonds,or the date fixed for
redemption of any Bonds, shall be a Saturday or Sunday ox shall be,at the place designated for
payment, a legal holiday or a day on which banking institutions similar to the Registration Agent are
authorized by law to close,then the payment of the intexest on,or the principal, or the redemption
price of, such Bond need not be made on such date but must be made on the next succeeding day
not a Saturday, Sunday, or a legal holiday or a day upon which banking institutions similar to the
Registration Agent are authorized by law to close,with the same force and effect as if made on the
498
date of maturity or the date fixed for redemption, and no interest shall accrue for the period after
such date.
Section 9.3. Miscellaneous Acts.
The appropriate officers of the Ciry are heYeby authorized, empowered, and directed to do any and
all such acts and things, and to execute, acknowledge, deliver, and, if applicable file or record, or
cause to be filed or xecorded,in any appropriate public offices, all such docuxnents,instruments, and
certifications, in addition to those acts, things, documents, instruments, and certifications
hereinbefore authorized and approved, as may, in their discretion, be necessary or desirable to
implement or comply with the intent of the Bond Resolution, or any of the documents herein
authorized and approved,or for the authorization,issuance, and delivery by the City of the Bonds.
Section 9.4.Amendment.
The City Council is hereby authorized to make such amendments to the Bond Resolution as will not
impair the rights of the Bondholders.
Section 9.5. No Recourse Under Bond Resolution or on Bonds.
All stipulations,promises, agteements,and obligations of the City contained in the Resolution or any
supplemental resolutions shall be deemed to be the stipulations,promises,agreements, and
obligations of the City and not of any officer, director,or employee of the City in his or her
individual capacity,and no xecourse shall be had fox the payment of the principal of or interest on
the Bonds or for any claim based thereon or on the Resolution against any officer, director,or
ernployee of the City or aga.inst any official or individual executing the Bonds.
Section 9.6. Partial Invalidity.
If anp one or more of the provisions of the Bond Resolution,ot of any exhibit or attachment
thereto, shall be held invalid,illegal,or unenforceable in anp respect,by final decree of any court of
lawful jurisdiction, such invalidity,illegality, or unenforceabilitq shall not affect any other provision
hexeof,or of any exhibit or attachment thereto,but the Bond Resolution,and the exhibits and
attachments thereto, shall be construed the same as if such invalid,illegal, or unenforceable
provision had never been contained herein,or therein,as the case may be.
Section 9.7: Continuing Disclosure.
The City hezeby covenants and agrees that it will provide financial information and matexial event
notices as required by Rule 15c2-12 of the Securities Exchange Corrunission fox the Bonds. The
Mayor is authorized to execute at the Closing of the sale of the Bonds,an agreement for the benefit
of and enforceable by the owners of the Bonds specifying the details of the financial information
and material event notices to be provided and its obligations relating thereto. Failure of the City to
comply with the undertaking herein described and to be detailed in said closing agreement, shall not
be a default hereunder,but any such failute shall entide the owner or owners of any of the Bonds to
take such actions and to initia.te such pxoceedings as shall be necessary and appropriate to cause the
City to comply with its undertaking as set forth hexein and in said agYeement,including the remedies
of mandamus and specific performance.
Section 9.8. Conflicting Resolutions Repealed.
All resolutions or parts thereof in conflict herewith are,to the extent of such conflict,hereby
repealed.
EXHIBIT A-(FORM OF BOND)
UNITED STATES OF AMERICA
STATE OF SOUTH DAKOTA
CITY OF BROOKINGS
BROOKINGS COUNTY,SOUTH DAKOTA
SALES TAX REVENUE BONDS SERIES 2005
REGISTERED REGISTERED
No. «No» $«AMOUNT».00
499
Interest Rate . Maturitv Date Bond Date CUSIP No.
«INTEREST_RATE»% «tnaturity» «cusip»
Registered Owner: Cede&Co.
55 Water Street, 1St Floor.
New Yoxk, New Yoxk 10041
Tax ID #13-2555119
Principal Amount: «Dollarlong»AND NO\100 DOL.I.ARS
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THE
CERTIFICATE SET FORTH ON THE FOLLOWING PAGES, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH
AT THIS PLACE. .
It is hereby cerrified and recited that all conditions,acts and things requixed 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 regular and due form and time as recluited by law.
