City Council Resolution 1997-044 ~
Extract of Minutes of Meeting
of the City Council of the City of
Monticello, Wright County, Minnesota
Pursuant to due call and notice thereof, a regular meeting of the City Council of the City
of Monticello, Minnesota, was duly held in the City Hall in said City on Monday, February 24,
1997, commencing at ~ P.M.
The following members were present:
Bill Fair, Roger Carlson, Bruce Thielen,
Clint Herbst, Brian Stumpf
and the following were absent: crone
***
*** ***
The following resolution was presented by Councilmember Carlson who moved
its adoption:
RESOLUTION NO. 97-4
A RESOLUTION AWARDING THE SALE OF, AND
PROVIDING THE FORM, TERMS, COVENANTS AND
DIRECTIONS FOR $14,700,000 GENERAL OBLIGATION
WASTEWATER TREATMENT NOTE, SERIES 1997.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MONTICELLO,
WRIGHT COUNTY, MINNESOTA (THE "ISSUER") AS FOLLOWS:
Section 1. Recitals.
1.01. The Minnesota Public Facilities Authority (the "PFA") is authorized pursuant to
Minnesota Statutes, Chapter 446A, as amended, to issue its bonds (the "PFA Bonds") and to use
the proceeds thereof, together with certain other funds of the agency available for such purpose,
to provide loans to political subdivisions of the state to fund eligible costs of construction of
publicly owned wastewater treatment facilities in accordance with Title VI of the Clean Water
Act (the "Program").
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1.02. The Issuer is authorized to issue its obligations pursuant to Minnesota Statutes,
Sections 115.46 and Chapter 475 (the "Act"), for the purpose of financing improvements to the
Issuer's wastewater treatment system (the "Project")
1.03. The Issuer has applied for a loan from the PFA pursuant to the Program, and the
PFA has offered to make a loan to the Issuer in the principal amount of $14,700,000, to be
disbursed and repaid in accordance with the terms of a Project Loan Agreement (the "Project
Loan Agreement") dated as of February _, 1997 to be executed by the Issuer and the PFA, in
substantially the form now on file with the City Administrator/Finance Director. The Project
Loan Agreement, as executed, is incorporated herein by reference as Exhibit A.
1.04. In accordance with Section 475.60 of the Act, the Issuer is authorized to issue and
sell its obligations to a board, department or agency of the State of Minnesota by negotiation and
without advertisement for bids. The PFA has represented to the Issuer that it is a board,
department or agency of the State of Minnesota.
Section 2. Sale; Terms of Note.
2.01. The offer of the PFA to purchase a General Obligation Wastewater Treatment Note,
Series 1997 of the Issuer (the "Note") in accordance with the terms set forth in this resolution at
a price of par plus accrued interest to the date of delivery is accepted.
2.02. The Note is to be issued in the aggregate principal amount of $14,700,000,
originally and nominally dated as of date of delivery as a fully registered Note without coupons.
The Note will be in the denomination of the entire principal amount thereof, numbered R-1 and
bear interest and mature in installment amounts as specified in Section 3.01 hereof.
2.03. The Note is subject to redemption and prior payment as provided in the Project
Loan Agreement.
2.04. Interest and principal in the installment amounts set out in Exhibit A to the Note
are payable by wire transfer or by check or draft of the Issuer or its designated Registrar mailed
no later than the last business day prior to the payment date to the registered holder thereof at
the holder's address as it appears on the bond register at the close of business on the 15th day
(whether or not a business day) of the calendar month next preceding the interest payment date.
Section 3. Form and Execution of the Note.
3.01. The Note is to be prepared in substantially the following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF WRIGHT
CITY OF MONTICELLO
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No. R-1
$14,700,000
GENERAL OBLIGATION WASTEWATER TREATMENT NOTE, SERIES 1997
The City of Monticello, a municipal corporation in Wright County, Minnesota (the
"Issuer"), for value received, hereby certifies that it is indebted and hereby promises to pay to the
Minnesota Public Facilities Authority (the "PFA") or registered assigns, the principal sum of
$14,700,000 in the amounts and on the principal payment dates specified in Exhibit A attached
hereto and incorporated by reference, and to pay to the registered owner hereof interest so much
of the unpaid principal amount of this Note as may be disbursed from time to time as provided
in a Project Loan Agreement between the Issuer and the PFA dated as of February _, 1997 (the
"Agreement"), at the interest rate of 0% through August 20, 1998 and at the rate of 4.08% for
the period starting on August 21, 1998 (calculated on the basis of a 30-day month and 360-day
year), until the unpaid balance of the principal sum is paid. Interest is payable with respect to
each principal disbursement from the date on which each principal disbursement is made, and is
payable on each February 20 and August 20 commencing February 20, 1999 or such other date
as may be required under the Agreement. Principal, interest and the redemption price are payable
in lawful money of the United States of America, by check or draft of the City
Administrator/Finance Director as Registrar, Transfer Agent, Authenticating Agent, and Paying
Agent (or such other agent as may be designated by the Issuer) (the "Registrar") mailed the last
business day prior to the interest payment date to the person in whose name this Note is
registered at the close of business on the preceding January 5 and August 5 (whether or not a
business day) at that person's address set forth on the Note register maintained by the Registraz.
Any such interest not punctually paid or provided for will be paid to the person in whose name
this Note is registered at the close of business on a special record date established by the
Registraz for the payment of such defaulted interest.
