20050125 R-05-07RESOLUTION NO. R-05-07
RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF
GENERAL OBLIGATION SCHOOL REFUNDING BONDS, SERIES
2005, OF THE CITY OF FAIRFAX, VIRGINIA, IN THE MAXIMUM
PRINCIPAL AMOUNT OF $15,000,000, PROVIDING FOR THE
FORM, DETAILS AND PAYMENT THEREOF AND PROVIDING FOR
THE REFUNDING OF CERTAIN OF THE CITY'S GENERAL
OBLIGATION SCHOOL BONDS
WHEREAS, on April 22, 1998, the City of Fairfax, Virginia (the "City") issued its
$25,600,000 General Obligation School Bonds, Series of 1998 (the "Series 1998 Bonds"); and
WHEREAS, the City can effect savings by issuing its general obligation school
refunding bonds to (a) refund all or a portion of the outstanding Series 1998 Bonds (the
"Refunded Bonds"), and (b) pay the costs of refunding the Refunded Bonds and issuing such
general obligation school refunding bonds; and
WHEREAS, the City Manager and Davenport & Company LLC, the City's financial
advisor (the "Financial Advisor"), have recommended to the Council of the City (the "City
Council") that the City issue and sell a single issue of general obligation school refunding
bonds through negotiation with a qualified investment banking firm (the "Underwriter"); and
WHEREAS, the City Manager, in collaboration with the Financial Advisor, has
recommended that it may be in the best interest of the City to purchase a municipal bond
insurance policy to insure payment of principal of and interest on such general obligation
school refunding bonds if the cost of municipal bond insurance results in an overall interest
cost savings to the City;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FAIRFAX, VIRGINIA:
1. Issuance and Sale. The City hereby authorizes the issuance and sale of
general obligation school refunding bonds in the maximum principal amount of $15,000,000
"Bonds") pursuant to the Constitution and statutes of the Commonwealth of Virginia,
the Public Finance Act of 1991, to provide funds to refund the Refunded Bonds,
including funds to pay principal of and premium and interest on the Refunded Bonds until
their earliest redemption date, and to pay costs incurred in connection with such refunding and
the costs of issuing the Bonds, including the cost of municipal bond insurance.
2. Bond Details. The Bonds shall be designated "General Obligation School
Refunding Bonds, Series 2005," or such other designation as may be determined by the City
Manager, shall be dated such date as may be determined by the City Manager, shall be in
registered form, in denominations of $5,000 and multiples thereof, and shall be numbered R-1
upward. Subject to Section 8, the City Council authorizes the issuance and sale of the Bonds
to the Underwriter on terms as shall be satisfactory to the City Manager; provided, however,
the Bonds (a) shall mature or be subject to mandatory sinking fund redemption in annual
ending no later than December 31, 2018, (b) shall have a "true" or "Canadian"
interest cost not to exceed 5% (taking into account any original issue discount or premium),
and (c) shall be sold at a price not less than 98% of the principal amount thereof (without
taking into account any original issue discount); and provided further, however, that the
refunding of the Refunded Bonds shall result in gross present value savings to the City of at
least 3%.
Each Bond shall bear interest from its date at such rate as shall be determined at the
time of sale, calculated on the basis of a 360-day year of twelve 30-day months, and payable
semiannually on dates determined by the City Manager. Principal and premium, if any, shall
be payable to the registered owners upon surrender of Bonds as they become due at the office
of the Registrar (as hereinafter defined). Interest shall be payable by check or draft mailed to
the registered owners at their addresses as they appear on the registration books kept by the
Registrar on a date prior to each interest payment date that shall be determined by the City
Manager (the "Record Date"). Principal, premium, if any, and interest shall be payable in
lawful money of the United States of America.
Initially, one Bond certificate for each maturity of the Bonds shall be issued to and
registered in the name of The Depository Trust Company, New York, New York ("DTC"), or
its nominee. The City has heretofore entered into a Letter of Representations relating to a
book-entry system to be maintained by DTC with respect to the Bonds. "Securities
Depository" shall mean DTC or any other securities depository for the Bonds appointed
~ursuant to this Section.
