HomeMy WebLinkAboutResolution 3286 Fixing form and terms for SID 664 bonds
COMMISSION RESOLUTION NO. 3286
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, RELATING TO $1,488,000 SPECIAL IMPROVEMENT DISTRICT NO.
665 BONDS; FIXING THE FORM AND DETAILS AND PROVIDING FOR THE
EXECUTION AND DELIVERY THEREOF AND SECURITY THEREFOR.
BE IT RESOLVED by the City Commission (the "Commission") of the City of Bozeman,
Montana (the "City"), as follows:
Section 1. Recital$. It is hereby found, determined and declared as follows:
1.01. Resolution of Intention. By Resolution No. 3227, adopted February 2,
1998 (the "Resolution of Intention"), this Commission declared its intention to create Special
Improvement District No. 665 (the "District"),
for the purpose of making special
improvements for the special benefit of the District. The Resolution of Intention designated
the number of the District, described the boundaries thereof, stated whether the District was
an extended district and stated the general character of the improvements to be made (the
"Improvements") and an approximate estimate of the costs thereof, in accordance with the
provisions of Montana Code Annotated, Title 7, Chapter 12, Parts 41 and 42, as amended
(the "Act"). By the Resolution of Intention this Commission also declared its intention to
cause the cost and expense of making the improvements specially benefiting the District to
be assessed against the properties included within the boundaries thereof in accordance with
one or more methods of assessment authorized in Montana Code Annotated, Sections
7-12-4161 to 7-12-4165 and as set forth in the Resolution of Intention.
In the Resolution of Intention, this Commission further found that it is in the public
interest, and in the best interest of the City and the District, to secure payment of principal
of and interest on the Bonds by the Special Improvement District Revolving Fund of the City,
on the basis of the factors required to be considered under Section 7-12-4225 of the Act.
Those findings are hereby ratified and confirmed.
1.02. Notices. Notice of the passage of the Resolution of Intention was given
by two publications, with at least six days between publications, the first no more than 21
days prior to the hearing, in a qualified newspaper of general circulation in the county in
which the City is located or, if no such newspaper is published, in a qualified newspaper
published in an adjacent county, as required by Montana Code Annotated, Sections
7- 12-4106(2) and 7-1-2121. Notice of the passage of the Resolution of Intention was also
mailed to all persons, firms or corporations or the agents thereof having real property within
the District listed in their names upon the last completed assessment roll for state, county
and school district taxes, at their last known addresses. The notice described the general
-:;haracter of the Improvements, stated the estimated cost of the Improvements and the
-nethod or methods of assessment of such costs against properties in the District, specified
he time when and the place where the Commission would hear and pass upon all protests
-Jade against the making of the Improvements or the creation or extension of the District,
~ferred to the Resolution of Intention as being on file in the office of the Clerk of the
)mmission for a description of the boundaries of the District, all in accordance with the
::>visions of the Resolution of Intention, and included a statement that, subject to the
litations of Section 7-12-4222 of the Act, the general fund of the City may be used to
wide loans to the revolving fund or a general tax levy may be imposed on all taxable
perty in the City to meet the financial requirements of the revolving fund.
1.03. Creation of District. At the time and place specified in the notice
inabove described, this Commission met to hear, consider and pass upon all protests
~ against the making of the Improvements and the creation of the District, and, after
ideration thereof, it was determined and declared that insufficient protests against the
ion or extension of the District or the proposed work had been filed in the time and
er provided by law by the owners of the property to be assessed for the Improvements
District, and this Commission did therefore by Resolution No. 3231, adopted March
198, create the District and order the proposed Improvements in accordance with the
Resolution of Intention. In the resolution, the City Commission also declared its intention to
reimburse the City for costs paid before issuance of the Bonds, as required by Section
1.150-2 of the Income Tax Regulations promulgated under the Internal Revenue Code, and
confirmed the findings it made with respect to the pledge of the Revolving Fund in the
Resolution of Intention.
1.04. Construction Contracts. Plans, specifications, maps, profiles and surveys
for construction of the Improvements were prepared by the engineers acting for the City, and
were thereupon examined and approved by this Commission. An advertisement for bids for
construction of the Improvements was published in the official newspaper of the City in
accordance with the provisions of Montana Code Annotated, Section 7 ~ 1 2-4141, after which
the bids theretofore received were opened and examined. After referring the bids to the
engineers for the City it was determined that the lowest regular proposals for the furnishing
of all work and materials required for constructing the Improvements in accordance with the
approved plans and specifications were the following:
Work Bidder Contract Price
Construction, installation and inspection Williams Plumbing & $941,741.00 for
of 10-inch and 1 2-inch water mains and Heating Incorporated Schedules 1 and 2
all necessary appurtenances, generally
along North 19th Avenue, north of West
Oak Street and south of North 19th
Avenue 1~90 Interchange, to include,
but not be limited to, trench excavation
and backfill, bedding material, ductile
iron water mains, valves, fire hydrants
and fittings, and other necessary
appurtenances thereto
Contracts for the construction of the Improvements were therefore awarded to said
bidder, subject to the right of owners of property liable to be assessed for the costs thereof
to elect to take the work and enter into written contracts therefor in the manner provided
by Montana Code Annotated, Section 7-12-4147, which election the property owners failed
to make, whereupon the City and the successful bidder entered into written contract(s) for
construction of the Improvements upon the bidder having executed and filed bonds
satisfactory to this Commission and in the form and manner provided by Montana Code
Annotated, Title 18, Chapter 2, Part 2, as amended.
1.05. Costs. It is currently estimated that the costs and expenses to be
assessed against properties benefitted by the Improvements, including costs of preparation
of plans, specifications, maps, profiles, engineering superintendence and inspection,
preparation of assessment rolls, expenses of making the assessments, the cost of work and
materials under the construction contract and all other costs and expenses, including the
deposit of proceeds in the Revolving Fund, are $1,488,000. Such amount will be levied and
assessed upon the assessable real property within the District on the bases described in the
1esolution of Intention. This Commission has jurisdiction and is required by law to levy and
~ssess such amount, to collect such special assessments and credit the same to the special
nprovement district fund created for the District, which fund is to be maintained on the
fficial books and records of the City separate from all other City funds, for the payment of
"incipal and interest when due on the bonds herein authorized.