The principal installments of this Note aze to be paid in the amounts scheduled on
Attachment A even if at the time of payment the full principal amount of this Note has not been
disbursed; provided that if the full principal amount of the Note is never disbursed, the amount
of the principal not disbursed is applied to the principal repayment on the loan and the loan
payments will be reamortized. Principal and any redemption price due under this Note aze
payable in lawful money of the United States of America and will be paid on each payment date
by wire payment, or by check or draft mailed on the last business day prior to the payment date
to the person in whose name this Note is registered.
This Note is subject to redemption, in whole or in part on such dates and at such prices
and upon such other terms as are specified in the Agreement.
This Note is issued for the purpose of financing improvements to the Issuer's sewage
disposal system ordered by the Minnesota Pollution Control Agency pursuant to an authorizing
resolution adopted by the City Council of the Issuer on February 25, 1997 ("Resolution"), and
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pursuant to and in full conformity with the Constitution and laws of the State of Minnesota,
including Minnesota Statutes, Section 115.46 and Chapter 475.
This Note is payable from the General Obligation Wastewater Treatment Note, Series
1997 Fund of the Issuer (the "Note Fund") established by the Resolution to which reference is
made for a full description of the rights hereby conferred on the owner of this Note and those
revenues pledged to its payment. All taxable property within the Issuer's jurisdiction is subject
to the levy of ad valorem taxes without limitation as to rate or amount in the event of any
deficiency in net sewer system revenues or taxes pledged for payment of principal of and interest
on the Note. The issuance of this Note does not cause the indebtedness of the Issuer to exceed
any constitutional or statutory limitation thereon.
As provided in the Resolution, and subject to certain limitations set forth therein, this Note
is transferable upon the books of the Issuer kept for that purpose at the principal office of the
Registrar, by the registered owner hereof in person or by such owner's attorney duly authorized
in writing, upon surrender of this Note together with a written instrument of transfer satisfactory
to the Registrar, duly executed by the registered owner or such owner's duly authorized attorney.
Upon such transfer and the payment of any tax, fee or governmental charge required to be paid
by the Issuer or the Registrar with respect to such transfer, there will be issued in the name of
the transferee a new Note of the same aggregate principal amount as the surrendered Note.
The Note is issuable only as a fully registered note without coupons in the denomination
of the entire outstanding principal. The ownership of the Note is originally registered in the
name of the PFA.
It is hereby certified and recited that all acts, conditions and things required by the
Constitution and laws of the State of Minnesota to be done, to exist, to happen and to be
performed in order to make this Note a valid and binding general obligation of the Issuer
according to its terms, have been done, do exist, have happened and have been performed in due
form, time and manner as so required.
IN WITNESS WHEREOF, the City of Monticello, Wright County, Minnesota, has caused
this Note to be executed with the manual signatures of its Mayor and City Administrator/Finance
Director, both as of the nominal date of original issue specified above.
THE CITY OF MONTICELLO,
MINNESOTA
By ~"
or
< /, ~
gy (,(~
City Administr r/Finance Director
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REGISTRATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered on the books of the
City of Monticello, Wright County, Minnesota, in the name of the person last listed below.
Signature of City
Date of Registration Registered Owner Administrator/Finance
Director
1997 Minnesota Public
Facilities Authority
Federal Employee I.D.
No. 41-6007162
3.02. (a) As long as the Note issued hereunder remains outstanding, the Issuer will cause
to be kept at the principal office of the Registrar the Note register in which, subject to such
reasonable regulations as the Registrar may prescribe, the Registrar will provide for the initial
registration of the Note and the registration of transfers of the Note. The City
Administrator/Finance Director is hereby appointed Registrar, Transfer Agent, Authenticating
Agent, and Paying Agent with respect to the Note.
(b) Upon surrender for transfer of the Note with a written instrument of transfer
satisfactory to the Registrar, duly executed by the registered owner or the owner's duly authorized
attorney, and upon payment of any tax, fee or other governmental charge required to be paid with
respect to such transfer, the Issuer will execute and the Registrar will authenticate and deliver,
in the name of the designated transferee, a fully registered Note of the authorized denomination
and of a like aggregate principal amount, interest rate and maturity. In all cases in which the
privilege of transferring a fully registered Note is exercised, the Issuer will execute and the
Registrar will deliver the Note in accordance with the provisions of this Resolution. For every
such exchange or transfer of the Note, whether temporary or definitive, the Issuer or the Registrar
may make a charge sufficient to reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such exchange or transfer, which sum or sums will be paid
by the person requesting such exchange or transfer as a condition precedent to the exercise of the
privilege of making such exchange or transfer. Notwithstanding any other provision of this
Resolution, the cost of preparing each new Note upon each exchange or transfer, and any other
expenses of the Issuer or the Registrar incurred in connection therewith (except any applicable
tax, fee or other governmental charge) will be paid by the Issuer. The Issuer is not obligated to
make any such exchange or transfer of the Note during the 15 days next preceding the date of
the first publication of notice of redemption in the case of a proposed redemption of the Note.
The Issuer and the Registrar are not required to make any transfer or exchange of any portion
of the Note called for redemption.
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3.03. Interest on the Note that is payable, and is punctually paid or duly provided for,
on any interest payment date is to be paid to the person in whose name the Note is registered at
the close of business on the preceding February 5 and August 5, as the case may be. Any interest
on the Note that is payable, but is not punctually paid or payment thereof duly provided for on
any interest payment date will forthwith cease to be payable to the registered holder on the
relevant regulaz record date solely by virtue of such holder having been such holder; and such
defaulted interest may be paid by the Issuer to the person in whose name such Note is registered
at the close of business on a special record date established by the Registrar for the payment of
such defaulted interest. Subject to the foregoing provisions of this paragraph, each Note delivered
under this Resolution upon transfer of or in exchange for or in lieu of any other Note will carry
all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note
and each such Note will bear interest from such date so that neither gain nor loss in interest will
result from such transfer, exchange or substitution.