In the event that (a) the Securities Depository determines not to continue to act as the
~ecurities depository for the Bonds by giving notice to the Registrar, and the City discharges
its responsibilities hereunder, or (b) the City in its sole discretion determines (i) that beneficial
owners of Bonds shall be able to obtain certificated Bonds or (ii) to select a new Securities
Depository, then its chief financial officer shall, at the direction of the City, attempt to locate
another qualified securities depository to serve as Securities Depository and authenticate and
deliver certificated Bonds to the new Securities Depository or its nominee, or authenticate and
deliver certificated Bonds to the beneficial owners or to the Securities Depository participants
on behalf of beneficial owners substantially in the form provided for in Section 5; provided,
however, that such form shall provide for interest on the Bonds to be payable (A) from the
date of the Bonds if they are authenticated prior to the first interest payment date, or (B)
otherwise from the interest payment date that is or immediately precedes the date on which
Ihe Bonds are authenticated (unless payment of interest thereon is in default, in which case
interest on such Bonds shall be payable from the date to which interest has been paid). In
delivering certificated Bonds, the chief financial officer shall be entitled to rely on the records
af the Securities Depository as to the beneficial owners or the records of the Securities
Depository participants acting on behalf of beneficial owners. Such certificated Bonds will
then be registrable, transferable and exchangeable as set forth in Section 7.
So long as there is a Securities Depository for the Bonds (1) it or its nominee shall be
the registered owner of the Bonds, (2) notwithstanding anything to the contrary in this
Resolution, determinations of persons entitled to payment of principal, premium, if any, and
interest, transfers of ownership and exchanges and receipt of notices shall be the
responsibility of the Securities Depository and shall be effected pursuant to rules and
procedures established by such Securities Depository, (3) the Registrar and the City shall not
be responsible or liable for maintaining, supervising or reviewing the records maintained by
the Securities Depository, its participants or persons acting through such participants, (4)
references in this Resolution to registered owners of the Bonds shall mean such Securities
Depository or its nominee and shall not mean the beneficial owners of the Bonds and (5) in
the event of any inconsistency between the provisions of this Resolution and the provisions of
the above-referenced Letter of Representations such provisions of the Letter of
Representations, except to the extent set forth in this paragraph and the next preceding
>aragraph, shall control.
3. Redemption Provisions. The Bonds may be subject to redemption prior to
naturity at the option of the City on or after dates, if any, determined by the City Manager, in
whole or in part at any time, at a redemption price equal to the principal amount of the Bonds,
together with any accrued interest to the redemption date, plus a redemption premium not to
exceed 2% of the principal amount of the Bonds, such redemption premium to be determined
by the City Manager.
Any term bonds may be subject to mandatory sinking fund redemption upon terms
determined by the City Manager.
If less than all of the Bonds are called for redemption, the maturities of the Bonds to
be redeemed shall be selected by the chief financial officer of the City in such manner as such
officer may determine to be in the best interest of the City. If less than all the Bonds of any
maturity are called for redemption, the Bonds within such maturity to be redeemed shall be
selected by the Securities Depository pursuant to its rules and procedures or, if the book-entry
system is discontinued, shall be selected by the Registrar by lot in such manner as the
Registrar in its discretion may determine. In either case, (a) the portion of any Bond to be
:edeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b)
in selecting Bonds for redemption, each Bond shall be considered as representing that number
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of Bonds that is obtained by dividing the principal amount of such Bond by $5,000. The City
shall cause notice of the call for redemption identifying the Bonds or portions thereof to be
:redeemed to be sent by facsimile transmission, registered or certified mail or overnight
express delivery, not less than 30 nor more than 60 days prior to the redemption date, to the
registered owner of the Bonds. The City shall not be responsible for giving notice of
redemption to anyone other than DTC or another qualified securities depository then serving
ar its nominee unless no qualified securities depository is the registered owner of the Bonds.
If no qualified securities depository is the registered owner of the Bonds, notice of redemption
shall be mailed to the registered owners of the Bonds. If a portion of a Bond is called for
redemption, a new Bond in principal amount equal to the unredeemed portion thereof will be
issued to the registered owner upon the surrender thereof.
4. Execution and Authentication. The Bonds shall be signed by the manual or
facsimile signature of the Mayor of the City, shall be countersigned by the manual or
facsimile signature of the City Clerk and the City's seal shall be affixed thereto or a facsimile
thereof printed thereon; provided, however, that no Bond signed by facsimile signatures shall
be valid until it has been authenticated by the manual signature of an authorized officer or
employee of the Registrar and the date of authentication noted thereon.