1.06. Sale and Issuance of Bonds. For the purpose of financing the costs and
penses of making the Improvements, which are to be assessed against the property within
~ District as provided in the Resolution of Intention, this Commission by Resolution No.
79, adopted March 8, 1999, called for the public sale of bonds in the total aggregate
Junt of $1,706,000. Due to the fact that construction bids were lower than anticipated,
total aggregate principal amount of the bonds was decreased to $1,488,000 (the
'1ds"). Advertisements for bids for the purchase of the Bonds were published in
)rdance with the provisions of Montana Code Annotated, Sections 7-12-4204, 7-7-4252
17-5~ 1 06. Pursuant to the March 29, 1999 minutes of the Commission, this
mission authorized the City to enter into a contract with Dain Rauscher Incorporated,
~nver, Colorado (the "Purchaser"), as the lowest responsible bidder pursuant to which
'urchaser agreed to purchase from the City the Bonds at a purchase price of
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$1,467,912 plus interest accrued thereon from the date of original issue of the Bonds, at
the rates of interest set forth in Section 2.01 hereof and upon the further terms set forth in
this resolution resulting in a true interest cost of 4.563476% and a total dollar interest cost
of $615,816.13.
1.07. Recitals. All acts, conditions and things required by the Constitution and
laws of the State of Montana, including Montana Code Annotated, Title 7, Chapter 12, Parts
41 and 42, as amended, in order to make the Bonds valid and binding special obligations in
accordance with their terms and in accordance with the terms of this resolution have been
done, do exist, have happened and have been performed in regular and due form, time and
manner as so required.
Section 2. The Bonds.
2.01. Principal Amount. Maturities. Denominations. Date, Interest Rates. For
the purpose of paying the costs and expenses incurred in construction of the Improvements,
and in anticipation of the collection of special assessments to be levied therefor, and in
accordance with the proposal described in Section 1.06, the City shall forthwith issue and
deliver to the Purchaser the Bonds payable solely from the Special Improvement District No.
665 Fund (the UDistrict Fund") and denominated "Special Improvement District No. 665
Bonds." The Bonds shall be dated, as originally issued, and be registered as of April 1,
1999, shall each be in the denomination of $5,000 or any integral multiple thereof of single
maturities, provided that one Bond with a stated maturity in 2000 shall be in the principal
amount of $8,000, shall mature on July 1 in the years and principal amounts set forth
below, and Bonds maturing in such years and principal amounts shall bear interest from the
date of original registration until paid or duly called for redemption at the rates per annum
set forth opposite such years and amounts, respectively:
Principal Principal
Year Amount .B2N Year Amount
Rate
2000 $ 63,000 3.25% 2008 $100,000
4.25%
2001 75,000 3.50 2009 105,000
4.30
2002 80,000 3.65 2010 110,000
4.40
2003 85,000 3.75 2011 115,000
4.50
2004 85,000 3.90 2012 120,000
4.60
2005 90,000 4.00 2013 130,000
4.70
2006 95,000 4.10 2014 135,000
4.75
2007 100,000 4.20
2.02. Interest Pavment Dates. Interest on the Bonds shall be payable on each
January 1 and July 1, commencing January 1, 2000, to the owners of record thereof as
such appear on the bond registrar at the close of business on the fifteenth day of the
immediately preceding month, whether or not such day is a business day. Upon the original
delivery of the Bonds to the Purchaser and upon each subsequent transfer or exchange of
a Bond pursuant to Section 2.04, the Registrar shall date each Bond as of the date of its
authentication.
2.03. Method of Payment. The Bonds shall be issued only in fully registered
form. The interest on and, upon surrender thereof at the principal office of the Registrar (as
hereinafter defined), the principal of each Bond, shall be payable by check or draft drawn on
the Registrar.
2.04. Registration. The City hereby appoints the Administrative Services
Director of the City to act as bond registrar, transfer agent and paying agent (the
URegistrar") . The City reserves the right to appoint a bank, trust company or financial
institution as successor bond registrar, transfer agent or paying agent, as authorized by the
Model Public Obligations Registration Act of Montana, Montana Code Annotated, Title 17,
Chapter 5, Part 11, as amended (the "Registration Act"), but the City agrees to pay the
reasonable and customary charges of the Registrar for the services performed. This Section
2.04 shall establish a system of registration for the Bonds as defined in the Registration Act.
The effect of registration and the rights and duties of the City and the Registrar with
respect thereto shall be as follows:
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(a) Bond Register. The Registrar shall keep at its principal office a bond
register in which the Registrar shall provide for the registration of ownership of
the Bonds and the registration of transfers and exchanges of the Bonds entitled
to be registered, transferred or exchanged.
(b) Transfer. Upon surrender to the Registrar 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 of any Bond or
portion thereof selected or called for redemption. No transfer or exchange of
a Bond shall affect its order of registration for purposes of redemption pursuant
to Section 2.05.
(c) Exchange. Whenever any Bond is surrendered by the registered
owner for exchange, the Registrar shall authenticate and deliver one or more
new Bonds of a like aggregate principal amount, interest rate and maturity, as
requested by the registered owner or the owner's attorney duly authorized in
writing.
(d) Cancellation. All Bonds surrendered upon any transfer or exchange
shall be promptly cancelled by the Registrar and thereafter disposed of as
directed by the City.
(e) Improoer 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
transfer is valid and genuine and that the requested transfer is legally
authorized. The Registrar shall incur no liability for the refusal, in good faith, to
make transfers which it, in its judgment, deems improper or unauthorized.