3.04. As to the Note, the Issuer and the Registrar and their respective successors, each
in its discretion, may deem and treat the person in whose name the same for the time being is
registered as the absolute owner thereof for all purposes and neither the Issuer nor the Registrar
nor their respective successors will be affected by any notice to the contrary. Payment of or on
account of the principal of the Note will be made only to or upon the order of the registered
owner thereof, but such registration may be changed as above provided. All such payments will
be valid and effectual to satisfy and discharge the liability upon the Note to the extent of the sum
or sums so paid.
3.05. (a) If (i) a mutilated Note is surrendered to the Registrar, and the Issuer and the
Registrar receive evidence to their satisfaction of the destruction, loss or theft of the Note, and
(ii) there is delivered to the Issuer and the Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice to the Issuer or
the Registrar that the Note has been acquired by a bona fide purchaser, the Issuer will execute,
and upon its request the Registraz will authenticate (if facsimile signatures are used) and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost, or stolen Note a new Note of
like tenor and principal amount, beazing a number not contemporaneously outstanding. In case
any such mutilated, destroyed, lost, or stolen Note has become or is about to become due and
payable, the Issuer in its discretion may, instead of issuing a new note, pay the Note.
(b) Upon the issuance of a new note under this subsection, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto. Every new note issue pursuant to this subsection in lieu of any destroyed,
lost, or stolen note will constitute an original additional contractual obligation of the Issuer,
whether or not the destroyed, lost, or stolen Note will be at any time enforceable by anyone, and
is entitled to all the benefits of this Resolution.
(c) The provisions of this Section are exclusive and preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost, or stolen Notes.
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Section 4. Execution and Delivery.
4.01. The Note is to be executed by the respective facsimile or manual signatures of the
Mayor and the City Administrator/Finance Director as set forth in the form of Note. The seal
of the Issuer will be omitted from the Note as permitted by law. The approving legal opinion
of Kennedy & Graven, Chartered, Minneapolis, Minnesota, as bond counsel, is to be printed on
the Note if requested by the PFA. When the Note has been duly executed and, if facsimile
signatures are used, authenticated in accordance with this Resolution, it is to be delivered to the
PFA upon payment of the purchase price and the PFA is not bound to see to the application of
the purchase money. If facsimile signatures are used, the Note is not valid for any purpose until
authenticated by the Registrar.
4.02. Unless litigation has commenced and is pending questioning the Note, revenues
pledged for payments of the Note or the organization of the Issuer or incumbency of its officers,
the Mayor and the City Administrator/Finance Director are to execute and deliver to the PFA at
the closing a suitable certificate as to absence of material litigation, a certificate as to payment
for and delivery of the Note, the signed approving legal opinion of Kennedy & Graven, Chartered
as to the validity and enforceability of the Note, and the arbitrage certificate referred to below.
4.03. The Mayor and the City Administrator/Finance Director are authorized to execute
the Project Loan Agreement on behalf of the Issuer and that their action in executing the Project
Loan Agreement is ratified and confirmed.
Section 5. Note Fund and Accounts Appropriations, Pledge.
5.01. There is hereby created a special fund of the Issuer designated "General Obligation
Wastewater Treatment Note, Series 1997 Fund" (the "Note Fund") held and administered by the
City Administrator/Finance Director separate and apart from all other funds of the Issuer. The
Note Fund will be maintained in the manner specified until the Note, any refunding bonds issued
to refund the Note, and any other general obligation bonds hereafter issued and made payable
from the Note Fund, and the interest thereon, have been fully paid. In the Note Fund there will
be maintained two separate accounts, to be designated as the "Capital Account" and the "Debt
Service Account", respectively:
(a) Capital Account. The proceeds from the sale of the Note are to be credited to the
Capital Account, from which there will be paid all costs and expenses of the Project, including
the cost of any construction contracts heretofore let and all other costs incurred and to be
incurred, of the kind authorized in Minnesota Statutes, Sections 475.65 and 115.46, provided that
all disbursements must be in accordance with the Project Loan Agreement.
(b) Debt Service Account. There is hereby pledged and there will be credited to the
Debt Service Account (i) gross revenues received by the Issuer from the operation of the sewer
plant and system, less reasonable and current costs of operating and maintaining the Project, (ii)
all funds remaining in the Capital Account after completion of the Project and payment of the
SJB118192
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costs of the Project, (iii) any collections of general ad valorem taxes hereafter levied for the
payment of the Note; (iv) all investment earnings on moneys held in the Debt Service Account;
and (v) any other moneys which are properly available and aze appropriated by the City Council
of the Issuer to the Debt Service Account. Interest on amounts in the Capital Account and Debt
Service Account aze to be credited to the Debt Service Account. The Debt Service Account
herein created may be used solely to pay principal of, premium, if any, and interest on the Note
and any other general obligation bonds hereafter issued and made payable from the Debt Service
Account as provided by law.
5.02. The Issuer covenants and agrees with the holders of the Note that so long as the
Note remains outstanding and unpaid, it will keep and enforce the following covenants and
agreements:
(a) The Issuer will continue to maintain and efficiently operate the sewer plant and
system as public utilities and conveniences free from competition of other like utilities to the
extent permitted by law and will cause all revenues therefrom to be deposited in bank accounts
and credited to the sewer system accounts provided, and will make no expenditures from those
accounts except for a duly authorized purpose and in accordance with this resolution.
(b) The Issuer will also maintain the Debt Service Account as a sepazate account and
will cause money to be credited thereto from time to time, out of net revenues from the sewer
plant and system together with taxes levied hereunder in sums sufficient to pay principal of and
interest on the Note when due.
