HomeMy WebLinkAbout1997-131
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Resolution 97-131
Councilmember Thole introduced the following resolution and moved
its adoption, which motion was seconded by Councilmember Cummings
RESOLUTION AUTHORIZING ISSUANCE, A WARDING SALE,
PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR
THE PAYMENT OF $485,000 GENERAL OBLIGATION
IMPROVEMENT BONDS, SERIES 1997B
BE IT RESOLVED by the City Council of the City of Stillwater,
Minnesota (the Issuer), as follows:
Section 1. Authorization and Sale.
1.01. Authorization. This Council, by resolution duly adopted on May
6, 1997, authorized the issuance and public sale of $485,000 General Obligation
Improvement Bonds, Series 1997B (the Bonds) of the Issuer to finance the
construction of various improvement projects more fully described in the May 6,
1997 resolution (the Projects).
1.02. Sale. Pursuant to the Terms of Proposal and the Official
Statement prepared on behalf of the Issuer by Springsted Incorporated, sealed
proposals for the purchase of the Bonds were received at or before the time specified
for receipt of proposals. The proposals have been opened, publicly read and
considered and the purchase price, interest rates and net interest cost under the
terms of each proposal have been determined. The most favorable proposal
received is that of Norwest Investment Services, Inc.
in Minneapolis Minnesota and associates (the
Purchaser), to purchase the Bonds at a price of $ 481,726.25 plus accrued interest
on all Bonds to the day of delivery and payment, on the further terms and
conditions hereinafter set forth.
1.03. A ward. The sale of the Bonds is hereby awarded to the Purchaser
and the Mayor and City Clerk are hereby authorized and directed to execute a
contract on behalf of the Issuer for the sale of the Bonds in accordance with the
terms of the proposal. The good faith deposit of the Purchaser shall be retained and
deposited by the Issuer until the Bonds have been delivered, and shall be deducted
from the purchase price paid at settlement.
Section 2. Bond Terms; Registration; Execution and Delivery.
2.01. Issuance of Bonds. All acts, conditions and things which are
required by the Constitution and laws of the State of Minnesota to be done, to exist,
to happen and to be performed precedent to and in the valid issuance of the Bonds
having been done, now existing, having happened and having been performed, it is
now necessary for the City Council to establish the form and terms of the Bonds, to
provide security therefor and to issue the Bonds forthwith.
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2.02. Maturities; Interest Rates; Denominations and Payment. The
Bonds shall be originally dated as of July 1, 1997, shall be in the denomination of
$5,000 each, or any integral multiple thereof, of single maturities, shall mature on
February 1 in the years and amounts stated below, and shall bear interest from date
of issue until paid or duly called for redemption at the annual rates set forth
opposite such years and amounts, as follows:
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Year Amount Rate Year Amount Rate
1999 $45,000 4.25'70 2004 $50,000 4. 70'70
2000 50,000 4.40 2005 50,000 4.75
2001 50,000 4.50 2006 50,000 4.80
2002 50,000 4.60 2007 45,000 4.90
2003 50,000 4.65 2008 45,000 5.00
The Bonds shall be issuable only in fully registered form. The interest thereon and,
upon surrender of each Bond, the principal amount thereof shall be payable by
check or draft issued by the Registrar described herein; provided that, so long as the
Bonds are registered in the name of a securities depository, or a nominee thereof, in
accordance with Section 2.07 hereot principal and interest shall be payable in
accordance with the operational arrangements of the securities depository. Interest .
shall be computed on the basis of a 360 day year composed of twelve 30 day months.
2.03. Dates and Interest Payment Dates. Upon initial delivery of the
Bonds pursuant to Section 2.07 and upon any subsequent transfer or exchange
pursuant to Section 2.06, the date of authentication shall be noted on each Bond so
delivered, exchanged or transferred. Interest on the Bonds shall be payable on each
February 1 and August I, commencing February 1, 1998, to the owners of record
thereof as of the close of business on the fifteenth day of the immediately preceding
month, whether or not such day is a business day.
2.04. Redemption. Bonds maturing in 2006 and later years shall be
subject to redemption and prepayment at the option of the Issuer, in whole or in
part, in such order of maturity dates as the Issuer may select and within a maturity
by lot as selected by the Registrar (or, if applicable, by the bond depository in
accordance with its customary procedures) in multiples of $5,000, on February I,
2005, and on any date thereafter, at a price equal to the principal amount thereof and
accrued interest to the date of redemption. The Clerk shall cause notice of the call
for redemption thereof to be published as required by law, and at least thirty days
prior to the designated redemption date, shall cause notice of call for redemption to
be mailed, by first class mait to the registered holders of any Bonds to be redeemed
at their addresses as they appear on the bond register described in Section 2.06
hereof, but no defect in or failure to give such mailed notice of redemption shall .
affect the validity of proceedings for the redemption of any Bond not affected by
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such defect or failure. Official notice of redemption having been given as aforesaid,
the Bonds or portions of Bonds so to be redeemed shalt on the redemption date,
become due and payable at the redemption price therein specified and from and
after such date (unless the Issuer shall default in the payment of the redemption
price) such Bonds or portions of Bonds shall cease to bear interest. Upon partial
redemption of any Bond, a new Bond or Bonds will be delivered to the owner
without charge, representing the remaining principal amount outstanding.
2.05. Appointment of Initial Registrar. The Issuer hereby appoints
Norwest Bank Minnesota, National Association
in Minneapolis, Minnesota, as the initial bond registrar, transfer agent and
paying agent (the Registrar). The Mayor and Clerk are authorized to execute and
deliver, on behalf of the Issuer, a contract with the Registrar. Upon merger or
consolidation of the Registrar with another corporation, if the resulting corporation
is a bank or trust company authorized by law to conduct such business, such
corporation shall be authorized to act as successor Registrar. The Issuer agrees to pay
the reasonable and customary charges of the Registrar for the services performed.