(f) Persons Deemed Owners. The City 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 such Bond, whether such Bond shall be overdue or
not, for the purpose of receiving payment of, or on account of, the principal of
and interest on such Bond and for all other purposes, and all such payments so
made to any such registered owner or upon the owner's order shall be valid and
effectual to satisfy and discharge the liability of the City upon such Bond to the
extent of the sum or sums so paid.
(9) Taxes. Fees and Charges. For every transfer of Bonds or exchange
of Bonds (except 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 Destroved 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 such 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 such Bond was destroyed, stolen
or lost, and of the ownership thereof, and upon furnishing to the Registrar an
appropriate bond or indemnity in form, substance and amount satisfactory to it,
in which both the City and the Registrar shall be named as obligees. All Bonds
so surrendered to the Registrar shall be cancelled by it and evidence of such
cancellation shall be given to the City. If the mutilated, destroyed, stolen or lost
Bond has already matured or such Bond has been called for redemption in
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accordance with its terms, it shall not be necessary to issue a new Bond prior
to payment.
2.05. Redemption.
(a) Mandatorv Redemotion. If on any interest payment date there will be
a balance in the District Fund after payment of the principal and interest due on
all Bonds drawn against it, either from the prepayment of special assessments
levied in the District or from the transfer of surplus money from the
Construction Account to the Principal Account as provided in Section 3.02 or
otherwise, the Director of Administrative Services shall call for redemption on
the interest payment date outstanding Bonds, or portions thereof, in an amount
which, together with the interest thereon to the interest payment date, will
equal the amount of such funds on deposit in the District Fund on that date.
The redemption price shall equal the amount of the principal amount of the
Bonds to be redeemed plus interest accrued to the date of redemption.
(b) Ootional Redemption. The Bonds are subject to redemption, in whole
or in part, at the option of the City from sources of funds available therefor
other than those described in Subsection (a) of this Section 2.05 on any interest
payment date; provided, however, the Bonds shall not be called for redemption
before July 1, 2004 from the proceeds of refunding special improvement district
bonds or warrants. The redemption price shall equal the principal amount of the
Bonds to be redeemed plus interest accrued to the date of redemption.
(c) Selection of Bonds for Redemption: Partial Redemotion. If less than
all of the Bonds are to be redeemed, Bonds shall be redeemed in order of the
stated maturities thereof. If less than all Bonds of a stated maturity are to be
redeemed, the Bonds of such maturity shall be selected for redemption in
$5,000 principal amounts selected by the Registrar by lot or other manner it
deems fair, except that the Bond with a stated maturity in 2000 and in the
principal amount of $8,000 shall be redeemed before other Bonds of such
stated maturity. Upon partial redemption of a Bond, a new Bond or Bonds will
be delivered to the registered owner without charge, representing the remaining
principal amount thereof outstanding.
(d) Notice and Effect of Redemotion. The date of redemption shall be
fixed by the Director of Administrative Services, who shall give notice, by first
class mail, postage prepaid to the owner or owners of such Bonds at their
addresses appearing in the bond register, of the numbers of the Bonds or
portions thereof to be redeemed and the date on which payment will be made,
which date shall be not less than thirty (30) days after the date of mailing
notice. On the date so fixed interest on the Bonds or portions thereof so
redeemed shall cease.
2.06. Form. The Bonds shall be drawn in substantially the form set forth in
Exhibit A hereto, and by this reference made a part hereof, with such modifications as are
permitted by the Act.
2.07. Execution, Registration and Deliverv. The Bonds shall be prepared under
the direction of the Director of Administrative Services and shall be executed on behalf of
the City by the signatures of the Mayor, the City Manager and the Clerk of the Commission;
provided that the signatures and the corporate seal may be printed, engraved or lithographed
facsimiles of the originals. The seal of the City need not be impressed or imprinted on any
Bond. 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 such
officer 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 a certificate of authentication and registration on such Bond has been duly
executed by the manual signature of an authorized representative of the Registrar.
Certificates of authentication and registration on different Bonds need not be signed by the
same representative. The executed certificate of authentication and registration on each
Bond shall be conclusive evidence that it has been authenticated and delivered under this
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resolution. The Bonds shall be registered in order of their serial numbers by the Registrar,
as attested by the Certificate of Authentication, as of the date of their delivery. When the
Bonds have been so executed, authenticated and registered, they shall be delivered by the
Registrar to the Purchaser upon payment of the purchase price in accordance with the
contract of sale heretofore made and executed. The Purchaser shall not be obligated to see
to the application of the purchase price, but from the proceeds of the Bonds the Director of
Administrative Services shall credit forthwith $74,400 to the Revolving Fund, as required
by Section 7-12-4169(2) of the Act, any accrued interest to the Interest Account in the
District Fund, and the balance of such proceeds to the Construction Account in the District
Fund.
2.08. Securities DeDositorv for the Bonds.
(a) For purposes of this Section 2.08, 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 DTC with respect to the
Bonds.
"DTC" shall mean The Depository Trust Company of New
York, New York.
"Participant" shall mean any broker-dealer, bank or other
financial institution for which DTC holds the Bonds as
securities depository.
"Representation letter" shall mean the Blanket Issuer letter
of Representations from the City to DTC, attached to this
resolution as Exhibit B, which is hereby incorporated herein
by reference and made a part hereof.
(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 City may treat DTC (or its nominee I 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, jf 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 City shall be affected by any notice to the contrary.
Neither the Registrar nor the City 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 the Representation letter, and all such payments shall
be valid and effective to fully satisfy and discharge the City's obligations with
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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 City 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 City 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 City 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 City 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.
(d) The Representation Letter sets forth certain matters with respect to,
among other things, notices, consents and approvals by registered owners of
the Bonds and Beneficial Owners and payments on the Bonds. The Registrar
shall have the same rights with respect to its actions thereunder as it has with
respect to its actions under this resolution.
(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.
Section 3. District Fund; Assessments.