(c) The Issuer will keep and maintain proper and adequate books of records and
accounts sepazate from all other records of the Issuer in which will be complete and correct
entries as to all transactions relating to the sewer plant and system and which will be open to
inspection and copying by any holder of the Note, or the holder's agent or attorney, at any
reasonable time, and it will furnish certified transcripts therefrom upon request and upon payment
of a reasonable fee therefor, and said account will be audited at least annually by a qualified
public accountant and statements of such audit and report will be furnished to the PFA upon
request.
(d) The Issuer will cause persons handling revenues of the sewer plant and system to
be bonded in reasonable amounts for the protection of the Issuer and the PFA and will cause the
funds collected on account of the operations of the sewer plant and system to be deposited in a
bank whose deposits are guazanteed under the Federal Deposit Insurance Law.
(e) The Issuer will keep the sewer plant and system insured at all times against loss
by fire, tornado and other risks customarily insured against with an insurer or insurers in good
standing, in such amounts as are customary for like plants to protect the holders, from time to
time, of the Note and the Issuer from any loss due to any such casualty and will apply the
proceeds of such insurance to make good any such loss.
(f) The Issuer and each and all of its officers will punctually perform all duties with
reference to the sewer plant and system as required by law.
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(g) The Issuer will impose and collect charges of the nature authorized by Minnesota
Statutes, Section 115.46 at the times and in the amounts required to produce together with taxes
designated as a source of payment of the Note, net revenues adequate to pay all principal and
interest when due on the Note.
(h) The full faith, credit and taxing powers of the Issuer will be, and are hereby,
irrevocably pledged for the prompt and full payment of the principal and interest on the Note as
the same respectively become due. If the net revenues of the sewer plant and system
appropriated and pledged to the payment of principal and interest on the Note, together with other
funds irrevocably appropriated to the Debt Service Account referred to in Section 5.01(b) of this
resolution, are at any time insufficient to pay such principal and interest when due, the Issuer
covenants and agrees to levy, without limitation as to rate or amount, an ad valorem tax upon all
taxable property of the Issuer sufficient to pay such principal and interest as the same become
due. If the balance in the Debt Service Account is ever insufficient to pay all principal and
interest then due on the Note, the deficiency will be promptly paid out of any other funds of the
Issuer which are available for such purpose, and such other funds may be reimbursed, with or
without interest, from the Debt Service Account when a sufficient balance is available therein.
5.03. In accordance with Minnesota Statutes, Section 115.46, for the purpose of paying
the principal of and interest on the Note, there is levied a direct annual irrepealable ad valorem
tax (Taxes) upon all of the taxable property in the City, which will be spread upon the tax rolls
and collected with and as part of other general taxes of the City. The taxes will be credited to
the Debt Service Account above provided and will be in the years and amounts as follows (year
stated being year of levy for collection the following year):
Year L v
(See Exhibit B)
5.04. It is hereby determined that the estimated collections of net sewer system revenues
and the foregoing Taxes will produce at least five percent in excess of the amount needed to meet
when due the principal and interest payments on the Bonds. The tax levy herein provided is
irrepealable until all of the Bonds are paid, provided that at the time the City makes its annual
tax levies the City Administrator/Finance Director may certify to the County Auditor of Wright
County the amount available in the Debt Service Account to pay principal and interest due during
the ensuing year, and the County Auditor will thereupon reduce the levy collectible during such
year by the amount so certified.
Section 6. Miscellaneous.
6.01. The City Administrator/Finance Director is hereby authorized and directed to certify
a copy of this Resolution and to cause the same to be filed in the office of the Wright County
Auditor, together with such other information as such auditor may require, and to obtain from
the County Auditor, certificates that the Note has been entered upon the Note register.
6.02. The officers of the Issuer are authorized and directed to prepare and furnish to the
PFA and to the attorneys approving the Note, certified copies of all proceedings and records of
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the Issuer relating to the power and authority of the Issuer to issue the Note within their
knowledge or as shown by the books and records in their custody and control, and such certified
copies and certificates may be deemed representations of the Issuer as to the facts stated therein.
6.03. Notwithstanding the taxable status of the Note, the Issuer covenants and agrees with
the PFA and holders of the Note that the investments of proceeds of the Note, including the
investment of any revenues pledged to the Note which are considered gross proceeds of any PFA
Bonds under applicable regulations and accumulated sinking funds, if any, will be limited as to
amount and yield in such manner that the PFA Bonds will not be arbitrage bonds within the
meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and any
regulations thereunder. On the basis of the existing facts, estimates and circumstances, including
the foregoing findings and covenants, the Issuer hereby certifies that it is not expected that the
proceeds of the Note will be used in such manner as to cause any PFA Bonds to be arbitrage
bonds under Section 148 of the Code and any regulations thereunder. The Mayor and City
Administrator/Finance Director will furnish an arbitrage certificate to the PFA embracing or based
on the foregoing certification as of the time of delivery of the Note to the PFA. The Issuer will
also comply with Section 13(c) of the Project Loan Agreement relating to rebate of arbitrage
profits, if any.
Adopted this 24th day of February, 1997.
/s/ William Fair
Mayor
Attest:
/s/ Rich Wolfsteller
City Administrator/Finance Director
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The motion for the adoption of the foregoing resolution was duly seconded by
Councilmember Thielen ,and upon vote being taken thereon the following members
voted in favor of the motion: Bill Fair, Roger Carlson, Bruce Thielen,
Clint Herbst, Brian Stumpf
and the following voted against: None
whereupon the resolution was declared duly passed and adopted.