The Issuer reserves the right to remove the Registrar upon thirty days' notice and
upon the appointment of a successor Registrar, in which event the predecessor
Registrar shall deliver all cash and Bonds in its possession to the successor Registrar
and shall deliver the bond register to the successor Registrar.
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2.06. Registration. The effect of registration and the rights and duties
of the Issuer and the Registrar with respect thereto shall be as follows:
(a) Register. The Registrar shall keep at its principal corporate trust
office a bond register in which the Registrar shall provide for the registration
of ownership of Bonds and the registra don of transfers and exchanges or
Bonds entitled to be registered, transferred or exchanged.
(b) Transfer of Bonds. Upon surrender for transfer of any Bond duly
endorsed by the registered owner thereof or accompanied by a written
instrument of transfer, in form satisfactory to the Registrar, duly executed by
the registered owner thereof or by an attorney duly authorized by the
registered owner in writing, the Registrar shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Bonds
of a like aggregate principal amount and maturity, as requested by the
transferor. The Registrar may, however, close the books for registration of
any transfer after the fifteenth day of the month preceding each interest
payment date and until such interest payment date.
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(c) Exchange of Bonds. Whenever any Bonds are surrendered by the
registered owner for exchange the Registrar shall authenticate and deliver
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one or more new Bonds of a like aggregate principal amount and maturity, as
requested by the registered owner or the owner's attorney in writing.
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(d) Cancellation. All Bonds surrendered upon any transfer or
exchange shall be promptly canceled by the Registrar and thereafter disposed
of as directed by the Issuer.
(e) Improper or Unauthorized Transfer. When any Bond is presented
to the Registrar for transfer, the Registrar may refuse to transfer the same
until it is satisfied that the endorsement on such Bond or separate instrument
of tran~fer is valid and genuine and that the requested transfer is legally
authorized. The Registrar shall incur no liability for the refusat in good faith,
to make transfers which it, in its judgment, deems improper or
unauthorized.
(f) Persons Deemed Owners. The Issuer and the Registrar may treat
the person in whose name any Bond is at any time registered in the bond
register as the absolute owner of the Bond, whether the Bond shall be
overdue or riot, for the purpose of receiving payment of or on account of, the
principal of and interest on the Bond and for all other purposes; and all
payments made to any registered owner or upon the owner's order shall be
valid and effectual to satisfy and discharge the liability upon Bond to the .
extent of the sum or sums so paid.
(g) Taxes. Fees and Charges. For every transfer or exchange of Bonds
(except for an exchange upon a partial redemption of a Bond), the Registrar
may impose a charge upon the owner thereof sufficient to reimburse the
Registrar for any tax, fee or other governmental charge required to be paid
with respect to such transfer or exchange.
(h) Mutilated, Lost. Stolen or Destroyed Bonds. In case any Bond shall
become mutilated or be destroyed, stolen or lost, the Registrar shall deliver a
new Bond of like amount, number, maturity date and tenor in exchange and
substitution for and upon cancellation of any such mutilated Bond or in lieu
of and in substitution for any Bond destroyed, stolen or lost, upon the
payment of the reasonable expenses and charges of the Registrar in
connection therewith; and, in the case of a Bond destroyed, stolen or lost,
upon filing with the Registrar of evidence satisfactory to it that the Bond was
destroyed, stolen or lost, and of the ownership thereo( and upon furnishing
to the Registrar of an appropriate bond or indemnity in form, substance and
amount satisfactory to it, in which both the Issuer and the Registrar shall be
named as obligees. All Bonds so surrendered to the Registrar shall be
canceled by it and evidence of such cancellation shall be given to the Issuer. If .
the mutilated, destroyed, stolen or lost Bond has already matured or been
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called for redemption in accordance with its terms it shall not be necessary to
issue a new Bond prior to payment.
(i) Authenticating Agent. The Registrar is hereby designated
authenticating agent for the Bonds, within the meaning of Minnesota
Statutes, Section 475.55, Subdivision 1, as amended.
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2.07. Execution, Authentication and Deliverv. The Bonds shall be
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prepared under the direction of the Clerk and shall be executed on behalf of the
Issuer by the signatures of the Mayor and the Clerk, provided that the signatures
may be printed, engraved or lithographed facsimiles of the originals. In case any
officer whose signature or a facsimile of whose signature shall appear on the Bonds
shall cease to be such officer before the delivery of any Bond, such signature or
facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he
had remained in office until delivery. Notwithstanding such execution, no Bond
shall be valid or obligatory for any purpose or entitled to any security or benefit
under this resolution unless and until a certificate of authentication on the Bond
has been duly executed by the manual signature of an authorized representative of
the Registrar. Certificates of authentication on different Bonds need not be signed by
the same representative. Tne executed certificate of authentication on each Bond
shall be conclusive evidence that it has been authenticated and delivered under this
resolution. When the Bonds have been prepared, executed and authenticated, the
Finance Director shall deliver them to the Purchaser upon payment of the purchase
price in accordance with the contract of sale heretofore executed, and the Purchaser
shall not be obligated to see to the application of the purchase price.
2.08. Securities Depository. (a) For purposes of this section the
following terms shall have the following meanings:
"Beneficial Owner" shall mean, whenever used with respect to a Bond,
the person in whose name such Bond is recorded as the beneficial owner of such
Bond by a Participant on the records of such Participant, or such person's subrogee.
"Cede & Co." shall mean Cede & Co., the nominee of DTC, and any
successor nominee of OTC with respect to the Bonds.
