City of Brandon: April 28
___ Briefing Minutes ___
The Brandon City Council met in a briefing session at 5:30 p.m. on Thursday, April 15, 2021 at the Council Chambers at 308 S Main Avenue, Brandon, South Dakota. Present were Dana Clark, Vickie David, Tim Jorgenson, David Kull and Jack Parliament. Barb Fish was present via phone. Others present were: City Administrator, Bryan H Read; Finance Officer, Christina Smith; City Engineer, Tami Jansma; Public Works Director, Rollie Hoeke; Fire Chief, Robert Dykstra; Interim Police Chief, Jamie Steffel and Park Superintendent, Devin Coughlin. Absent: None.
The Council discussed items on the agenda for the upcoming April 19, 2021 regular Council meeting. No formal action was taken.
At 6:28 p.m., hearing no further business, the meeting adjourned.
Christina Smith
Municipal Finance Officer
Barb Fish
Acting Mayor
Published at an approximate cost of $9.21.
April 28, 2021
_________ Minutes _________
The Brandon City Council met in regular session at 6:00 p.m. on April 19, 2021 in the Council Chambers at 308 S. Main Avenue, Brandon, South Dakota. Present were Dana Clark, Vickie David, Barb Fish, Tim Jorgenson, David Kull and Jack Parliament. Others present were: City Administrator, Bryan Read; Finance Officer, Christina Smith; City Attorney, Lisa Marso; City Engineer, Tami Jansma; Interim Police Chief, Jamie Steffel; Park Superintendent, Devin Coughlin; Golf Course Manager, Andrew Bauer and Public Works Direction, Rollie Hoeke.
Council President Barb Fish chaired the meeting.
Alderwoman Clark moved Alderwoman David seconded to approve the agenda. Motion carried.
Alderman Parliament moved Alderwoman Clark seconded to approve the minutes of the April 1, 2021 briefing meeting; the minutes of the April 5, 2021 special meeting; the minutes of the April 5, 2021 regular meeting as amended and the minutes of the April 12, 2021 special meeting. Motion carried.
Alderman Kull moved Alderman Jorgenson seconded to approve the following claims. Motion carried.
VENDOR, DESCRIPTION, AMOUNT; 605 Companies, Improvements, 50,737.75; Alliance, Utilities, 2,618.26; Alternative HR, Professional Services, 4,700.00; Avera McKennan Hospital, EPA Contract Fees, 2,268.00; Axon Enterprise, Inc., Equipment, 240.00; Beal Distributing, GC Resale, 2,075.95; Benco Products, Inc., Equipment, 444.48; Border States Electric, Supplies, 151.00; Borns Group, Utility Billing, 1,587.93; Boyce Law Firm, Professional Services, 5,584.50; Brandon Ace Hardware, Supplies, 1,739.96; Brandon Lumber Co., Supplies, 11.88; Brandon Schweitzer, Repairs, 800.00; Brandon Valley Media Group, Publications, 945.35; Bryan Rock Products, Inc., Supplies, 5,280.37; Builders Supply Company, Supplies, 34.90; BV Area Chamber of Commerce, Registration Fees, 45.00; BV School District, Utilities, 3,694.16; C&R Supply, Supplies, 90.96; Cardmember Services, Supplies, 6,158.49; Century Business Products, Supplies, 171.42; Cintas, Supplies, 150.61; Cocoa Cola/Chesterman, Rental, 50.00; Coffee Cup, Fuel, 22.13; Concrete Materials, Repairs, 1,079.35; Crescent Electric, Repairs, 588.01; Crimestar, Fees, 300.00; Culligan, Utilities, 77.20; Dakota Beverage, GC Resale, 1,034.40; Dakota Data Shred, Supplies, 32.00; David Swier, Election, 200.00; DGR Engineering, Professional Services, 98,468.34; Direct Technologies, Software, 841.12; DirecTV, Utilities, 41.79; Ellaine Henriksen, Election, 200.00; Ellis & Eastern Company, Fees, 180.00; EnviroMaster, Supplies, 70.00; Ferguson Waterworks, Meter Replacement, 47,646.00; General Traffic Controls, Equipment, 3,290.00; Hawkins Water Treatment, Chemicals, 2,084.19; HDR Engineering, Inc., Professional Services, 32,512.50; I & S Group, Inc., Professional Services, 722.00 Innovative Office Solutions, Inc., Supplies, 136.89; IS Restaurant Design Equipment & Supply, Equipment, 2,246.23; Jack’s Uniforms & Equipment, Equipment, 437.85; Johnson Bros. Famous Brands, GC Resale, 3,389.32; Lacey Rentals, Inc., Rental, 615.00; Lawson Products, Inc., Supplies, 64.98; Marv’s Sanitary, Utilities, 465.75; Mary Burggraaf, Election, 250.00; MED-Star Paramedic Ambulance, Inc., April Contribution, 4,166.67; Metro Communications, Fees, 7,039.00; Mid-American Energy, Utilities, 5,284.56; Midwest Alarm, Repairs, 86.52; Midwest Turf & Irrigation, Repairs, 667.17; Minnehaha Community Water Corp., Utilities, 80.00; Minnehaha County Register of Deeds, Supplies, 90.00; Newman Traffic Signs, Supplies, 108.39; Orkin, Professional Services, 240.00; Pepsi Cola, GC Resale, 202.95; Performance Press, Supplies, 736.98; Postmaster, Rental, 198.00; Prestige Flag, Supplies, 234.62; Republican National Distributing, GC Resale, 919.90; Sam’s Club, Supplies, 737.81; SD Dept. of Revenue, Fees, 2,988.69; SD Government Finance Officers’ Assoc., Registration, 75.00; SD One Call, Utilities, 193.76; SD Unemployment Insurance Division, Qrtly Fees, 2,084.07; Sioux Falls Networks, Software, 355.00; Sioux Falls Utilities, Utilities, 91,044.63; Streicher’s, Supplies, 1,253.28; Sturdevant’s Auto Parts, Supplies, 202.97; Sunshine, Supplies, 290.90; Sure Test, Professional Services, 254.40; Sysco Lincoln, GC Resale, 2,276.90; Titleist, GC Resale, 14,455.54; Tony’s Catering, GC Resale, 2,042.00; Toro NSN, GC Irrigation, 155.00; Tri-State Hood Cleaning, Repair, 435.00; US Bank, Bonds, 600.00; US Postmaster, Utility Billing, 1,302.30; Van Diest Supply, Supplies, 983.30; Vogel Motors, Repairs, 84.00; Wells Fargo Financial Leasing, Equipment, 69,746.97; Wheelco, Repairs, 679.86; Xcel Energy, Utilities, 4,953.84; Xcel Energy, Utilities, 2,769.18; Zimco, Supplies, 483.20; First National Bank Trust Department, Fees, 2,000.00; TCF National Bank, Lease, 38,010.00; City Administration, April 1, 2021, 3,490.84; Finance Office, April 1, 2021, 4,316.65; Government Buildings, April 1, 2021, 120.05; Engineer, April 1, 2021, 2,979.49; Police, April 1, 2021, 23,009.53; Building Inspections, April 1, 2021, 3,344.08; Street Department, April 1, 2021, 5,401.96; Recreation, April 1, 2021, 144.07; Park Department, April 1, 2021, 4,427.18; Economic Development, April 1, 2021, 1,300.34; Water Department, April 1, 2021, 8,395.75; Sewer Department, April 1, 2021, 3,570.24; Golf Course Grounds, April 1, 2021, 2,289.11; Golf Course Lounge, April 1, 2021, 1,827.62; Golf Course Pro Shop, April 1, 2021, 2,084.19; Golf Course Community Room, April 1, 2021, 749.64; 941 Payroll Taxes, April 1, 2021, 20,845.44; Accounts Management Inc, April 1, 2021, 75.00; SD Retirement System Supplemental, April 1, 2021, 750.00; TASC Flex Plan, April 1, 2021, 976.87;
Tom Wullstein, 201 S. Augusta Avenue, was present to discuss medical cannabis. Tom owns Brandon Pharmacy and is an advocate for medical cannabis.
Mark Bannwarth, 617 E. Switch Grass Trail, was present representing the Brandon American Legion. Mark gave an update on plans for the Loyalty Day parade and their plans to hold a bike raffle.
TJ Cameron, 2821 E. Daybreak Circle, was present to discuss the Mayor appointment on the agenda. TJ discussed the Mayor poll that the BV Journal did that shows the public support for TJ as Mayor.
CANVASSING BOARD – RESULTS OF WARD II COUNCIL ELECTION
Alderman Jorgenson moved Alderwoman Clark seconded to approve the official canvass sheet for the April 13, 2021 Alderman Ward II Election. Alderman Kull was recused from the vote. A roll call vote showed Clark, David, Fish, Jorgenson, Parliament aye. Motion carried.
MINUTES OF CANVASSING BOARD
The City Council of Brandon, South Dakota, acting as the Canvassing Board, met on Monday, April 19, 2021, at 6:00 p.m. during a regular council meeting to canvass the results of the Annual Municipal Election that was held on Tuesday, April 13, 2021.
The meeting was called to order by Acting Mayor Barb Fish. Present were Dana Clark, Vickie David, Barb Fish, Tim Jorgenson, David Kull and Jack Parliament. Others present were: City Administrator, Bryan H. Read and Finance Officer, Christina Smith. Absent: None.
Alderman Jorgenson moved Alderwoman Clark seconded to approve the following election results. David Kull abstained. Motion carried.
Inasmuch as the poll book was found to be in order, and that the total votes cast for Alderman were 183, and that Candidate David Kull received 138 votes, and that Candidate Megan Bassett received 45 votes, therefore David Kull is declared elected as Alderman -Ward II for a four-year term.
At 6:04 p.m. Acting Mayor Fish declared the Canvassing Board meeting was adjourned.