SJB118192
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EXHIBIT A TO SALE RESOLUTION 97-4
PROJECT LOAN AGREEMENT
S.7H118192
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PUBLIC FACIII'I'IES AUTHORITY PROJP,C'I' LOAN AGREEMENT AND
GENERAL OBLIGATION REVENUE BOND PURCHASE AGREEMENT
(VV1TH BOND PROCEEDS)
CRAP-95-0335-R-FY97
THIS PROIEt.T LOAN ANA GENBRAI.OBi1GAT10N RTsVFT1UE BOND PURCHASE AGREEMENT ('thz
Agc+otment'), is made Pebruary .1997. betv~een the Minnesota Public Facilitica Authority (the 'Authority") and tfic
City of Mondcxllo, (the "Borrower'), 250 Fist Broadway, PO Box 1147, Monticello, MN 53362. Any amp W
this Agrt~emem shah be in writing and shall be executed by the Borrows by the same officials which signed this
l~gi~ent, or.their suaxaaors.
'Ibe following sets forth the terv~s and conditions of the loan:
$e~ion 1. Tltt Authority hereby commits, subject is the conditions hereinafter set forth, to lend POURTfiEN
MIIZ.ION SEVEN HUNbR1;D 'THOUSAND bOLLARS ($14,700,000) to tiff Borrower for the purpose of fundipg the
digible project cyst of the wastewater treawent project (the 'Project") described as follows: Iaquovetr~nts to
wastewater treatment t?scilitIes, upgrading and expansion of the wastevvatet System as identified in tlu ]~ application.
'The tam of the loan shall be 20 years, az an interest rate of 4.08 % per annum, as set forth in section 3, and F.ahibii A.
Repayment of the loan by the Borrower to the Authority shall be at such times, and in such amounts as set forth in
fixhr~it A.
The Authority's commitment to lend is mbjax to the availability of funds. and the Authority rtsetvrs the right to
reimburse the Borrower for costs incxrrred prior to the execution of this Agroemctn by the Bornowrx over a taro year
period in eight equal quarterly Payments- No funds shall be disbursed by the Authority to the Hoanwer until with time
as the BArrowCC' de]ivers its General Obligation Revemre Bond do the Authwrity for the full atuount o! the loaa_
Ttie Borrower aclmowle:dges its responsibility to complete the project r+egardltss of the availabt~iry of additional loan
funds from the Authority.
Setxion 2. 'I7m Loan will be disbursed on a cost reimbursement basis, but not in violation of any provisions of
applinbtc federal and state regulations. Ali Borrower disbursement requcsta shall be reviewed by the Authority and
subject to the approval of the Authority in accordance wide Minnesoq Rotes 7380.0400 to 7380.0480, as amended or
supplemented from time to time. '1hc Authority may withhold all or part of the amount requested if the Authority
determines the Borrower's disbursement request is not in compliance with program statutes, ntles, or terms and
conditions of this Agranucnt.
Disbursements shall be made by the Authority to the Borrower within 30 days of a request therefor made by the
Borrower in the form, and at the times, determined by the Authority, unless the Authority determines to withhold
disbursement in accordatxe with the provisions of this Agreemeaz. In the event the Bottower noti$ts the Authority ttut
the eatit+e principal amout specified in Section 1 above is not to be disbursed for Project cost reimbursement, the
balance o! tl~e amount undisbnrsed shall be applied to the principal repayments on the loan and payments set forth in
Exhrbit A will be reamortiud.
Section 3. The principal amount of the Loan will be repaid in the amounts and on the dates set forth in the sehednle ed
tbrth in Eabibit A Hereto (notwithsfaading the rate of disbursement of the proceeds of the Loan), subject w adjustment
as set forth in Se~~tion S blow, together with interest and service foes coilxdvely at the rate of 096 pa annum, for the
period starting on the date of this Agrcement through August 20, 1998, and at the rate of 4.08 % for the period starting
the day foUooving Attgttst 20, 1998, dtrough the date on which no principal tTTmsina unpaid, Provided, however, that
interest and service flees shall accrue ody oa the aggregate amount of the Loan disbursed; and pmtided fmrther that the
AuWoriiy shall be entitled to retain for its own purposes any inter earnings oa undisburaed funds and shall n« be
obligated to credit against any required rcpttymeat of principal or payment of ittCcrr;st and t>crvloc ~ any Such intettst
earnings on tmdisbtrrsed funds. ..
Bastion 4. The Bormwtx shall isatte W the Authority its general vbIigation promissory note (the "Nora'), evidencing its
Obligation [O P1Cpay tl~e Luau. ThC Borrower shall atcac3t to this agreetttertt A certi£ted Copy of resolntiom or other
authozity by the apptbptiut governing body or bodies, as shall legally authotue the exetxaion and performance of this
agmmettt and the Note on behalf of the Borrower. Iron purposes of permitting issuance of the Note, the Authority
t~epresenta that it is a "board, Deparomait or ttgcncy' of the State of Mina~aota within the meaning of Minnesota
Stanuea, Section 475.ti0, aubd. 2, clause (4), as atncaded or supplem~enttd from time to time.
