HomeMy WebLinkAbout2010-05-17-Resolutions 10-149_Bonds - Golf Course Revenue Refunding CLN Series 2010 - IssuanceRESOLUTION 10-149
A RESOLUTION APPROVING AND AUTHORIZING A
FORM OF LOAN AGREEMENT AND AUTHORIZING
AND PROVIDING FOR THE ISSUANCE AND SECURING
THE PAYMENT OF $776,228 GOLF COURSE REVENUE
REFUNDING CAPITAL LOAN NOTE,SERIES 2010,OF
THE CITY OF WAUKEE,STATE OF IOWA,UNDER THE
PROVISIONS OF THE CITY CODE OF lOW A,AND
PROVIDING FOR A METHOD OF PAYMENT OF THE
NOTE
WHEREAS,the City Council of the City of Waukee,State ofIowa,sometimes
hereinafter referred to as the "Issuer",has heretofore established charges,rates and rentals
for services which are and will continue to be collected as system revenues of the Sugar
Creek Golf Course,which is operated as a City enterprise by the City of Waukee,
sometimes hereinafter referred to as the "System",and the revenues have not been
pledged and are available for the payment of a Golf Course Revenue Refunding Capital
Loan Note,Series 2010,subject to the following premises;and
WHEREAS,Issuer proposes to issue its Golf Course Revenue Refunding Capital
Loan Note,Series 2010,to the extent of $776,228,for the purpose of defraying the costs
of the project as set forth in Section 3 of this Resolution;and,it is deemed necessary and
advisable and in the best interests of the City that a form of Loan Agreement be approved
and authorized;and
WHEREAS,the notice of intention ofIssuer to take action for the issuance of not
to exceed $815,000 Golf Course Revenue Refunding Capital Loan Note,Series 2010,has
heretofore been duly published and no objections to such proposed action have been
filed:
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WAUKEE,IN THE COUNTY OF DALLAS,STATE OF IOWA:
Section I.Definitions.The following terms shall have the following meanings in
this Resolution unless the text expressly or by necessary implication requires otherwise:
o "Additional Obligations"shall mean any Golf Course Revenue notes or
bonds issued on a parity with the Note in accordance with the provisions of this
Resolution.
o "Call Date"shall mean June I,2010,on which date the Refunded Bonds
shall be redeemed and paid.
D "Clerk"shall mean the City Clerk,or such other officer ofthe successor
Governing Body as shall be charged with substantially the same duties and
responsibilities.
D "Fiscal Year"shall mean the twelve-month period beginning on July I of
each year and ending on the last day of June of the following year,or any other
consecutive twelve-month period adopted by the Governing Body or by law as the
official accounting period of the System.Requirements of a Fiscal Year as
expressed in this Resolution shall exclude any payment of principal or interest
falling due on the first day of the Fiscal Year and include any payment of principal
or interest falling due on the first day of the succeeding Fiscal Year.
D "Governing Body"shall mean the City Council of the City,or its successor
in function with respect to the operation and control of the System.
D "Issuer"and "City"shall mean the City of Waukee,State ofIowa.
D "Loan Agreement"shall mean a Loan Agreement between the Issuer and a
lender or lenders in substantially the form attached to and approved by this
Resolution.
D "Net Revenues"shall mean gross earnings of the System after deduction of
current expenses;"Current Expenses"shall mean and include the reasonable and
necessary cost of operating,maintaining,repairing and insuring the System,
including purchases at wholesale,if any,salaries,wages,and costs of materials
and supplies but excluding depreciation and principal of and interest on the Notes
and any Parity Obligations or payments to the various funds established herein;
capital costs,depreciation and interest or principal payments are not System
expenses.
D "Note"shall mean $776,228 Golf Course Revenue Refunding Capital Loan
Note,Series 2010,authorized to be issued by this Resolution.
D "Original Purchaser"shall mean the purchaser of the Note from Issuer at
the time of their original issuance.
D "Parity Obligations"shall mean Golf Course Revenue notes,bonds or other
obligations payable solely from the Net Revenues of the System on an equal basis
with the Note herein authorized to be issued,and shall include Additional
Obligations as authorized to be issued under the terms of this Resolution and the
Outstanding Obligations.
D "Paying Agent"shall mean the City Clerk,or such successor as may be
approved by Issuer as provided herein and who shall carry out the duties
prescribed herein as Issuer's agent to provide for the payment of principal of and
interest on the Note as the same shall become due.
D "Permitted Investments"shall mean any investments permitted in Iowa
Code chapter 12B or section 12C.9.All interim investments must mature before
the date on which the moneys are required for payment of principal and interest on
the Note or project costs.
D "Project Fund"shall mean the fund into which a portion of the proceeds
that will be used,together with interest earnings thereon,to pay the principal,
interest and redemption premium,if any,on the Refunded Bonds.
D "Refunded Bonds"shall mean $776,228 of the $925,000 Golf Course
Revenue Notes,Series 2005,dated March 4,2005.
D "Registrar"shall mean the City Clerk of Waukee,Iowa,or such successor
as may be approved by Issuer as provided herein and who shall carry out the duties
prescribed herein with respect to maintaining a register of the owners of the Note.
Unless otherwise specified,the Registrar shall also act as Transfer Agent for the
Note.
D "Reserve Fund Requirement"shall mean an amount not exceeding the
lesser of (a)the maximum annual amount of the principal and interest coming due
on the Notes and Parity Obligations;(b)10 %of the stated principal amount of the
Notes and Parity Obligations or (c)125%of the average aunual principal and
interest coming due on the Notes and Parity Obligations.For purposes of this
definition:(1)"issue price"shall be substituted for "stated principal amount"for
issues with original issue discount or original issue premium of more than a de
minimus amount and (2)stated principal amount shall not include any portion of
an issue refunded or advance refunded by a subsequent issue.
o "Resolution"shall mean this resolution authorizing the issuance of the
Note.