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"DTC" shall mean The Depository Trust Company of New York, New
"Participant" shall mean any broker-dealer, bank or other financial
institution for which DTC holds Bonds as securities depository.
"Representation Letter" shall mean the Representation Letter pursuant
. to which the sender agrees to comply with DTC's Operational Arrangements.
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(b) The Bonds shall be initially issued as separately authenticated fully
registered bonds, and one Bond shall be issued in the principal amount of each
stated maturity of the Bonds. Upon initial issuance, the ownership of such Bonds
shall be registered in the bond register in the name of Cede & Co., as nominee of
DTC. The Registrar and the I~suer may treat DTC (or its nominee) as the sole and
exclusive owner of the Bonds registered in its name for the purposes of payment of
the principal of or interest on the Bonds, selecting the Bonds or portions thereof to
be redeemed, if any, giving any notice permitted or required to be given to registered
owners of Bonds under this resolution, registering the transfer of Bonds, and for all
other purposes whatsoever; and neither the Registrar nor the Issuer shall be affected
by any notice to the contrary. Neither the Registrar nor the Issuer shall have any
responsibility or obligation to any Participant, any person claiming a beneficial
ownership interest in the Bonds under or through DTC or any Participant, or any
other person which is not shown on the bond register as being a registered owner of
any Bonds, with respect to the accuracy of any records maintained by DTC or any
Participant, with respect to the payment by DTC or any Participant of any amount
with respect to the principal of or interest on the Bonds, with respect to any notice
which is permitted or required to be given to owners of Bonds under this
resolution, with respect to the selection by DTC or any Participant of any person to
receive payment in the event of a partial redemption of the Bonds, or with respect
to any consent given or other action taken by DTC as registered owner of the Bonds.
So long as any Bond is registered in the name of Cede & Co., as nominee of DTC, the
Registrar shall pay all principal of and interest on such Bond, and shall give all
notices with respect to such Bond, only to Cede & Co. in accordance with DTC's
Operational Arrangements, and all such payments shall be valid and effective to
fully satisfy and discharge the Issuer's obligations with respect to the principal of and
interest on the Bonds to the extent of the sum or sums so paid. No person other
than DTC shall receive an authenticated Bond for each separate stated maturity
evidencing the obligation of the Issuer to make payments of principal and interest.
Upon delivery by DTC to the Registrar of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede & Co., the Bonds will be
transferable to such new nominee in accordance with paragraph (e) hereof.
(c) In the event the Issuer determines that it is in the best interest of
the Beneficial Owners that they be able to obtain Bonds in the form of bond
certificates, the Issuer may notify DTC and the Registrar, whereupon DTC shall
notify the Participants of the availability through DTC of Bonds in the form of
certificates. In such event, the Bonds will be transferable in accordance with
paragraph (e) hereof. DTC may determine to discontinue providing its services with
respect to the Bonds at any time by giving notice to the Issuer and the Registrar and
discharging its responsibilities with respect thereto under applicable law. In such
event the Bonds will be transferable in accordance with paragraph (e) hereof.
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(d) The execution and delivery of the Representation Letter to DTC by
the Mayor or Clerk is hereby authorized and directed.
(e) In the event that any transfer or exchange of Bonds is permitted
under paragraph (b) or (c) hereof, such transfer or exchange shall be accomplished
upon receipt by the Registrar of the Bonds to be transferred or exchanged and
appropriate instruments of transfer to the permitted transferee in accordance with
the provisions of this resolution. In the event Bonds in the form of certificates are
issued to owners other than Cede & Co., its successor as nominee for DTC as owner
of all the Bonds, or another securities depository as owner of all the Bonds, the
provisions of this resolution shall also apply to all matters relating thereto,
including, without limitation, the printing of such Bonds in the form of bond
certificates and the method of payment of principal of and interest on such Bonds in
the form of bond certificates.
2.09. Form of Bonds. The Bonds shall be prepared in substantially the
following form:
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF WASHINGTON
CITY OF STILL WATER
GENERAL OBLIGATION IMPROVEMENT BOND, SERIES 1997B
Interest Rate
Maturity Date
Date of Original Issue
CUSIP No.
REGISTERED OWNER: CEDE & CO.
July 1, 1997
PRINCIP AL AMOUNT:
THE CITY OF STILL WATER, COUNTY OF W ASHINGTON, MINNESOTA
(the Issuer), acknowledges itself to be indebted and hereby promises to pay to the
registered owner named above, or registered assigns, the principal sum specified
above on the maturity date specified above, with interest thereon from the date
hereof at the annual rate specified above, payable on February 1 and August 1 in
each year, commencing February 1, 1998, to the person in whose name this Bond is
registered at the close of business on the fifteenth day (whether or not a business
day) of the immediately preceding month, all subject to the provisions referred to
herein with respect to the redemption of the principal of this Bond before maturity.
Interest hereon shall be computed on the basis of a 360-day year composed of twelve
30-day months. The interest hereon and, upon presentation and surrender hereof,
the principal hereof are payable in lawful money of the United States of America by
check or draft by , in , Minnesota, as Bond Registrar, Transfer
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Agent and Paying Agent (the Registrar), or its designated successor under the
Resolution described herein. For the prompt and full payment of such principal
and interest as the same respectively become due, the full faith and credit and taxing
powers of the Issuer have been and are hereby irrevocably pledged.
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This Bond is one of an issue in the aggregate principal amount of $485,000,
issued pursuant to a resolution adopted by the City Council on June 3, 1997 (the
Resolution), to finance the costs of local improvements, and is issued pursuant to
and in full conformity with the Constitution and laws of the State of Minnesota
thereunto enabling, including Minnesota Statutes, Chapters 429 and 475, and the
Charter of the Issuer. The Bonds are issuable only in fully registered form, in
denominations of $5,000 or any integral multiple thereof, of single maturities.