Secaivn S. The Borrower shall have the option to prepay the Loan (A) on any February 1 or August 1 immediately
preceding as interest payment date on the Wstu Pollution Control lZevcaae Honds, Series 1996I3 of the Authority (the
•Bonds") on or sties the earliest date on which the Roads may be prepaid in part u the option of the Authority, upon
forty-five days prior notice, prior w such February 1 or August !, as the case may be, in whole or in part, and if in part
in SS,000 incremeau by depositing with the Authority on such February 1 or August 1 as the case maybe {~ the
principal amount to be prepaid together with a premium thereon equal to the oedemption premium, if any. payable with
t+espect to the Gonda if such Bonds were to be optionally redeemed on the immediately sucxeeding Match 1 or
September 1, as the case maybe. plus (ii) intermit and service fcLS on the principal amount being Prepaid tv the March 1
or September 1, as the case may bc, itttmcdiardy tbllowit~g the dart of me prepsytndtt hereunder, sn<t plus (iu) art firs
and expenses of the Authority incurred in oonneetian with such prepayment, ineluding any required rebate; and (B) at
any other timtc, upon fifteen days prior nodtx to the Authority in whole or in past, by depositing with the Authority the
(i) money is as amount sufficient, or {ii) obligations issued by. or paytneat of the principal of and iaterest on which u+e
hilly and unoonditio~lly gus=snteed by the United States of America, the principal of and iatenst on which, when due,
without reinvestment,•.will provide an amount sufficient, with say money so deposited. to pay (t) the Loan payments ss
they ba;otnc due aa:ording to the repayment schedule attached as Exht'bit A or. if earlier, on the fltzt date oa which the
Loan may be prepaid as provided in clause (A) above, plus (b) tarts e.~t and a~ervioe fees m the daft of Prepayment. Plus
(e) a premium, t~lculsted as in clause (A) above, on the principal amount to be prepaid on the first date on which this
Loan tray be prepaid, and plus (d) all fees sad expenses of the Authority incurred is connection wftlt such psymcat,
including any required rebate; provided that the Authority shall have received an opinion of its bond eounsed that the
Ptepaymcnts as provided in this clause (B) will not cause the interest on the bonds to become includable In gross income
fur federal tax parpoaes.
Saxton 6. The Borrower acknowledges that the Authority may apply up to 596 of any Loan t+epaymta-t to paymet-t of its
administrative costs or administrative costs of the Minnesota pollution Control Agency ('MPCA") and that such
application shall not increase the amount of any repayments or extcad the period of repayment.
Sctxion 7. The Borrower shall not cater into a sale, !cast or transfer of any part of the Projax i! such hale, lease or
txansfcr would (i) violate the rruvenants set forth in Section 13, or (ii) violate the conditions under which any
capitalization grants were furnished by the United States Environmental Protection Agency, or (iii) otherwise violate
any trams or cottdtions of the Agreement.
Section 8. The 13orrvvver shall maintain adequau property insurance t~overage for the Project in such amounts with ~
limits as it determines in good faith to be reasonable or in such amounts and with such limits as tray be regrind b]- the
Authority from time to time.
2
Sexxioa 9. The Borrower agraa that it shall complete the Project for which financial aasistanoe has bees awarded umla
ffiia /~ree~errt in aooordano~ with all applicable MPCA statutes, roles, regalation~, reporting requir~ts, approvals.
sad certifications gvvaning the dts»ga sad construction of the Projax, and shall opa~ate its eyanm
in compliance with MPCA pe~rnit requirccnaas.
Upon notification from the MPCA to the Authority that Were has boon a violation by the llornower of MPCA sraaua,
talcs, tzgtilationa, repordn8 requirement, approvals, cer<if9catlons, or permit roquiternenta, as amendeQ m
supplemeat~ from tune do time; or if the Authority determines that the Borrower is in de6ult with artyi section of the
Agreement, the Authority may exccei.9e any rcmcdica available at law or in equity.
Sodivn 10. With respax to the Project, the Borrower agrees to:
(a) comply wiW rite provisions of State wage requirements gives is Muracsota Statute, Secxiona 177.41 to 177.44,
as amended or suppsaruated from time to tinge: and
(b) submit a U.S. F.nvir+onmental Protexxion Agency Form SF334 to the Authority within 20 der of the cod of
each calendar quarter, unsil the project is tompletr, reporting any prim oontraets or subcontracts a during the
Quarter and which were awarded to Minority or Woman Business Enterpriser (MBFJWBL~: and
}
(c) make a good i~ effort to prepare and implea>eat an affirmative action plan for the emplo ` t of minority
persona, women, and disabled and suborn the play to the Commissioner of Human Rights, and
i
(d} comply with Minnesota Statutes, Section 290.9703. ae amcadt;d or supplemented $om time time,
Withholding of Payment to Out-of~tate Contractors, for all oontracta that carviced, or arc arpeoted to X1(10,000
by erther: i
(1} >:~positing with the Commissioner of the Minnesota Depanmrnc of Revenue tight (87t!) percent o paymeac
made to non-resident (of Minnesota) eonsnvclion oontrac~ore; or
(2) Receiving a waiver of the requirement from the Commissioner of the Minnesota llepartmetot of
Saxion 11. For all expenditures of lbnds made pursuant to tfiis Ate, the Borrower sba11 keep accounts
and retards in accordance with generally accepted government accounting principles including love' contracts,
re<xipts, touchers and other dvcumarts suflleient to evideat:e in proper derail the nature and prop ' the
expenditrtt~ea. Such accounts and records shall be accessrble and available for examination to ~ reprcacatativca
of the Authority, the Department of'Tradc and Economic; D~.velopmeni, the l:~islative Andimr, std State
Auditor's OfSte.
Section 12. 'l'ire Borrower egrets to e~rert all reasonable efforts to invcstigatc claims which the Bo ( easy have
against third parties with res~ett to tf+c construction of the Project sad, in appropriate cam, p~ ova
action, including kpal action, the Borrower reasonably determines to be appropriate. J
Berrien 13. Zbe Borrowar agrees to cooperate with the Authority as ncassary to maintain the tax eace status of the
Bond's isatred by the Authority to fiord the loan, The Borrower specifically agrt~es:
(a) Investments. Any seats from time to time held by or under the comrol of the Borrower whid~ would
constitute 'gross proeecds' of Gonda ("Gross Proceeds"), as defined in the Internal Revenue Code of 1
and the regulations in effect with respect ihercto (the 'Code") shall not be invested a< a yield in exoessj ~ ~amwded.