3.01. District Fund. There is hereby created and established the District Fund
designated as the "Special Improvement District No. 665 Fund," which shall be maintained
by the Director of Administrative Services on the books and records of the City separate and
apart from all other funds of the City. Within the District Fund there shall be maintained
three separate accounts, designated as the "Construction Account," "Principal Account"
and Ulnterest Account", respectively.
3.02. Construction Account. There shall be credited to the Construction
Account certain proceeds of the sale of the Bonds as provided in Section 2.07. Any
earnings on investment of money in the Construction Account shall be retained therein. All
costs and expenses of constructing the Improvements to be paid from proceeds of the Bonds
shall be paid from time to time as incurred and allowed from the Construction Account in
accordance with the provisions of applicable law, and money in the Construction Account
shall be used for no other purpose; provided that upon completion of the Improvements and
after all claims and expenses with respect to the Improvements have been fully paid and
satisfied, any money remaining in the Construction Account shall be transferred to the
Principal Account and used to redeem Bonds as provided in Section 3.03.
3.03. Principal Account and Interest Account. Money in the Principal Account
and the Interest Account shall be used only for payment of the principal of and interest on
the Bonds as such payments become due or to redeem Bonds. From the proceeds of the
Bonds, there shall be deposited in the Interest Account any interest on the Bonds accrued
to the date of their delivery. Interest income on funds in the Accounts shall be retained
therein and used as any other funds therein.
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Upon collection of the installment of principal and interest due on November 30 and
May 31 of each fiscal year on the special assessments to be levied with respect to the
Improvements, the Director of Administrative Services shall credit to the Interest Account
so much of said special assessments as is collected as interest payment and the balance
thereof to the Principal Account. Any installment of any special assessment paid prior to its
due date with interest accrued thereon to the next succeeding interest payment date shall
be credited with respect to principal and interest payments in the same manner as other
assessments are credited to the District Fund. All money in the Interest Account and the
Principal Account shall be used first to pay interest due, and any remaining money shall be
used to pay Bonds then due and, if money is available, to redeem Bonds in accordance with
Section 2.05; provided that any money transferred to a Principal Account from the
Construction Account pursuant to Section 3.02 shall be applied to redeem Bonds to the
extent possible on the next interest payment date for which notice of redemption may
properly be given pursuant to Section 2.05. Redemption of Bonds shall be as provided in
Section 2.05, and interest shall be paid as accrued thereon to the date of redemption, in
accordance with the provisions of Section 7-12-4206 of the Act.
3.04. Loans from Revolving Fund. The Commission shall annually or more
often if necessary issue an order authorizing a loan or advance from the Revolving Fund to
the District Fund in an amount sufficient to make good any deficiency then existing in the
Interest Account and shall issue 'an order authorizing a loan or advance from the Revolving
Fund to the District Fund in an amount sufficient to make good any deficiency then existing
in the Principal Account in such order and in each case to the extent that money is available
in the Revolving Fund. A deficiency shall be deemed to exist in the Principal Account or the
Interest Account if the money on deposit therein on any December 15 or June 15 (excluding
amounts in the Principal Account representing prepaid special assessments) is less than the
amount necessary to pay Bonds due (other than upon redemption), and interest on all Bonds
payable, on the next succeeding interest payment date.
Pursuant to Ordinance No. '612, the City has undertaken and agreed to provide funds
for the Revolving Fund by levying such tax or making such loan from the General Fund as
authorized by Montana Code Annotated, Section 7-12-4222. In the event that the balance
on hand in the Revolving Fund fifteen days prior to any date when interest is due on special
improvement district bonds or warrants of the City is not sufficient to make good all
deficiencies then existing in the special improvement district funds for which the City has
covenanted to make loans from the Revolving Fund, the balance on hand in the Revolving
Fund shall be allocated to the funds of the special improvement districts in which such
deficiencies then exist in proportion to the amounts of the deficiencies on the respective
dates of rece.ipt of such money, until all interest accrued on such special improvement
district bonds or warrants of the City has been paid. On any date when all accrued interest
on special improvement district bonds and warrants of the City payable from funds for which
the City has covenanted to make loans from the Revolving Fund has been paid, any balance
remaining in the Revolving Fund shall be lent or advanced to the special improvement district
funds for payment and redemption of bonds to the extent the special improvement district
funds are deficient for such purpose, and, if money in the Revolving Fund is insufficient
therefor, pro rata, in an amount proportionate to the amount of such deficiency.
Section 4. Covenants. The City covenants and agrees with the owners from time to
time of each of the Bonds that until all the Bonds and interest thereon are fully paid:
4.01. GomDliance with Resolution. The City will hold the District Fund and the
Revolving Fund as trust funds, separate and apart from all of its other funds, and the City,
its officers and agents, will comply with all covenants and agreements contained in this
resolution~ The provisions hereinabove made with respect to the District Fund and the
Revolving Fund are in accordance with the undertaking and agreement of the City made in
connection with the public offering of the Bonds and the sale of the Bonds as set forth in
Section 1.06.
4.02. Construction of Improvements. The City will do all acts and things
necessary to enforce the provisions of the construction contracts and bonds referred to in
Section 1.04 and to ensure the completion of the Improvements for the benefit of the
District in accordance with the plans and specifications and within the time therein provided,
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and will pay all costs thereof promptly as incurred and allowed, out of the District Fund and
within the amount of the proceeds of the Bonds appropriated thereto.
