HomeMy WebLinkAboutResolution 3092 Refunding revenue bonds
..--....---.-
..---
CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting recording officer of the City of
Bozeman, Montana (the "City"), hereby certify that the attached resolution is a true copy of a
Resolution entitled: "RESOLUTION RELATING TO $3,480,000 WATER SYSTEM
REFUNDING REVENUE BONDS, SERIES 1995; AUTHORIZING THE ISSUANCE AND
FIXING THE TERMS AND CONDITIONS THEREOF" (the "Resolution"), on file in the
original records of the City in my legal custody; that the Resolution was duly adopted by the
City Commission of the City at a regular meeting on November 20, 1995, and that the meeting
was duly held by the City Commissioners and was attended throughout by a quorum, pursuant to
call and notice of such meeting given as required by law; and that the Resolution has not as of
the date hereof been amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the
following Commissioners voted in favor thereof: Commissioner Frost.
Commissioner Youne:man. Commissioner Stiff. Commissioner Stueck and Mayor Vincent ,
voted against the same: none ; abstained from voting thereon: none ; or
were absent: none
WITNESS my hand and seal officially this 20th day of November, 1995.
(SEAL) G!.kJ d!~
Clerk of the Commission
RESOLUTION NO. 3092
RESOLUTION RELATING TO $3,480,000 WATER SYSTEM REFUNDING
REVENUE BONDS, SERIES 1995; AUTHORIZING THE ISSUANCE AND
FIXING THE TERMS AND CONDITIONS THEREOF.
BE IT RESOLVED by the City Commission of the City of Bozeman, Montana (the
"City"), as follows:
Section 1. Authorization and Recitals.
1.01. Authorization. The City pursuant to Montana Code Annotated, Title 7, Chapter
7, Parts 44 and 45, as amended (the" Act"), and other laws of the State of Montana, has
established and presently owns and operates a municipal water system (the "System"). Under
the provisions of the Act, the City is authorized to issue and sell its revenue bonds payable
during a term not exceeding forty years from their date of issue, to provide funds for the
reconstruction, improvement, betterment and extension of the System and to refund its revenue
bonds issued for such purpose; provided that the bonds and the interest thereon are to be payable
solely out of the net income and revenues to be derived from rates, fees and charges for the
services, facilities and commodities furnished by the undertaking, and are not to create any
obligation for the payment of which taxes may be levied except to pay for services provided by
the System to the City.
1.02. Outstandin~ Bonds. In accordance with the authorization described in Section
1.01 and pursuant to Resolution No. 2745, adopted April 10, 1989 (the "Original Resolution"),
the City issued and sold $5,625,000 Water System Refunding Revenue Bonds, Series 1989A,
dated, as originally issued, as of April 16, 1989 (the "Series 1989A Bonds"), for the purposes
of refunding certain water system revenue bonds of the City and financing the costs of
construction of improvements to the System as described in Section 1.04 of Resolution No.
2745. On May 22, 1989 in accordance with Resolution No. 2745, this Commission adopted
Resolution No. 2749 and pursuant thereto the City issued and sold $726,079 Water System
Revenue Bonds, Series 1989B (the "Series 1989B Bonds"), for the purpose of financing the
1989B Water System Project. On April 15, 1991 in accordance with Resolution No. 2745, this
Commission adopted Resolution No. 2829 and pursuant thereto the City issued and sold
$352,715 Water System Revenue Bonds, Series 1991 (the "Series 1991 Bonds"), for the
purpose of financing the 1991 Water System Project. Apart from the Series 1989A Bonds, the
Series 1989B Bonds and the Series 1991 Bonds, no other bonds or other indebtedness are
outstanding that are payable in whole or in part from or secured by revenues of the System.
As used in this resolution, "Resolution" means the Original Resolution as amended and
supplemented by this resolution and as such may from time to time be further amended or
supplemented in accordance with its terms.
1.03. Refundin~ the Series 1989A Bonds. As determined by this Commission in
Resolution No. 3087, adopted October 16, 1995, it is necessary and desirable for the City to
advance refund the outstanding Series 1989A Bonds from funds of the System on hand and the
proceeds of the Series 1995 Bonds hereinafter authorized. The debt service savings to result
-------- ---- -
from the refunding of the Series 1989A Bonds are $296,402.09, calculated on a present-value
basis, net of City funds to be contributed to the refunding and using a discount rate of 4.746%
over the term of the Series 1989A Bonds. As required by Montana Code Annotated, Section
7-7-4502(1), the average annual interest rate on the Series 1995 Bonds (4.577%) is more than
two and seven-tenths percent (2.7%) less than the average annual interest rate on the outstanding
Series 1985 Bonds (7.363 %).
1.04. Additional Refundinf: Revenue Bonds. In Section 6.02 of the Original Resolution,
the City reserved the right to issue additional refunding bonds payable from and secured by the
net revenues of the System on a parity with outstanding Bonds on certain terms and conditions.
It is hereby determined that the City is authorized to issue $3,480,000 of Additional Parity
Bonds (the "Series 1995 Bonds") to refund the Series 1989A Bonds under Section 6.02 of the
Original Resolution, which bonds would be payable from and secured by the net revenues of the
System on a parity with the Series 1989B Bonds and Series 1991 Bonds.
1.05. Net Revenues Available. The City is authorized to charge just and equitable
rates, charges and rentals for all services directly or indirectly furnished by the System, and to
pledge and appropriate to the Series 1989B Bonds, Series 1991 Bonds and the Series 1995
Bonds the net revenues to be derived from the operation of the System, including improvements,
betterments or extensions thereof hereafter constructed or acquired. The net revenues to be
produced by such rates, charges and rentals during the term of the Series 1989B Bonds, Series
1991 Bonds and the Series 1995 Bonds and the useful life of the improvements refinanced or
financed thereby will be more than sufficient to pay the principal and interest when due on the
Series 1989B Bonds, Series 1991 Bonds and the Series 1995 Bonds, and to create and maintain
reasonable reserves therefor and to provide an allowance for replacement and depreciation, as
prescribed in the Original Resolution and herein.