Bonds maturing in 2006 and later years are each subject to redemption and
prepayment at the option of the Issuer, in whole or in part, in such order of
maturity dates as the Issuer may select and, within a maturity, by lot as selected by
the Registrar (or, if applicable, by the bond depository in accordance with its
customary procedures) in multiples of $5,000 on February 1, 2005, and on any date
thereafter, at a price equal to the principal amount thereof plus interest accrued to
the date of redemption. The Issuer will cause notice of the call for redemption to be
published as required by law and, at least thirty days prior to the designated .
redemption date, will cause notice of the call thereof to be mailed by first class mail
to the registered owner of any Bond to be redeemed at the owner's address as it
appears on the bond register maintained by the Registrar, but no defect in or failure
to give such mailed notice of redemption shall affect the validity of proceedings for
the redemption of any Bond not affected by such defect or failure. Official notice of
redemption having been given as aforesaid, the Bonds or portions of Bonds so to be
redeemed shall, on the redemption date, become due and payable at the redemption
price therein specified, and from and after such date (unless the Issuer shall default
in the payment of the redemption price) such Bonds or portions of Bonds shall cease
to bear interest. Upon partial redemption of any Bond, a new Bond or Bonds will be
delivered to the registered owner without charge, representing the remaining
principal amount outstanding.
As provided in the Resolution and subject to certain limitations set forth
therein, this Bond is transferable upon the books of the Issuer at the principal office
of the Registrar, by the registered owner hereof in person or by the owner's attorney
duly authorized in writing upon surrender hereof together with a written
instrument of transfer satisfactory to the Registrar, duly executed by the registered
owner or the owner's attorney; and may also be surrendered in exchange for Bonds
of other authorized denominations. Upon such transfer or exchange the Issuer will
cause a new Bond or Bonds to be issued in the name of the transferee or registered
owner, of the same aggregate principal amount, bearing interest at the same rate and .
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maturing on the same date, subject to reimbursement for any tax, fee or
governmental charge required to be paid with respect to such transfer or exchange.
The Bonds have been designated by the Issuer as "qualified tax-exempt
obligations" pursuant to Section 265(b)(3) of the Internal Revenue Code of 1986.
The Issuer and the Registrar may deem and treat the person in whose name
this Bond is registered as the absolute owner hereof, whether this Bond is overdue
or not, for the purpose of receiving payment and for all other purposes, and neither
the Issuer nor the Registrar shall be affected by any notice to the contrary.
Notwithstanding any other provisions of this Bond, so long as this Bond is
registered in the name of Cede & Co., as nominee of The Depository Trust
Company, or in the name of any other nominee of The Depository Trust Company
or other securities depository, the Registrar shall pay all principal of and interest on
this Bond, and shall give all notices with respect to this Bond, only to Cede & Co. or
other nominee in accordance with the operational arrangements of The Depository
Trust Company or other securities depository as agreed to by the Issuer.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all
acts, conditions and things required by the Constitution and laws of the State of
Minnesota to be done, to exist, to happen and to be performed preliminary to and in
the issuance of this Bond in order to make it a valid and binding general obligation
of the Issuer in accordance with its terms, have been done, do exist, have happened
and have been performed as so required; that, prior to the issuance hereof, the City
Council has by the Resolution covenanted and agreed to levy special assessments
upon property specially benefited by the local improvements financed by the Bonds,
which will be collectible for the years and in amounts sufficient to produce sums not
less than five percent in excess of the principal of and interest on the Bonds of this
issue when due, and has appropriated such special assessments to its General
Obligation Improvement Bonds, Series 1997B Bond Fund for the payment of such
principal and interest; that if necessary for payment of such principal and interest, ad
valorem taxes are required to be levied upon all taxable property in the Issuer,
without limitation as to rate or amount; that the issuance of this Bond, together
with all other indebtedness of the Issuer outstanding on the date hereof and on the
date of its actual issuance and delivery, does not cause the indebtedness of the Issuer
to exceed any constitutional, charter or statutory limitation of indebtedness; and that
the opinion printed hereon is a full, true and correct copy of the legal opinion given
by Bond Counsel with reference to the Bonds, dated as of the date of original
delivery of the Bonds.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Resolution until the Certificate of
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Authentication hereon shall have been executed by the Registrar by manual
signature of one of its authorized representatives.
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IN WITNESS WHEREOF, the City of Stillwater, County of Washington,
Minnesota, by its City Council, has caused this Bond to be executed on its behalf by
the facsimile signatures of the Mayor and City Clerk and has caused this Bond to be
dated as of the date set forth below.
CITY OF STILL WATER, MINNESOTA
(facsimile signature - City Clerk)
(facsimile signature - Mayor)
CERTIFICATE OF AUTHENTICATION
Date of Authentication:
This is one of the Bonds delivered pursuant to the Resolution mentioned
within.
, as Registrar
By
Authorized Representative
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The following abbreviations, when used in the inscription on the face of this Bond,
shall be construed as though they were written out in full according to the applicable
laws or regulations:
TEN COM -- as tenants
in common
UTMA................................ as Custodian for........ ...........
(Cust) (Minor)
under Uniform Transfers to Minors Act ...... (State)
TEN ENT -- as tenants
by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used.
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond and all rights thereunder, and does hereby irrevocably
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constitute and appoint _ attorney to transfer the said Bond on the books kept for
registration of the within Bond, with full power of substitution in the premises.