4.03. Levy of Assessments. The City will do all acts and things necessary for
the final and valid levy of special assessments upon all assessable real property within the
boundaries of the District in accordance with the Constitution and laws of the State of
Montana and the Constitution of the United States, in an aggregate principal amount not less
than $1,488,000. Such special assessments shall be levied on the basis or bases prescribed
in the Resolution of Intention, and shall be payable in equal, semiannual installments over a
period of 15 years, with interest on the whole amount remaining unpaid at an annual rate
equal to the sum of: (i) the average annual interest rate borne by the Bonds, plus (ii) one-half
of one percent (0.50%) per annum, interest being payable with principal installments. The
assessments to be levied will be payable on the 30th day of November in each of the years
1999 through 2013, and on the 31 st day of May in the years 2000 through 2014, inclusive,
if not theretofore paid, and shall become delinquent on such date unless paid in full. The
first partial payment of each assessment shall include interest on the entire assessment from
the date of original registration of the Bonds to January 1, 2000 and each subsequent partial
payment shall include interest for six months on that payment and the then remaining
balance of the special assessment. The assessments shall constitute a lien upon and against
the property against which they are made and levied, which lien may be extinguished only
by payment of the assessment with all penalties, cost and interest as provided in Montana
Code Annotated, Section 7-12-4191. No tax deed issued with respect to any lot or parcel
of land shall operate as payment of any installment of the assessment thereon which is
payable after the execution of such deed, and any tax deed so issued shall convey title
subject only to the lien of said future installments, as provided in Montana Code Annotated,
Section 15-18-214.
4.04. Reassessment. If at any time and for whatever reason any special
assessment or tax herein agreed to be levied is held invalid, the City and this Commission,
its officers and employees, will take all steps necessary to correct the same and to reassess
and re-Ievy the same, including the ordering of work, with the same force and effect as if
made at the time provided by law, ordinance or resolution relating thereto, and will reassess
and re-Ievy the same with the same force and effect as an original levy thereof, as
authorized 'in Montana Code Annotated, Section 7-12-4186. Any special assessment, or
reassessment or re-Ievy shall, so far as is practicable, be levied and collected as it would
have been if the first levy had been enforced including the levy and collection of any interest
accrued on the first levy.
If proceeds of the Bonds, including investment income thereon, are applied to the
redemption of such Bonds, as provided in Montana Code Annotated, Sections 7~ 12-4205
and 7-12-4206, or if refunding bonds are issued and the principal amount of the outstanding
Bonds of the District is decreased or increased, the City will reduce or increase, respectively,
the assessments levied in the District and then outstanding pro rata by the principal amount
of such prepayment or the increment above or below the outstanding principal amount of
bonds represented by the refunding bonds. The City and this Commission, its officers and
employees will reassess and re-Ievy such assessments, with the same effect as an original
levy, in such reduced or increased amounts in accordance with the provisions of Montana
Code Annotated, Sections 7-12-4176 through 7-12-4178.
4.05. Absence of Litigation. There is now no litigation pending or, to the best
knowledge of the City, threatened questioning the validity or regularity of the creation of the
District, the contracts for construction of the Improvements or the undertaking and
agreement of the City to levy special assessments therefor and to make good any deficiency
in the collection thereof through the levy of taxes for and the making of advances from the
Revolving Fund, or the right and power of the City to issue the Bonds or in any manner
questioning the existence of any condition precedent to the exercise of the City's powers
in these matters. If any such litigation should be initiated or threatened, the City will
forthwith notify in writing the Purchaser, and will furnish the Purchaser a copy of all
documents, including pleadings, in connection with such litigation.
4.06. Waiver of Penaltv and Interest. The City covenants not to waive the
payment of penalty or interest on delinquent assessments levied on property in the District
for costs of the Improvements, unless the City determines, by resolution of the City
Commission, that such waiver is in the best interest of the owners of the outstanding Bonds.
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Section 5. Tax Matters.
5.01. Use of Imorovements. The Improvements will be owned and operated
by the City and available for use by members of the general public on a substantially equal
basis. The City shall not enter into any lease, use or other agreement with any non-
governmental person relating to the use of the Improvements or security for the payment of
the Bonds which might cause the Bonds to be considered "private activity bonds" or "private
loan bonds" within the meaning of Section 141 of the Internal Revenue Code of 1986, as
amended (the "Code").
5.02. General Covenant. The City covenants and agrees with the 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 applicable to the Bonds and promulgated under the Code, including,
without limitation, 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 for federal income tax purposes under the Code and the
Regulations.
5.03. Arbitrage Certification. The Mayor, the City Manager, the Director of
Administrative Services and the Clerk of the Commission, being the officers of the City
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 prov.isions 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.
5.04. Arbitraae Rebate Exemotion.
(a) The City hereby represents that the Bonds qualify for the exception
for small governmental units to the arbitrage rebate provisions contained in
Section 148(f) of the Code. Specifically, the City represents:
(1) Substantially all (not less ~han 95%) of the proceeds of
the Bonds (except for amounts to be applied to the payment of
costs of issuance and amounts to be deposited in the Interest
Account pursuant to. Section 3.03) will
be used for local
governmental activities of the City.
(2) The aggregate face amount of all "tax-exempt bonds"
(including warrants, contracts, leases and other indebtedness, but
excluding private activity bonds) issued by or on behalf of the City
and all subordinate entities thereof during 1999 is reasonably
expected not to exceed $5,000,000. To date in 1999, the City
has issued no such tax-exempt bonds, and in calendar years 1994
through 1998, the average principal amount of such tax-exempt
bonds issued by the City in a single calendar year was $2,083,450.
(b) If notwithstanding the provisions of paragraph (a) of this Section
5.04, the arbitrage rebate provisions of Section 148(f) of the Code apply to the
Bonds, the City hereby covenants and agrees to make the determinations, retain
records and rebate to the United States the amounts at the times and in the
manner required by said Section 148(f).
5.05: Information Reoorting. The City shall file with the Secretary of the
Treasury, not later than August 15, 1999, a statement concerning the Bonds containing the
information required by Section 149(e) of the Code.
5.06. HQualified Tax-Exempt Obligations," 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 has not designated any obligations in
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1999 other than the Bonds under Section 265(b)(3). 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 uqualified 501 (c)(3) Bonds" but
excluding other uprivate 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 usubordinate entities" of the City in
1999 in an amount greater than $1 O~OOO,OOO.
Section 6. Authentication of TranscriDt. The officers of the City are hereby authorized
and directed to 'furnish to the Purchaser and to bond counsel certified copies of all
proceedings relating to the issuance of the Bonds and such other certificates and affidavits
.
as may be required to show the right, power and 'authority of the City to issue the Bonds,
and all statements contained in and shown by such instruments, including any heretofore
furnished, sHall constitute representations of the City as to the truth of the statements
purported to be shown thereby.