1.06. Sale of Series 1995 Bonds. Pursuant to the authority recited in Sections 1.03 and
1.04 and for the purposes of providing funds to be used, with available funds of the System, to
advance refund $4,270,000 of the outstanding Series 1989A Bonds, this Commission authorized
the Series 1995 Bonds to be sold at a competitive sale upon certain terms and conditions in
Resolution No. 3087, adopted by this Commission on October 16, 1995. Pursuant to the
provisions of Sections 7-7-4433 and 7-7-4434 of the Act, the City has duly called for the public
sale of the Series 1995 Bonds. The sale was duly noticed and conducted in accordance with
applicable statutory provisions. D.A. Davidson and Company, of Great Falls, Montana (the
"Original Purchaser") submitted to this Commission a bid to purchase the Series 1995 Bonds
upon the terms and conditions hereinafter set forth at a price of $3,480,000, plus accrued
interest thereon to the date of delivery. Said bid has heretofore been determined to be the
lowest responsive bid, in the best interests of the City and in compliance with the Notice of
Sale. The City hereby ratifies and confirms the issuance and sale of revenue bonds to be
designated as Water System Refunding Revenue Bonds, Series 1995, in the aggregate principal
amount of $3,480,000 (the "Series 1995 Bonds") to the Original Purchaser, in accordance with
the provisions of this Resolution.
-2-
-- ----------
--.--..-- -...-..---
1.07. Recitals. All acts, conditions and things required by the Constitution and laws of
the State of Montana to be done, to exist, to happen and to be performed prior to the issuance of
the Series 1995 Bonds have been done, do exist, have happened, and have been performed in
due time, form and manner, wherefore it is now necessary for this Commission to establish the
form and terms of the Series 1995 Bonds, to provide for the security thereof and to issue the
Series 1995 Bonds forthwith.
Section 2. Terms of the Series 1995 Bonds.
2.01. Denominations. Maturities. Basic Interest. The Series 1995 Bonds shall be issued
in the aggregate principal amount of $3,480,000, shall be issued in the denomination of $5,000
each or any integral multiple thereof of a single stated maturity, shall mature on December 1 in
the years and amounts set forth below and shall bear interest from the date of original issue until
paid or duly called for redemption at the rates per annum set forth opposite such years and
amounts, as follows:
~ Amount Rate Year Amount Rate
1996 $ 260,000 6.5% 2002 $330,000 4.4%
1997 270,000 6.5% 2003 345,000 4.5%
1998 280,000 4.0% 2004 360,000 4.6%
1999 290,000 4.1 % 2005 380,000 4.7%
2000 305,000 4.2% 2006 395,000 4.75%
2001 315,000 4.3%
2.02. Ree:istered Form. Interest Payment Dates. The Series 1995 Bonds shall be
issuable only in fully registered form, and the ownership of the Series 1995 Bonds shall be
transferred only upon the books of the City at the operations center of the Registrar, as provided
in Section 2.06. The interest on the Series 1995 Bonds shall be payable on June 1 and
December 1 in each year, commencing June 1, 1996. Interest on the Series 1995 Bonds shall be
payable to the owners of record thereof as such appear on the bond register as of the close of
business on the fifteenth day of the month immediately preceding each interest payment date,
whether or not such day is a business day. Interest on, and upon presentation and surrender
thereof, the principal of each Series 1995 Bond, and, upon presentation and surrender thereof,
shall be payable in lawful money of the United States of America by check or draft issued by
the Registrar described herein.
2.03. Dated Date. Each Series 1995 Bond shall be originally dated as of December I,
1995, and upon authentication of any Series 1995 Bond the Bond Registrar, Transfer Agent and
Paying Agent shall indicate thereon the date of such authentication.
2.04. Re!:istration. The City shall appoint, and shall maintain, a bond registrar, transfer
agent and paying agent (the Registrar). The effect of registration and the rights and duties of
the City and the Registrar with respect thereto shall be as follows:
-3-
.-..-....-----.-..---......-.....-.. --- -.
(a) Ree:ister. The Registrar shall keep at its operations center a bond register in
which the Registrar shall provide for the registration of ownership of Series 1995 Bonds
and the registration of transfers and exchanges of Series 1995 Bonds entitled to be
registered, transferred or exchanged.
(b) Transfer of Series 1995 Bonds. Upon surrender to the Registrar for transfer
of any Series 1995 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 Series 1995 Bonds of a like
aggregate principal amount and maturity, as the case may be, 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.
(c) Exchansze of Bonds. Whenever any Series 1995 Bond is surrendered by the
registered owner for exchange, the Registrar shall authenticate and deliver one or more
new Series 1995 Bonds of a like aggregate principal amount, interest rate and maturity,
as requested by the registered owner or the owner's attorney in writing.
(d) Cancellation. All Series 1995 Bonds surrendered upon any transfer or
exchange shall be promptly canceled by the Registrar and thereafter disposed of as
directed by the City.
(e) Imorooer or Unauthorized Transfer. When any Series 1995 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 Series 1995 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.
(t) Persons Deemed Owners. The City and the Registrar may treat the person in
whose name any Series 1995 Bond is at any time registered in the bond register as the
absolute owner of such Series 1995 Bond, whether such Series 1995 Bond shall be
overdue or not, for the purpose of receiving payment of, or on account of, the principal
of and interest on such Series 1995 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 Series 1995 Bond
to the extent of the sum or sums so paid.
(g) Taxes. Fees and Charszes. For every transfer or exchange of Series 1995
Bonds, 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.
-4-
(h) Mutilated. Lost. Stolen or Destroyed Series 1995 Bonds. In case any Series
1995 Bond shall become mutilated or be lost, stolen or destroyed, the Registrar shall
deliver a new Series 1995 Bond of like amount, number, maturity date and tenor in
exchange and substitution for and upon cancellation of any such mutilated Series 1995
Bond or in lieu of and in substitution for any such Series 1995 Bond lost, stolen or
destroyed, upon the payment of the reasonable expenses and charges of the Registrar in
connection therewith; and, in the case of a Series 1995 Bond lost, stolen or destroyed,
upon filing with the Registrar of evidence satisfactory to it that such Series 1995 Bond
was lost, stolen or destroyed, and of the ownership thereof, and upon furnishing to the
Registrar of 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 Series
1995 Bonds so surrendered to the Registrar shall be canceled by it and evidence of such
cancellation shall be given to the City. If the mutilated, lost, stolen or destroyed Series
1995 Bond has already matured or such Series 1995 Bond has been called for redemption
in accordance with its terms, it shall not be necessary to issue a new Series 1995 Bond
prior to payment.