3
i
t
yield otl the 8onda_ DisbursaneYtts of proceeds of the Loan shall not be reinvested by the Horroa~er. ~ addnion, said
Qcoas Proc~ods steal! not be invested is obiig~s or deposits issued by, guarantood by or iastu+ed bye United Sates
ar stty agency ar instrunwruality thereof if and to the extent that such investimeac would cxvsc the Bonds to be'fedrlally
guaranteed' withip the meaning of Section 149(b) of the Code. .
(b) Negative Caivenant as m Usa of Projecx. The Borrower Lereby oovenaQts not to use the ptnotteds of the Bonds
or Lo use the Projed tinancod with the pmceods of the Bonds or >b cause or permit them or any of thcm~ci be used, or to
eager i~o smy delFxred payment arrangements far the cost of such t?rojecx, in such a manner iJO cause f6P Bonds to be
'private activity bonds' within the meaning of Soetians 103 and 141 through 1S0 of the Code. ,
(c) Tai[-Etcempt 5t2tas of the Bonds; Rebate. With rrspoct to any Gross Proceeds, the Borrow~cr ehaU comply
wim requirements necessary ender the Code m establish and maintain the atclnsion from gross income Section
103 of the Code and the interest on any Bonds, including without limitation requiremeuts edatittg to periods
for inva, limitations on amounts invested at a yield greater than the yield on the Bonds, and the of euxas
iaveurneat earnings to the United State:.
(d) The Borrower sha11 comply with each inatttuxions as may be provided from tinge to time by Authority
with respect W gross procoads oi' Bonds.
Setxion 14. The obligations of the Borrower under this Agreement (taccpt the obligations set forth in 13 and
17 hereof} shall terminus when the Loan is fully paid and retued.
Suction 15. The Borrows may not use federally aPpropriatad funds to pay any Person for irrflutneing attwaptiug to
influence an officer or employee of a federal agency, a mernbu of Canga~, an ofl9cu or employee ~ or any
employee of a member of Congress in oormettion with the awarding of any feederal aontrae;t, the f a faieasl
grant, the making of a fnclaal loan, the catering rata of any cooperative agrm®ent or the eatteosion, ~ ' n,
renewal, amendment or tnodificatioa of any fede=-al coatracx, grant, loan or cdoperative sgroement. Borrows
ruses non-federal fimda to wndncx say of the lfocemcntionod activitira, the Borrows must oo~lete Standard
Foam Lt;.L, 'Disclosure Form to Report Lobbying.' 1Le Borrowa~ shall provide to the Authority a ' n to this
e>~cc u the time it signs this agreement, unless such cxrtiftt:ation was provided at the time that: it subntriltod its
applieatioh, sad shall forward disclosure forces i4 the Authority at the time it cxtcuta or receives latch forms. Further,
the Borrower moat include the language of this provision in all wntraCts and subconuaas dung $100,000 and all
such conaacxorts and subcontractor: must comply accordingly.
Section 16. (a) 'Iles Borrower shall provide the Authority with acceptable independent annual audits for the term of the
town. All audits must be submitted within 30 days after the completion of the audit but no tattt than o~ year after the
noel of the audit period.
(b) '1]te Borrower shall list the graeral obligation promissory note i53ued by the Borrower to the Authority to
efliaet this loan under Gmeral obligation Debt of the Borroaet is its official records and statements. The Borrower
specifically agrees that the general oblignioo promissory note issued to the Authority shall be listed under General
obligation Debt of the Borrower in its annual audits for the term of the Autliorlty loan.
(c) At the rcgtust of the Authority, the Borrower will cutify and rePnesem that such information in such official
satenoents dots not contain any untrue stag of a material fan or omit in state a rnatierial fad necessary w tnaloe
such information, in 1i~t of the ciccumstaz>ces ender which it was given, not misleading; Provided, howrwa, that in m
event shall the Borrower be required to malcc any representation about any other information in such official etatcsaeats
oc as m any such official statements in their endrety. If for any reason the Borrower determines th~ it shall not be abic
4
Lo mains such artific~tion and represe~ation, it will provide such i~iotmation as is necessary for inclosion in such
official statements ~ as to enable it to make such oatifiCation and r+epr'eseatation.
(t!) if at any risers daring the period emdirtg 90 days afb3 ti,c date of as Authority official stauernent any event
contra wfiich the Borrower believes would cause the information is such otTiasl ststemerrt to omit a material thcx or
mains the atatexnenrts therein tnlsleadiug, the Borrower shall proa>ptly aonl~- the Authority in writing of such i~ormation
and ooment to its inelttsion in the official statement, as ammeimcet thereof or a supplement thereto. At the request of
the Authority, the Borrower will also provide the oereficacion and rcprion required in (C) above with respe~ to
such official as then amended ce tatpptcmented.
(c) The Borrower will furnish suer information, exeane such instnirnGnta and rains such other sction in
cooperation with tl-e; underwriters of the Authority's bond: as arch uada~vriters may imm elms to time reasonably
roqucrt in order (i) to qualify, and mainlaia the qualit~cation af, any such bonds for offer and sate under the Blue Sky oc
other sxurities laws and reguladons of such states and other jurisdictioag of the United Starts as sack underwriters may
Vim, and ~~ m determine the eligibility of such bonds for inv~tmcnt ender the laws of such states and other
jurisdictions.