5. Bond Form. The Bonds shall be in substantially the following form, with
such completions, omissions, insertions and changes not inconsistent with this Resolution as
may be approved by the officers signing the Bonds, whose approval shall be evidenced
conclusively by the execution and delivery of the Bonds:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent
for registration of transfer, exchange, or payment, and any certificate is registered in the
name of Cede & Co., or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
REGISTERED
REGISTERED
No. R- $
UNITED STATES OF AMERICA
COMMONWEALTH OF VIRGINIA
CITY OF FAIRFAX
General Obligation School Refunding Bond
Series 2005
INTEREST RATE
%
REGISTERED OWNER:
PRINCIPAL AMOUNT:
MATURITY DATE DATED DATE
CUSIP
.... 2005
CEDE & CO.
DOLLARS
The City of Fairfax, Virginia (the "City"), for value received, promises to pay, upon
surrender hereof to the registered owner hereof, or registered assigns or legal representative,
the principal sum stated above on the maturity date stated above, subject to prior redemption
as hereinafter provided, and to pay interest hereon from its date semiannually on each
and , beginning .... at the annual rate stated above,
calculated on the basis of a 360-day year of twelve 30-day months. Principal, premium, if
any, and interest are payable in lawful money of the United States of America by the City
Treasurer, who has been appointed paying agent and registrar for the bonds, or at such bank
or trust company as may be appointed as successor paying agent and registrar by the City (the
"Registrar").
Notwithstanding any other provision hereof, this bond is subject to a book-entry
system maintained by The Depository Trust Company ("DTC"), and the payment of principal,
premium, if any, and interest, the providing of notices and other matters shall be made as
described in the City's Letter of Representations to DTC.
This bond is one of an issue of $ General Obligation School Refunding
Bonds, Series 2005, of like date and tenor, except as to number, denomination, rate of interest,
privilege of redemption and maturity, and is issued pursuant to the Constitution and statutes of
the Commonwealth of Virginia, including the Public Finance Act of 1991. The bonds are
issued pursuant to a resolution adopted by the City Council on , 2005, to refund
certain maturities of the City's outstanding General Obligation School Bonds, Series of 1998.
Bonds maturing on or before , __, are not subject to redemption prior
to maturity. Bonds maturing on or after , , are subject to redemption prior
to maturity at the option of the City on or after , __, in whole or in part (in any
multiple of $5,000) at any time, upon payment of the following redemption prices (expressed
as a percentage of principal amount of bonds to be redeemed) plus interest accrued and unpaid
to the date fixed for redemption:
Period During Which Redeemed
Both Dates Inclusive
Redemption
Price
[Bonds maturing on .... are required to be redeemed in part before
maturity by the City on in the years and amounts set forth below, at a redemption
price equal to the principal amount of the bonds to be redeemed, plus accrued interest to the
redemption date:
Year Amount Year Amount
If less than all of the bonds are called for redemption, the bonds to be redeemed shall
be selected by the chief financial officer of the City in such manner as such officer may
determine to be in the best interest of the City. If less than all the bonds of any maturity are
called for redemption, the bonds within such maturity to be redeemed shall be selected by
DTC or any successor securities depository pursuant to its rules and procedures or, if the book
entry system is discontinued, shall be selected by the Registrar by lot in such manner as the
Registrar in its discretion may determine. In either case, (a) the portion of any bond to be
redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b)
in selecting bonds for redemption, each bond shall be considered as representing that number
of bonds that is obtained by dividing the principal amount of such bond by $5,000. The City
shall cause notice of the call for redemption identifying the bonds or portions thereof to be
redeemed to be sent by facsimile transmission, registered or certified mail or overnight
express delivery, not less than 30 nor more than 60 days prior to the redemption date, to the
registered owner hereof. If a portion of this bond is called for redemption, a new bond in
principal amount of the unredeemed portion hereof will be issued to the registered owner
upon surrender hereof.
The full faith and credit of the City are irrevocably pledged for the payment of
principal of and premium, if any, and interest on this bond. Unless other funds are lawfully
available and appropriated for timely payment of this bond, the City Council shall levy and
collect an annual ad valorem tax, over and above all other taxes authorized or limited by law
and without limitation as to rate or amount, on all taxable property within the City sufficient
to pay when due the principal of and premium, if any, and interest on this bond.
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The Registrar shall treat the registered owner of this bond as the person exclusively
entitled to payment of principal of and premium, if any, and interest on this bond and the
exercise of all others rights and powers of the owner, except that interest payments shall be
made to the person shown as the owner on the registration books on the [15th] day of the
month preceding each interest payment date.