2.06. Initial Ree:istrar. The City hereby appoints First Trust Company of Montana
National Association, of Billings, Montana, as the initial Registrar. The Mayor and Director of
Finance are hereby authorized to execute and deliver, on behalf of the City, a contract with First
Trust Company of Montana National Association, as 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 City agrees to pay the reasonable and customary charges of the
Registrar for the services performed. The City reserves the right to remove any Registrar upon
30 days' notice and upon the appointment of a successor Registrar, in which event the
predecessor Registrar shall deliver all cash and Series 1995 Bonds in its possession to the
successor Registrar and shall deliver the Bond Register to the successor Registrar. On or before
each principal or interest due date, without further order of this Commission, the Director of
Finance shall transmit to the Registrar, solely from moneys in the Revenue Bond Account of the
Water System Fund available therefor, moneys sufficient for the payment of all principal,
premium, if any, and interest then due on the Series 1995 Bonds.
2.07. Redemption. The Series 1995 Bonds maturing in the years 1996 through 2001
shall not be subject to redemption. The Series 1995 Bonds having Stated Maturities in 2002 and
later years shall each be subject to redemption at the option of the City, in whole or in part and,
if in part, in inverse order of Stated Maturities and within a maturity in $5,000 principal
amounts selected by lot or other manner deemed fair by the Registrar, on December 1, 2001 and
any business day thereafter, at the Redemption Price, expressed as a percentage of the principal
amount of each such Series 1995 Bond to be redeemed, set forth below opposite the respective
Redemption Dates, plus interest accrued thereon to the Redemption Date:
-5-
-..----.-----.. - .
n. .._._._.._____ ------.-- -.---------.--....-.....---
Redemption Date Redemotion Price
December 1, 2001 through November 30, 2002 102%
December 1, 2002 through November 30, 2003 101
December 1, 2003 and thereafter 100
Notice of redemption, stating the amount, the serial numbers, the CUSIP numbers, if
any, the interest rates and the Stated Maturities of the Series 1995 Bonds or portions thereof
called for redemption, will be mailed, by first-class mail, to the Registrar and to the Holder of
each Series 1995 Bond to be redeemed at such Person's address shown in the Bond Register, not
less than thirty (30) days nor more than sixty (60) days before the Redemption Date; provided
that any defect in or failure to give such mailed notice shall not affect the validity of proceedings
for the redemption of any Series 1995 Bond not affected thereby. Notice of the redemption of
any Series 1995 Bond having been mailed as herein provided, and funds sufficient for its
payment with accrued interest having been deposited with the Registrar on or before the
Redemption Date, interest on such Series 1995 Bond shall cease on said date, and the holder
shall have no further rights with respect thereto or under the Resolution except to receive the
Redemption Price so deposited.
In addition to the notice prescribed by the preceding paragraph, the City shall also give
notice of the redemption of any Series 1995 Bond or Bonds or portions thereof before the
Redemption Date by certified mail, telecopy or delivery service to the Original Purchaser of the
Series 1995 Bonds and all registered securities depositories then in the business of holding
substantial amounts of obligations of the character of the Bonds (such depositories now being
The Depository Trust Company, of Garden City, New York; Midwest Securities Trust
Company, of Chicago, Illinois; and Philadelphia Depository Trust Company, of Philadelphia,
Pennsylvania) and the one or more national information services that disseminate information
regarding municipal bond redemptions; provided that any defect in or any failure to give any
notice of redemption prescribed by this paragraph shall not affect the validity of the proceedings
for the redemption of any Series 1995 Bond or portion thereof.
Series 1995 Bonds in a denomination larger than $5,000 may be redeemed in part in any
integral multiple of $5,000. The owner of any Series 1995 Bond redeemed in part shall receive,
upon surrender of such Series 1995 Bond to the Registrar, one or more new Series 1995 Bonds
in authorized denominations equal in principal amount to the unredeemed portion of the Bond so
surrendered.
2.08. Execution and Delivery. The Series 1995 Bonds shall be executed in the name of
the City by the signatures of the Mayor, City Manager and Director of Finance, and the official
seal of the City shall be affixed thereto; provided that all signatures and the seal may be printed
facsimiles of the originals thereof. On the reverse of each Series 1995 Bond shall be printed a
copy of the legal opinion to be rendered by bond counsel, certified by the facsimile signatures of
the Mayor, City Manager and Director of Finance. In case any officer whose signature or a
facsimile of whose signature appears on the Series 1995 Bonds shall cease to be such officer
before the delivery of any Series 1995 Bonds, such signature or facsimile shall nevertheless be
-6-
valid and sufficient for all purposes, the same as if such officer had remained in office until
delivery. Notwithstanding such execution, no Series 1995 Bond shall be valid or obligatory for
any purpose or be entitled to any security or benefit under the Resolution unless and until a
certificate of authentication on such Series 1995 Bond has been duly executed by the manual
signature of an authorized representative of the Registrar. Certificates of authentication on
different Series 1995 Bonds need not be signed by the same representative. The executed
certificate of authentication on a Series 1995 Bond shall be conclusive evidence that it has been
authenticated and delivered under the Resolution. When the Series 1995 Bonds have been fully
executed and authenticated, they shall be delivered by the Registrar to the Original Purchaser
upon payment of the purchase price in accordance with the contract of sale heretofore made and
executed, and the Purchaser shall not be obligated to see to the application of the purchase price.
2.09. Securities Depository for Series 1995 Bonds.
(a) For purposes of this Section 2.09, the following terms shall have the
following meanings:
"Beneficial Owner" shall mean, whenever used with respect to a Series 1995
Bond, the person in whose name such Series 1995 Bond is recorded as the
beneficial owner of such Series 1995 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 Series 1995 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 Series 1995 Bonds as securities depository.