This Bond shall not be valid or become obligatory for any purpose or be entided to any
benefit ox security under the Resolution until it shall have been authenticated by the execution by
the Registrax of the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, the City has caused this Bond to be signed by the manual ox
facsimile signature of its Mayor of the City and to be countersigned by the manual or facsimile
signature of its City Clerk all as of the Bond Date specified above.
ATTEST: City of Brookings, South Dakota
City Clerk By:
COUNTERSIGNED: Mayor
Resident Attorney
500
CERTIFICATE OF AUTHENTICATION
This bond is a bond of the series designated therein and has been issued under the
pxovisions of the within-mentioned Resolution and the date of its authentication is ,
2005.
Bond Registrar and Paying Agent
By:
Authorized Officer
KNOW ALL MEN BY THESE PRESENTS: That the City of Brookings, South Dakota
(the "City"), in Brookings County, South Dakota, hexeby acknowledges itself to owe and fox value
received promises to pay, to the Registered Ownex mentioned above in lawful money of the United
States of America, togethex with interest thereon from the Bond Date mentioned above at the
Intezest Rate mentioned above. The intexest hereon is payable , , and
semi�nnually thereafter on and in each year to maturity ox ea�lier
redemption by wire transfer, check or draft mailed to the Registered Owner at its address as it
appears on the Bond xegistration books of the Ciry maintained by
South Dakota, as Bond registrar and paying agent (the "Registrar"), on the close of business on
and immediately preceding the interest payment date (the "Record
Date"). The principal hereof due at maturity or upon redemption prior to maturity is payable at the
office of Registrar upon presentation and surrender of this Bond at maturity or upon earliex
redemption. The principal of, premium (if any) and interest on this Bond is payable in any coin or
currency of the United States of America which, at the rime of payment, is legal tender for the
payment of public and private debts.
This Bond is one of an authorized issue of Bonds lixnited in aggrega.te principal amount to a
maximuxn of$2,750,000 (the "Bonds") all of like date and tenor except as to maturity, interest xates
and privileges of tedemption, the pxoceeds of this issue (Series 2005) will be used for the puxpose of
, pursuant to a resolution duly and regularly
adopted by the City (the `Bond Resolution"), and are subject to all the provisions and limita.tions of
the Resolution and Chapters 10-52 and 6-8B, South Dakota Codified Laws, as amended. The City
has pledged and agreed to collect, so long as the Bonds are outstanding, non-ad valorem tax (the
"Sa1es Tax") in an amount sufficient to pay principal, premium and interest when due on the
Bonds.
[Redemption Provisions]
This Bond is transferable by the registered holder hereof in person or by his attorney duly
authoxized in writing at the office of the Bond Registrar in . South Dakota,
but only in the manner, subject to the limitations and upon payment of the charges provided in the
Bond Resolution, and upon suxrender and cancellation of this Bond. Upon such transfer a new
Bond or Bonds of authorized denomination of the same maturity and for the saxne 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 ownex hereof and neither the City nor the Bond Registrar shall be affected by any notice to
the contrary.
BOND OPINION
$
City of Brookings
Brookings County,South Dakota
Sa1es Ta�c Revenue Bonds Series 2005
Ladies and Gendemen:
1
We have acted as bond counsel in connection with the issuance by the City of Brookings
(the "Issuer") of$2,750,000 Sa1es Tax Revenue Bonds Series 2005, dated , 2005,
(the "Bonds"). We have examined such cextified proceedings and other papers as we deem
necessary to render this opinion.
We have no been engaged or undertaken to review the accuracy, completeness or
sufficiency of the Official Statement or other offering material Yelating to the Bonds and we express
no opinion relating thereto.
As to questions of fact material to our opinion, we have relied upon the certified
proceedings and other certifications of public officials furiushed to us,without undertaking to verify
such facts by independent investigation.
Based upon the foregoing,we are of the opinion that,undex existing law:
1. The Issuez is duly created and validiy existing as a body coxporate and politic and public
instrumentaliry of the State of South Dakota with the corporate powex to adopt and pexform the
Resolution and issue the Bonds.
2. Resolution has been duly adopted by the Issuer on .2005
and consritutes a valid and binding obligation of the Issuer enforceable upon the Issuer.
3. The Resolution pledges the City's non-ad valorem tax (the "Sa1es Tax) in an amount
sufficient to pay pxincipal,premium and intexest when due on the Bonds.
4. The Bonds have been duly authorized, executed and delivered bp the Issuer and are valid
and binding special obligations of the Issuer,payable solely from Ciry's Sales Tax.