Christina Smith
Municipal Finance Officer
Barb Fish
Acting Mayor
MAYORAL APPOINTMENT
Alderman Jorgenson moved Alderman Kull seconded to suspend Rule #8 of City Ordinance 1-3-9 pertaining to the appointment of the Mayor, until such time as the vacancy is filled. Motion carried.
Alderwoman David moved Alderwoman Clark seconded to appoint Alderman Parliament to fill the Mayor vacancy. Alderwoman Fish is of the opinion that Alderman Parliament should recuse himself from the vote as it would be a conflict of interest, stating information presented by Lisa Marso, Brandon City Attorney. Alderman Parliament addressed the topic of this being a conflict of interest as it relates to the $3,500.00 pay the Mayor receives. Alderman Parliament went on to say that he would donate that pay to local charities if anyone in the public felt that this was in fact a conflict of interest. Alderman Jorgenson pointed out that there are 2 other candidates in the audience who cannot vote for themselves. A roll call vote showed Clark, David, Parliament aye; Fish, Jorgenson, Kull nay. Motion failed.
Alderman Kull moved Alderman Jorgenson seconded to appoint Chuck Parsons to fill the Mayor vacancy. Alderman Jorgenson discussed how Chuck Parsons has served our Community for 30 years. A roll call vote showed Fish, Jorgenson, Kull aye; Clark, David, Jorgenson nay. Motion failed.
ORDINANCE #629
Alderman Jorgenson moved Alderwoman Clark seconded to give second reading to Ordinance #629: TITLE: AN ORDINANCE OF THE CITY OF BRANDON, SOUTH DAKOTA PROVIDING THAT THE REVISED ZONING ORDINANCE NUMBER 531 AND THE OFFICIAL ZONING MAP OF THE CITY OF BRANDON, SOUTH DAKOTA BE AMENDED TO PROVIDE FOR THE RE-ZONING OF THE FOLLOWING DESCRIBED PROPERTY. A roll call vote showed Clark, David, Fish, Jorgenson, Kull, Parliament aye. Motion carried.
BANK STABILIZATION PROJECT
The Golf Course Committee report was heard. Alderman Parliament moved Alderman Jorgenson seconded to approve pay application #3 to 605 Companies, Inc. in the amount of $50,737.75 for the Splitrock Creek bank stabilization project. Motion carried.
SEASONAL STAFF
Alderman Parliament moved Alderwoman Clark seconded to approve the following part-time staff for the Golf Course for 2021. Motion carried.
Community Room Busser/Dishwasher:
Carter Olthoff, $9.45 per hour
Lounge/Beverage Cart:
Isabelle Trainor, $7.95 per hour
POOL PROJECT CHANGE ORDER
The Parks & Recreation Committee report was heard. Alderwoman David moved Alderman Kull seconded to approve change order #7 to Beck & Hofer Construction in the amount of $5,133.42 for the pool improvements project. Motion carried.
APPOINTMENT OF POLICE CHIEF
The Public Safety Committee report was heard. Alderwoman Clark moved Alderman Kull seconded to approve the promotion of Lieutenant Jamie Steffel to position of Police Chief. Starting wage will be step 25-9, $45.59 per hour, effective April 19, 2021. Motion carried.
RESIGNATION OF POLICE OFFICER
Alderwoman Clark moved Alderman Jorgenson seconded to accept the resignation of Police Officer Jesse Thorne, effective immediately. Motion carried.
MEDICAL CANNABIS UPDATE
Information was provided by the SD Municipal League regarding medical cannabis. No action required.
I-90 PLAZA DEVELOPMENT AGREEMENT
The Administration Committee report was heard. Alderman Kull moved Alderman Jorgenson seconded to approve the development agreement between the City of Brandon and DWBP, LLC. concerning TIF #5, as presented. Motion carried.
VFW RAFFLE
A request was received from the Brandon VFW to hold a bike raffle to coincide with their Loyalty Day Parade on May 2, 2021. It was the consensus of the Council to allow the raffle as presented.
FIRE DEPARTMENT RAFFLE
A request was received from the Brandon Volunteer Fire Department to hold a UTV raffle on July 31, 2021. It was the consensus of the Council to allow the raffle as presented.
2021 HEALTH INSURANC RENEWAL
Casey Sonju was present for discussion. Employee health insurance renewal showing a 22% increase for next year. Casey has submitted to Avera, Sanford, United and Health Partners to obtain quotes.
BREAKDOWN OF EXPENDITURES/PERCENTAGE COMPARISON OF BENEFITS
Alderwoman Clark requested a breakdown of expenditures under “other wages” and a percentage comparison of benefits. Additional information will be presented at a future meeting.
RESOLUTION #08-21 REORGANIZATION OF MCEDA/LCEDA
Information was received on the consolidation of MCEDA and LCEDA into the Sioux Metro Growth Alliance (SMGA). Alderman Jorgenson moved Alderman Parliament seconded to approve the Plan of Consolidation as presented with the appointment of Dennis Olson to the Board of Directors and to approve Resolution #08-21. Motion carried.
RESOLUTION NO. 08-21
A RESOLUTION APPROVING THE CONSOLIDATION OF THE MINNEHAHA COUNTY ECONOMIC DEVELOPMENT ASSOCIATION AND THE LINCOLN COUNTY ECONOMIC DEVELOPMENT ASSOCIATION INTO THE SIOUX METRO GROWTH ALLIANCE, IN THE CITY’S CAPACITY AS A MEMBER OF THE MINNEHAHA COUNTY ECONOMIC DEVELOPMENT ASSOCIATION.
WHEREAS, the City has been a member of the Minnehaha County Economic Development Association, a South Dakota nonprofit corporation (the “Association”), since its formation on May 15 1991;
WHEREAS, the Association has worked to create new economic opportunities and improve access to those opportunities for residents of Minnehaha County (the “County”);
WHEREAS, as the City, the County, and the City of Sioux Falls have grown, the Association has developed a close working relationship with the Minnehaha County Economic Development Association, a South Dakota nonprofit corporation pursuing the same aims in Minnehaha County (together with the Association, the “Development Associations”);
WHEREAS, the Development Associations now share administrative staff personnel and run concurrent Board meetings, aligning the efforts of the two organizations;
WHEREAS, the Association’s executive staff recommended to the Association’s Board of Directors a Plan of Consolidation, attached hereto, under which the Development Associations would be consolidated to form a new South Dakota nonprofit corporation, the Sioux Metro Growth Alliance (the “Alliance”);
WHEREAS, on February 17, 2021, the Association’s Board of Directors voted to recommend the Plan of Consolidation to the Association’s members, including the City;
WHEREAS, the Plan of Consolidation will allow the new Alliance to operate more efficiently to achieve the same goals that the Development Associations pursued;
WHEREAS, the Alliance, as proposed by the Plan of Consolidation, will not have members, but will instead be ultimately governed by a Board of Directors;
WHEREAS, the Association’s executive staff has recommended the Alliance form an advisory committee, consisting of the Development Associations’ former members, with the explicit goal of preserving venues for municipal input (an “Advisory Committee”); and
WHEREAS, pursuant to the notice of meeting attached hereto, the Association has called a meeting of the members, on May 5, 2021, for the purpose of voting on the Plan of Consolidation (the “Meeting”).
NOW, THEREFORE:
BE IT RESOLVED BY THE CITY OF BRANDON, SOUTH DAKOTA, that the Plan of Consolidation, in the form reviewed by the City, is hereby approved.
FURTHER RESOLVED, that Dennis Olson is appointed as the City’s proxy at the Meeting for the limited purpose of casting the City’s vote, as a member in the Association, in favor of (i) adopting the Plan of Consolidation; and (ii) taking any other actions reasonably related to carrying out the consolidation of the Development Associations.
FURTHER RESOLVED, the City understands and acknowledges that it will not be a member of the Alliance, and is relinquishing all rights and liabilities associated with its membership in the Association, except to the extent they survive the consolidation.
FURTHER RESOLVED, in the event and at such time as the Alliance establishes an Advisory Committee, the City is authorized to accept a position on such Advisory Committee and Dennis Olson is appointed to serve as the City’s representative on the Advisory Committee, subject to the terms of the Alliance’s then-existing bylaws.
Mayor
ATTEST:
City Clerk
ANNUAL REPORT
Finance Officer Christina Smith presented the City of Brandon Annual Report for 2020. Alderman Kull moved Alderman Jorgenson seconded to approve the Annual Report as presented. Motion carried.
RUSHMORE PROJECT FINANCING
Alderman Jorgenson moved Alderwoman David seconded to approve the engagement letter with DA Davidson for the issuance of bonds for the Rushmore Phase I project, as presented. Motion carried.
Alderman Kull moved Alderwoman Clark seconded to approve Resolution #09-21. Motion carried.
RESOLUTION #09-21
RESOLUTION AUTHORIZING THE EXECUTION, TERMS, ISSUANCE, SALE AND PAYMENT OF SALES TAX REVENUE BONDS, SERIES 2021 IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED FOUR MILLION SIX HUNDRED THOUSAND AND NO/100 DOLLARS ($4,600,000), OF THE CITY OF BRANDON OF MINNEHAHA COUNTY, SOUTH DAKOTA.
WHEREAS, the City of Brandon is authorized by the provisions of SDCL §10-52-2.10 to issue bonds;
WHEREAS, the City of Brandon pursuant to the provisions of Chapter 11 of the City of Brandon Code of Ordinances, levies non-ad valorem tax; and
WHEREAS, the City Council has determined and does hereby declare that is necessary and in the best interest of the City to issue Sales Tax Revenue Bonds, Series 2021 for the purpose of providing funds to fund the costs of Rushmore Area Reconstruction Phase I Project.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BRANDON OF MINNEHAHA COUNTY, AS FOLLOWS:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.
In addition to the words and terms elsewhere defined in this Bond Resolution, the following words and terms as used herein, whether or not the words have initial capitals, shall have the following meanings, unless the context or use indicates another or different meaning or intent, and such definitions shall be equally applicable to both the singular and plural forms of any of the words and terms herein defined:
“Act” means collectively SDCL Chapter 6-8B and Chapter 10-52, as amended.