"Representation Letter" shall mean the Blanket Issuer Letter of Representations
from the City to DTC with respect to the Series 1995 Bonds, attached to this
resolution as Exhibit A, which is hereby incorporated herein by reference and
made a part hereof.
(b) The Series 1995 Bonds shall be initially issued as separately authenticated
fully registered bonds, and one Series 1995 Bond shall be issued in the principal amount
of each stated maturity of the Series 1995 Bonds. Upon initial issuance, the ownership
of such Series 1995 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)
as the sole and exclusive owner of the Series 1995 Bonds registered in its name for the
purposes of payment of the principal of or interest on the Series 1995 Bonds, selecting
the Series 1995 Bonds or portions thereof to be redeemed, if any, giving any notice
permitted or required to be given to registered owners of Series 1995 Bonds under the
Resolution or this Supplemental Resolution, registering the transfer of Series 1995
-7-
-------- - ------- -----"......- --~
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 Series 1995 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 Series 1995 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 Series 1995 Bonds, with respect to any
notice which is permitted or required to be given to owners of Series 1995 Bonds under
the Resolution or this Supplemental 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 Series 1995 Bonds, or with respect to any consent given or other action taken by
DTC as registered owner of the Series 1995 Bonds. So long as any Series 1995 Bond is
registered in the name of Cede & Co., as nominee of DTC, the Registrar shall pay all
principal of and interest on such Series 1995 Bond, and shall give all notices with respect
to such Series 1995 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 respect to the principal of and interest on the Series 1995
Bonds to the extent of the sum or sums so paid. No Person other than DTC shall
receive an authenticated Series 1995 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 Series 1995 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 Series 1995 Bonds in the form of Series 1995 Bond
certificates, the City may notify DTC and the Registrar, whereupon DTC shall notify the
Participants of the availability through DTC of Series 1995 Bonds in the form of
certificates. In such event, the Series 1995 Bonds will be transferable in accordance with
paragraph (e) hereof. DTC may determine to discontinue providing its services with
respect to the Series 1995 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 Series 1995 Bonds will be transferable in accordance with paragraph
(e) hereof.
(d) The Representation Letter dated April 17, 1995 and attached as Exhibit A
has been duly executed by the City Manager.
(e) In the event that any transfer or exchange of Series 1995 Bonds is permitted
under paragraph (b) or (c) hereof, such transfer or exchange shall be accomplished upon
receipt by the Registrar of the Series 1995 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 Series 1995 Bonds in the form of certificates
are issued to owners other than Cede & Co., its successor as nominee for DTC as owner
-8-
- .____. ..__n_u _..__
of all the Series 1995 Bonds, or another securities depository as owner of all the Series
1995 Bonds, the provisions of this Resolution shall also apply to all matters relating
thereto, including, without limitation, the printing of such Series 1995 Bonds in the form
of Series 1995 Bond certificates and the method of payment of principal of and interest
on such Series 1995 Bonds in the form of Series 1995 Bond certificates.
2.10. TranscriDt Certification. The officers of the City are directed to furnish to Bond
Counsel and the Original Purchaser certified copies of all proceedings and information in their
official records relevant to the authorization, sale, execution and issuance of the Series 1995
Bonds, and such certificates and affidavits as to other matters appearing in their official records
or otherwise known to them as may be reasonably required to evidence the validity and security
of the Series 1995 Bonds, and all such certified copies, certificates and affidavits, including any
heretofore furnished, shall constitute representations and recitals of the City as to the correctness
of all facts stated therein and the completion of all proceedings stated therein to have been taken.
Section 3. Forms of Series 1995 Bonds.
3.01. Form of Series 1995 Bonds. The Series 1995 Bonds shall be prepared in
substantially the following form, with such appropriate variations, omissions and insertions as
are permitted or required by the Original Resolution and this Resolution:
-9-
UNITED STATES OF AMERICA
STATE OF MONT ANA
COUNTY OF GALLATIN
CITY OF BOZEMAN
WATER SYSTEM REFUNDING REVENUE BOND
SERIES 1995
No. - $
Interest Date of
Rate Maturity Original Issue CUSIP
December 1, 1995
REGISTERED OWNER:
SEE REVERSE FOR
PRINCIPAL AMOUNT: CERTAIN DEFINITIONS
FOR VALUE RECEIVED, THE CITY OF BOZEMAN (the "City"), a duly organized
municipal corporation of the State of Montana, acknowledges itself to be specially indebted and
hereby promises to pay to the registered owner identified above or registered assigns, solely
from the Revenue Bond Account of its Water System Fund, the principal amount specified
above on the maturity specified above, or, if this Bond is prepay able as stated herein, on any
date prior thereto on which this Bond shall have been duly called for redemption, and to pay
interest on said principal amount to the registered owner hereof from December 1, 1995 or from
such later date to which interest has been paid or duly provided for until this Bond is paid or, if
this Bond is prepay able, until it has been duly called for redemption, at the rate specified above.
Interest is payable semiannually on June 1 and December 1 in each year, commencing June 1,
1996, to the registered owner of this Bond as such appears of record in the bond register as of
the close of business on the 15th day (whether or not a business day) of the immediately
preceding month. Interest is payable by check or draft mailed by First Trust Company of
Montana National Association, of Billings, Montana as Bond Registrar, Transfer Agent and
Paying Agent, or a successor designated under the resolution described herein (the "Registrar").
Principal is payable upon presentation and surrender hereof at the operations center of the
Registrar in St. Paul, Minnesota. The principal of and interest on this Bond are payable in
lawful money of the United States of America.
Additional provisions of this Bond are contained on the reverse hereof and such
provisions shall for all purposes have the same effect as though fully set forth hereon.
-10-
This Bond shall not be valid or obligatory for any purpose or be entitled to any
security or benefit under the Resolution unless the Certificate of Authentication hereon shall
have been executed by the Registrar by the manual signature of one of its authorized
representatives.