Dated:
NOTICE: The assignor's signature to this
assignment must correspond with the name as it
appears upon the face of the within Bond in every
particular, without alteration or enlargement or
any change whatsoever.
Signature Guaranteed:
Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Bond Registrar, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Bond Registrar in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
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[end of bond form]
Section 3. General Obligation Improvement Bonds, Series 1997B
Construction Fund. There is hereby established on the official books and records of
the Issuer a General Obligation Improvement Bonds, Series 1997B Construction
Fund (the Construction Fund), and the Finance Director shall continue to maintain
the Construction Fund until payment of all costs and expenses incurred in
connection with the construction of the Projects have been paid. To the
Construction Fund there shall be credited from the proceeds of the Bonds, exclusive
of unused discount and accrued interest, an amount equal to the estimated cost of
the Projects and from the Construction Fund there shall be paid all construction
costs and expenses. There shall also be credited to the Construction Fund all special
assessments collected with respect to the Projects, until all costs of the Projects have
been fully paid. After payment of all construction costs, the Construction Fund shall
be discontinued and any Bond proceeds remaining therein may be transferred to the
other funds or accounts established for construction of other improvements
instituted pursuant to Minnesota Statutes, Chapter 429. All special assessments on
hand in the Construction Fund when terminated or thereafter received, and any
Bond proceeds not so transferred, shall be credited to the General Obligation
Improvement Bonds, Series 1997B Bond Fund of the Issuer.
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Section 4. General Obligation Improvement Bonds, Series 1997B Bond
Fund. So long as any of the Bonds are outstanding and any principal of or interest
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thereon unpaid, the Finance Director shall maintain a separate debt service fund on
the official books and records of the Issuer to be known as the General Obligation
Improvement Bonds, Series 1997B Bond Fund (the Bond Fund), and the principal of
and interest on the Bonds shall be payable from the Bond Fund. The Issuer
irrevocably appropriates to the Bond Fund (a) any amount in excess of $479,665
received from the Purchaser; (b) all taxes and special assessments levied and
collected in accordance with this resolution; and (c) all other moneys as shall be
appropriated by the City Council to the Bond Fund from time to time.
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There are hereby established two accounts in the Bond Fund,
designated as the "Debt Service Account" and the "Surplus Account." There shall
initially be deposited into the Debt Service Account upon the issuance of the Bonds
the amount set forth in (a) above. Thereafter, during each Bond Year (i.e., each
twelve month period commencing on February 2 and ending on the following
February 1), as monies are received into the Bond Fund, the Finance Director shall
first deposit such monies into the Debt Service Account until an amount has been
appropriated thereto sufficient to pay all principal and interest due on the Bonds
through the end of the Bond Year. All subsequent monies received in the Bond
Fund during the Bond Year shall be appropriated to the Surplus Account. If at any
time the amount on hand in the Debt Service Account is insufficient for the
payment of principal and interest then due, the Finance Director shall transfer to the .
Debt Service Account amounts on hand in the Surplus Account to the extent
necessary to cure such deficiency. Investment earnings (and losses) on amounts
from time to time held in the Debt Service Account and Surplus Account shall be
credited or charged to said accounts.
If the aggregate balance in the Bond Fund is at any time insufficient to
pay all interest and principal then due on all Bonds payable therefrom, the payment
shall be made from any fund of the Issuer which is available for that purpose,
subject to reimbursement from the Surplus Account in the Bond Fund when the
balance therein is sufficient, and the City Council covenants and agrees that it will
each year levy a sufficient amount of ad valorem taxes to take care of any
accumulated or anticipated deficiency, which levy is not subject to any
constitutional or statutory limitation.
Section 5. Special Assessments. The Issuer hereby covenants and
agrees that, for the payment of the cost of the Projects, the Issuer has done or will do
and perform all acts and things necessary for the final and valid levy of special
assessments in an amount not less than 20% of the cost of each of the
improvements financed by the Bonds. The Issuer estimates it will levy special
assessments in the aggregate principal amount of $485,000. It is estimated that the
principal and interest on such special assessments will be levied and collected in the
years and amounts shown on Appendix I attached hereto. In the event any such
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assessment shall at any time be held invalid with respect to any lot or tract of land,
due to any error, defect or irregularity in any action or proceeding taken or to be
taken by the Issuer or by the City Council or by any of the officers or employees of
the Issuer, either in the making of such assessment or in the performance of any
condition precedent thereto, the Issuer hereby covenants and agrees that it will
forthwith do all such further things and take all such further proceedings as shall be
required by law to make such assessment a valid and binding lien upon said
property.
Section 6. Pledge of Taxing Powers. For the prompt and full payment
of the principal of and interest on the Bonds as such payments respectively become
due, the full faith, credit and unlimited taxing powers of the Issuer shall be and are
hereby irrevocably pledged. It is presently estimated that the collections of the
special assessments levied in accordance with Section 5 hereof, together with
earnings thereon, will produce amounts not less than 5% in excess of the amounts
needed to meet when due the principal and interest payments on the Bonds, and
therefore ad valorem taxes are not required to be levied at this time. Nevertheless,
if the balance in the Bond Fund is at any time insufficient to pay all interest and
principal then due on all Bonds payable therefrom, the payment shall be made from
any fund of the Issuer which is available for that purpose, subject to reimbursement
from the Bond Fund when the balance therein is sufficient, and the City Council
covenants and agrees that it will each year levy a sufficient amount of ad valorem
taxes to take care of any accumulated or anticipated deficiency, which levy is not
subject to any constitutional or statutory limitation.