(f) The Borrower will provide suds information as may be reasonably requested by any rttwgg agency m
connex•;tion with rating the bonds of the Authority.
(g) It the Authority, is its sole distaetion, determines, at arty time prior to the termination of the Loan Term, that
tht Borrower is a material "obligated Person", as the term "obligated person" is de:trined in Rule lSc2--12 promulgated
pursuant to the Securities Eachangc Act of 1934, as amend or supplemented, including any successor regulation or
s:tatutc thereto ("Rule lSe2-12"), with materiality being dexexmined by the Authority pursuant W criteria established,
from tires w time, by rile Authority in its sole discretion and set forth in a resolution err official statement of the
Authority, the Borrower hereby covenants that it will authorize and provide m the Authority, for inr.I n in nay
preliminary official statement or ofl5cial statexeieat of the Authority, all stataneuts and intormation to rite
Hor[+ower dcemcd material by the Authority for the purpose Of satisfying RWe 15c2-12 as wr:il as S
promulgated patsriant m the Securrtirs Exchange Act of 1934, as amended err setppte~cutod, iaclu ' sucot~sor
regttlation or statute thereto ("Rule lOb-S'), including certificates and written t+epreserrottions of the
evidencing its t~mplianex with Rule 15c2-12 and Rule 10b-5; and the Bocrowrr hereby fiuther co that the
Borrower shall exeeurte and deliver a continuing disclosure agrexadent, in tie form ss the Authority determine to be
necessary, desirable of convenient, is its sole discretion. for the purpose of satisfyi>g Rule lSe2-12 p~~ tp ~
terms and provisions of such eontimiing disclosure agreement, the 13orcowcr shall thettrafiex provide ing disclosure
with respect w all atmual and event information and financial statemmts redating W the Borrower req by Rule lSc-
12 and ptirsuaM m the tt~ms of such continuing disclosure agt ..
Satioa 17. la Ar+der to cxm>ply with Minnesota Statures Saxioa 16A69S, as amended or yupplemtnted~rrom time to
tame, and the order of the Commissioter e>f Finance (the "Commissioner") of the Departrr~t of Finait~otr of the Stec of
M (the "Order") promulgated in connection with Sexxion 16A.695 on July 14, 1994, if this los~is fundod with
state match pr~ooecds derived from State General Obilgttion Boners, the Borrowtr agrees that: (i) any lute or
m-anaSeenent contracx entered into by the Borrower within etispect to property constituting ail or a part e~the Projeex
shall be for the express purpose eyf carrying out of a governmemal pmgnm established or authorized by wand
estabiishexl by official action of the Horrowoer and the Borrower ahau obtain ttu prior written c~tmcnt of the
Commissionrr: Ci) any sue:h lease: or management conuact. includmg nay rtnearala that are solely at the option of the
lexace or manager, mast be for a term substantially Ices than the useful life of the property subjext to sacM lease ex
managemieart contract, but may allow renewal beyond that term upon ddermination by the Borrower the ust
oonti~es to carry out the governmental program; (iii) any such lease or management eor~ract~will be le by the
S
Borrower it die oiler eonn~cxinig piny d~ults under me ooairsa, or if die goveramenral program is~t jrmina~d or
ganged; and will provide for program oversight by the Borrower. (rv) the Borrowcx wilt cot sill any ppopaty
constituting all Or a put of dx Projax unless the Borrower d~crminp by otTjcisl action that such proQgty is no logger
usable or needed by die Borrower to cagy wrt the Bovcrnmcatal program far which it was aoquir+~d oar pan4traded; and
(v) any iueh sale must be made ss authociud by law for fair msrloct value a9 defined in Section 16A.69,S sad the
Harrower shall pb~in the prior written consent of the Commissioner.
coirrttwcrn~orrrr.cox
6
The Authority and the Bottnvrcr aclmowlodgc their aascat to thin agt+ccmcat and agrcc to be bound by arms thmngb
their sigaatumes t~tered below. Statxitory Cilia moist execute this A,gtteme~t as provided in Minnesota 412.201,
as amended or aupplcasented. Aome Rule Chuta~ Cities mu8t exeame this Agreeutent as provided is Statute,
Chapter 410, as amended or supplementtd_
BOBROWEIt We have road atld ove agree to all
of the above provisiosoa of this agrt.
by sad the
Public Fsdlitica Authority, of Track
and Economic Development
By
TZte Hooonlbie Willl~m Flt
Title Mayor_ Cipf of Montiodlo
Date
Rictc WdfiteIIer
T9tte ('~- Administrators
Date
APPROVED AS TO FORM AND 1BRSCUTiON:
Auoriiey General's Otfic~e
13y
Title
Date
OONTRACT/13PU[OATPI.C01V
13y
Title
Due
E1VCiJMBRRED•
z
Depattmeast of Trade and F.oonomic
By '
Date Eoc~mbcrtd
[Individual signing certifies that
etxumbeted as required by Mim
.t~
7
btu
re 16A-1
4M
1
,.
EXHIBIT B
Year Levy
1997 $ 541,146.34
1998 1,082,292.68
1999 1,082,292.68
2000 1,082,292.68
2001 1,082,292.68
2002 1,082,292.68
2003 1,082,292.68
2004 1,082,292.68
2005 1,082,292.68
2006 1,082,292.68
2007 1,082,292.68
2008 1,082,292.68
2009 1,082,292.68
2010 1,082,292.68
2011 1,082,292.68
2012 1,082,292.68
2013 1,082,292.68
2014 1,082,292.68
2015 1,082,292.68
2016 1,082,292.68
2017 541,146.34
SJB118192
hIN190-60