D "System"or "Golf Course"shall mean the Sugar Creek Golf Course,which
is operated as a City enterprise,of the Issuer and all properties of every nature
hereinafter owned by the Issuer comprising part of or used as a part of the System,
including all improvements and extensions made by Issuer while the Note or
Parity Obligations remain outstanding;all real and personal property;and all
appurtenances,contracts,leases,franchises and other intangibles.
o "Tax Exemption Certificate"shall mean the Tax Exemption Certificate
executed by the Treasurer and delivered at the time of issuance and delivery of the
Note.
o "Treasurer"shall mean the Director of Finance or such other officer as shall
succeed to the same duties and responsibilities with respect to the recording and
payment of the Note issued hereunder.
o "Yield Restricted"shall mean required to be invested at a yield that is not
materially higher than the yield on the Note under section 148 (a)of the Intemal
Revenue Code or regulations issued thereunder.
Section 2.Authoritv,The Loan Agreement and the Note authorized by this
Resolution shall be issued pursuant to Sections 384.24A and 384.83,of the City Code of
Iowa,and in compliance with all applicable provisions of the Constitution and laws of the
State of Iowa.The Loan Agreement shall be substantially in the form attached to this
Resolution and is authorized to be executed and issued on behalf of the Issuer by the
Mayor and attested by the City Clerk.
Section 3.Authorization and Purpose.There are hereby authorized to be issued,
negotiable,serial,fully registered Revenue Note of the City of Waukee,in the County of
Dallas,State ofIowa,in the aggregate amount of $776,228,for the purpose of paying
costs of adjusting,extending and refunding existing Golf Course Revenue indebtedness
including the $925,000 Golf Course Revenue Note,Series 2005.
Section 4.Source of Payment.The Note herein authorized and Parity Notes and
Parity Obligations and the interest thereon shall be payable solely and only out of the net
earnings of the System and shall be a first lien on the future Net Revenues of the System.
The Note shall not be a general obligation of the Issuer nor shall they be payable in any
manner by taxation and the Issuer shall be in no manner liable by reason of the failure of
the net revenues to be sufficient for the payment ofthe Note.
Section 5.Note Details.Golf Course Revenue Refunding Capital Loan Note,
Series 2010,of the City in the amount of $776,228,shall be issued to evidence the
obligations of the Issuer under the Loan Agreement pursuant to the provisions of Sections
384.24A and 384.83 of the City Code ofIowa for the aforesaid purpose.The Note shall
be designated "$776,228 GOLF COURSE REVENUE REFUNDING CAPITAL LOAN
NOTE,SERIES 2010",be dated June 1,2010.
The Note shall be executed by the manual or facsimile signature of the Mayor and
attested by the manual or facsimile signature of the City Clerk,and impressed or printed
with the seal of the City and shall be fully registered as to both principal and interest as
provided in this Resolution;principal,interest and premium,if any,shall be payable at
the office of the Paying Agent by mailing of a check to the registered owner ofthe Note.
Principal ofthe Note shall bear interest at the rate of 4.45%per annum.
Thereafter,both principal of and interest on the Note shall be payable in equal
semiannual instalhnents in the amount of$35,739.95 each,due on the first day ofJune
and December each year,commencing December I,20 I 0,and continuing through and
including December 1,2014,with one final installment of all remaining principal and
interest due thereon at maturity on June 1,2015.All payments shall be applied first to
the payment of interest due and next to the reduction of principal.Interest shall be
calculated on the basis of a 360-day year comprised oftwelve 30-day months.
Section 6.Redemption.The City reserves the right to prepay principal on the Note
in whole or in part at any time prior to and in any order of maturity on terms of par and
accrued interest.All principal so prepaid shall cease to bear interest on the prepayment
date.
Section 7.Registration of Note;Appointment of Registrar;Transfer;Ownership;
Delivery;and Cancellation.
(a)Registration.The ownership of Note may be transferred only by the making
of an entry upon the books kept for the registration and transfer of ownership of
the Note,and in no other way.The City Clerk is hereby appointed as Note
Registrar under the terms of this Resolution.Registrar shall maintain the books of
the Issuer for the registration of ownership of the Notes for the payment of
principal of and interest on the Note as provided in this Resolution.The Note shall
be negotiable as provided in Article 8 of the Uniform Commercial Code subject to
the provisions for registration and transfer contained in the Note and in this
Resolution.
(b)Transfer.The ownership of any Note may be transferred only upon the
Registration Books kept for the registration and transfer of the Note and only upon
surrender thereof at the office of the Registrar together with an assignment duly
executed by the holder or his duly authorized attorney in fact in such form as shall
be satisfactory to the Registrar,along with the address and social security number
or federal employer identification number of such transferee (or,if registration is
to be made in the name of multiple individuals,of all such transferees).In the
event that the address of the registered owner of a Note (other than a registered
owner which is the nominee of the broker or dealer in question)is that of a broker
or dealer,there must be disclosed on the Registration Books the information
pertaining to the registered owner required above.Upon the transfer of any such
Note,a new fully registered Note,of any denomination or denominations
permitted by this Resolution in aggregate principal amount equal to the unmatured
and unredeemed principal amount of such transferred fully registered Note,and
bearing interest at the same rate and maturing on the same date or dates shall be
delivered by the Registrar.
(c)Registration of Transferred Note.In all cases of the transfer of the Note,the
Registrar shall register,at the earliest practicable time,on the Registration Books,
the Note,in accordance with the provisions of this Resolution.