All acts, conditions and things required by the Constitution and statutes of the
Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance
of this bond have happened, exist and have been performed, and the issue of bonds of which
this bond is one, together with all other indebtedness of the City, is within every debt and
other limit prescribed by the Constitution and statutes of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the City Council of the City of Fairfax, Virginia, has
caused this bond to be issued in the name of the City of Fairfax, Virginia, to be signed by its
Mayor, its seal to be affixed hereto and attested by the signature of the City Clerk, and this
bond to be dated ., 2005.
ATTESTED:
City Clerk, City of Fairfax, Virginia
(SEAL)
Mayor, City of Fairfax, Virginia
ASSIGNMENT
FOR VALUE RECEIVED the undersigned sell(s), assign(s) and transfer(s) unto
(Please print or type name and address, including postal zip code, of Transferee)
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE:
the within bond and all rights thereunder, hereby irrevocably constituting and appointing
Attorney, to transfer said bond on the books kept for the registration thereofi with full power
of substitution in the premises.
Dated:
Signature Guaranteed
NOTICE: Signature(s) must be guaranteed
by an Eligible Guarantor Institution such
as a Commercial Bank, Trust Company,
Securities Broker/Dealer, Credit Union
or Savings Association who is a member
of a medallion program approved by The
Securities Transfer Association, Inc.
(Signature of Registered Owner)
NOTICE: The signature above must
correspond with the name of the
registered owner as it appears on the
front of this bond in every particular,
without alteration or enlargement or any
change whatsoever.
6. Pledge of Full Faith and Credit. The full faith and credit of the City are
irrevocably pledged for the payment of principal of and premium, if any, and interest on the
Bonds. Unless other funds are lawfully available and appropriated for timely payment of the
Bonds, the City shall levy and collect an annual ad valorem tax, over and above all other taxes
authorized or limited by law and without limitation as to rate or amount, on all locally taxable
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property in the City sufficient to pay when due the principal of and premium, if any, and
interest on the Bonds.
7. Registration, Transfer and Owners of Bonds. The City Treasurer is
appointed paying agent and registrar for the Bonds (the "Registrar"). The City may, in its
sole discretion, at any time appoint a qualified bank or trust company as successor paying
agent and registrar of the Bonds. The Registrar shall maintain registration books for the
registration and registration of transfers of Bonds. Upon presentation and surrender of any
Bonds to the Registrar, or its corporate trust office if the Registrar is a bank or trust company,
together with an assignment duly executed by the registered owner or his duly authorized
attorney or legal representative in such form as shall be satisfactory to the Registrar, the City
shall execute and the Registrar shall authenticate, if required by Section 4, and deliver in
exchange, a new Bond or Bonds having an equal aggregate principal amount, in authorized
denominations, of the same form and maturity, bearing interest at the same rate, and
registered in names as requested by the then registered owner or his duly authorized attorney
or legal representative. Any such exchange shall be at the expense of the City, except that the
Registrar may charge the person requesting such exchange the amount of any tax or other
governmental charge required to be paid with respect thereto.
The Registrar shall treat the registered owner as the person exclusively entitled to
payment of principal, premium, if any, and interest and the exercise of all other rights and
powers of the owner, except that interest payments shall be made to the person shown as
owner on the registration books on the Record Date.
8. Sale of Bonds. The City Manager, in collaboration with the Financial
Advisor, is authorized to appoint one or more investment banking firms to serve as the
Underwriter for the Bonds, all as the City Manager shall determine to be in the best interests
of the City. The sale of the Bonds to the Underwriter is authorized upon the following terms.
The City Manager, in collaboration with the Financial Advisor, shall (a) determine the
principal amount of the Bonds, subject to the limitations set forth in Section 1, (b) determine
the interest rates of the Bonds, maturity schedule of the Bonds and the price to be paid for the
Bonds by the Underwriter, subject to the limitations set forth in Section 2, (c) determine the
redemption provisions of the Bonds, subject to the limitations set forth in Section 3, and (d)
determine the dated date and the principal and interest payment dates of the Bonds, all as the
City Manager determines to be in the best interests of the City.
Following the determination of the terms of the Bonds and their sale, the City
Manager shall execute a bond purchase agreement with the Underwriter (the "Bond Purchase
Agreement") and deliver the Bond Purchase Agreement to the Underwriter. The Bond
Purchase Agreement shall be in a form as approved by the City Manager, in collaboration
with the City Attorney and the City's bond counsel. The execution of the Bond Purchase
Agreement by the City Manager shall constitute conclusive evidence of his approval of such
Agreement. Following the sale of the Bonds, the City Manager shall file the Bond Purchase
Agreement with the City Clerk. The actions of the City Manager in selling the Bonds shall be
conclusive, and no further action with respect to the sale and issuance of the Bonds shall be
necessary on the part of the City Council.