Section 7. Defeasance. When all of the Bonds have been discharged as
provided in this section, all pledges, covenants and other rights granted by this
resolution to the registered owners of the Bonds shall cease. The Issuer may
discharge its obligations with respect to any Bonds which are due on any date by
depositing with the Registrar on or before that date a sum sufficient for the payment
thereof in full; or, if any Bond should not be paid when due, it may nevertheless be
discharged by depositing with the Registrar a sum sufficient for the payment thereof
in full with interest accrued from the due date to the date of such deposit. The
Issuer may also discharge its obligations with respect to any prepayable Bonds called
for redemption on any date when they are prepayable according to their terms, by
depositing with the Registrar on or before that date an amount equal to the
principal, interest and redemption premium, if any, which are then due, provided
that notice of such redemption has been duly given as provided herein. The Issuer
may also at any time discharge its obligations with respect to any Bonds, subject to
the provisions of law now or hereafter authorizing and regulating such action, by
depositing irrevocably in escrow, with a bank qualified by law as an escrow agent for
this purpose, cash or securities which are authorized by law to be so deposited,
bearing interest payable at such time and at such rates and maturing or callable at
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the holder's option on such dates as shall be required to pay all principal and
interest to become due thereon to maturity or earlier designated redemption date.
.
Section 8. Certification of Proceedings.
8.01. Registration of Bonds. The Clerk is hereby authorized and
directed to file a certified copy of this resolution with the County Auditor of
Washington County and obtain a certificate that the Bonds have been duly entered
upon the Auditor's bond register.
8.02. Authentication of Transcript. The officers of the Issuer and the
County Auditor are hereby authorized and directed to prepare and furnish to the
Purchaser and to Dorsey & Whitney LLP, Bond Counset certified copies of all
proceedings and records relating to the Bonds and such other affidavits, certificates
and information as may be required to show the facts relating to the legality and
marketability of the Bonds, as the same appear from the books and records in their
custody and control or as otherwise known to them, and all such certified copies,
affidavits and certificates, including any heretofore furnished, shall be deemed
representations of the Issuer as to the correctness of all statements contained
therein.
8.03. Official Statement. The Official Statement relating to the Bonds, .
dated May 20, 1997, and the supplement thereto, relating to the Bonds prepared and
distributed by Springsted Incorporated, the financial consultant for the Issuer, is
hereby approved. Springsted Incorporated, is hereby authorized on behalf of the
Issuer to prepare and distribute to the Purchaser within seven business days from
the date hereof, a supplement to the Official Statement listing the offering price, the
interest rates, selling compensation, delivery date, the underwriters and such other
information relating to the Bonds required to be included in the Official Statement
by Rule l5c2-12 adopted by the Securities and Exchange Commission (the SEC) under
the Securities Exchange Act of 1934. The officers of the -Issuer are hereby authorized
and directed to execute such certificates as may be appropriate concerning the
accuracy, completeness and sufficiency of the Official Statement.
Section 9. Tax Covenants; Arbitrage Matters; Reimbursement and
Continuing Disclosure.
9.01. General Tax Covenant. The Issuer covenants and agrees with the
registered owners of the Bonds that it will not take, or permit to be taken by any of
its officers, employees or agents, any actions that would cause interest on the Bonds
to become includable in gross income of the recipient under the Internal Revenue
Code of 1986, as amended (the Code) and applicable Treasury Regulations (the
Regulations), and covenants to take any and all actions within its powers to ensure
that the interest on the Bonds will not become includable in gross income of the .
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.
.
.
recipient under the Code and the Regulations. In particular, the Issuer covenants
and agrees that all proceeds of the Bonds deposited in the Construction Fund will be
expended solely for the payment of the costs of the Projects (or other improvements
authorized pursuant to Chapter 429). All improvements so financed will be owned
and maintained by the Issuer and available for use by members of the general public
on a substantially equal basis. The Issuer shall not enter into any lease, use or other
agreement with any non-governmental person relating to the use of the Projects or
security for the payment of the Bonds which might cause the Bonds to be considered
"private activity bonds" or "private loan bonds" pursuant to Section 141 of the Code.
9.02. Certification. The Mayor and Clerk being the officers of the Issuer
charged with the responsibility for issuing the Bonds pursuant to this resolution, are
authorized and directed to execute and deliver to the Purchaser a certificate in
accordance with the provisions of Section 148 of the Code, and applicable
Regulations, stating the facts, estimates and circumstances in existence on the date of
issue and delivery of the Bonds which make it reasonable to expect that the proceeds
of the Bonds will not be used in a manner that would cause the Bonds to be
"arbitrage bonds" within the meaning of the Code and Regulations.
9.03. Arbitrage Rebate Exemption. It is hereby found that the Issuer has
general taxing powers, that no Bond is a "private activity bond" within the meaning
of Section 141 of the Code, that 95% or more of the net proceeds of the Bonds are to
be used for local governmental activities of the Issuer, and that the aggregate face
amount of all tax-exempt obligations (other than private activity bonds) issued by
the Issuer and all subordinate entities thereof during the year 1997 is not reasonably
expected to exceed $5,000,000. Therefore, pursuant to Section 148(f)(4)(D) of the
Code, the Issuer shall not be required to comply with the arbitrage rebate
requirements of paragraphs (2) and (3) of Section 148(f) of the Code.
9.04. Oualified Tax-Exempt Obligations. The City Council hereby
designates the Bonds as "qualified tax-exempt obligations" for purposes of Section
265(b )(3) of the Code relating to the disallowance of interest expense for financial
institutions, and hereby finds that the reasonably anticipated amount of qualified
tax-exempt obligations (within the meaning of Section 265(b)(3) of the Code) which
will be issued by the Issuer and all subordinate entities during calendar year 1997
does not exceed $10,000,000.