(d)Ownership.As to any Note,the person in whose name the ownership of the
same shall be registered on the Registration Books of the Registrar shall be
deemed and regarded as the absolute owner thereof for all purposes,and payment
of or on account ofthe principal of the Note and the premium,if any,and interest
thereon shall be made only to or upon the order of the registered owner thereof or
his legal representative.All such payments shall be valid and effectual to satisfy
and discharge the liability upon such Note,including the interest thereon,to the
extent of the sum or sums so paid.
(e)Cancellation.The Note which has been redeemed shall not be reissued but
shall be cancelled by the Registrar.The Note which is cancelled by the Registrar
shall be destroyed and a Certificate of the destruction thereof shall be furnished
promptly to the Issuer;provided that if the Issuer shall so direct,the Registrar shall
forward the cancelled Note to the Issuer.
(f)Non-Presentment of Note.In the event any payment check representing
payment of principal of or interest on the Note is returned to the Paying Agent or
if any note is not presented for payment of principal at the maturity or redemption
date,if funds sufficient to pay such principal of or interest on Note shall have been
made available to the Paying Agent for the benefit of the owner thereof,all
liability of the Issuer to the owner thereof for such interest or payment of such
Note shall forthwith cease,terminate and be completely discharged,and thereupon
it shall be the duty of the Paying Agent to hold such funds,without liability for
interest thereon,for the benefit of the owner of such Note who shall thereafter be
restricted exclusively to such funds for any claim of whatever nature on his part
under this Resolution or on,or with respect to,such interest or Note.The Paying
Agent's obligation to hold such funds shall continue for a period equal to two years
and six months following the date on which such interest or principal became due,
whether at maturity,or at the date fixed for redemption thereof,or otherwise,at
which time the Paying Agent,shall surrender any remaining funds so held to the
Issuer,whereupon any claim under this Resolution by the Owners of such interest
or Note of whatever nature shall be made upon the Issuer.
(g)Registration and Transfer Fees.The Registrar may furnish to each owner,at
the Issuer's expense,one note for each annual maturity.The Registrar shall furnish
all additional Note in lesser denominations (but not less than the minimum
denomination)to an owner who so requests.
Section 8.Reissuance of Mutilated,Destroyed,Stolen or Lost Notes.In case any
outstanding Note shall become mutilated or be destroyed,stolen or lost,the Issuer shall at
the request of Registrar authenticate and deliver a new Note of like tenor and amount as
the Note so mutilated,destroyed,stolen or lost,in exchange and substitution for such
mutilated Note to Registrar,upon surrender of such mutilated Note,or in lieu of and
substitution for the Note destroyed,stolen or lost,upon filing with the Registrar evidence
satisfactory to the Registrar and Issuer that such Note has been destroyed,stolen or lost
and proof of ownership thereof,and upon furnishing the Registrar and Issuer with
satisfactory indemnity and complying with such other reasonable regulations as the Issuer
or its agent may prescribe and paying such expenses as the Issuer may incur in
connection therewith.
Section 9.Record Date.Payments of principal and interest,otherwise than upon
full redemption,made in respect of the Note,shall be made to the registered holder
thereof or to their designated Agent as the same appear on the books of the Registrar on
the 15th day preceding the payment date.All such payments shall fully discharge the
obligations ofthe Issuer in respect of such Note to the extent of the payments so made.
Payment of principal shall only be made upon surrender of the Note to the Paying Agent.
Section 10.Execution,Authentication and Delivery of the Note.Upon the
adoption of this Resolution,the Mayor and Clerk shall execute and deliver the Note to the
Registrar,who shall authenticate the Note and deliver the same to or upon order of the
Original Purchaser.No Note shall be valid or obligatory for any purpose or shall be
entitled to any right or benefit hereunder nnless the Registrar shall duly endorse and
execute on such Note a Certificate of Authentication substantially in the form of the
Certificate herein set forth.Such Certificate upon any Note executed on behalf of the
Issuer shall be conclusive evidence that the Note so authenticated has been duly issued
under this Resolution and that the holder thereof is entitled to the benefits of this
Resolution.
Section 11.Right to Name Substitute Paying Agent or Registrar.Issuer reserves
the right to name a substitute,successor Registrar or Paying Agent upon giving prompt
written notice to each registered N oteholder.
Section 12.Form of Note.The Note shall be printed in substantial compliance
with standards proposed by the American Standards Institute substantially in the form as
follows:
(6)(6)
(7)(8)
(1)
(2)(3)(4)(5)
(9)
(9a)
(10)
(Continued on the back of this Note)
(11 )(12)(13)(14)(15)
FIGURE 1
(Front)
(10)
(Continued)
FIGURE 2
(Back)
(16)
The text of the Note to be located thereon at the item numbers shown shall be as
follows:
Item 1,figure 1=
Item 2,figure 1 =
Item 3,figure 1 =
Item 4,figure 1 =
Item 5,figure 1 =
Item 6,figure 1 =
Item 7,figure 1 =
Item 8,figure 1 =
"STATE OF IOWA"
"COUNTY OF DALLAS"
"CITY OF WAUKEE"
"GOLF COURSE REVENUE REFUNDING CAPITAL
LOAN NOTE"
"SERIES 2010"
Rate:4.45%
Maturity:June 1,2015
Note Date:June 1,2010
CUSIP No.:N/A
"Registered"
Note No.1
Principal Amount:$776,228
Item 9,figure 1=The City of Waukee,State of Iowa,a municipal corporation
organized and existing under and by virtue of the Constitution and laws of the State of
Iowa (the "Issuer"),for value received,promises to pay from the source and as
hereinafter provided,on the maturity date indicated above,to
Item 9A,figure 1 =(Registration panel to be completed by Registrar or Printer
with name of Registered Owner).