IN WITNESS WHEREOF, the City of Bozeman, Montana, by its City Commission,
has caused this Bond and the certificate hereon to be executed by the signatures of its Mayor,
City Manager and Director of Finance.
(Facsimile Signature) (Facsimile Signature)
Mayor City Manager
(Facsimile Seal) (Facsimile Signature)
Director of Finance
Date:
CERTIFICATE OF AUTHENTICATION
This is one of the Water System Refunding Revenue Bonds, Series 1995, delivered
pursuant to the Resolution mentioned herein.
FIRST TRUST COMPANY OF MONTANA
NATIONAL ASSOCIATION,
as Registrar
By
Authorized Representative
[Reverse of Series 1995 Bonds]
This Bond is one of a duly authorized issue of Bonds of the City designated as "Water
System Revenue Bonds" (collectively, the "Bonds"), issued and to be issued in one or more
series under, and all equally and ratably secured by, Resolution No. 2745, as amended and
supplemented by Resolution Nos. 2749, 2829 and , adopted by the City
Commission of the City on April 10, 1989, May 22, 1989, April 15, 1991 and November 20,
1995, respectively (as so amended and supplemented and as such resolution may hereafter be
amended or supplemented from time to time in accordance with its terms, the "Resolution").
This Bond is one of a series in the aggregate principal amount of $3,480,000 (the "Series 1995
Bonds"), all of like date of original issue and tenor except as to serial number, denomination,
interest rate, maturity date and redemption privilege, and all issued for the purpose of providing
-11-
funds to be used, with other available funds of the City, to advance refund certain valid
outstanding water system refunding revenue bonds of the City issued to refinance the acquisition
and construction of improvements to the water system of the City (the .System," which term
includes all improvements, betterments, extensions and alterations of the System as it exists at
any time), under authority of and in full compliance with the Constitution and laws of the State
of Montana and the ordinances and resolutions of the City, including Montana Code Annotated,
Title 7, Chapter 7, Parts 44 and 45, as amended, and the Resolution. The Series 1995 Bonds
are issuable only as fully registered bonds of a single maturity, in denominations of $5,000 or
any integral multiple thereof.
The Series 1995 Bonds are special, limited obligations of the City, are equally and
ratably secured by the Net Revenues of the System on a parity with outstanding water system
revenue bonds of the City, Series 1989B Bonds, dated, as originally issued, as of May 23, 1989,
and Series 1991 Bonds, dated, as originally issued, as of May 15, 1991. Reference is made to
the Resolution for a more complete statement of the terms and conditions upon which the Series
1995 Bonds have been issued, the net revenues of the System pledged and appropriated for the
payment and security thereof, the conditions upon which additional bonds may be issued under
the Resolution and made payable from such net revenues on a parity with the Series 1989B
Bonds, the Series 1991 Bonds and the Series 1995 Bonds or otherwise, the conditions upon
which the Resolution may be amended, the rights, duties and obligations of the City, and the
rights of the registered owners of the Series 1995 Bonds.
The Bonds are not general obligations of the City and the City's general credit and
taxing powers are not pledged to the payment of the Bonds or the premium, if any, or interest
thereon. The Bonds do not constitute an indebtedness of the City within the meaning of any
constitutional or statutory provisions limiting indebtedness.
The Series 1995 Bonds maturing in the years 1996 through 2001 are not subject to
prepayment, but Series 1995 Bonds having stated maturity dates in 2002 and later years are each
subject to redemption at the option of the City, in whole or in part, and if in part in inverse
order of maturities and in $5,000 principal amounts selected by lot or other manner deemed fair
by the Bond Registrar within a maturity, on December 1, 2001, and any business day thereafter,
at the redemption price, expressed as a percentage of the principal amount of each such Series
1995 Bond to be redeemed, set forth below opposite the respective date of redemption, plus
interest accrued thereon to the redemption date:
Redemption Date Redemotion Price
December 1, 2001 through November 30, 2002 102%
December 1, 2002 through November 30, 2003 101
December 1, 2003 and thereafter 100
Notice of redemption will be mailed by first-class mail, not less than 30 days nor more
than 60 days before the date fixed for redemption, to the Bond Registrar and to the registered
holder of each Series 1995 Bond to be redeemed; provided that any defect in or failure to give
-12-
-....-----.-
..-...--...-
such mailed notice shall not affect the validity of proceedings for the redemption of any Series
1995 Bond not affected thereby. Series 1995 Bonds in a denomination greater than $5,000 may
be redeemed in part, in integral multiples of $5,000. Upon partial redemption of any Series
1995 Bond, a new Series 1995 Bond or Bonds will be delivered to the registered holder without
charge, representing the unredeemed principal amount outstanding.
This Bond is a negotiable investment security as provided in the Montana Uniform
Commercial Code. 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 operations center 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 to the
Registrar, duly executed by the registered owner or. his attorney; and may also be surrendered in
exchange for Series 1995 Bonds of other authorized denominations. Upon such transfer or
exchange, the City will cause one or more new Series 1995 Bonds to be issued in the name of
the transferee or registered owner, of the same aggregate principal amount, bearing basic
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 Bond Registrar shall
be affected by any notice to the contrary.
The City has designated the Series 1995 Bonds as "qualified tax-exempt obligations"
within the meaning of Section 265(b) of the Internal Revenue Code of 1986, as amended.