Section 7. Discharge.
7.01. General. When the liability of the City on all Bonds issued under and
secured by this resolution has been discharged as provided in this Section 7, all pledges,
covenants and other rights granted by this resolution to the owners of such obligations shall
cease.
7.02. Payment. The City may discharge its liability with reference to any Bond
or installment of interest thereon which is due on any date by on or before that date
depositing with the Registrar funds sufficient, or, if a City officer is the Registrar, mailing to
the registered owner of such Bond a check or draft in a sum sufficient and providing
proceeds available, for the payment thereof in full; or if any Bond or installment of interest
thereon shall not be paid when due, the City may nevertheless discharge its liability with
reference thereto by depositing with the Registrar funds sufficient, or, if a City officer is the
Registrar, by mailing to the registered owner thereof a check or draft in a sum sufficient and
providing proceeds available, for the payment thereof in full with interest accrued to the date
of such deposit or mailing.
7.03. PreDavment. The City may also discharge its obligations with respect to
any Bonds called for redemption on any date when they are prepayable according to their
terms, by on or before that date depositing with the Registrar funds sufficient, or, if a City
officer is the Registrar, mailing to the registered owner of such Bond a check or a draft in
a sum sufficient and providing proceeds available, for the payment of 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 or irrevocably provided for.
7.04. Escrow. The City may also at any time discharge its liability in its entirety
with reference to the 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 times and at such rates and maturing on such
dates as shall be required, without reinvestment, to provide funds sufficient to pay all
principal and interest to become due on all Bonds on or before maturity or, if any Bond has
been duly called for redemption or notice of such redemption has been irrevocably provided
for, on or before the designated redemption date.
7.05. Irrevocable DeDosits. If an officer of the City is the Registrar, any deposit
made under this Section 7 with the Registrar shall be irrevocable and held for the benefit of
the owners of Bonds in respect of which such deposits have been made.
Section 8. Continuina Disclosure.
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(a) Puroose 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 1 5c2-1 2 promulgated
by the Securities and Exchange Commission (the "SEC") under the Securities
Exchange Act of 1934 (17 C.F.R. ~ 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 City 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 City 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.
The City has complied in all material respects with any undertaking previously
entered into by it under the Rule.
If the City fails to comply with any provisions of this Section 8, 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 8, 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 8 constitute a default under the Bonds or under any
other provision of this resolution.
As used in this Section 8, "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)
thereof, 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 (b) is treated as the owner of the Bond for federal income tax
purposes.
(b) Information To Be Disclosed. The City will provide, in the manner set
forth in subsection (c) hereof, either directly or indirectly through an agent
designated by the City, the following information at the following times:
(1) on or before 270 days after the end of each fiscal year
of the City, commencing with the fiscal year ending June 30,
1999, the following financial information and operating data in
respect of the City (the "Disclosure Information"):
(A) the comprehensive annual financial report of
the City for such fiscal year, containing the audit
report and opinion of the accountant or government
auditor relating thereto, as permitted or required by the
laws of the State of Montana, 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, for required
funds, 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 Montana 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
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accepted accounting principles for reasons beyond the
reasonable control of the
City, noting the
discrepancies therefrom and the effect thereof, and
certified as to accuracy and completeness in all
material respects by the Director of Administrative
Services; and
(B) To the extent not included in the financial
report referred to in paragraph
(A) hereof, the
information of the type set forth below contained in
the official statement dated March 31, 1999 (the
"Official Statement"), for such fiscal year or for the
period most recently available, which information may
be unaudited, but is to be certified as to accuracy and
completeness in all material respects by the Director of
Administrative Services as to the best of his or her
knowledge (which certification may be based on the
reliability of information obtained from third party
sources):
( 1 ) updated information for the
then most recent completed fiscal year in
format similar to the table in the section
entitled "Revolving Fund" of the Official
Statement concerning the Revolving Fund
Cash Balance and outstanding
bonds
secured thereby; and
(2) updated information relating to
properties in the District as found in the
Official Statement to include: (i) the
number of properties with assessments
outstanding, (ii) the total market valuation
of properties in the
District with
assessments outstanding and (iii) the
amount of delinquent assessments in the
District;
(3) updated information for the
then most recent completed fiscal year in
format similar to the table in the section
entitled "Summary of Outstanding Special
Improvement Districts" in the Official
Statement concerning other outstanding
special improvement district bonds of the
City including the Bonds and any special
improvement district bonds issued after
the date of the Official Statement;
(4) updated information for the
then most recent completed fiscal year in
format similar to the table in the section
entitled "Special Assessment Billings and
Collections" of the Official Statement;
(5 ) updated information for the
then most recent completed fiscal year in
format similar to the table in the section
entitled "Statement of Changes in Fund
Balance of the Revolving Fund", including
the amount of loans to the District, if any;
(6) the market
and taxable
valuations of the City for the then current
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fiscal year; and
(7) tax collection information for
the then most recent completed fiscal
year in format similar to. the table in the
section entitled uTax
Collections" in
Appendix A of the Official Statement.
Notwithstanding the foregoing, if the audited financial
statements are not available by the date specified, the City 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 1 0 days atter the receipt
thereof, the City 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 (c) or the SEC. If the document incorporated by
reference is a final Official Statement, it must be available from the
Municipal Securities Rulemaking Board. The City 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 City have materially
changed or been discontinued, such Disclosure Information need no
longer be provided if the City includes in the Disclosure Information
a statement to such effect; provided, however, if such operations
have been replaced by other City operations in respect of which
data is not included in the Disclosure Information and the City
determines that certain specified data regarding such replacement
operations would be a Material Fact (as defined in paragraph (3)
hereof), then, from and after such determination, the Disclosure
Information shall include such additional specified data regarding
th~ replacement operations.