“Authorized Officer of the City” means the Mayor and the Finance Officer, or, in the case of any act to be performed or duty to be discharged, any other member, officer, or employee of the City then authorized to perform such act or discharge such duty.
“BAM” shall mean Build America Mutual Assurance Company, or any successor thereto.
“Bonds” means not to exceed $4,600,000 in aggregate principal amount of Sales Tax Revenue Bonds, Series 2021, dated in 2021, or such other designation or date as shall be determined by the City Council pursuant to Section 8.1 hereof, authorized and issued under the Bond Resolution.
“Bond Counsel” means Meierhenry Sargent LLP, a firm of attorneys recognized as having experience in matters relating to the issuance of state or local governmental obligations.
“Bondholder”, “Holder” and “Registered Owner” means the registered owner of a Bond, including any nominee of a Depository.
“Bond Payment Date” means the payment dates as provided in the Bond Purchase Agreement.
“Bond Purchase Agreement” means the agreement between the City and the Underwriter for the purchase of the Bonds.
“Bond Resolution” means the within Resolution, duly adopted by the City Council on the date hereof, as it may be amended from time to time.
“Book-Entry Form” or “Book-Entry System” means a form or system, as applicable, under which physical bond certificates in fully registered form are issued to a Depository or to its nominee as Registered Owner, with the certificated certificates being held by and “immobilized” in the custody of such Depository, and under which records maintained by persons, other than the City or the Paying Agent and Registrar, constitute the written record that identifies, and records the transfer of the beneficial “book-entry” interests in those Bonds.
“Capital Project” means to fund the costs of Rushmore Area Reconstruction Phase I Project.
“City” means the City of Brandon, Minnehaha County, South Dakota, an aldermanic form of municipality organized under the State of South Dakota.
“City Council” means the City Council of the City elected pursuant to the provisions of the SDCL Title 9.
“City Finance Officer” means the City Finance Officer of the City appointed pursuant to the provisions of South Dakota Codified Laws Title 9 or, in the absence of such appointment or in the event the person so appointed is unable or incapable of acting in such capacity, the person appointed by the City Council to perform the duties otherwise performed by the City Finance Officer, or his/her designee.
“Closing Date” means the date the Bonds are exchanged for value.
“Code” means the Internal Revenue Code of 1986, as amended, and the applicable regulations of the United States Department of Treasury promulgated thereunder as in effect on the date of issuance of the Bonds.
“Costs of Issuance” means all costs, fees, charges and expenses incurred in connection with the issuance of the Bonds, including costs for bond insurance and rating agency fees.
“Debt” means (1) indebtedness of the City for borrowed money or for the deferred purchase price of property or services, and expressly including the obligation to pay principal and interest on or with respect to revenue bonds, (2) the obligation of the City as lessee under leases which should be recorded as capital leases under generally accepted accounting principles, and (3) obligations of the City under direct or indirect guarantees in respect of, and obligations, contingent or otherwise, to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in subdivisions (1) and (2) above.
“Depository” means any securities depository that is a clearing agency under federal laws operating and maintaining, with its participants or otherwise, a Book-Entry System, including, but not limited to DTC.
“DTC” means the Depository Trust Company, a limited purpose company organized under the laws of the State of New York, and its successors and assigns.
“DTC Participant(s)” means securities brokers and dealers, banks, trust companies and clearing corporations that have access to the DTC system.
“Finance Officer” means the Finance Officer of the City appointed pursuant to the provisions of South Dakota Codified Laws Title 9 or, in the absence of such appointment or in the event the person so appointed is unable or incapable of acting in such capacity, the person appointed by the Mayor and approved by the City Council to perform the duties otherwise performed by the Finance Officer, or his/her designee.
“Insured Obligations” shall mean the Sales Tax Revenue Bonds, Series 2021.
“Issuer” shall mean the City of Brandon, South Dakota.
“Interest Payment Dates” means such dates set forth in the Bond Purchase Agreement.
“Letter of Representation” means the Blanket Issuer Letter of Representations to DTC of the City.
“Mayor” means the Mayor elected pursuant to the provisions of SDCL Chapter 9-13 or his or her designee acting on his or her behalf.
“Obligor” shall mean the City of Brandon, South Dakota.
“Official Statement” and “Preliminary Official Statement” means that Official Statement and Preliminary Official Statement described in Section 8.2 hereof pertaining to the sale of the Bonds.
“Original Issue Discount or OID” means an amount by which the par value of a security exceeds its public offering price at the time of its original issuance.
“Original Issue Premium or OIP” means the amount by which the public offering price of a security at the time of its original issuance exceeds its par value.
“Outstanding”, “Bonds Outstanding”, or “Outstanding Bonds” means, as of a particular date all Bonds issued and delivered under this Bond Resolution except: (1) any Bond paid or redeemed or otherwise canceled by the City at or before such date; (2) any Bond for the payment of which cash, equal to the principal amount thereof with interest to date of maturity, shall have theretofore been deposited prior to maturity by the City for the benefit of the Owner thereof; (3) any Bond for the redemption of which cash, equal to the redemption price thereof with interest to the redemption date, shall have theretofore been deposited with the Paying Agent and Registrar and for which notice of redemption shall have been mailed in accordance with this Bond Resolution; (4) any Bond in lieu of or in substitution for which another Bond shall have been delivered pursuant to this Resolution, unless proof satisfactory to the City is presented that any Bond, for which a Bond in lieu of or in substitution therefor shall have been delivered, is held by a bona fide Underwriter, as that term is defined in Article 8 of the Uniform Commercial Code of the State, as amended, in which case both the Bond in lieu of or in substitution for which a new Bond has been delivered and such new Bond so delivered therefor shall be deemed Outstanding; and, (5) any Bond deemed paid under the provisions of Article VII of this Resolution, except that any such Bond shall be considered Outstanding until the maturity or redemption date thereof only for the purposes of being exchanged, transferred, or registered.
“Outstanding Parity Bonds” means any bonds payable from the Sales Tax.
“Paying Agent and Registrar” means U.S. Bank National Association, St. Paul, Minnesota, its successor or successors, hereafter appointed in the manner provided in Article VI hereof.
“Person” means an individual, partnership, corporation, trust, or unincorporated organization, or a governmental entity or agency or political subdivision thereof.
“Policy” shall mean the Municipal Bond Insurance Policy issued by BAM that guarantees the scheduled payment of principal of and interest on the Insured Obligations when due.
“President” means the President of the City Council who may act for the Mayor in the absence of the Mayor.
“Purchase Agreement” means the Bond Purchase Agreement authorized pursuant to and described in Section 8.1 hereof by and between the City and the Underwriter.
“Rating Agency” means one or more of the following rating agencies: S&P Global Ratings, Moody’s Investors Service Inc. and Fitch IBCA, Inc.
“Record Date” means the dates set forth in the Bond Purchase Agreement.
“Resolution” means this Bond Resolution.
“Required Reserve” means an amount, if required, which will comply with the Internal Revenue Regulations specifying the maximum amount in a reserve fund permitted to be invested without regard to investment yield.
“Sales Tax” means the City’s two percent tax on the gross receipts of all persons engaged in business within the jurisdiction of the City who are subject to the South Dakota Retail Occupational Sales and Service Tax, SDCL ch. 10-45 and the two percent upon all transactions or use, storage and consumption which are subject to the South Dakota Use Tax Act, SDCL ch. 10-46 imposed by Chapter 11 of the City of Brandon Code of Ordinances.
“Schedule” means the principal and interest payment schedule for the Bonds.
“Security Documents” shall mean the resolution, trust agreement, indenture, ordinance, loan agreement, lease agreement, bond, note, certificate and/or any additional or supplemental document executed in connection with the Insured Obligations.
“Underwriter” means D.A. Davidson & Co., acting for and on behalf of itself and such securities dealers as they may designate.
Section 1.2. References to Resolution.
The words “hereof”, “herein”, “hereunder”, and other words of similar import refer to this Bond Resolution as a whole.
Section 1.3. References to Articles, Sections, Etc.
References to Articles, Sections, and other subdivisions of this Bond Resolution are to the designated Articles, Sections, and other subdivisions of this Bond Resolution as originally adopted.
Section 1.4. Headings.
The headings of this Bond Resolution are for convenience only and shall not define or limit the provisions hereof.
ARTICLE II
FINDINGS
Section 2.1
It is hereby found, declared a necessity, and determined by the City Council that all limitations upon the issuance of Bonds have been met and that the Bonds are being authorized, issued and sold in accordance with the provisions of the Act.
ARTICLE III
AUTHORITY, PLEDGE, LEVY AND ACCOUNTS
Section 3.1 Authority to Issue Bonds.
The City declares it necessary and is authorized by SDCL Chapter 10-52 to issue bonds (i) to fund the costs of Rushmore Area Reconstruction Phase I Project, and (ii) pay Costs of Issuance, therefore sales tax revenue bonds shall be issued pursuant to, and in accordance with, the provisions of the Act, this Bond Resolution, and other applicable provisions of law, in the aggregate principal amount as finalized by the Bond Purchase Agreement.
Section 3.2 Pledge of Sales Tax.
The Sales Tax shall be and they are hereby irrevocably pledged to the prompt and full payment of the principal, premium, and interest on each and all of said Bonds as such principal, premium, and interest respectively become due.
Section 3.3. Collection of Taxes.
Pursuant to SDCL § 10-52-2.10, the City does hereby pledge, provide, and agree that it will continue to impose and collect the Sales Tax so long as the Bonds are outstanding. The governing body does hereby pledge so much of the collections of the Sales Tax as may be necessary to pay the principal, premium, and interest on the bonds, and to maintain any debt service reserve established for the Bonds.
Section 3.4. Accounts.