5. The interest on the Bonds is excluded from gross income fox federal income tax
purposes and is not an item of tax preference for purposes of the federal alternative xninimutn tax
imposed on individuals and corporations; it should be noted, however, that for the purpose of
computing•the alternative minimuxn tax imposed on certain corporations as defined for federal
income tax purposes, such interest is taken into account in determining adjusted curtent earnings.
The opinions set forth in the preceding sentence are subject to the condition that the Issuer complp
with all requitements of the Internal Revenue Code of 1986 as amended, that must be satisfied
subsequent to the issuance of the Bonds in order that interest thexeon be, or continue to be,
excluded from gross incorne for federal income t�purposes. The Issuer has covenanted to comply
with each such requirement. Failure to comply with certain of such requitements may cause the
inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive
to the date of issuance of the Bonds. We express no opinion regarding other federal tax
consequences arising with respect to the Bonds.
6. The Bonds are exempt from all taxation as property by the Sta.te of South Dakota, its
subdivisions and municipalities and bear interest not includible in the gross income o£the recipient.
for purposes of computing any tax unposed by the provisions of South Dakota.law. We express no
further opinions regarding other South Dakota tax consequences arising with regard to the Bonds.
It is to be understood that the rights of the holders of the Bonds and the enfoxceability
thereof may be subject to bankruptcy,insolvency,reorganization,moratorium and other similar laws
affecting creditors' rights heretofoxe or hexeafter enacted to the extent constitutionally applicable
and that theix enforcement may be subject to the exercise of judicial discretion in accordance with
general principles of equity and subject to regulatory requirements undex the laws of the United
States and of the State of South Dakota.
Danforth&Meiexhenry,LLP
AS PROVIDED IN THE RESOLUTION REFERRED TO HEREIN, UNTIL THE
TERMTNATION OF THE SYSTEM OF BOOK-ENTRY-ONLY TRANSFERS THROUGH
DEPOSITORY TRUST COMPANY, NEW YORK, NEW YORK (TOGETHER WITH ANY
SUCCESSOR SECURITIES DEPOSITORY APPOINTED PURSUANT TO THE
RESOLUTION, "DTC"),AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THE
RESOLUTION '�'O THE CONTRARY, A PORTION OF THE PRINCIPAL AMOUNT OF
2
THIS CERTIFICATE MAY BE PAID OR REDEEMED WITHOUT SURRENDER HEREOF
TO THE REGISTRAR. DTC OR A NOMINEE,TRANSFEREE OR ASSIGNEE OF DTC OF
THIS CERTIFICATE MAY NOT RELY UPON THE PRINCIPAL AMOUNT INDICATED
HEREON' AS THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND UNPAID.
THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND UNPAID SHALL FOR AT"T.
PURPOSES BE THE AMOUNT DETERMINED IN THE MANNER PROVIDED IN THE
RESOLUTION.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED OFFICER
OF DTC (A) TO THE REGISTRAR FOR REGISTRATION OF TRANSFER OR EXCHANGE
OR (B) TO THE REGISTRAR FOR PAYMENT OF PRINCIPAL, AND ANY CERTIFICATE
ISSUED IN REPLACEMENT HEREOF OR SUBSTITUTION HEREFOR IS REGISTERED
IN THE NAME OF DTC AND ANY PAYMENT IS MADE TO DTC OR ITS NOMINEE,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL BECAUSE ONLY THE REGISTERED OWNER
HEREOF,DTC OR ITS NOMINEE, HAS AN INTEREST HEREIN.
(Form of Assignment)
FOR VALUE RECENED the undersigned hexeby sells,assigns and transfexs unto
the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the withixi Certificate on the books kept for registration thereo£,with full power
of substitution in the premises.
Dated:
NOTICE: The signature to this Assignment must correspond with the name as it appeaxs upon the
face of the witivn Certificate in every particular, without alteration ox enlaxgement or any change
whatever.
Discussion Items:
Available On-Sale Lic�uor Operating Agreement.
The City of Brookings,South Dakota.,has one unissued on-sale liquor operating agreement. With
regard to that agreement, the Brookings City Council took the following action on Octobex 26,
2004: `A motion�a.r made by Mun.rterman, .reconded by Beed, to revi.rit the operating agreement in 12 month.r but
take u�idates on incoming ap�ilication.r. If the council�vould like to take it up,rooner, it svould be at their di.rcretion.
At the 12 month time or.rooner it svould be opened up for cornpetitive application.c by council vote only. Add�ir�.rent
votedyes;Boden voted no;motion carried."