If the Disclosure Information is changed or this Section 8 is
amended as permitted by this parag'raph (b)(1) or subsection (d),
then the City shall include in the next Disclosure Information to be
delivered hereunder, to the extent necessary, an explanation in
narrative form 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 difficulties;
(D) Unscheduled draws on credit enhancements
reflecting financial difficulties;
(E) Substitution of credit or liquidity providers, or their
failure to perform;
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(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;
(J) Release, substitution, or sale of property securing
repayment of the securities; and
(K) Rating changes.
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 hereunderor 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 City to provide the
Disclosure Information required under paragraph (b)( 1)
at the time specified thereunder;
(B) the amendment or supplementing of this
Section 8 pursuant to subsection (d), together with a
copy of such amendment or supplement and any
explanation provided by the City under subsection
(d)(2);
(C) the termination of the obligations of the City
under this Section 8 pursuant to subsection (d);
(D) any change in the accounting principles pursuant
to which the financial statements constituting a portion of
the Disclosure Information are prepared; and
(E) any change in the fiscal year of the City.
(c) Manner of Disclosure. The City 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 paragraph (1) 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 Montana as
contemplated by the Rule (the "State Depository"), if any;
(2) the information described in paragraphs (2) and (3) of
subsection (b), to the Municipal Securities Rulemaking Board and
to the State Depository, if any; and
(3) the information described in subsection (b), to any rating
agency then maintaining a rating of the Bonds and, at the expense
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of such Bondowner, to any Bondowner who requests in writing
such information, at the time of transmission under paragraphs (1 )
or (2) of this subsection (c), as the case may be, or, if such
information is transmitted with a subsequent time of release, at the
time such information is to be released.
(d) Term: Amendments: Interoretation.
(1) The covenants of the City in this Section 8 shall remain
in effect so long as any Bonds are Outstanding. Notwithstanding
the preceding sentence, however, the obligations of the City under
this Section 8 shall terminate and be without further effect as of
any date on which the City 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 City to comply with the requirements of this Section 8 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 8 and the form and requirements of the
Disclosure Information may be amended or supplemented by the
City from time to time, without notice to (except as provided in
paragraph (c)(3) hereof) or the consent of the Owners of any
Bonds, by a resolution of the City Commission filed in the office of
the Clerk of the Commission of the City accompanied by an opinion
of Bond Counsel, who may rely on certificates of the City 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 City or the type of operations conducted by the City,
or (b) is required by, or better complies with, the provisions of
paragraph (b)(5) of the Rule; (ij) this Section 8 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 City agrees
to provide, contemporaneously with the effectiveness of such
amendment, an explanation, in narrative form, 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 8 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.
(e) Further Limitation of Liabilitv of Citv. In and to the extent the
limitations of liability contained in subsection (a) are not effective, anything
contained in. this Section 8 to the contrary notwithstanding, in making the
agreements, provisions and covenants set forth in this Section 8, the City has
not obligated itself except with respect to the assessments pledged to pay the
Bonds and the covenant to utilize the Revolving Fund as permitted by law and
described herein. None of the agreements or obligations of the City contained
herein shall be construed to constitute an indebtedness of the City within the
meaning of any constitutional or statutory provisions whatsoever or constitute
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a pledge of the general credit or taxing powers of the City.
Section 9. ReDeals and Effective Date.
9.01. ReDeal. All provisions of other resolutions and other actions and
proceedings of the City and this Commission that are in any way inconsistent with the terms
and provisions of this resolution are repealed, amended and rescinded to the full extent
necessary to give full force and effect to the provisions of this resolution.
9.02. Effective Date. This resolution shall take effect immediately upon its
passage and adoption by this Commission.
PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana,
at a regular session thereof held on the 5th day of April 1999.
~?/l. N-
ALFR M. STIFF, Mayor
ATTEST:
~y~
ROBIN L. SULLIVAN
Clerk of the Commission
APPROVED AS TO FORM:
:i!Jt/~~4f/J
P L J. L
City Atto~Y
. 17 .
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EXHIBIT A
[Face of the Bond]
UNITED STATES OF AMERICA
ST A TE OF MONT ANA
COUNTY OF GALLA TIN
CITY OF BOZEMAN
SPECIAL IMPROVEMENT
DISTRICT NO. 665 BOND
Interest at. the rate per annum specified below
payable January 1, 2000 and
semiannually thereafter
on the 1 st day of January and the 1 st day of July in each year.
No. $
Date of Original
~ Maturity Issue CUSIP
April 1, 1999
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
FOR VALUE RECEIVED, the City of Bozeman, Gallatin County, Montana, will
pay to the registered owner identified above, or registered assigns, on the maturity date
specified above the principal amount specified above, solely from the revenues
hereinafter specified, as authorized by Resolution No. 3286, adopted April 5, 1999 (the
"Resolution"), all subject to the provisions hereinafter described relating to the
redemption of this Bond before maturity. This Bond bears interest at the rate per annum
specified above from the date of registration of this Bond, as expressed herein, or from
such later date to which interest hereon has been paid or duly provided for, until the
maturity date specified above or an earlier date on which this Bond shall have been duly
called for redemption by the Director of Administrative Services. Interest on this Bond is
payable semiannually, commencing January 1, 2000, on the first day of January and the
first day of July in each year, to the owner of record of this Bond appearing as such in
the bond register as of the close of business on the 15th day (whether or not such is a
business day) of the immediately preceding month. Interest on and, upon presentation
and surrender hereof at the principal office of the bond registrar and paying agent
hereinafter named, the principal of this Bond are payable by check or draft of the
Administrative Services Director of the City of Bozeman, Montana, as Bond Registrar,
Transfer Agent and raying Agent, or its successor designated under the Resolution (the
"Registrar"). The principal of and interest on this Bond are payable in lawful money of
the United States of America.
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 City.