, 9.05. Reimbursement. The Issuer certifies that the proceeds of the
Bonds will not be used by the Issuer to reimburse itself for any expenditure with
respect to the Projects which the Issuer paid or will have paid more than 60 days
prior to the issuance of the Bonds unless, with respect to such prior expenditures,
the Issuer shall have made a declaration of official intent which complies with the
provisions of Section 1.150-2 of the Regulations; provided that this certification shall
not apply (i) with respect to certain de minimis expenditures, if any, with respect to
-15-
the Projects meeting the requirements of Section 1.150-2(f)(I) of the Regulations, or
(ii) with respect to "preliminary expenditures" for the Projects as defined in Section
1.150-2(f)(2) of the Regulations, including engineering or architectural expenses and
similar preparatory expenses, which in the aggregate do not exceed 20% of the "issue
price" of the Bonds.
9.06. . Continuing Disclosure. (a) Purpose and Beneficiaries. To
provide for the public availability of certain information relating to the Bonds and
the security therefor and to permit the original purchaser and other participating
underwriters in the primary offering of the Bonds to comply with amendments to
Rule 15c2-12 promulgated by the SEC under the Securities Exchange Act of 1934 (17
C.F.R. S 240.15c2-12), relating to continuing disclosure (as in effect and interpreted
from time to time, the Rule), which will enhance the marketability of the Bonds,
the Issuer hereby makes the following covenants and agreements for the benefit of
the Owners (as hereinafter defined) from time to time of the Outstanding Bonds.
The Issuer is the only "obligated person" in respect of the Bonds within the
meaning of the Rule for purposes of identifying the entities in respect of which
continuing disclosure must be made. If the Issuer fails to comply with any
provisions of this section, any person aggrieved thereby, including the Owners of
any Outstanding Bonds, may take whatever action at law or in equity may appear
necessary or appropriate to enforce performance and observance of any agreement
or covenant contained in this section, including an action for a writ of mandamus
or specific performance. Direct, indirect, consequential and punitive damages shall
not be recoverable for any default hereunder to the extent permitted by law.
Notwithstanding anything to the contrary contained herein, in no event shall a
default under this section constitute a default under the Bonds or under any other
provision of this resolution. As used in this section, "Owner" or "Bondowner"
means, in respect of a Bond, the registered owner or owners thereof appearing in the
bond register maintained by the Registrar or any "Beneficial Owner" (as hereinafter
defined) thereo( if such Beneficial Owner provides to the Registrar evidence of such
beneficial ownership in form and substance reasonably satisfactory to the Registrar.
As used herein, "Beneficial Owner" means, in respect of a Bond, any person or
entity which (i) has the power, directly or indirectly, to vote or consent with respect
to, or to dispose of ownership of, such Bond (including persons or entities holding
Bonds through nominees, depositories or other intermediaries), or (ii) is treated as
the owner of the Bond for federal income tax purposes.
(b) Information To Be Disclosed. The Issuer will provide, in the manner set forth
in subsection (c) hereof, either directly or indirectly through an agent designated by
the Issuer, the following information at the following times:
.
.
(1) on or before 365 days after the end of each fiscal year of the Issuer,
commencing with the fiscal year ending December 31,1997, the following financial
information and operating data in respect of the Issuer (the Disclosure Information): .
-16-
.
(A) the audited financial statements of the Issuer for such fiscal year,
accompanied by the audit report and opinion of the accountant or
government auditor relating thereto, as permitted or required by the laws of
the State of Minnesota, containing balance sheets as of the end of such fiscal
year and a statement of operations, changes in fund balances and cash flows
for the fiscal year then ended, showing in comparative form such figures for
the preceding fiscal year of the Issuer, prepared in accordance with generally
accepted accounting principles promulgated by the Financial Accounting
Standards Board as modified in accordance with the governmental
accounting standards promulgated by the Governmental Accounting
Standards Board or as otherwise provided under Minnesota law, as in effect
from time to time, or, if and to the extent such financial statements have not
been prepared in accordance with such generally accepted accounting
principles for reasons beyond the reasonable control of the Issuer, noting the
discrepancies therefrom and the effect thereof, and certified as to accuracy and
completeness in all material respects by the fiscal officer of the Issuer; and
.
(B) To the extent not included in the financial statements referred to in
paragraph (A) hereof, the information for such fiscal year or for the period
most recently available of the type contained in the Official Statement under
headings: City Property Values, City Indebtedness; City Tax Rates, Levies and
Collections; Funds on Hand; Building Permits; and General Fund Budget
Summary, which information may be unaudited.
.
Notwithstanding the foregoing paragraph, if the audited financial statements
are not available by the date specified, the Issuer shall provide on or before
such date unaudited financial statements in the format required for the
audited financial statements as part of the Disclosure Information and, within
10 days after the receipt thereof, the Issuer shall provide the audited financial
statements. Any or all of the Disclosure Information may be incorporated by
reference, if it is updated as required hereby, from other documents, including
official statements, which have been submitted to each of the repositories
hereinafter referred to under subsection (b) or the SEe. If the document
incorporated by reference is a final official statement, it must be available
from the Municipal Securities Rulemaking Board. The Issuer shall clearly
identify in the Disclosure Information each document so incorporated by
reference. If any part of the Disclosure Information can no longer be
generated because the operations of the Issuer have materially changed or
been discontinued, such Disclosure Information need no longer be provided
if the Issuer includes in the Disclosure Information a statement to such effect;
provided, however, if such operations have been replaced by other Issuer
operations in respect of which data is not included in the Disclosure
Information and the Issuer determines that certain specified data regarding
such replacement operations would be a Material Fact (as defined in
-17-
paragraph (3) hereof), then, from and after such determination, the Disclosure
Information shall include such additional specified data regarding the
replacement operations. If the Disclosure Information is changed or this
section is amended as permitted by this paragraph (b)(I), then the Issuer shall
include in the next Disclosure Information to be delivered hereunder, to the
extent necessary, an explanation of the reasons for the amendment and the
effect of any change in the type of financial information or operating data
provided.