October 11,2005, the Council was asked further direction from the Council on the issue,asking if
they wished to leave it on the shelf or open up for an application process. Lanning noted that if the
Council chooses to open the application process,the city would use the same process as last year
with completed applications being forwarded to the City Council and then the Council deciding if
they wanted to award one. Lanning recommended that if the council wanted to accept applications,
it should pr.ovide public notice so all intexested parties have the opportunity to apply. At the end of
that meeting, the Council requested this item be placed on the agenda for further discussion.
Caxol Hansen,representing Main Street Pub&Events Hall,said hex son plans to make an
application for the liquor license.
Thomson said with the potential new development foxeseen in Brookings,the Council may be
hesitant to give up license right now.
Lanning clarified that the Council must either shelf the license ox open it up to a competitive
process. Complete applications that meet the specified criteria would come to council. The process
doesn't require that a license be awarded.
ACTIOl�i: A motion was made by Bartley, seconded bp Thomson, to continue with the current
policy without an ending date. Di,rcus.rion: It u�as clarified that the City Clerk u�ould fonvard all "complete"
applications to the City Council. It woudd be up to the Cnuncil whether to open up the process. All present voted
yes;motion caxried.
Ordinance No. 28-00—Parade Safety Regulations. The Council reviewed Ordinance No. 28-00,
an ordinance amending Section 34-351 and repealing Section 34-352 of the Revised Ordinances of
3
the City of Brookings and pertainisig to safety regulations fox parade participants and observers
which was adopted 11/17/2000.
Police Chief Tim Tompkins questioned what enforcement action would be appropriate. He said
local law enforcement would not stop a parade float because candy was thrown. He recommended
changing the ordinance because it currendy isn't enforceable. He noted that
Donna Langland,Ciry Human Resources Dixector,has done some research on the issue.
The consensus was to leave the ordinance alone.
Executive Sessioti. A motion was made by Reed,seconded by Whaley,to enter executive session
at 7:06 p.m. to discuss pricing sttategies with the City Council,City Attorney,City Clerk,City
Manager present. All present voted yes;motion carried. A motion was made by Reed, seconded by
Whaley,to leave executive session at 8:20 p.m. Motion carried.
Resolution No. 91-45-Industrial Develo�ment. A motion was made by Reed, seconded by Thomson, to
approve Resolution No. 91-05, a Resolution to convey approximately 0.7 acres of land from the City of
Brookings to the Brookings Economic Development Corporation. A motion was made by Bartley,
seconded bq Reed, to amend the motion to sta.te conveyance to the BEDC for$7,500. All present voted yes
on the amendment,motion caxried. On the main motion as axnended,all present voted yes;motion carried.
RESOLUTION NO.91-05
A RESOLUTION AUTHORIZING TRANSFER OF REAL PROPERTY TO
BROOKINGS ECONOMIC DEVELOPMENT CORPORATION,INC.
BE IT RESOLVED by the City Council of the Ciry of Brookings,South Dakota as follows:
WHEREAS,the Brookings Economic Development Corporation,Inc.has entered into a Purchase
Agreement with Capital Card Services,Inc.,a South Dakota Corpoxation,fox the sale and purchase of
Seven-Tenths(0.'�acres of xeal property located in the Southeast corner of Wiese Addition to the
City of Brookings,South Dakota,for a price of$7,500 described as follows:
• Lot Two.(2}of Block Eight(8)of Wiese Addition to the City of
Brookings,County of Brookings,State of South Dakota,aad
WHEREAS,it is in the best intexests of the Ciry of Bxookings that the City provide its economic
development assistance in this mattex to aid and assist with the completion of the afoxesaid
transaction which will further economic development in the City of Brookings;and
WHEREAS,the Ciry is authorized to enter into this transaction as an economic development activity
under the laws of the State of South Dakota;
NOW THEREFORE,it is hereby RESOLVED by the City Council of the City of Bxookings,South
Dakota,as follows:
A. That the City convey title to the above-described pxopexty to the Brookings Economic
Development Corporation,Inc.for sale of the above-described pxopexry to Capital
Cazd Services,Inc.;and
B. That the Mayor,Ciry Clerk and City Managex are authorized to execute the xequixe
documents in accordance with this Resolution.
Adjourn. A motion was made by Reed, seconded by Whaley,to adjourn. All present voted yes;motion
carried. Meeting adjourned at 8:21 p.m.
ity of o ' s
o unsterman,Mayor
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