Item 10,figure 1 =or registered assigns,the principal sum of SEVEN
HUNDRED SEVENTY-SIX THOUSAND TWO HUNDRED TWENTY-EIGHT
DOLLARS in lawful money of the United States of America,on the maturity date shown
above,only upon presentation and surrender hereof at the office of the City Clerk,Paying
Agent of this issue,or its successor,with interest on such sum from the date hereof until
paid at the rate per annum specified above.
Principal of the Note shall bear interest at the rate of 4.45%per annum.
Thereafter,both principal of and interest on the Note shall be payable in equal
semiannual installments in the amount of$35,739.95 each,due on the first day of June
and December each year,commencing December 1,2010,and continuing through and
including December 1,2014,with one final installment of all remaining principal and
interest due thereon at maturity on June 1,2015.All payments shall be applied first to
the payment of interest due and next to the reduction of principaL Interest shall be
calculated on the basis of a 360-day year comprised of twelve 30-day months.
Interest and principal shall be paid to the registered holder of the Note as shown
on the records of ownership maintained by the Registrar as of the 15th day preceding
such interest payment date.
The City reserves the right to prepay principal on the Note in whole or in part at
any time prior to and in any order of maturity on terms of par and accrued interest.All
principal so prepaid shall cease to bear interest on the prepayment date.
This Note is issued pursuant to the provisions of Sections 384.24A and 384.83 of
the City Code of Iowa,for the purpose of paying costs of adjusting,extending and
refimding existing Golf Course Revenue indebtedness including the $925,000 Golf
Course Revenue Note,Series 2005,and in order to evidence the obligations of the Issuer
under a certain Loan Agreement dated the date hereof,in conformity to a Resolution of
the City Council of the City duly passed and approved.For a complete statement of the
revenues and funds from which and the conditions under which this Note is payable,a
statement of the conditions under which additional Notes or Bonds of equal standing may
be issued,and the general covenants and provisions pursuant to which this Note is issued,
reference is made to the above described Loan Agreement and Resolution.
Ownership of this Note may be transferred only by transfer upon the books kept
for such purpose by the City Clerk,the Registrar.Such transfer on the books shall occur
only upon presentation and surrender of this Note at the office of the Registrar as
designated below,together with an assignment duly executed by the owner hereof or his
duly authorized attorney in the form as shall be satisfactory to the Registrar.Issuer
reserves the right to substitute the Registrar and Paying Agent but shall,however,
promptly give notice to registered Noteholders of such change.All Notes shall be
negotiable as provided in Article 8 of the Uniform Commercial Code and subject to the
provisions for registration and transfer contained in the Note Resolution.
This Note and the series of which it forms a part and any Additional Obligations
which may be hereafter issued and outstanding from time to time on a parity with the
Notes,as provided in the Note Resolution and Loan Agreement of which notice is hereby
given and which are hereby made a part hereof,are payable from and secured by a pledge
of the net revenues of the Sugar Creek golf enterprise of the City of Waukee (the
"System"),as defmed and provided in the Resolution.There has heretofore been
established and the City covenants and agrees that it will maintain just and equitable rates
or charges for the use of and service rendered by the System in each year for the payment
of the proper and reasonable expenses of operation and maintenance of the System and
for the establishment of a sufficient sinking fund to meet the principal of and interest on
this series of Notes,and other Obligations ranking on a parity therewith,as the same
become due.This Note is not payable in any manner by taxation and under no
circumstances shall the City be in any marmer liable by reason of the failure of the net
earnings to be sufficient for the payment hereof.
This Note is a "qualified tax-exempt obligation"designated by the City for
purposes of Section 265(b )(3)(B)of the Internal Revenue Code of 1986.
And it is hereby represented and certified that all acts,conditions and things
requisite,according to the laws and Constitution of the State ofIowa,to exist,to be had,
to be done,or to be performed precedent to the lawful issue of this Note,have been
existent,had,done and performed as required by law.
IN TESTIMONY WHEREOF,the City by its City Council has caused this Note to
be signed by the manual signature of its Mayor and attested by the manual signature of its
Clerk,with the seal of the City impressed hereon,and authenticated by the manual
signature of an authorized representative of the Registrar,the City Clerk,Waukee,Iowa.
Item II,figure 1 =Date of Authentication:
Item 12,figure 1 =This is oric of the Notes described in the within mentioned
Resolution,as registered by the City Clerk
CITY CLERK,Registrar
By:------------c------------Authorized Signature
Item 13,fignre I Registrar and Transfer Agent:City Clerk
Paying Agent:City Clerk
SEE REVERSE FOR CERTAIN DEFINITIONS
Item 14,figure 1
Item 15,figure I
(Seal)
(Signature Block)
CITY OF WAUKEE,STATE OF IOWA
By:_______----'====-====L-_
Mayor
ATTEST:
(manual signature)
By:_______----'====-====L-_
City Clerk
(manual signature)
Item 17,figure I =(Assignment Block)
(Information Required for Registration)
ASSIGNMENT
For value received,the undersigned hereby sells,assigns and transfers unto
____________(Social Security or Tax Identification No.
______-!)the within Note and does hereby irrevocably constitute and appoint
____________attorney in fact to transfer the said Note on the books kept
for registration of the within Note,with full power of substitution in the premises.
Dated this day of ,2010.
(Person(s)executing this Assignment
sign(s)here)
SIGNATURE
GUARANTEED
)
)
IMPORTANT -READ CAREFULLY
The signature(s)to this Power must correspond with the name(s)as written
upon the face of the Certificate(s)or Note(s)in every particular without
alteration or enlargement or any change whatever.Signature guarantee
must be provided in accordance with the prevailing standards and
procedures ofthe Registrar and Transfer Agent.Such standards and
procedures may require signature to be guaranteed by certain eligible
guarantor institutions that participate in a recognized signature guarantee
program.