9. Official Statement. The Preliminary Official Statement by which the Bonds
will be offered for sale shall be in substantially the form as the preliminary official statement
prepared in connection with the issuance of the City's General Obligation School Bonds,
Series 2004 Bonds, with such completions, omissions, insertions and changes not inconsistent
with this Resolution as the City Manager, in collaboration with the Financial Advisor, may
consider appropriate to complete it as a final Official Statement. The City Manager is
authorized, on behalf of the City, to execute the final Official Statement. The City shall
arrange for the delivery to the Underwriter of a reasonable number of copies of the final
Official Statement, within seven business days after the Bonds have been awarded, for
delivery to each potential investor requesting a copy of the Official Statement and to each
person to whom such Underwriter initially sells Bonds.
10. Official Statement Deemed Final. The City Manager is authorized, on behalf
of the City, to deem the Preliminary Official Statement and the final Official Statement to be
"final" as of their dates within the meaning of Rule 15c2-12 (the "Rule") of the Securities and
Exchange Commission, except for the omission from the Preliminary Official Statement of
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certain pricing and other information permitted to be omitted pursuant to the Rule. The
distribution of the Preliminary Official Statement and the execution of the final Official
Statement by the City Manager shall be conclusive evidence that each has been deemed final.
11. Preparation and Delivery of Bonds. After the Bonds have been priced, the
Mayor of the City and the City Clerk are authorized and directed to take all proper steps to
have the Bonds prepared and executed in accordance with their terms and to deliver the Bonds
to the Underwhter upon payment therefor.
12. Redemption of Refunded Bonds. The City Manager is authorized and
directed to determine which of the Refunded Bonds, if any, shall be refunded. The Escrow
Agreement (as hereinafter defined) shall provide for notice of redemption to be given in
accordance with the resolution providing for the issuance of the Refunded Bonds to the
registered owners of the Refunded Bonds.
13. Escrow Deposit Agreement. In the event the City Manager determines that it
is in the City's best interest that all or a portion of the Refunded Bonds should be refunded,
the City Manager is authorized and directed to execute an escrow deposit agreement (the
"Escrow Agreement") between the City and an escrow agent to be appointed by the City
Manager (the "Escrow Agent"). The Escrow Agreement shall be in the form approved by the
City Manager, in collaboration with the City Attorney and the City's bond counsel, and shall
provide for the deposit and investment of a portion of the Bond proceeds for the defeasance of
the Refunded Bonds. The execution of the Escrow Agreement by the City Manager shall
constitute conclusive evidence of such official's approval of the Escrow Agreement. The
Escrow Agreement shall provide for the irrevocable deposit of a portion of the Bond proceeds
(the "Refunding Portion") in an escrow fund which shall be sufficient, when invested in
noncallable, direct obligations of the United States Government (the "Government
Obligations"), to provide for payment of principal of and premium, if any, and interest on the
Refunded Bonds; provided, however, that such Refunding Portion shall be invested in such
manner that none of the Bonds will be "arbitrage bonds" within the meaning of Section 148 of
the Internal Revenue Code of 1986, as amended, and regulations issued pursuant thereto (the
"Code"). The Escrow Agent is authorized and directed to execute an initial subscription form
for the purchase of the Government Obligations and such other contracts and agreements
necessary to provide for the defeasance of the Refunded Bonds as are approved by the City
Manager, in collaboration with the City Attorney and the City's bond counsel.
14. Deposit of Bond Proceeds. The City Treasurer is authorized and directed (a)
to provide for the delivery of the Refunding Portion to the Escrow Agent for deposit in the
escrow fund established by the Escrow Agreement, in an amount that will be sufficient,
together with any other funds deposited with the Escrow Agent and the interest thereon when
invested as provided in the Escrow Agreement, (i) to pay when due the interest on the
Refunded Bonds to the first date on which they may be redeemed at the option of the City and
(ii) to pay upon the earlier of maturity or redemption the principal of the Refunded Bonds,
plus any interest accrued and unpaid to such redemption date, plus the applicable redemption
premium, and (b) to provide for the deposit of the remaining proceeds of the Bonds in a
special account to be used to pay the costs of the Project and the costs incurred in refunding
the Refunded Bonds and issuing the Bonds. The City Treasurer is further authorized and
directed to take all such further action as may be necessary or desirable in connection with the
payment and refunding of the Refunded Bonds.