IT IS CERTIFIED, RECITED, COVENANTED AND AGREED that the City has
fixed and established and will collect reasonable rates and charges for the services and facilities
afforded by the System and has created a special Water System Fund into which the gross
revenues of the System, including all additions thereto and replacements and improvements
thereof, will be paid, and a separate and special Revenue Bond Account in that fund, into which
will be paid each month, from and as a first and prior lien on the net revenues of the System
then on hand, equally and ratably with deposits to be made for the Series 1989B Bonds and the
Series 1991 Bonds, an amount equal to not less than the sum of one-sixth of the interest due
within the next six months and one-twelfth of the principal due within the next twelve months
with respect to all outstanding Bonds payable from that account, and into which shall be paid
additional net revenues sufficient to maintain a reserve therein equal to, as of the date of
calculation, the lesser of 10% of (i) the original principal amount of all series of Bonds then
outstanding or (ii) an amount equal to the maximum principal and interest payable on all
outstanding Bonds in the current or any future fiscal year (giving effect to any mandatory
sinking fund redemption); that the Revenue Bond Account will be used only to pay the principal
of, premium, if any, and interest on the Bonds issued pursuant to the authority herein recited;
that the rates and charges for the System will from time to time be made and kept sufficient,
subject to regulations of the Montana Public Service Commission, to provide gross income and
revenues adequate to pay promptly the reasonable and current expenses of operating and
-13-
.--- .. ----.----.-..
maintaining the System and to produce in each fiscal year net revenues in excess of such current
expenses equal to 125 % of the maximum amount of principal and interest payable from the
Revenue Bond Account in any subsequent fiscal year; that additional Bonds and refunding Bonds
may be issued and made payable from the Revenue Bond Account on a parity with the Series
1989B Bonds, the Series 1991 Bonds and the Series 1995 Bonds upon certain conditions set
forth in the Resolution, but no obligation will be otherwise incurred and made payable from the
net revenues of the System, whether or not such obligation shall also constitute a general
obligation and indebtedness of the City, unless the lien thereof shall be expressly made
subordinate to the lien of the Series 1989B Bonds, the Series 1991 Bonds, the Series 1995 Bonds
and other parity Bonds on such net revenues; that all provisions for the security of the holder of
this Series 1995 Bond set forth in the Resolution will be punctually and faithfully performed as
therein stipulated; that all acts, conditions and things required by the Constitution and laws of
the State of Montana and the ordinances and resolutions of the City to be done, to exist, to
happen and to be performed in order to make this Series 1995 Bond a valid and binding special
obligation of the City according to its terms have been done, do exist, have happened and have
been performed as so required; and that this Series 1995 Bond and the interest hereon are
payable solely from the net revenues of the System pledged and appropriated to the Revenue
Bond Account in accordance with the provisions of the Resolution and do not constitute a debt
of the City within the meaning of any constitutional or statutory limitation or provision; and the
issuance of the Series 1995 Bonds does not cause either the general or the special indebtedness
of the City to exceed any constitutional or statutory limitation.
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 to
JT TEN --as joint tenants Minors Act...............
with right of (State)
survivorship and
not as tenants in
common
Additional abbreviations may also be used.
-14-
-..-------.-....
-...---.-- .-.-.-....-......-
ASSIGNMENT
FOR VALUED 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.
Date:
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.
SIGNATURE GUARANTEE
Signature(s) must be guaranteed by a
member of the Medallion Signature
Program.
3.02. Certificate as to Leszal Ooinion. The following certificate shall be printed on the
reverse of each Series 1995 Bond, following a true copy of the text of the legal opinion given at
the time of delivery of the Series 1995 Bonds:
We certify that the above is a true copy of the legal opinion on the series of
Bonds of the City of Bozeman, Montana which includes the within Bond, dated as of the
date of delivery of and payment for such Bonds.
(Facsimile Signature) (Facsimile Signature) (Facsimile Signature)
Mayor City Manager Director of
Finance
Section 4. Appropriation of Bond Proceeds: Escrow for Series 1989A Bonds.
4.01. Application of Proceeds. The proceeds of the Series 1995 Bonds are appropriated
to the Water System Fund created by the Resolution and to the escrow account established
pursuant to Section 4.02 and are to be deposited or applied as follows:
(a) $5,020.97 representing accrued interest on the Series 1995 Bonds
shall be credited to the Revenue Bond Account and used to pay interest on the
Series 1995 Bonds on June 1, 1996;
-15-
--- ----------
- -- ,. .-.-.
(b) shall be applied as provided in Section 4.02 to advance refund the
Series 1989A Bonds; and
(c) The balance of the proceeds of the Series 1995 Bonds shall be
credited to the Acquisition and Construction Account in the Water System Fund
and applied to payment of the costs of issuance of the Series 1995 Bonds and of
the refunding of the Series 1989A Bonds.
4.02. Establishment of Escrow. Simultaneously with the delivery of the Series 1995
Bonds, the Director of Finance shall deposit in escrow with First Trust Company of Montana
National Association, in Billings, Montana, proceeds of the Series 1995 Bonds in the amount set
forth in Section 4.01(b), and shall also transmit to said escrow agent, from money now on hand
in the Revenue Bond Account and allocable to the Series 1985 Bonds the sum of $1,114,500
(including $214,500 from the reserve balance established therein) and from other available funds
of the System the sum of $4,561,438.49 to provide funds for the purchase of the securities
described in this Section 4.02 and to establish a beginning cash balance in the escrow account.
The Director of Finance shall cause the amount so deposited to be invested in securities of the
type described in Montana Code Annotated, Section 7-7-4504, maturing on the dates and bearing
interest at the rates required to provide funds sufficient to pay the interest when due on each
Series 1989A Bond to its maturity or earlier redemption and to pay each Series 1989A Bond at
its stated maturity or for Series 1989A Bonds with stated maturities in 1998 and later years upon
its redemption on December 1, 1997. The escrow account and all investments thereof shall be
held in safekeeping by said escrow agent, and said account and all income therefrom are
irrevocably appropriated for the purposes stated in this Section 4.02.
4.03. Escrow Agreement. At or before the time of making the deposit and investment
described in Section 4.02, the City Manager and the Director of Finance, or, in the event of
their absence or disability, the acting City Manager or the acting Director of Finance, shall
execute on the part of the City an escrow agreement with said escrow agent, substantially in the
form of such agreement which has been presented to this Commission at the meeting at which
this resolution was adopted, and is hereby approved.
4.04. RedemDtion of Series 1989A Bonds. In accordance with the provisions of the
escrow agreement approved in Section 4.03, the Series 1989A Bonds having stated maturities in
1998 and later years are hereby called for redemption on December I, 1997, at a redemption
price equal to 102 % of the principal amount thereof plus interest accrued to the date of
redemption.