INFORMATION REQUIRED FOR REGISTRATION OF TRANSFER
Name of Transferee(s)
Address of Transferee(s)----:-:::----c---------------------
Social Security or Tax Identification
Number ofTransferee(s)_
Transferee is a(n):
Individual*
Partnership
Corporation _
Trust
*Ifthe Note is to be registered in the names of multiple individual owners,the
names of all such owners and one address and social security number must be
provided.
The following abbreviations,when used in the inscription on the face of this Note,
shall be construed as though written out in full according to applicable laws or
regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with rights of survivorship and not as tenants in common
IA UNIF TRANS MIN ACT -Custodian .
(Cust)(Minor)
Under Iowa Uniform Transfers to Minors Act....
(State)
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED
THOUGH NOT IN THE ABOVE LIST
Section 13.Equality of Lien.The timely payment of principal of and interest on
the Note and Parity Obligations shall be secured equally and ratably by the Net Revenues
of the System without priority by reason of number or time of sale or delivery;and the
revenues of the System are hereby irrevocably pledged to the timely payment of both
principal and interest as the same become due.
Section 14.Application of Note Proceeds -Redemption and Cunent RefLmding of
Refunded Bonds.Proceeds of the Notes shall be applied as follows:
Proceeds shall be deemed used for the payment of the Refunded Bonds and
are irrevocably appropriated exclusively to the payment of principal of,
interest on and premium,if any,due on the redemption thereof.
The Refunded Bonds are called and shall be redeemed as of the Call Date.
Section 15.User Rates.So long as the Note or any Parity Obligations are
outstanding,the City shall maintain the Golf Course in good condition,and the Golf
Course shall be operated in an efficient manner and at a reasonable cost as a revenue
producing undertaking.The City shall establish,impose,adjust and provide for the
collection of rates to be charged to customers of the Golf Course to produce gross
revenues (the "Gross Revenues")at least sufficient to pay the expenses of operation and
maintenance of the Golf Course (the "Operating Expenses"),which shall include salaries,
wages,cost of maintenance and operation,materials,supplies,insurance and all other
items normally included under recognized accounting practices (but does not include
allowances for depreciation in the valuation of physical property)and to leave a balance
of Net Revenues at least sufficient to pay the principal of and interest on the Note and
any Parity Obligations outstanding from time to time,as the same become due,except
that the City shall not be required to increase rates sufficient to pay the fmal installment
of principal of and interest on the Note due June 1,2015,and to maintain a reasonable
reserve for the payment of such principal and interest,as hereinafter provided.
Section 16.Application of Revenues.From and after the delivery of the Note,and
as long as the Note or Parity Obligations shall be outstanding and unpaid either as to
principal or as to interest,or until the Note and Parity Obligations then outstanding shall
have been discharged and satisfied in the manner provided in this Resolution,the entire
income and revenues of the System shall be deposited as collected in a fund to be known
as the Golf Course Revenue Fund (the "Revenue Fund"),and shall be disbursed only as
follows:
(a)Operation and Maintenance Fund.Money in the Revenue F1Uldshall
first be disbursed to make deposits into a separate and special fund to pay current
expenses.The fund shall be known as the Golf Course Revenue Operation and
Maintenance Fund (the "Operation and Maintenance Fund").There shall be
deposited in the Operation and Maintenance Fund each month an amount
sufficient to meet the current expenses of the month plus an amount equal to
1/12th of expenses payable on an annual basis such as insurance.After the first
day of the month,further deposits may be made to this account from the Revenue
Fund to the extent necessary to pay current expenses accrued and payable to the
extent that funds are not available in the Surplus Fund.
(b)Sinking Fund.Money in the Revenue Fund shall next be disbursed
to make deposits into a separate and special fund to pay the principal and interest
requirements of the Fiscal Year on the Note and Parity Obligations.The fund shall
be known as the Golf Course Revenue Sinking Fund (the "Sinking Fund"),into
which there shall be set aside from the future Net Revenues of the Golf Course
such portion thereof as will be sufficient to pay the interest upon and principal of
the Note as the same become due,and it is hereby determined that the minimum
amount to be so set aside into the Sinking Fund from the Net Revenues during
each month of each year shall not be less than as follows:
Commencing on June 1,2010,and continuing thereafter,a sum equal
to one-sixth (1/6)of the installment payment amount due on the next
succeeding payment date.
If for any reason the amount on hand in the Sinking Fund exceeds the
required amount,the excess shall forthwith be withdrawn and paid into the
Revenue Fund.Money in the Sinking Fund shall be used solely for the purpose of
paying principal of and interest on the Note and Parity Obligations as the same
shall become due and payable.
Whenever Parity Obligations are issued,provisions shall be made for
additional payments to be made into the Sinking Fund for the purpose of paying
the interest on and principal of such Parity Obligations.
Such payments into the Sinking Fund shall be made in equal monthly
installments on the first day of each month,except that when the first day of any
month shall be a Sunday or legal holiday,then such payments shall be made on the
next succeeding business day.
If at any time there be a failure to pay into the Sinking Fund the full amount
above stipulated,then an amount equivalent to the deficiency shall be paid into the
Sinking Fund from the Net Revenues of the Golf Course as soon as available,and
the same shall be in addition to the amount otherwise required to be so set apart
and paid into the Sinking Fund.
(c)Reserve Fund.Money in the Revenue Fund shall be disbursed to
maintain a debt service reserve in an amount equal to the Reserve Fund
Requirement.Such fund shall be known as the Golf Course Revenue Debt Service
Reserve Fund (the "Reserve Fund").In each month there shall be deposited in the
Reserve Fund an amount equal to $1,000;provided,however,that when the
amount on deposit in the Reserve Fund shall be not less than $50,000,no further
deposits shall be made into the Reserve Fund except to maintain such level,and
when the amount on deposit in the Reserve Fund is greater than the balance
required above,such additional amounts shall be withdrawn and paid into the
Revenue Fund.Money in the Reserve Fund shall be used solely for the purpose of
paying principal at maturity of or interest on the Notes and Parity Obligations for
the payment of which insufficient money shall be available in the Sinking Fund.