15. Bond Insurance. The City Council hereby determines that it may be
advisable to obtain municipal bond insurance to ensure a favorable rating such that payment
of principal and interest on the Bonds will result in an overall interest cost savings to the City.
The City Manager, in collaboration with the Financial Advisor, is authorized and directed to
take appropriate steps to determine whether a policy of municipal bond insurance is in the
best interest of the City and, if so, to make arrangements for such insurance. The purchase of
a policy of municipal bond insurance shall constitute conclusive evidence of the
determination of the City Manager that such policy is in the best interest of the City.
16. Arbitrage Covenants. (a) The City represents that there have not been issued,
and covenants that there will not be issued, any obligations that will be treated as part of the
same issue of obligations as the Bonds within the meaning of Treasury Regulations Section
1.150-1(c).
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(b) The City covenants that it shall not take or omit to take any action the taking or
omission of which will cause the Bonds to be "arbitrage bonds" within the meaning of Section
148 of the Code, or otherwise cause interest on the Bonds to be includable in the gross income
of the registered owners thereof under existing law. Without limiting the generality of the
foregoing, the City shall comply with any provision of law which may require the City at any
time to rebate to the United States any part of the earnings derived from the investment of the
gross proceeds of the Bonds, unless the City receives an opinion of nationally recognized
bond counsel that such compliance is not required to prevent interest on the Bonds from being
includable in the gross income of the registered owners thereof under existing law. The City
shall pay any such required rebate from its legally available funds.
17. Non-Arbitrage Certificate and Elections. Such officers of the City as may
be requested are authorized and directed to execute an appropriate certificate setting forth the
expected use and investment of the proceeds of the Bonds in order to show that such expected
use and investment will not violate the provisions of Section 148 of the Code, and any
elections such officers deem desirable regarding rebate of earnings to the United States for
purposes of complying with Section 148 of the Code. Such certificate and elections shall be
in such form as may be requested by bond counsel for the City.
18. Limitation on Private Use. The City covenants that it shall not permit the
proceeds of the Bonds or the facilities refinanced with the proceeds of the Bonds to be used in
any manner that would result in (a) 5% or more of such proceeds or the facilities financed or
refinanced with such proceeds being used in a trade or business carded on by any person
other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more of
such proceeds or the facilities financed or refinanced with such proceeds being used with
respect to any output facility (other than a facility for the furnishing of water), within the
meaning of Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used
directly or indirectly to make or finance loans to any persons other than a governmental unit,
as provided in Section 141(c) of the Code; provided, however, that if the City receives an
opinion of nationally recognized bond counsel that any such covenants need not be complied
with to prevent the interest on the Bonds from being includable in the gross income for
federal income tax purposes of the registered owners thereof under existing law, the City need
not comply with such covenants.
19. Continuing Disclosure Agreement. The Mayor, the City Manager and such
officer or officers of the City as either may designate are hereby authorized and directed to
execute a continuing disclosure agreement (the "Continuing Disclosure Agreement") setting
forth the reports and notices to be filed by the City and containing such covenants as may be
necessary to assist the Underwriter in complying with the provisions of the Rule promulgated
by the SEC. The Continuing Disclosure Agreement shall be substantially in the form
presented to this meeting, which is hereby approved; provided that the City Manager, in
collaboration with the Financial Advisor, may make such changes in the Continuing
Disclosure Agreement not inconsistent with this Resolution as he may consider to be in the
best interest of the City. The execution thereof by such officers shall constitute conclusive
evidence of their approval of any such completions, omissions, insertions and changes.
20. Other Actions. All other actions of officers of the City in conformity with the
purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bonds
are hereby ratified, approved and confirmed. The officers of the City are authorized and
directed to execute and deliver all certificates and instruments and to take all such further
action as may be considered necessary or desirable in connection with the issuance, sale and
delivery of the Bonds.
21. Repeal of Conflicting Resolutions. All resolutions or parts of resolutions in
conflict herewith are repealed.
22. Effective Date. This Resolution shall take effect immediately.
January 25, 2005
January 25, 2005
,T:
Mayor
City Clerk
vote on the motion to approve was recorded as follows:
~ouncilwoman Cross
;ouncilman Greenfield
2ouncilwoman Lyon
',ouncilman Rasmussen
',ouncilman Silverthome
~er Winter
aye
aye
aye
aye
aye
aye
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