(a) Sales Tax Fund. The Finance Officer has established and will maintain the Sales Tax Revenue Fund as a separate and special account in the financial records of the City until all Bonds issued and made payable therefrom, and interest due thereon, have been duly paid or discharged. All collections of the Sales Tax shall be credited, as received, to the Sales Tax Revenue Fund. Within the Sales Tax Revenue Fund are various separate accounts to be maintained by the City.
(b) Construction Account. There is hereby created and established a “Construction Account” There shall be credited to the Construction Account the proceeds from the sale of the Bonds remaining after (a) the deposit to the Reserve Account required by Section 3.4(d), and (b) payment of the (i) Underwriter’s discount, (ii) OID, and (iii) any other expenses of issuing the Bonds. All moneys credited to the Construction Account shall be applied solely to the payment of the costs associated with the Capital Project and Costs of Issuance.
(c) Principal and Interest Account. There is hereby created and established a “Principal and Interest Account.” Immediately upon delivery of the Bonds, there shall be credited to the Principal and Interest Account the amount of accrued interest received from the Underwriter, if any. Commencing on the date specified in the Bond Purchase Agreement, there shall be withdrawn from the Sales Tax Fund at least monthly and credited to the Principal and Interest Account an amount which will equal at least one-sixth (1/6th) of the interest becoming due on the next succeeding payment date and one-twelfth (1/12th) of the principal becoming due on the next succeeding payment dates with respect to the Outstanding Bonds. In all events there shall be credited to the Principal and Interest Account amounts sufficient to pay the principal of and interest on the Outstanding Bonds as the same become due.
(d) Reserve Account. There is hereby created and established a “Reserve Account.” There shall be credited to the Reserve Account from the proceeds of the Bonds, an amount equal to the Reserve Requirement. Thereafter, in the event that the amount on deposit in the Reserve Account shall thereafter fall below the Reserve Requirement, additional deposits shall be made from the Sales Tax to the Reserve Account until the Reserve Requirement is again reached. Upon the issuance of any parity lien bonds, the Reserve Requirement established in this section shall be increased to an amount equal to the combined maximum annual debt service on the Outstanding Bonds. The balance required shall be funded on the delivery date of the parity lien bonds. Moneys credited to the Reserve Account may be used only for the payment of principal of and interest on the Outstanding Bonds and shall be used only in the event that there are insufficient moneys in the Principal and Interest Account to meet such principal and interest payments promptly when due. The interest from any investment of the Reserve Account may be transferred from time to time to the Construction Account, provided that after completion of the Capital Project such interest shall be transferred to the Principal and Interest Account. No transfer of investment income shall be made from the Reserve Account at any time when the balance therein is less than the Reserve Requirement. Such investments shall be subject to the limitations of South Dakota law.
(e) Subordinate Lien Bonds. After making the above required payments, any remaining Sales Tax may be used for the payment of the principal of and interest on any additional sales tax revenue bonds having a lien which is subordinate to the lien of the Outstanding Bonds, and for a reserve fund as additional security for the payment of such subordinate lien bonds.
(f) Other Expenditures. The remaining Sales Tax may be used for any legally authorized purpose.
ARTICLE IV
FORM, TERMS, EXECUTION, AND TRANSFER OF BONDS
Section 4.1. Authorized Bonds.
The aggregate principal amount of Bonds that may be issued under the Bond Resolution shall not exceed Four Million Six Hundred Thousand and No/100 Dollars ($4,600,000).
Section 4.2. Form of Bonds; Execution.
(a) The Bonds are issuable only as fully registered Bonds, without coupons, in any denomination. All Bonds issued under the Resolution shall be substantially in the form set forth in Exhibit A attached hereto, and by this reference incorporated herein as fully as though copied.
(b) The Bonds shall be executed in such manner as may be prescribed by applicable law in the name and on behalf of the City with the manual or facsimile signature of the Mayor, attested by the manual or facsimile signature of the City Finance Officer, and approved as to form and countersigned by a Resident Attorney by his manual or facsimile signature.
(c) In the event any officer whose manual or facsimile signature shall appear on any Bond shall cease to be such officer before the delivery of such Bond, such manual or such facsimile signature shall nevertheless be valid and sufficient for all purposes as if he or she had remained in office until such delivery. Any Bond may bear the facsimile signature of, or may be manually signed by, such individuals who, at the actual time of the execution of such Bond, were the proper officers of the City to sign such Bond, although on the date of the adoption by the City of this Resolution, such individuals may not have been such officers.
Section 4.3 Maturities, Interest Rates, and Certain Other Provisions of Bonds.
(a) The Bonds shall become due and payable and be subject to the terms and conditions as are set forth in the Bond Purchase Agreement.
(b) The Bonds shall be designated “Sales Tax Revenue Bonds, Series 2021,” or such other designation as shall be determined by the City Council pursuant to Section 8.1 hereof. The Bonds shall bear interest from their date or from the most recent interest payment date to which interest has been paid or duly provided for, until the principal amount of the Bonds is paid, such interest (computed upon the basis of a 360-day year of twelve 30-day months unless otherwise provided by the Bond Purchase Agreement) being payable on Interest Payment Dates. Interest on each Bond shall be paid by wire transfer, check or draft of the Paying Agent, payable in lawful money of the United States of America, to the person in whose name such Bond is registered at the close of business on the Record Date. The principal of the Bond shall be payable in lawful money of the United States of America at the principal office of the Paying Agent on the Bond Payment Date. Each Bond shall state that it is issued pursuant to the Act.
(c) The Paying Agent and Registrar shall make all interest payments with respect to the Bonds on each interest payment date directly to the registered owners as shown on the bond registration records maintained by the Paying Agent and Registrar as of the close of business on the Record Date by wire transfer, check or draft mailed to such owners at their addresses shown on said bond registration records, without, except for final payment, the presentation or surrender of such registered Bonds, and all such payments shall discharge the obligations of the City in respect of such Bonds to the extent of the payments so made. Payment of principal and premium, if any, on the Bonds shall be made upon presentation and surrender of such Bonds to the Paying Agent and Registrar as the same shall become due and payable.
Section 4.4 Negotiability of Bonds.
All Bonds issued under this Resolution shall be negotiable, subject to the provisions for registration and transfer contained in this Resolution and in the Bonds.
Section 4.5 Registration, Transfer and Exchange of Bonds.
(a) The Bonds are transferable only by presentation to the Paying Agent and Registrar by the registered owner, or his legal representative duly authorized in writing, of the registered bond(s) to be transferred with the form of assignment on the reverse side thereof completed in full and signed with the name of the registered owner as it appears upon the face of the bond(s) accompanied by appropriate documentation necessary to prove the legal capacity of any legal representative of the registered owner. Upon receipt of the bond(s) in such form and with such documentation, if any, the Paying Agent and Registrar shall issue a new bond or bonds to the assignee(s) in $5,000 denominations, or integral multiples thereof, as requested by the registered owner requesting transfer. The Paying Agent and Registrar shall not be required to transfer or exchange any bond during the period commencing on a Record Date and ending on the corresponding interest payment date of such bond, nor to transfer or exchange any bond after the publication of notice calling such bond for redemption has been made, nor to transfer or exchange any bond during the period following the receipt of instructions from the City to call such bond for redemption; provided, the Paying Agent and Registrar, at its option, may make transfers after any of said dates. No charge shall be made to any registered owner for the privilege of transferring any Bonds, provided that any transfer tax relating to such transaction shall be paid by the registered owner requesting transfer. The person in whose name any bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and neither the City nor the Paying Agent and Registrar shall be affected by any notice to the contrary whether or not any payments due on the Bonds shall be overdue. Bonds, upon surrender to the Paying Agent and Registrar, may, at the option of the registered owner, be exchanged for an equal aggregate principal amount of Bonds of the same maturity in any authorized denomination or denominations.
(b) Except as otherwise provided in this subsection or in the Bond Purchase Agreement, the Bonds shall be registered in the name of Cede & Co., as nominee of DTC, which will act as securities depository for the Bonds. References in this Section to a Bond or the Bonds shall be construed to mean the Bond or the Bonds that are held under the Book-Entry System. One Bond for each maturity shall be issued to DTC and immobilized in its custody. Unless otherwise provided herein, a Book-Entry System shall be employed, evidencing ownership of the Bonds in authorized denominations, with transfers of beneficial ownership affected on the records of DTC and the DTC Participants pursuant to rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the amount of such DTC Participant’s interest in the Bonds. Beneficial ownership interests in the Bonds may be purchased by or through DTC Participants. The holders of these beneficial ownership interests are herein referred to as the “Beneficial Owners.” The Beneficial Owners shall not receive the Bonds representing their beneficial ownership interests. The ownership interests of each Beneficial Owner shall be recorded through the records of the DTC Participant from which such Beneficial Owner purchased its Bonds. Transfers of ownership interests in the Bonds shall be accomplished by book entries made by DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE BONDS, THE PAYING AGENT AND REGISTRAR SHALL TREAT CEDE & CO., AS THE ONLY HOLDER OF THE BONDS FOR ALL PURPOSES UNDER THIS RESOLUTION, INCLUDING RECEIPT OF ALL PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND REQUESTING OR DIRECTING THE PAYING AGENT AND REGISTRAR TO TAKE OR NOT TO TAKE, OR CONSENTING TO, CERTAIN ACTIONS UNDER THIS BOND RESOLUTION.
Payments of principal, interest, and redemption premium, if any, with respect to the Bonds, so long as DTC is the only owner of the Bonds, shall be paid by the Paying Agent and Registrar directly to DTC or its nominee, Cede & Co., as provided in the Letter of Representation. DTC shall remit such payments to DTC Participants, and such payments thereafter shall be paid by DTC Participants to the Beneficial Owners. Neither the City nor the Paying Agent and Registrar shall be responsible or liable for payment by DTC or DTC Participants, for sending transaction statements or for maintaining, supervising or reviewing records maintained by DTC or DTC Participants.