Whenever it shall become necessary to so use money in the Reserve Fund,the
payments required above shall be continued or resmned until it shall have been
restored to the required minimum amount.At Closing,the existing Reserve Fund
of the Refunded Bonds shall transfer as security for the Notes.
(d)Subordinate Obligations.Money in the Revenue Fund may next be
used to pay principal of and interest on (including reasonable reserves therefor)
any other obligations which by their terms shall be payable from the revenues of
the System,but subordinate to the Note and Parity Obligations,and which have
been issued for the purposes of extensions and improvements to the System or to
retire the Note or Parity Obligations in advance of maturity,or to pay for
extraordinary repairs or replacements to the System.
(e)Surplus Revenue.All money thereafter remaining in the Revenue
Fund at the close of each month may be deposited in any of the funds created by
this Resolution,to pay for extraordinary repairs or replacements to the System,or
may be used to payor redeem the Note or Parity Obligations,any of them,or for
any lawful purpose.
Money in the Revenue Fund shall be allotted and paid into the various funds and
accounts hereinbefore referred to in the order in which the funds are listed,on a
cumulative basis on the 10th day of each month,or on the next succeeding business day
when the 10th shall not be a business day;and if in any month the money in the Revenue
Fund shall be insufficient to deposit or transfer the required amount in any of the funds or
accounts,the deficiency shall be made up in the following month or months after
payments into all funds and accounts enjoying a prior claim to the revenues shall have
been met in full.The provisions of this Section shall not be construed to require the
Issuer to maintain separate bank accounts for the funds created by this Section;except the
Sinking Fund and the Reserve Fund shall be maintained in a separate account but may be
invested in conjunction with other funds of the City but designated as a trust fund on the
books and records of the City.
Section 17.Investments.All of the funds provided by this Resolution may be
invested only in Permitted Investments or deposited in financial institutions which are
members ofthe Federal Deposit Insurance Corporation or its equivalent successor,and
the deposits in which are insured thereby and all such deposits exceeding the maximum
amount insured from time to time by FDIC or its equivalent successor in anyone
financial institution shall be continuously secured in compliance with Chapter l2C of the
Code ofIowa,2009,as amended,or otherwise by a valid pledge of direct obligations of
the United States Government having an equivalent market value.All such interim
investments shall mature before the date on which the moneys are required for the
purposes for which the fund was created or otherwise as herein provided but in no event
maturing in more than three years in the case of the Reserve Fund.
All income derived from such investments shall be deposited in the Revenue Fund
and shall be regarded as revenues of the System.Investments shall at any time necessary
be liquidated and the proceeds thereof applied to the purpose for which the respective
fund was created.
Section 18.Covenants Regarding the Operation of the System.The Issuer hereby
covenants and agrees with each and every holder of the Note and Parity Obligations:
(a)Maintenance and Efficiency.The Issuer will maintain the System in
good condition and operate it in an efficient manner and at reasonable cost.
(b)Sufficiency of Rates.On or before the beginning of each Fiscal Year
the Governing Body will adopt or continue in effect rates for all services rendered
by the System determined to be sufficient to produce Net Revenues for the next
succeeding Fiscal Year adequate to pay principal and interest requirements and
create reserves as provided in this Resolution but not less than 100%percent of the
principal and interest requirements of the Fiscal Year,except that the City shall
not be required to increase rates sufficient to pay the final installment of principal
of and interest on the Note due June 1,2015.No free use of the System by the
Issuer or any department,agency or instrumentality of the Issuer shall be
permitted except upon the determination of the Governing Body that the rates and
charges otherwise in effect are sufficient to provide Net Revenues at least equal to
the requirements of this subsection.
(c)Insurance.That the Issuer shall maintain insurance for the benefit of
the Noteholders on the insurable portions of the System of a kind and in an
amount which normally would be carried by private companies engaged in a
similar kind of business.The proceeds of any insurance,except public liability
insurance,shall be used to repair or replace the part or parts of the System
damaged or destroyed,or if not so used shall be placed in the Revenue Fund.
(d)Accounting and Audits.The Issuer will cause to be kept proper
books and accounts adapted to the System and in accordance with generally
accepted accounting practices,and will diligently act to cause the books and
accounts to be audited annually and reported upon not later than 180 days after the
end of each Fiscal Year by an Independent Auditor and will provide copies of the
audit report to the holders ofthe Note and Parity Obligations upon request.The
holders of the Notes and Parity Obligations shall have at all reasonable times the
right to inspect the System and the records,accounts and data of the Issuer relating
thereto.
(e)State Laws.The Issuer will faithfully and punctually perform all
duties with reference to the System required by the Constitution and laws of the
State ofIowa,including the making and collecting of reasonable and sufficient
rates for services rendered by the System as above provided,and will segregate the
revenues of the System and apply the revenues to the funds specified in this
Resolution.
(f)Property.The Issuer will not sell,lease,mortgage or in any mauner
dispose of the System,or any capital part thereof,including any and all extensions
and additions that may be made thereto,until satisfaction and discharge of the
Note and Parity Obligations shall have been provided for in the manner provided
in this Resolution;provided,however,that this covenant shall not be construed to
prevent the disposal by the Issuer of property which in the judgment of its
Governing Body has become inexpedient or unprofitable to use in connection with
the System,or if it is to the advantage of the System that other property of equal or
higher value be substituted therefor,and provided further that the proceeds of the
disposition of such property shall be placed in a revolving fund to be used in
preference to other sources for capital improvements to the System.Any such
proceeds ofthe disposition of property acquired with the proceeds of the Note or
Parity Obligations shall not be used to pay principal or interest on the Note or
Parity Obligations or for payments into the Sinking or Reserve Fund.