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This Bond is one of an issue in the aggregate principal amount of $1,488,000
(the "Bonds"), all of like date of original issue and tenor, except as to serial number,
denomination, date, interest rate and maturity date. The Bonds are issued pursuant to
and in full conformity with the Constitution and laws of the State of Montana thereunto
enabling, including Montana Code Annotated, Title 7, Chapter 12, Parts 41 and 42, as
amended (the "Act"), to finance the costs of certain local improvements (the
"Improvements") for the special benefit of property located in Special Improvement
District No. 665 of the City (the "District"). The Bonds are issuable only as fully
registered bonds of single maturities in denominations of $5,000 or any integral multiple
thereof, except that one Bond with a stated maturity in 2000 shall be in the principal
amount of $8,000.
This Bond is payable from the collection of a special tax or assessment levied
upon all assessable real property within the boundaries of the District, in an aggregate
principal amount of not less than $1,488,000, except as such amount may be reduced or
increased in accordance with provisions of Montana law. Such assessments constitute a
lien against the assessable real estate within the District and are to be deposited into the
Special Improvement District No. 665 Fund of the City (the "District Fund"), The Bonds
are not general obligations of the City.
The City has also validly established a Special Improvement District Revolving
Fund (the "Revolving Fund") to secure the payment of certain of its special improvement
district bonds, including the Bonds. The City has also agreed, to the extent permitted by
the Act, to issue orders annually authorizing loans or advances from the Revolving Fund
to the District Fund, in amounts sufficient to make good any deficiency in the District
Fund to pay principal of or interest on the Bonds, to the extent that funds are available in
the Revolving Fund, and to provide funds for the Revolving Fund by annually making a
tax levy or loan from its general fund in an amount sufficient for that purpose, subject to
the limitation' that no such tax levy or loan may in any year cause the balance in the
Revolving Fund to exceed five percent of the principal amount of the City's then
outstanding special improvement district bonds secured thereby and the durational
limitations specified in the Act.
The Bonds are subject to mandatory redemption in order of stated maturities
and within a stated maturity in $5,000 principal amounts selected by lot or other manner
deemed fair by the Registrar, except that one Bond with a stated maturity in 2000 and in
the principal amount of $8,000 shall be redeemed before other Bonds of such stated
maturity, on any interest payment date if, after paying all principal and interest then due
on the Bonds, there are funds to the credit of the District Fund, from the prepayment of
assessments levied in the District or from surplus proceeds of the Bonds not required to
pay costs of the Improvements, for the redemption thereof, and in the manner provided
for the redemption of the same. The Bonds are subject to redemption at the option of
the City from other sources of funds available therefor on any interest payment date;
provided, however, that the City hereby agrees that the Bonds are not to be called for
redemption before July 1/ 2004/ from the proceeds of refunding special improvement
district bonds or warrants. The redemption price is equal to the principal amount of the
Bonds or portions thereof to be redeemed plus interest accrued thereon to the date of
redemption. The date of redemption shall be fixed by the Director of Administrative
Services, who shall give notice by first class mail, postage prepaid, to the owner or
owners of such Bonds at their addresses shown on the bond register, of the Bonds or
portions thereof to be redeemed and the date on which payment will be made, which
date shall not be less than thirty (30) days after the date of mailing of notice, on which
date so fixed interest shall cease. On the date so fixed interest on the Bonds or portions
thereof so redeemed shall cease to accrue. 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.
The Bonds have been designated by the City as "qualified tax-exempt
obligations" pursuant to Section 265 of the Internal Revenue Code of 1986, as amended.
As provided in the Resolution and subject to certain limitations set forth
therein, this Bond is transferable upon the books of the City at the principal office of the
Registrar, by the registered owner hereof in person or by his attorney duly authorized in
writing upon surrender hereof together with a written instrument of transfer satisfactory
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to the Registrar, duly executed by the registered owner or his attorney; and may also be
surrendered in exchange for Bonds of other authorized denominations. Upon such
transfer or exchange, the City 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 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 City 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 City
nor the Registrar shall be affected by any notice to the contrary.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all
things required to be done precedent to the issuance of this Bond have been properly
done, happened and been performed in the manner prescribed by the laws of the State of
Montana and the resolutions and ordinances of the City of Bozeman, Montana, relating to
the issuance thereof; and that the opinion attached hereto is a true copy of the legal
opinion given by Bond Counsel with reference to the Bonds, dated the date of original
issuance and 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
Authentication and Registration herein shall have been executed by the Registrar by the
manual signature of one of its authorized representatives.
IN WITNESS WHEREOF, the City of Bozeman, Gallatin County, Montana, by
its City Commission, has caused this Bond to be executed by the facsimile signatures of
the Mayor, the City Manager and the Clerk of the Commission, and by a facsimile of the
official seal of the City.
(Facsimile Signature)
Mayor
(Facsimile Signature)
City Manager
(Facsimile Seal) (Facsimile Signature)
Clerk of the Commission
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.... _, 'u____
Dated:
CERTIFICA TE OF AUTHENTICATION
This is one of the Bonds delivered pursuant to the Resolution mentioned
within.
ADMINISTRATIVE SERVICES DIRECTOR
OF THE CITY OF BOZEMAN,
as Bond Registrar, Transfer Agent,
and Paying Agent
By
Authorized Signature
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 applicable
laws or regulations:
TEN COM -- as tenants UTMA. . . . . . . .Custodian. . . . . .
in common (Cust) (Minor)
TEN ENT -- as tenants
by the entireties
under Uniform Transfers
JT TEN -- as joint tenants to Minors Act . . . . . . . . . . . . . . . . . . . .
with right of (State)
survivorship and
not as tenants in
common
Additional abbreviations may also be used.
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto the within Bond and
all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within
Bond on the books kept for registration thereof, with full power of substitution in the
premises.
Dated:
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER NOTICE: The signature to this
OF ASSIGNEE: assignment must correspond with
the name as it appears upon the
/ / face of the within Bond in every
particular, without alteration,
enlargement or any change whatsoever.
SIGNA TURE 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.
by the City Commission of the
\City of Bozeman, Montana:
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