Section 5. Security for the Series 1995 Bonds. The Series 1995 Bonds are issued under
Section 6.03 of the Resolution and shall, with the Series 1989B Bonds and Series 1991 Bonds
and any other additional bonds issued under the provisions of Section 4.02 or Section 4.03 of
the Resolution, be secured by the provisions of the Resolution and payable, equally and ratably,
out of the net revenues appropriated to the Revenue Bond Account of the Water System Fund,
without preference or priority, all as provided in the Resolution, and secured by the reserve (the
"Reserve") established in the Revenue Bond Account. The City shall keep, perform and
-16-
__ _.__ _.. ___.. __...._____n____._._____..._____....._ ._. ..__. _._...."._._._______.....
observe each and every one of its covenants, undertakings and agreements set forth in the
Resolution for the benefit of the holders from time to time of the Series 1995 Bonds. Upon the
issuance of the Series 1995 Bonds, the amount on deposit in the Reserve shall not be less than
that required under the Resolution giving effect to the issuance of the Series 1995 Bonds and the
defeasance of the outstanding Series 1989A Bonds.
Section 6. Amendment of Resolution.
6.01. Authority. Pursuant to Section 8.01 of the Original Resolution, the City reserves
the right, without notice to or the consent of the owners of any of the Bonds issued thereunder,
to amend the Resolution from time to time and at any time, for the purpose of curing any
ambiguity or of curing, correcting or supplementing any defective provision contained therein,
or of making such provisions with regard to matters or questions arising hereunder as the
Commission may deem necessary or desirable and not inconsistent with the Resolution, and
which shall not adversely affect the interest of the owners of the Bonds issued thereunder, or for
the purpose of adding to the covenants and agreements therein contained, or to the gross
revenues therein pledged, other covenants and agreements thereafter to be observed and
additional gross revenues thereafter appropriated to the Water System Fund, for the purpose of
surrendering any right or power therein reserved to or conferred upon the City or for the
purpose of authorizing the issuance of additional bonds in the manner and subject to the terms
and conditions prescribed in Section 6 of the Original Resolution.
6.02. Amendment of Section 6.03 of Ori~inal Resolution. Pursuant to the Authority
recited in Section 6.01 of this Resolution, Section 6.03 of the Original Resolution is hereby
amended to read as follows:
"6.03. Other Parity Bonds. The City reserves the right to issue additional
Bonds payable from the Revenue Bond Account of the Fund, on a parity as to both
principal and interest with the Series 1989A Bonds, if the net revenues of the System, as
defined in Section 5.03, for the last complete fiscal year preceding the date of issuance
of such additional Bonds have equaled at least 125 % of the maximum amount of
principal and interest payable from said Revenue Bond Account in any subsequent fiscal
year during the term of the outstanding Bonds, on all Bonds then outstanding and on the
additional Bonds proposed to be issued. For the purpose of the foregoing computation,
the net revenues for the fiscal year preceding the issuance of additional Bonds shall be
those shown by the financial reports caused to be prepared by the City pursuant to
Section 7.06, except that if the rates and charges for services provided by the System
have been changed since the beginning of such preceding fiscal year, then the rates and
charges in effect at the time of issuance of the additional Bonds or finally authorized to
go into effect within 60 days thereafter shall be applied to the quantities of service
actually rendered and made available during such preceding fiscal year to ascertain the
gross revenues, from which there shall be deducted to determine the net revenues, the
actual operation and maintenance cost plus any additional annual costs of operation and
maintenance which the engineer of the City estimates will be incurred because of the
improvement or extension of the System to be constructed from the proceeds of the
-17-
._______..__ __.." n..__ ....._..
additional Bonds proposed to be issued. In no event shall any additional Bonds be issued
and made payable from the Revenue Bond Account if the City is then in default in any
payment of principal of or interest on any outstanding Bonds payable therefrom or if
there then exists any deficiency in the balances required by this Resolution to be
maintained in any of the accounts of the Fund, which will not be cured or restored upon
the issuance of the additional Bonds. In connection with the issuance of a series of
additional Bonds, the City shall cause the Reserve in the Revenue Bond Account to be
increased, from the proceeds of the additional Bonds for from surplus Net Revenues
within 36 months after the date of issuance of the additional Bonds}, to an amount equal
to the Reserve Requirement, as defined in Section 5.04, during the term of the
outstanding Bonds or so much thereof as will not cause the City to violate the provisions
of Section 10.02 hereof."
Section 7. Tax Matters relating to the Series 1995 Bonds.
7.01. Use of System. The facilities of the System refinanced in whole or in part with
proceeds of the Series 1995 Bonds (collectively, the "Improvements") are and will be owned
and operated by the City and used by the City to provide water services to members of the
general public. No user of the System is granted any concession, license or special arrangement
with respect to the System. 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 the System or security
for the payment of the Series 1995 Bonds which might cause the Series 1995 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").
7.02. General Covenant. The City covenants and agrees with the owners from time to
time of the Series 1995 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 Series 1995 Bonds to
become includable in gross income for federal income tax purposes under the Code and
applicable Treasury Regulations (the "Regulations"), and covenants to take any and all actions
within its powers to ensure that the basic interest on the Series 1995 Bonds will not become
includable in gross income for federal income tax purposes under the Code and the Regulations.
7.03. Certification as to Exoectations. The Mayor, the City Manager and the Director
of Finance, being the officers of the City charged with the responsibility for issuing the Series
1995 Bonds pursuant to this resolution, are authorized and directed to execute and deliver to the
Original Purchaser thereof a certificate in accordance with the provisions of Section 148 of the
Code, and Sections 1.103-13, 1.103-14 and 1.103-15 of the Regulations, stating that on the basis
of facts, estimates and circumstances in existence on the date of issue and delivery of the Series
1995 Bonds, it is reasonably expected that the proceeds of the Series 1995 Bonds will be used in
a manner that would not cause the Series 1995 Bonds to be "arbitrage bonds" within the
meaning of Section 148 of the Code and the Regulations.