In the event that (1) DTC determines not to continue to act as securities depository for the Bonds or (2) the City determines that the continuation of the Book-Entry System of evidence and transfer of ownership of the Bonds would adversely affect their interests or the interests of the Beneficial Owners of the Bonds, the City may discontinue the Book-Entry System with DTC. If the City fails to identify another qualified securities depository to replace DTC, the City shall cause the Paying Agent and Registrar to authenticate and deliver replacement Bonds in the form of fully registered Bonds to each Beneficial Owner.
NEITHER THE CITY NOR THE PAYING AGENT AND REGISTRAR SHALL HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIPANT OR ANY BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (iii) THE PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS; (iv) THE DELIVERY OR TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE DUE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THIS BOND RESOLUTION TO BE GIVEN TO BENEFICIAL OWNERS, (v) THE SELECTION OF BENEFICIAL OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (vi) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE & CO., AS OWNER.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF OWNERSHIP OF ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH, THE PROVISIONS OF THIS RESOLUTION RELATING TO THE DELIVERY OF PHYSICAL BOND CERTIFICATES SHALL BE DEEMED INAPPLICABLE OR BE OTHERWISE SO CONSTRUED AS TO GIVE FULL EFFECT TO SUCH BOOK-ENTRY SYSTEM. IF THE PROVISIONS OF THE LETTER OF REPRESENTATION SHALL BE IN CONFLICT WITH THE PROVISIONS OF THIS RESOLUTION AS SAID PROVISIONS RELATE TO DTC, THE PROVISIONS OF THE LETTER OF REPRESENTATION SHALL CONTROL.
Section 4.6 Mutilated, Lost, Stolen, or Destroyed Bonds.
(a) In the event any bond is mutilated, lost, stolen, or destroyed, the City may execute, and upon the request of an Authorized Officer of the City the Paying Agent and Registrar shall authenticate and deliver, a new bond of like maturity, interest rate, and principal amount, and bearing the same number (but with appropriate designation indicating that such new bond is a replacement bond) as the mutilated, destroyed, lost, or stolen bond, in exchange for the mutilated bond or in substitution for the bond so destroyed, lost, or stolen. In every case of exchange or substitution, the bondholder shall furnish to the City and the Paying Agent and Registrar: (1) such security or indemnity as may be required by them to save each of them harmless from all risks, however remote; and, (2) evidence to their satisfaction of the mutilation, destruction, loss, or theft of the subject bond and the ownership thereof. Upon the issuance of any bond upon such exchange or substitution, the City and the Paying Agent and Registrar may require the Owner thereof to pay a sum sufficient to defray any tax or other governmental charge that may be imposed in relation thereto and any other expenses, including printing costs and counsel fees, of the City and the Paying Agent and Registrar. In the event any Bond which has matured or is about to mature shall become mutilated or be destroyed, lost, or stolen, the City may, instead of issuing a Bond in exchange or substitution therefor, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated bond) if the Owner thereof shall pay all costs and expenses, including attorneys’ fees, incurred by the City and the Paying Agent and Registrar in connection herewith, as well as a sum sufficient to defray any tax or other governmental charge that may be imposed in relation thereto and shall furnish to the City and the Paying Agent and Registrar such security or indemnity as they may require to save them harmless and evidence to the satisfaction of the City and the Paying Agent and Registrar the mutilation, destruction, loss, or theft of such Bond and of the ownership thereof.
(b) Every bond issued pursuant to the provisions of this section shall constitute an additional contractual obligation of the City (whether or not the destroyed, lost, or stolen bond shall be found at any time to be enforceable) and shall be entitled to all the benefits of this Bond Resolution equally and proportionately with any and all other Bonds duly issued under this Bond Resolution.
(c) All Bonds shall be held and owned upon the express condition that the provisions of this Section are exclusive, with respect to the replacement or payment of mutilated, destroyed, lost, or stolen Bonds, and, to the maximum extent legally permissible, shall preclude all other rights or remedies, notwithstanding any law or statute now existing or hereafter enacted to the contrary.
Section 4.7 Authentication.
The Paying Agent and Registrar is hereby authorized to authenticate and deliver the Bonds to the Underwriter or as it may designate upon receipt by the City of the proceeds of the sale thereof, to authenticate and deliver Bonds in exchange for Bonds of the same principal amount delivered for transfer upon receipt of the bond(s) to be transferred in proper form with proper documentation as hereinabove described. The Bonds shall not be valid for any purpose unless authenticated by the Paying Agent and Registrar by the manual signature of an officer thereof on the certificate set forth herein on the bond form.
Section 4.8. Qualification for DTC.
The Paying Agent and Registrar is hereby authorized to take such actions as may be necessary from time to time to qualify and maintain the Bonds for deposit with DTC, including but not limited to, wire transfers of interest and principal payments with respect to the Bonds, utilization of electronic book entry data received from DTC in place of actual delivery of Bonds and provision of notices with respect to Bonds registered by the DTC (or any of its designees identified to the Paying Agent and Registrar) by overnight delivery, courier service, telegram, telecopy or other similar means of communication. No such arrangements with DTC may adversely affect the interest of any of the Owners of the Bonds, provided, however, that the Paying Agent and Registrar shall not be liable with respect to any such arrangements it may make pursuant to this section.
Section 4.09. Rating Agency.
The City authorized to enter into an agreement with a Rating Agency as may be required under the Purchase Agreement. Any terms or conditions of the Rating Agency shall be attached to this resolution and incorporated herein as if stated in full.
Section 4.10. Bond Counsel.
The Mayor and Finance Officer are authorized to retain Meierhenry Sargent LLP as Bond Counsel upon such terms as they approve.
Section 4.11. Dissemination Agent.
The City authorizes the Authorized Officer of the City to retain a dissemination agent with regard to the written undertaking authorized in Section 11.7 hereof.
Section 4.12. Underwriter.
The Mayor and Finance Officer are authorized to retain D.A. Davidson & Co. as Underwriter upon such terms as they approve.
Section 4.13. Bond Insurer.
The Mayor and Finance Officer are authorized to use Build America Mutual as Bond Insurer of the Bonds upon such terms as they approve.
ARTICLE V
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 5.1 Redemption.
(a) Redemption. The Bonds shall be redeemable as set forth in the Bond Purchase Agreement.
ARTICLE VI
PAYING AGENT AND REGISTRAR
Section 6.1. Appointment and Acceptance of Duties.
(a) The City hereby authorizes the City Finance Officer to appoint the Paying Agent and Registrar with respect to the Bonds and authorizes and directs the Paying Agent and Registrar to maintain bond registration records with respect to the Bonds, to authenticate and deliver the Bonds as provided herein, either at original issuance, upon transfer, or as otherwise directed by the City, to effect transfers of the Bonds, to give all notices of redemption as required herein, to make all payments of principal and interest with respect to the Bonds as provided herein, to cancel and destroy Bonds which have been paid at maturity or upon earlier redemption or submitted for exchange or transfer, to furnish the City at least annually a certificate of destruction with respect to Bonds canceled and destroyed, and to furnish the City at least annually an audit confirmation of Bonds paid, Bonds Outstanding and payments made with respect to interest on the Bonds. The Mayor and the City Finance Officer, or either of them is hereby authorized to execute and the City Finance Officer is hereby authorized to attest such written agreement between the City and the Paying Agent and Registrar as they shall deem necessary or proper with respect to the obligations, duties and rights of the Paying Agent and Registrar. The payment of all reasonable fees and expenses of the Paying Agent and Registrar for the discharge of its duties and obligations hereunder or under any such agreement is hereby authorized and directed.
Section 6.2. Permitted Acts and Functions.
The Paying Agent and Registrar may become the Owner of any Bonds, with the same rights as it would have if it were not a Paying Agent and Registrar. The Paying Agent and Registrar may act as a purchaser or fiscal agent in connection with the sale of the Bonds or of any other securities offered or issued by the City.
Section 6.3. Resignation or Removal of the Paying Agent and Registrar and Appointment of Successors.
(a) The Paying Agent and Registrar may at any time resign and be discharged of the duties and obligations created by the Bond Resolution by giving at least sixty (60) calendar days’ written notice to the City Finance Officer. The Paying Agent and Registrar may be removed at any time by the City Finance Officer, provided that such removal does not constitute a breach of any contractual agreement with any such Paying Agent and Registrar, by filing written notice of such removal with such Paying Agent and Registrar. Any successor Paying Agent and Registrar shall be appointed by the City Finance Officer and shall be a trust company or a bank having the powers of a trust company, having a combined capital, surplus, and undivided profits aggregating at least Seventy-Five Million Dollars ($75,000,000), willing to accept the office of Paying Agent and Registrar on reasonable and customary terms and authorized by law to perform all the duties imposed upon it by the Bond Resolution.
(b) In the event of the resignation or removal of the Paying Agent and Registrar, such Paying Agent and Registrar shall pay over, assign and deliver any monies and securities held by it as Paying Agent and Registrar, and all books and records and other properties held by it as Paying Agent and Registrar, to its successor, or if there be no successor then appointed, to the City Finance Officer until such successor be appointed.
Section 6.4. Merger or Consolidation of Paying Agent and Registrar.
Any corporation or association into which the Paying Agent and Registrar may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its trust business and assets as a whole, or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation, or transfer to which it is a party shall be and become successor Paying Agent and Registrar hereunder and shall be vested with all the trusts, powers, discretion, immunities, privileges, and other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed, or conveyance on the part of any of the parties hereto, anything herein contained to the contrary notwithstanding. Upon any such conversion, merger, consolidation, sale or transfer, the City Finance Officer shall have the right and option, upon notice to such converted, merged, consolidated or acquiring entity, to remove such entity and appoint a successor thereto pursuant to the procedures and requirements set forth in Section 6.3 hereof.
ARTICLE VII
ADDITIONAL BONDS
The City may issue additional bonds (the “Parity Bonds”) payable from the Sales Tax and having a lien upon such revenues on a parity with the Bonds and the Outstanding Parity Bonds providing that:
1. the City is current in the payment of principal and interest on the Outstanding Bonds and is current in the collections required for the Principal and Interest Account and the Reserve Account.