(g)Fidelity Bond.The Issuer shall maintain fidelity bond coverage in
amounts which normally would be carried by private companies engaged in a
similar kind of business on each officer or employee having custody of funds of
the System.
(h)Additional Charges.The Issuer will require proper connecting
charges and/or other security for the payment of service charges.
(i)Budget.The Governing Body of the Issuer shall approve and
conduct operations pursuant to a system budget of revenues and current expenses
for each Fiscal Year.Such budget shall take into account revenues and current
expenses during the current and last preceding Fiscal Year.Copies of such budget
and any amendments thereto shall be provided to the holders of the Note upon
request.
Section 19.Remedies of Note holders.Except as herein expressly limited the
holder or holders of the Note and Parity Obligations shall have and possess all the rights
of action and remedies afforded by the common law,the Constitution and statutes of the
State ofIowa,and of the United States of America,for the enforcement of payment of
their Note and interest thereon,and of the pledge of the revenues made hereunder,and of
all covenants of the Issuer hereunder.
Section 20.Prior Lien and Parity Obligations.The Issuer will issue no other notes,
bonds or obligations of any kind or nature payable from or enjoying a lien or claim on the
property or revenues of the System having priority over the Note or Parity Obligations.
The City hereby reserves the right to issue Additional Obligations on a
parity and equality of rank with the Note with respect to the lien and claim of such
Additional Obligations to the revenues of the System and the money on deposit in
the funds adopted by this Resolution,subject to the approval of the Purchaser.
Section 21.Disposition of Proceeds;Arbitrage Not Permitted.The Issuer
reasonably expects and covenants that no use will be made of the proceeds from the
issuance and sale ofthe Note issued hereunder which will cause the Note to be classified
as arbitrage bonds within the meaning of Section 148(a)and (b)of the Internal Revenue
Code of the United States,and that throughout the term of the Note it will comply with
the requirements of such statute and regulations issued thereunder.
To the best knowledge and belief of the Issuer,there are no facts or circumstances
that would materially change the foregoing statements or the conclusion that it is not
expected that the proceeds of the Note will be used in a manner that would cause the
Note to be arbitrage notes.Without limiting the generality of the foregoing,the Issuer
hereby agrees to comply with the provisions of the Tax Exemption Certificate and the
provisions of the Tax Exemption Certificate are hereby incorporated by reference as part
of this Resolution.The Treasurer is hereby directed to make and insert all calculations
and determinations necessary to complete the Tax Exemption Certificate in all respects
and to execute and deliver the Tax Exemption Certificate at issuance of the Notes to
certify as to the reasonable expectations and covenants of the Issuer at that date.
The Issuer covenants that it will treat as Yield Restricted any proceeds of the Note
remaining unexpended after three years from the issuance and any other funds required
by the Tax Exemption Certificate to be so treated.If any investments are held with
respect to the Note and Parity Obligations,the Issuer shall treat the same for the purpose
of restricted yield as held in proportion to the original principal amounts of each issue.
The Issuer covenants that it will exceed any investment yield restriction provided
in this Resolution only in the event that it shall first obtain an opinion of recognized bond
counsel that the proposed investment action will not cause the Note to be classified as
arbitrage bonds under Section l48(a)and (b)the Internal Revenue Code or regulations
issued thereunder.
The Issuer covenants that it will proceed with due diligence to spend the proceeds
of the Note for the purpose set forth in this Resolution.The Issuer further covenants that
it will make no change in the use of the proceeds available for the construction of
facilities or change in the use of any portion of the facilities constructed therefrom by
persons other than the Issuer or the general public unless it has obtained an opinion of
bond counselor a revenue ruling that the proposed proj ect or use will not be of such
character as to cause interest on any of the Note not to be exempt from federal income
taxes in the hands of holders other than substantial users of the project,under the
provisions of Section l42(a)of the Intemal Revenue Code of the United States,related
statutes and regulations.
Section 22.Additional Covenants,Representations and Warranties of the Issuer.
The Issuer certifies and covenants with the purchasers and holders of the Note from time
to time outstanding that the Issuer through its officers,(a)will make such further specific
covenants,representations and assurances as may be necessary or advisable;(b)comply
with all representations,covenants and assurances contained in the Tax Exemption
Certificate,which Tax Exemption Certificate shall constitute a part of the contract
between the Issuer and the owners of the Note;(c)consult with bond counsel (as defined
in the Tax Exemption Certificate);(d)pay to the United States,as necessary,such sums
of money representing required rebates of excess arbitrage profits relating to the Note;(e)
file such forms,statements and supporting documents as may be required and in a timely
manner;and (f)if deemed necessary or advisable by its officers,to employ and pay fiscal
agents,financial advisors,attorneys and other persons to assist the Issuer in such
compliance.
Section 23.Qualified Tax-Exempt Obligations.The Notes currently refund
obligations oflike amount previously designated as "qualified tax exempt obligations"by
the Issuer under Section 265(b)(3)of the Internal Revenue Code.Accordingly,the Note
retains such designation under Section 265(b )(3)(D).
Section 24.Discharge and Satisfaction of the Note.The covenants,liens and
pledges entered into,created or imposed pursuant to this Resolution may be fully
discharged and satisfied with respect to the Note and Parity Obligations,or any of them,
in anyone or more of the following ways:
(a)By paying the Note or Parity Obligations when the same shall become due
and payable;and
(b)By depositing in trust with the Treasurer,or with a corporate trustee
designated by the Governing Body for the payment of the obligations and
irrevocably appropriated exclusively to that purpose an amount in cash or direct
obligations of the United States the maturities and income of which shall be
sufficient to retire at maturity,or by redemption prior to maturity on a designated
date upon which the obligations may be redeemed,all of such obligations
outstanding at the time,together with the interest thereon to maturity or to the
designated redemption date,premiums thereon,if any,that may be payable on the
redemption of the same;provided that proper notice of redemption of all such
obligations to be redeemed shall have been previously published or provisions
shall have been made for such publication.