.
(2) In a timely manner, notice of the occurrence of any of the following
events which is a Material Fact (as hereinafter defined):
(A) Principal and interest payment delinquencies;
(B) Non-payment related defaults;
(C) Unscheduled draws on debt service reserves reflecting financial
difficul ties;
(D) Unscheduled draws on credit enhancements reflecting financial
difficulties;
(E) Substitution of credit or liquidity providers, or their failure to perform;
(F) Adverse tax opinions or events affecting the tax-exempt status of the
security;
(G) Modifications to rights of security holders; .
(H) Bond calls;
(I) Defeasances;
m Release, substitution, or sale of property securing repayment of the
securities; and
(K) Rating ch?!l,?'=s,
As used herein, a "Material Fact" is a fact as to which a substantial likelihood
exists that a reasonably prudent investor would attach importance thereto in
deciding to buy, hold or sell a Bond or, if not disclosed,-would significantly alter the
total information otherwise available to an investor from the Official Statement,
information disclosed hereunder or information generally available to the public.
Notwithstanding the foregoing sentence, a "Material Fact" is also an event that
would be deemed "material" for purposes of the purchase, holding or sale of a Bond
within the meaning of applicable federal securities laws, as interpreted at the time of
discovery of the occurrence of the event.
(3) In a timely manner, notice of the occurrence of any of the following
events or conditions:
(A) the failure of the Issuer to provide the Disclosure Information required
under paragraph (b)(I) at the time specified thereunder;
.
-18-
.
(B) the amendment or supplementing of this section pursuant to subsection
(d), together with a copy of such amendment or supplement and any
explanation provided by the Issuer under subsection (d)(2);
(C) the termination of the obligations of the Issuer under this section
pursuant to subsection (d);
(D) any change in the accounting principles pursuant to which the financial
statements constituting a portion of the Disclosure Information or the
audited financial statements, if any, furnished pursuant to subsection (b )(2) or
(3) are prepared; and
(E) any change in the fiscal year of the Issuer.
(c) Manner of Disclosure. The Issuer agrees to make available the information
described in subsection (b) to the following entities by telecopy, overnight delivery,
mail or other means, as appropriate:
(1) the information described in paragraphs (1), (2) and (3) of subsection (b),
to each then nationally recognized municipal securities information repository
under the Rule and to any state information depository then designated or operated
by the State of Mirinesota as contemplated by the Rule (the State Depository), if any;
and
.
(2) the information described in subsection (b), to any rating agency then
maintaining a rating of the Bonds and, at the expense of such Bondowner, to any
Bondowner who requests in writing such information, at the time of transmission
under paragraph (1) this subsection (c), or, if such information is transmitted with a
subsequent time of release, at the time such information is to be released.
(d) Term; Amendments; Interpretation.
(1) The covenants of the Issuer in this section shall remain in effect so long
as any Bonds are Outstanding. Notwithstanding the preceding sentence, however,
the obligations of the Issuer under this section shall terminate and be without
further effect as of any date on which the Issuer delivers to the Registrar an opinion
of Bond Counsel to the effect that, because of legislative action or final judicial or
administrative actions or proceedings, the failure of the Issuer to comply with the
requirements of this section will not cause participating underwriters in the primary
offering of the Bonds to be in violation of the Rule or other applicable requirements
of the Securities Exchange Act of 1934, as amended, or any statutes or laws successory
thereto or amendatory thereof.
(2) This section (and the form and requirements of the Disclosure
Information) may be amended or supplemented by the Issuer from time to time,
without notice to (except as provided in paragraph (c)(3) hereof) or the consent of
.
-19-
the Owners of any Bonds, by a resolution of this Council filed in the office of the
recording officer of the Issuer accompanied by an opinion of Bond Counsel, who
may rely on certificates of the Issuer and others and the opinion may be subject to
customary qualifications, to the effect that: (i) such amendment or supplement (a) is
made in connection with a change in circumstances that arises from a change in law
or regulation or a change in the identity, nature or status of the Issuer or the type of
operations conducted by the Issuer, or (b) is required by, or better complies with, the
provisions of paragraph (b )(5) of the Rule; (ii) this section as so amended or
supplemented would have complied with the requirements of paragraph (b )(5) of
the Rule at the time of the primary offering of the Bonds, giving effect to any change
in circumstances applicable under clause (i) (a) and assuming that the Rule as in
effect and interpreted at the time of the amendment or supplement was in effect at
the time of the primary offering; and (iii) such amendment or supplement does not
materially impair the interests of the Bondowners under the Rule. If the Disclosure
Information is so amended, the Issuer agrees to provide, contemporaneously with
(the effectiveness of such amendment, an explanation of the reasons for the
amendment and the effect, if any, of the change in the type of financial information
or operating data being provided hereunder.
(3) This section is entered into to comply with the continuing disclosure
provisions of the Rule and should be construed so as to satisfy the requirements of
paragraph (b )(5) of the Rule.
-20-
.
.
.
.
.
.
Adopted this 3rd day of June, 1997.
Approved: I sl Jay Kimble
Mayor
Attest: Isl Morli J. Weldon
City Clerk
Upon vote being taken thereon, the following voted in favor thereof:
Bealka, Thole, Zoller, Cummings and Kimble
and the following voted against the same: None
whereupon the resolution was declared duly passed and adopted.
-21-
APPENDIX I
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