2. the City is in compliance with all covenants of Outstanding sales tax revenue bonds and
3. the Sales Tax collected by the City in the last preceding fiscal year are sufficient to cover 1.25 times the combined average annual principal and interest requirements on the Outstanding Bonds and the proposed Parity Bonds.
ARTICLE VIII
SALE OF BONDS AND DEPOSIT OF PROCEEDS
Section 8.1. Sale of Bonds.
The Bonds shall be sold to the Underwriter at a price to be set forth in the Bond Purchase Agreement. The Mayor and the Finance Officer, or either of them, in consultation with the Underwriter, is authorized to make such changes in the structuring of the terms and sale of the Bonds as they shall deem necessary. In this regard, they, or either of them, in consultation with the Underwriter , are authorized to cause to be sold an aggregate principal amount of the Bonds less than that authorized herein, to sell any or all of the Bonds as term Bonds with annual mandatory redemption requirements which will produce substantially the same annual principal reductions as authorized herein, to change the dated date of the Bonds, and to adjust principal and interest payment dates and redemption dates of the Bonds. The form of the bond set forth in Exhibit A attached hereto shall be conformed to reflect any changes, if any, as hereinbefore mentioned. The Mayor and the City Finance Officer, or either of them, are hereby authorized to execute and the City Finance Officer is authorized to attest the Bond Purchase Agreement with the Underwriter providing for the purchase and sale of the Bonds. The Bond Purchase Agreement shall be in form and content acceptable to the Mayor and City Finance Officer, the execution thereof by either of them to constitute conclusive evidence thereof; provided the Bond Purchase Agreement effects the sale of the Bonds in accordance with the provisions of this Resolution and is not inconsistent with the terms hereof. The Mayor and the City Finance Officer are authorized to cause the Bonds to be authenticated and delivered by the Paying Agent and Registrar to the Underwriter and to execute, publish, and deliver all Bonds, documents including the Official Statement and closing documents as they shall deem necessary in connection with the sale and delivery of the Bonds.
Section 8.2. Official Statement.
If the Bonds are sold to the Underwriter, the Mayor, Finance Officer, and the Underwriter are hereby authorized and directed to provide for the preparation and distribution of a Preliminary Official Statement describing the Bonds (the “Preliminary Official Statement”). After the Bonds have been sold, the Mayor and Finance Officer shall make such completions, omissions, insertions and changes in the Preliminary Official Statement not inconsistent with this Resolution as are necessary or desirable to complete it as a final Official Statement for purposes of Rule 15c2-12(e)(3) of the Securities and Exchange Commission.
To comply with paragraph (b) (3) of Rule 15c2 12 of the Securities and Exchange Commission under the Securities Exchange Act of 1934 (the “Rule”) and with Rule G 32 City agrees to deliver to the Underwriter, the Official Statement (which shall be a final official statement, as such term is defined in the Rule, as of its date) in an electronic format as prescribed by the MSRB.
Section 8.3. Disposition of Bond Proceeds.
The proceeds of the sale of the Bonds shall be deposited in the Construction Account. The proceeds shall be used for the Capital Project and Costs of Issuance and shall be evidenced on the books of the City.
Section 8.4. Tax Matters.
(a) The City covenants and agrees with the registered owners from time to time of the Bonds that it will not take or permit to be taken by any of its officers, employees or agents any action which would cause the interest on the Bonds to become includable in gross income for federal income tax purposes under the Code and applicable Treasury Regulations (the “Regulations”), and covenants to take any and all actions within its powers to ensure that the basic interest on the Bonds will not become includable in gross income for federal income tax purposes under the Code and the Regulations.
(b) The Mayor and the City Finance Officer, being the officers of the City charged with the responsibility for issuing the Bonds pursuant to this Resolution are hereby authorized and directed to execute and deliver to the Underwriter thereof a certificate in accordance with the provisions of Section 148 of the Code, and Section 1.148-2(b) of the Regulations, stating that on the basis of facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds, it is reasonably expected that the proceeds of the Bonds will be used in a manner that would not cause the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code and the Regulations.
(c) The City shall file with the Secretary of the Treasury a statement concerning the Bonds containing the information required by Section 149(e) of the Code.
(d) Pursuant to Section 265(b)(3)(B)(ii) of the Code, the City hereby designates the Bonds as “qualified tax-exempt obligations” for purposes of Section 265(b)(3) of the Code. The City hereby represents that it does not anticipate that obligations bearing interest not includable in gross income for purposes of federal income taxation under Section 103 of the Code (including refunding obligations as provided in Section 265 (b) (3) of the Code and including “qualified 501 (c)(3) Bonds” but excluding other “private activity bonds,” as defined in Sections 141(a) and 145(a) of the Code) will be issued by or on behalf of the City and all “subordinate entities” of the City in 2021 in an amount greater than $10,000,000.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Failure to Present Bonds.
(a) Subject to the provisions of Section 4.7 hereof, in the event any Bond shall not be presented for payment when the principal or redemption price hereof becomes due, either at maturity or at the date fixed for prior redemption thereof or otherwise, and in the event monies sufficient to pay such Bond shall be held by the Paying Agent and Registrar for the benefit of the Owner thereof, all liability of the City to such Owner for the payment of such Bond shall forthwith cease, determine, and be completely discharged. Whereupon, the Paying Agent and Registrar shall hold such monies, without liability for interest thereon, for the benefit of the Owner of such Bond who shall thereafter be restricted exclusively to such monies for any claim under the Resolution or on, or with respect to, said Bonds.
(b) If any Bond shall not be presented for payment within a period of five years following the date when such Bond becomes due, whether by maturity or otherwise, the Paying Agent and Registrar shall, subject to the provisions of any applicable escheat or other similar law, pay to the City any monies then held by the Paying Agent and Registrar for the payment of such Bond and such Bond shall (subject to the defense of any applicable statute of limitation) thereafter constitute an unsecured obligation of the City.
Section 9.2. Payments Due on Saturdays, Sundays, and Holidays.
In any case where the date of maturity or interest on or principal of any Bonds, or the date fixed for redemption of any Bonds, shall be a Saturday or Sunday or shall be, at the place designated for payment, a legal holiday or a day on which banking institutions similar to the Paying Agent and Registrar are authorized by law to close, then the payment of the interest on, or the principal, or the redemption price of, such Bond need not be made on such date but must be made on the next succeeding day not a Saturday, Sunday, or a legal holiday or a day upon which banking institutions similar to the Paying Agent and Registrar are authorized by law to close, with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 9.3. Miscellaneous Acts.
The appropriate officers of the City are hereby authorized, empowered, and directed to do any and all such acts and things, and to execute, acknowledge, deliver, and, if applicable file or record, or cause to be filed or recorded, in any appropriate public offices, all such documents, instruments, and certifications, in addition to those acts, things, documents, instruments, and certifications hereinbefore authorized and approved, as may, in their discretion, be necessary or desirable to implement or comply with the intent of the Bond Resolution, or any of the documents herein authorized and approved, or for the authorization, issuance, and delivery by the City of the Bonds.
Section 9.4. Amendment.
The City Council is hereby authorized to make such amendments to the Bond Resolution as will not impair the rights of the Bondholders.
Section 9.5. No Recourse Under Bond Resolution or on Bonds.
All stipulations, promises, agreements, and obligations of the City contained in the Resolution or any supplemental resolutions shall be deemed to be the stipulations, promises, agreements, and obligations of the City and not of any officer, director, or employee of the City in his or her individual capacity, and no recourse shall be had for the payment of the principal of or interest on the Bonds or for any claim based thereon or on the Resolution against any officer, director, or employee of the City or against any official or individual executing the Bonds.
Section 9.6. Partial Invalidity.
If any one or more of the provisions of the Bond Resolution, or of any exhibit or attachment thereto, shall be held invalid, illegal, or unenforceable in any respect, by final decree of any court of lawful jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, or of any exhibit or attachment thereto, but the Bond Resolution, and the exhibits and attachments thereto, shall be construed the same as if such invalid, illegal, or unenforceable provision had never been contained herein, or therein, as the case may be.
Section 9.7. Continuing Disclosure.
The City hereby covenants and agrees that it will provide financial information and material event notices as required by Rule 15c2-12 of the Securities Exchange Commission for the Bonds. The Mayor is authorized to execute at the Closing of the sale of the Bonds, an agreement for the benefit of and enforceable by the owners of the Bonds specifying the details of the financial information and material event notices to be provided and its obligations relating thereto. Failure of the City to comply with the undertaking herein described and to be detailed in said closing agreement, shall not be a default hereunder, but any such failure shall entitle the owner or owners of any of the Bonds to take such actions and to initiate such proceedings as shall be necessary and appropriate to cause the City to comply with its undertaking as set forth herein and in said agreement, including the remedies of mandamus and specific performance.
Section 9.8. Post Issuance Compliance.
The City does hereby adopt Meierhenry Sargent Post-Issuance Compliance Policy and Tax-Advantaged Obligations and Continuing Disclosure with regard to the Bonds attached hereto. The City appoints the Finance Officer as its chief post issuance compliance officer.
Section 9.9. Conflicting Resolutions Repealed.
All resolutions or parts thereof in conflict herewith are, to the extent of such conflict, hereby repealed.
Section 10. Provisions Relating to Bond Insurance.
1) Notice and Other Information to be given to BAM. The Issuer will provide BAM with all notices and other information it is obligated to provide (i) under its Continuing Disclosure Agreement and (ii) to the holders of Insured Obligations or the Trustee under the Security Documents.
The notice address of BAM is: Build America Mutual Assurance Company, 200 Liberty Street, 27th Floor, New York, NY 10281, Attention: Surveillance, Re: Policy No. 2019B0567, Telephone: (212) 235-2500, Telecopier: (212) 235-1542, Email: notices@buildamerica.com. In each case in which notice or other communication refers to an event of default or a claim on the Policy, then a copy of such notice or other communication shall also be sent to the attention of the General Counsel at the same address and at claims@buildamerica.com or at Telecopier: (212) 235-5214 and shall be marked to indicate “URGENT MATERIAL ENCLOSED.”