-18-
7.04. Arbitrage Rebate. The City acknowledges that the Series 1995 Bonds are subject
to the rebate requirements of Section 148(f) of the Code. The City covenants and agrees to
retain such records, make such determinations, file such reports and documents and pay such
amounts at such times as are required under said Section 148(f) and applicable Treasury
Regulations to preserve the exclusion of interest on the Series 1995 Bonds from gross income
for federal income tax purposes, unless the Bonds qualify for the exception from the rebate
requirement under Section 148(f)(4)(B) of the Code and no "gross proceeds" of the Series 1995
Bonds (other than amounts constituting a "bona fide debt service fund") arise during or after the
expenditure of the original proceeds thereof. In furtherance of the foregoing, the Director of
Finance is hereby authorized and directed to execute a Rebate Certificate, substantially in the
form of the Rebate Certificate currently on file in the office of the Clerk of the Commission,
and the City hereby covenants and agrees to observe and perform the covenants and agreements
contained therein, unless amended or terminated in accordance with the provisions thereof.
7.05. Information Reporting. The City shall file with the Secretary of the Treasury, not
later than February 15, 1996, a statement concerning the Series 1995 Bonds containing the
information required by Section 149(e) of the Code.
7.06. Oualified Tax-Exemot Obli~ations. Pursuant to Section 265(b)(3)(B)(ii) of the
Code, the City hereby designates the Series 1995 Bonds as "qualified tax-exempt obligations"
for purposes of Section 265(b)(3) of the Code. The City has not designated under Section
265(b) any obligations in 1995 other than the Series 1995 Bonds under Section 265(b)(3), except
$5,000,000 General Obligation Bonds, Series 1995, in aggregate principal amount of general
obligation bonds and special improvement district bonds. The City hereby represents that it
does not anticipate that obligations bearing interest not includable in gross income for purposes
of federal income taxation under Section 103 of the Code (including refunding obligations as
provided in Section 265(b)(3) of the Code and including "qualified 501(c)(3) bonds" but
excluding other "private activity bonds," as defined in Sections 141(a) and 145(a) of the Code)
will be issued by or on behalf of the City and all "subordinate entities" of the City in 1995 in an
amount greater than $10,000,000.
Section 8. Continuin!! Disclosure.
(a) Puroose and Beneficiaries. To provide for the public availability of certain
information relating to the Series 1995 Bonds and the security therefor and to permit the original
purchaser and other participating underwriters in the primary offering of the Series 1995 Bonds
to comply with amendments to Rule 15c2-12 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 Series 1995 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 Series 1995 Bonds. The System is the only "obligated
person" in respect of the Series 1995 Bonds within the meaning of the Rule for purposes of
identifying the entities in respect of which continuing disclosure must be made.
-19-
If the City fails to comply with any provisions of this Section 8, any person aggrieved
thereby, including the Owners of any outstanding Series 1995 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 Series 1995 Bonds or under any other provision of this resolution.
As used in this Section 8, "Owner" or "Bondowner" means, in respect of a Series 1995
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 Series 1995 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 Series 1995 Bond (including
persons or entities holding Series 1995 Bonds through nominees, depositories or other
intermediaries), or (b) is treated as the owner of the Series 1995 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 180 days after the end of each fiscal year of the System, commencing
with the fiscal year ending June 30, 1996, the following financial information and operating data
in respect of the City (the "Disclosure Information"):
(A) the audited financial statements of the System 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
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, showing in comparative form such figures for the preceding
fiscal year of the System, 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 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 fiscal
officer of the City; and
-20-
(B) To the extent not included in the financial statements referred to in
paragraph (A) hereof, information of the type set forth below, which information
may be unaudited, but is to be certified as to accuracy and completeness in all
material respects by the City's financial officer to the best of his or her
knowledge, which certification may be based on the reliability of information
obtained from governmental or other third party sources:
1. Information, for such fiscal year, relating to System revenues
and expenditures actually received, debt service and debt service
coverage of the type contained in the tables under the captions
"Estimated Debt Service Requirements and Debt Service Coverage,"
"Historical and Projected Revenues and Debt Service Coverage,"
"Pro Forma Debt Per Connection," "Average Water Service
Charge," and "Largest Water System Users" in this Official
Statement.
2. Information, as of January 1 for the current tax year, relating
to the market value and taxable value of taxable property in the City,
including information under the caption "Valuation and Assessment."
3. Information, as of the most recent date available, regarding
population of the City.
4. Information, as of the end of the most recent fiscal year, regarding
property taxes in the City of the type contained under the captions "Ten Major
Taxpayers in the City," "Property Tax Rates" and "Collection of Property
Taxes. "
5. Information, as of the end of the most recent fiscal year,
regarding the direct debt of the City, overlapping general obligation
debt and debt ratios of the type contained under the captions "City
Indebtedness" and "Direct and Overlapping Debt."
Notwithstanding the foregoing paragraph, 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 10 days after 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 (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 City shall clearly identify in
the Disclosure Information each document so incorporated by reference.
-21-
If any part of the Disclosure Information can no longer be generated because the
operations of the System 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 the replacement
operations.
If the Disclosure Information is changed or this Section 8 is amended as permitted by
this paragraph (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 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;
(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 Series 1995 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 Series 1995 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:
-22-
(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 Series 1995 Bonds and, at the expense 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
Series 1995 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 Series 1995 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.
-23-
(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 Series 1995 Bonds, by
a resolution of this Commission filed in the office of the recording officer 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 System or
the type of operations conducted by the System, or (b) is required by, or better complies with,
the provisions of paragraph (b)(5) of the Rule; (ii) 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 Series 1995 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 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 Liability of City. 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 revenues. 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 a pledge of the general credit or taxing powers of the City.
Section 9. Official Statement. The Official Statement relating to the Series 1995
Bonds is hereby approved. The officers of the City are hereby authorized and directed to
execute such certificates as may be appropriate concerning the accuracy, completeness and
sufficiency of the Official Statement and to deliver to the Original Purchaser of the Series 1995
Bonds within seven business days after the date of adoption of this resolution copies of the
Official Statement in a reasonable quantity as requested by the Purchaser.
-24-
-
Section to. Effective Date. This Resolution shall become effective upon passage.
CITY OF BOZEMAN, MONTANA
..
~.-~
"
Attest:
~~oI~
Clerk of the Commission
(SEAL)
-25-
-.-- ..-...- -