Upon such payment or deposit of money or securities,or both,in the amount and
manner provided by this Section,all liability of the Issuer with respect to the Notes or
Parity Obligations shall cease,determine and be completely discharged,and the holders
thereof shall be entitled only to payment out of the money or securities so deposited.
Section 25.Resolution a Contract.The provisions of this Resolution shall
constitute a contract between the Issuer and the holder or holders of the Note and Parity
Obligations,and after the issuance of any of the Note no change,variation or alteration of
any kind in the provisions of this Resolution shall be made in any manner,except as
provided in the next succeeding Section,until such time as all of the Note and Parity
Obligations,and interest due thereon,shall have been satisfied and discharged as
provided in this Resolution.
Section 26.Amendment of Resolution Without Consent.The Issuer may,without
the consent of or notice to any of the holders of the Note and Parity Obligations,amend
or supplement this Resolution for anyone or more of the following purposes:
(a)to cure any ambiguity,defect,omission or inconsistent provision in this
Resolution or in the Note or Parity Obligations;or to comply with any application
provision oflaw or regulation of federal or state agencies;provided,however,that
such action shall not materially adversely affect the interests of the holders of the
Note or Parity Obligations;
(b)to change the terms or provisions of this Resolution to the extent necessary
to prevent the interest on the Note or Parity Obligations from being includable
within the gross income of the holders thereof for federal income tax purposes;
(c)to grant to or confer upon the holders of the Note or Parity Obligations any
additional Tights,remedies,powers or authority that may lawfully be granted to or
conferred upon the holders of the Note;
(d)to add to the covenants and agreements of the Issuer contained in this
Resolution other covenants and agreements of,or conditions or restrictions upon,
the Issuer orto surrender or eliminate any right or power reserved to or conferred
upon the Issuer in this Resolution;or
(e)to subject to the lien and pledge of this Resolution additional pledged
revenues as may be permitted by law.
Section 27.Amendment of Resolution Requiring Consent.This Resolution may be
amended from time to time if such amendment shall have been consented to by holders of
not less than two-thirds in principal amount of the Note and Parity Obligations at any
time outstanding (not including in any case any Note which may then be held or owned
by or for the account of the Issuer,but including such refunding obligations as may have
been issued for the purpose of refunding any of such Note if such refunding obligations
shall not then be owned by the Issuer);but this Resolution may not be so amended in
such mauner as to:
(a)Make ally change in the maturity of interest rate of the Note,or modify the
terms of payment of principal of or interest on the Note or any ofthem or impose
any conditions with respect to such payment;
(b)Materially affect the rights of the holders of less than all of the Note and
Parity Obligations then outstanding;and
(c)Reduce the percentage of the principal amount of Note,the consent of the
holders of which is required to effect a further amendment.
Whenever the Issuer shall propose to amend this Resolution under the provisions
of this Section,it shall cause notice of the proposed amendment to be filed with the
Original Purchaser and to be mailed by certified mail to each registered owner of any
Note as shown by the records ofthe Registrar,Such notice shall set forth the nature of the
proposed amendment and shall state that a copy of the proposed amendatory Resolution
is on file in the office of the City Clerk.
Whenever at any time within one year from the date of the mailing of the notice
there shall be filed with the City Clerk an instrument or instruments executed by the
holders of at least two-thirds in aggregate principal amount of the Note then outstanding
as in this Section defmed,which instrument or instruments shall refer to the proposed
amendatory Resolution described in the notice and shall specifically consent to and
approve the adoption thereof,thereupon,but not otherwise,the Governing Body of the
Issuer may adopt such amendatory Resolution and such Resolution shall become
effective and binding upon the holders of all of the Note and Parity Obligations.
Any consent given by the holder of a Note pursuant to the provisions of this
Section shall be irrevocable for a period of six months from the date of the instrument
evidencing such consent and shall be conclusive and binding upon all future holders of
the same Note during such period.Such consent may be revoked at any time after six
months from the date of such instrument by the holder who gave such consent or by a
successor in title by filing notice of such revocation with the City Clerk.
The fact and date of the execution of any instrument under the provisions of this
Section may be proved by the certificate of any officer in any jurisdiction who by the
laws thereof is authorized to take acknowledgments of deeds within such jurisdiction that
the person signing such instrument acknowledged before him the execution thereof,or
may be proved by an affidavit of a witness to such execution sworn to before such
officer.
The amount and numbers of the Note held by any person executing such
instrument and the date of his holding the same may be proved by an affidavit by such
person or by a certificate executed by an officer of a bank or trust company showing that
on the date therein mentioned such person had on deposit with such bank or trust
company the Note described in such certificate.
Section 28.Severability.If any section,paragraph,or provision of this Resolution
shall be held to be invalid or unenforceable for any reason,the invalidity or
unenforceability of such section,paragraph or provision shall not affect any of the....remammg provisions.
Section 29.Repeal of Conflicting Ordinances or Resolutions and Effective Date.
All other ordinances,resolutions and orders,or parts thereof,in conflict with the
provisions of this Resolution are,to the extent of such conflict,hereby repealed;and this
Resolution shall be in effect from and after its adoption.
ADOPTED AND APPROVED this 17th day of May,2010.
ATTEST:
ROLL CALL VOTE
Shane Blanchard
Dan Dutcher
Casey L.Harvey
Darlene Stanton
Mike Watts
AYE
X
X
X
X
NAY ABSENT ABSTAIN
X