2) Defeasance. The investments in the defeasance escrow relating to Insured Obligation shall be limited to non-callable, direct obligations of the United States of America and securities fully and unconditionally guaranteed as to the timely payment of principal and interest by the United States of America, or as otherwise maybe authorized under State law and approved by BAM.
At least (three) 3 Business Days prior to any defeasance with respect to the Insured Obligations, the Issuer shall deliver to BAM draft copies of an escrow agreement, an opinion of bond counsel regarding the validity and enforceability of the escrow agreement and the defeasance of the Insured Obligations, a verification report (a “Verification Report”) prepared by a nationally recognized independent financial analyst or firm of certified public accountants regarding the sufficiency of the escrow fund. Such opinion and Verification Report shall be addressed to BAM and shall be in form and substance satisfactory to BAM. In addition, the escrow agreement shall provide that:
a) Any substitution of securities following the execution and delivery of the escrow agreement shall require the delivery of a Verification Report, an opinion of bond counsel that such substitution will not adversely affect the exclusion (if interest on the Insured Obligations is excludable) from gross income of the holders of the Insured Obligations of the interest on the Insured Obligations for federal income tax purposes and the prior written consent of BAM, which consent will not be unreasonably withheld.
b) The Issuer will not exercise any prior optional redemption of Insured Obligations secured by the escrow agreement or any other redemption other than mandatory sinking fund redemptions unless (i) the right to make any such redemption has been expressly reserved in the escrow agreement and such reservation has been disclosed in detail in the official statement for the refunding bonds, and (ii) as a condition to any such redemption there shall be provided to BAM a Verification Report as to the sufficiency of escrow receipts without reinvestment to meet the escrow requirements remaining following any such redemption.
c) The Issuer shall not amend the escrow agreement or enter into a forward purchase agreement or other agreement with respect to rights in the escrow without the prior written consent of BAM.
3) Trustee and Paying Agent.
a) BAM shall receive prior written notice of any name change of the trustee (the “Trustee”) or, if applicable, the paying agent (the “Paying Agent”) for the Insured Obligations or the resignation or removal of the Trustee or, if applicable, the Paying Agent. Any Trustee must be (A) a national banking association that is supervised by the Office of the Comptroller of the Currency and has at least $250 million of assets, (B) a state-chartered commercial bank that is a member of the Federal Reserve System and has at least $1 billion of assets, or (C) otherwise approved by BAM in writing.
b) No removal, resignation or termination of the Trustee or, if applicable, the Paying Agent shall take effect until a successor, meeting the requirements above or acceptable to BAM, shall be qualified and appointed.
4) Amendments, Supplements and Consents. BAM’s prior written consent is required for all amendments and supplements to the Security Documents, with the exceptions noted below. The Issuer shall send copies of any such amendments or supplements to BAM and the rating agencies which have assigned a rating to the Insured Obligations.
a) Consent of BAM. Any amendments or supplements to the Security Documents shall require the prior written consent of BAM with the exception of amendments or supplements:
i. To cure any ambiguity or formal defect or omissions or to correct any inconsistent provisions in the transaction documents or in any supplement thereto, or
ii. To grant or confer upon the holders of the Insured Obligations any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the holders of the Insured Obligations, or
iii. To add to the conditions, limitations and restrictions on the issuance of bonds or other obligations under the provisions of the Security Documents other conditions, limitations and restrictions thereafter to be observed, or
iv. To add to the covenants and agreements of the Issuer in the Security Documents other covenants and agreements thereafter to be observed by the Issuer or to surrender any right or power therein reserved to or conferred upon the Issuer.
v. To issue additional parity debt in accordance with the requirements set forth in the Security Documents (unless otherwise specified herein).
b) Consent of BAM in Addition to Bondholder Consent. Any amendment, supplement, modification to, or waiver of, any of the Security Documents that requires the consent of holders of the Insured Obligations or adversely affects the rights or interests of BAM shall be subject to the prior written consent of BAM.
c) Insolvency. Any reorganization or liquidation plan with respect to the Issuer [or Obligor] must be acceptable to BAM. The Trustee and each owner of the Insured Obligations hereby appoint BAM as their agent and attorney-in-fact with respect to the Insured Obligations and agree that BAM may at any time during the continuation of any proceeding by or against the Issuer or Obligor under the United States Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) direct all matters relating to such Insolvency Proceeding, including without limitation, (A) all matters relating to any claim or enforcement proceeding in connection with an Insolvency Proceeding (a “Claim”), (B) the direction of any appeal of any order relating to any Claim, (C) the posting of any surety, supersedeas or performance bond pending any such appeal, and (D) the right to vote to accept or reject any plan of adjustment. In addition, the Trustee and each owner of the Insured Obligations delegate and assign to BAM, to the fullest extent permitted by law, the rights of the Trustee and each owner of the Insured Obligations with respect to the Insured Obligations in the conduct of any Insolvency Proceeding, including, without limitation, all rights of any party to an adversary proceeding or action with respect to any court order issued in connection with any such Insolvency Proceeding.
d) Control by BAM Upon Default. Anything in the Security Documents to the contrary notwithstanding, upon the occurrence and continuance of a default or an event of default, BAM shall be entitled to control and direct the enforcement of all rights and remedies granted to the holders of the Insured Obligations or the Trustee or Paying Agent for the benefit of the holders of the Insured Obligations under any Security Document. No default or event of default may be waived without BAM’s written consent.
e) BAM as Owner. Upon the occurrence and continuance of a default or an event of default, BAM shall be deemed to be the sole owner of the Insured Obligations for all purposes under the Security Documents, including, without limitations, for purposes of exercising remedies and approving amendments.
f) Consent of BAM for acceleration. BAM’s prior written consent is required as a condition precedent to and in all instances of acceleration.
g) Grace Period for Payment Defaults. No grace period shall be permitted for payment defaults on the Insured Obligations. No grace period for a covenant default shall exceed 30 days without the prior written consent of BAM.
h) Special Provisions for Insurer Default. If an Insurer Default shall occur and be continuing, then, notwithstanding anything in paragraphs 4(a)-(e) above to the contrary, (1) if at any time prior to or following an Insurer Default, BAM has made payment under the Policy, to the extent of such payment BAM shall be treated like any other holder of the Insured Obligations for all purposes, including giving of consents, and (2) if BAM has not made any payment under the Policy, BAM shall have no further consent rights until the particular Insurer Default is no longer continuing or BAM makes a payment under the Policy, in which event, the foregoing clause (1) shall control. For purposes of this paragraph, “Insurer Default” means: (A) BAM has failed to make any payment under the Policy when due and owing in accordance with its terms; or (B) BAM shall (i) voluntarily commence any proceeding or file any petition seeking relief under the United States Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency or similar law, (ii) consent to the institution of or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such party or for a substantial part of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take action for the purpose of effecting any of the foregoing; or (C) any state or federal agency or instrumentality shall order the suspension of payments on the Policy or shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of BAM (including without limitation under the New York Insurance Law).
5) Loan/Lease/Financing Agreement.
a) The security for the Insured Obligations shall include a pledge and assignment of any agreement with any underlying obligor that is a source of payment for the Insured Obligations (a “Financing Agreement”) and a default under any Financing Agreement shall constitute an Event of Default under the Security Documents. In accordance with the foregoing, any such Financing Agreement is hereby pledged and assigned to the Trustee for the benefit of the holders of the Insured Obligations.
b) Any payments by the Obligor under the Financing Agreement that will be applied to the payment of debt service on the Insured Obligations shall be made directly to the Trustee at least fifteen (15) days prior to each debt service payment date for the Insured Obligations.
6) BAM As Third Party Beneficiary. BAM is recognized as and shall be deemed to be a third party beneficiary of the Security Documents and may enforce the provisions of the Security Documents as if it were a party thereto.
7) Payment Procedure Under the Policy.
In the event that principal and/or interest due on the Insured Obligations shall be paid by BAM pursuant to the Policy, the Insured Obligations shall remain outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, the assignment and pledge of the trust estate and all covenants, agreements and other obligations of the Issuer to the registered owners shall continue to exist and shall run to the benefit of BAM, and BAM shall be subrogated to the rights of such registered owners.
In the event that on the second (2nd) business day prior to any payment date on the Insured Obligations, the Paying Agent or Trustee has not received sufficient moneys to pay all principal of and interest on the Insured Obligations due on such payment date, the Paying Agent or Trustee shall immediately notify BAM or its designee on the same business day by telephone or electronic mail, of the amount of the deficiency. If any deficiency is made up in whole or in part prior to or on the payment date, the Paying Agent or Trustee shall so notify BAM or its designee.
In addition, if the Paying Agent or Trustee has notice that any holder of the Insured Obligations has been required to disgorge payments of principal of or interest on the Insured Obligations pursuant to a final, non-appealable order by a court of competent jurisdiction that such payment constitutes an avoidable preference to such holder within the meaning of any applicable bankruptcy law, then the Paying Agent or Trustee shall notify BAM or its designee of such fact by telephone or electronic mail, or by overnight or other delivery service as to which a delivery receipt is signed by a person authorized to accept delivery on behalf of BAM.
The Paying Agent or Trustee shall irrevocably be designated, appointed, directed and authorized to act as attorney-in-fact for holders of the Insured Obligations as follows:
a) If there is a deficiency in amounts required to pay interest and/or principal on the Insured Obligations, the Paying Agent or Trustee shall (i) execute and deliver to BAM, in form satisfactory to BAM, an instrument appointing BAM as agent and attorney-in-fact for such holders of the Insured Obligations in any legal proceeding related to the payment and assignment to BAM of the claims for interest on the Insured Obligations, (ii) receive as designee of the respective holders (and not as Paying Agent) in accordance with the tenor of the Policy payment from BAM with respect to the claims for interest so assigned, (iii) segregate all such payments in a separate account (the “BAM Policy Payment Account”) to only be used to make scheduled payments of principal of and interest on the Insured Obligation, and (iv) disburse the same to such respective holders; and
b) If there is a deficiency in amounts required to pay principal of the Insured Obligations, the Paying Agent or Trustee shall (i) execute and deliver to BAM, in form satisfactory to BAM, an instrument appointing BAM as agent and attorney-in-fact for such holder of the Insured Obligations in any legal proceeding related to the payment of such principal and an assignment to BAM of the Insured Obligations surrendered to BAM, (ii) receive as designee of the respective holders (and not as Paying Agent) in accordance with the tenor of the Policy payment therefore from BAM, (iii) segregate all such payments in the BAM Policy Payment Account to only be used to make scheduled payments of principal of and interest on the Insured Obligation, and (iv) disburse the same to such holders.
The Trustee shall designate any portion of payment of principal on Insured Obligations paid by BAM, whether by virtue of mandatory sinking fund redemption, maturity or other advancement of maturity, on its books as a reduction in the principal amount of Insured Obligations registered to the then current holder, whether DTC or its nominee or otherwise, and shall issue a replacement Insured Obligation to BAM, registered in the name directed by BAM, in a principal amount equal to the amount of principal so paid (without regard to authorized denominations); provided that the Trustee’s failure to so designate any payment or issue any replacement Insured Obligation shall have no effect on the amount of principal or interest payable by the Issuer on any Insured Obligation or the subrogation or assignment rights of BAM.
Payments with respect to claims for interest on and principal of Insured Obligations disbursed by the Paying Agent or Trustee from proceeds of the Policy shall not be considered to discharge the obligation of the Issuer with respect to such Insured Obligations, and BAM shall become the owner of such unpaid Insured Obligations and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of the preceding paragraphs or otherwise. The Security Documents shall not be discharged or terminated unless all amounts due or to become due to BAM have been paid in full or duly provided for.
Irrespective of whether any such assignment is executed and delivered, the Issuer, [Obligor] and the Paying Agent and Trustee agree for the benefit of BAM that:
a) They recognize that to the extent BAM makes payments directly or indirectly (e.g., by paying through the Paying Agent or Trustee), on account of principal of or interest on the Insured Obligations, BAM will be subrogated to the rights of such holders to receive the amount of such principal and interest from the Issuer/Obligor, with interest thereon, as provided and solely from the sources stated in the Security Documents and the Insured Obligations; and
b) They will accordingly pay to BAM the amount of such principal and interest, with interest thereon as provided in the transaction documents and the Insured Obligations, but only from the sources and in the manner provided therein for the payment of principal of and interest on the Insured Obligations to holders, and will otherwise treat BAM as the owner of such rights to the amount of such principal and interest.
8) Additional Payments. The Issuer agrees unconditionally that it will pay or reimburse BAM on demand any and all reasonable charges, fees, costs, losses, liabilities and expenses that BAM may pay or incur, including, but not limited to, fees and expenses of BAM’s agents, attorneys, accountants, consultants, appraisers and auditors and reasonable costs of investigations, in connection with the administration (including waivers and consents, if any), enforcement, defense, exercise or preservation of any rights and remedies in respect of the Security Documents (“Administrative Costs”). For purposes of the foregoing, costs and expenses shall include a reasonable allocation of compensation and overhead attributable to the time of employees of BAM spent in connection with the actions described in the preceding sentence. The Issuer agrees that failure to pay any Administrative Costs on a timely basis will result in the accrual of interest on the unpaid amount at the Late Payment Rate, compounded semi-annually, from the date that payment is first due to BAM until the date BAM is paid in full.
Notwithstanding anything herein to the contrary, the Issuer agrees to pay to BAM (i) a sum equal to the total of all amounts paid by BAM under the Policy (“BAM Policy Payment”); and (ii) interest on such BAM Policy Payments from the date paid by BAM until payment thereof in full by the Issuer, payable to BAM at the Late Payment Rate per annum (collectively, “BAM Reimbursement Amounts”) compounded semi-annually. Notwithstanding anything to the contrary, including without limitation the post default application of revenue provisions, BAM Reimbursement Amounts shall be, and the Issuer hereby covenants and agrees that the BAM Reimbursement Amounts are, payable from and secured by a lien on and pledge of the same revenues and other collateral pledged to the Insured Obligations on a parity with debt service due on the Insured Obligations.
9) Debt Service Reserve Fund. The prior written consent of BAM shall be a condition precedent to the deposit of any credit instrument provided in lieu of a cash deposit into the Debt Service Reserve Fund, if any. Amounts on deposit in the Debt Service Reserve Fund shall be applied solely to the payment of debt service due on the Insured Obligations.
10) Exercise of Rights by BAM. The rights granted to BAM under the Security Documents to request, consent to or direct any action are rights granted to BAM in consideration of its issuance of the Policy. Any exercise by BAM of such rights is merely an exercise of the BAM’s contractual rights and shall not be construed or deemed to be taken for the benefit, or on behalf, of the holders of the Insured Obligations and such action does not evidence any position of BAM, affirmative or negative, as to whether the consent of the holders of the Insured Obligations or any other person is required in addition to the consent of BAM.
11) BAM shall be entitled to pay principal or interest on the Insured Obligations that shall become Due for Payment but shall be unpaid by reason of Nonpayment by the Issuer (as such terms are defined in the Policy) and any amounts due on the Insured Obligations as a result of acceleration of the maturity thereof in accordance with the Security Documents, whether or not BAM has received a claim upon the Policy.
12) So long as the Insured Obligations are outstanding or any amounts are due and payable to BAM, the Issuer shall not sell, lease, transfer, encumber or otherwise dispose of the [System] or any material portion thereof, except upon obtaining the prior written consent of BAM.
13) No contract shall be entered into or any action taken by which the rights of BAM or security for or source of payment of the Insured Obligations may be impaired or prejudiced in any material respect except upon obtaining the prior written consent of BAM.
14) If an event of default occurs under any agreement pursuant to which any Obligation of the Issuer has been incurred or issued and that permits the holder of such Obligation or trustee to accelerate the Obligation or otherwise exercise rights or remedies that are adverse to the interest of the holders of the Insured Obligations or BAM, as BAM may determine in its sole discretion, then an event of default shall be deemed to have occurred under this [Indenture] and the related Security Documents for which BAM or the Trustee, at the direction of BAM, shall be entitle to exercise all available remedies under the Security Documents, at law and in equity. For purposes of the foregoing “Obligation” shall mean any bonds, loans, certificates, installment or lease payments or similar obligations that are payable and/or secured on a parity or subordinate basis to the Insured Obligations.
Said motion was seconded by Member Clark and upon vote being taken the following voted AYE: Clark, David, Fish, Jorgenson, Kull and Parliament and the following voted NAY: None.
ATTEST:
Mayor
Finance Officer
WATER METER REPLACEMENT PROJECT
The Streets Committee and Water & Sewer Committee reports were heard. Alderwoman Clark moved Alderman Jorgenson seconded to approve pay application #1 to Ferguson Waterworks in the amount of $47,646.00 for the water meter replacement project. Motion carried.
NO DISCHARGE PERMIT FOR WASTEWATER PONDS
Rollie Hoeke, Public Works Director, has worked with the SDDENR to change the current wastewater discharge permit to a “no discharge” permit. The City of Brandon does not discharge to the Big Sioux River anymore, so this will save the City over $10,000 per year. No action required.
WATER TREATMENT PLANT PROPOSAL FROM AE2S
Tami Jansma, City Engineer, gave an update on the agreement with AE2S for the preliminary design, final design and bidding phase services for the water treatment plant at a proposed fee not to exceed $1,513,069.00. Alderman Jorgenson moved Alderman Kull seconded to approve the agreement as presented. Alderwoman Clark discussed the surveys that were done that showed the residents overwhelmingly did not support the RO softening system being added to the treatment plant. A roll call vote showed David, Fish, Jorgenson, Kull, Parliament aye; Clark nay. Motion carried.
At 7:30 p.m. on a motion by Alderwoman Clark seconded by Alderwoman David the meeting was adjourned.
Melissa Labahn Barb Fish
Municipal Recording Clerk
Council President
Published at an approximate cost of $836.58.
April 28, 2021
______ ORDINANCE #588 ______
AN ORDINANCE OF THE CITY OF BRANDON, SOUTH DAKOTA PROVIDING THAT THE REVISED ZONING ORDINANCE NUMBER 531 AND THE OFFICIAL ZONING MAP OF THE CITY OF BRANDON SOUTH DAKOTA BE AMENDED TO PROVIDE FOR THE RE-ZONING OF THE FOLLOWING DESCRIBED PROPERTY.
WHEREAS, the Brandon Planning and Zoning Commission held a public hearing on April 1, 2021 as required by law, and made a “do pass” recommendation to the City Council to re-zone property described as Lot 9A. Block 5, The Original Town of Brandon , (property address is 300-320 S. Main).
WHEREAS, the Brandon City Council held a public hearing on April 5, 2021 as provided by law and approved the re-zoning of the property by giving a first reading to this ordinance on April 5, 2021 and a second reading of this ordinance on April 19, 2021.
THEREFORE, BE IT HEREBY ORDAINED BY THE CITY OF BRANDON, SOUTH DAKOTA: That the Zoning Ordinance of the City of Brandon, South Dakota, Ordinance Number 531, and the official zoning map of the City of Brandon, South Dakota be amended, to show a re-zoning of the following described property from CB Central Business District to IN Institutional District.
Lot 9A. Block 5, The Original Town of Brandon
Adopted this 19th day of April, 2021.
Barb Fish
ATTEST:
Council President
Christina Smith
Municipal Finance Officer
(SEAL)
First Reading: April 5, 2021
Second Reading: April 19, 2021
Published: April 28, 2021
Effective Date: May 19, 2021
Published at an approximate cost of $17.19.
April 28, 2021
