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HomeMy WebLinkAboutResolution 2669 Creating fund for '87 sidewalk program: 8-17-87 T" , . .. , CERTIFICATE OF MINUTES RELATING TO $90,000 SPECIAL SIDEWALK, CURB, GUTTER AND ALLEY APPROACH BONDS, SERIES 1987 Issuer: City of Bozeman, Montana Governing body: City Commission Kind, date, time and place of meeting: a regular meeting, held August 17, 1987, at 2:Of! o'clock p.m., at the City Commission chambers, City Hall, Bozeman, Montana Members present: Mayor Mathre, Commissioner Jordan, COmMissioner Stiff, Commissioner Martel, Commissioner Vant Hull Members absent: None Documents attached: Minutes of said meeting (pages): _ through _, including: RESOLUTION NO. 2669 RESOLUTION RELATING TO $90,000 SPECIAL SIDEWALK, CURB, GUTTER AND ALLEY APPROACH BONDS, SERIES 1987; CREATING SPECIAL SIDEWALK, CURB, GUTTER AND ALLEY APPROACH FUND AND PRESCRIBING COVENANTS OF THE CITY FOR THE SECURITY OF THE HOLDERS OF THE BONDS I, the undersigned, being the duly qualified and acting recording officer of the public corporation issuing the obligations referred to in the title of this certificate, certify that the documents attached hereto, as described above, have been carefully compared with the original records of the corporation in my legal custody, from which they have been transcribed; that the documents are a correct and complete transcript of the minutes of a meeting of the governing body of the corporation, and correct and complete copies of all resolutions and other actions taken and of all documents approved by the governing body at the meeting, insofar as they relate to the obligations; and that the meeting was duly held by the governing body at the time and place and was attended throughout by the members indicated above, pursuant to call and notice given as required by law. WITNESS my hand officially as such recording officer and the seal of the City this 17th day of August, 1987. et.J~ (SEAL) Clerk of the Commission _......n....___._.... ~- ~ II; Commission Member Vant Hull introduced the following resolution and moved its adoption: RESOLUTION NO. 2669 RESOLUTION RELATING TO $90,000 SPECIAL SIDEWALK, CURB, GUTTER AND ALLEY APPROACH BONDS, SERIES 1987; CREATING SPECIAL SIDEWALK, CURB, GUTTER AND ALLEY APPROACH FUND AND PRESCRIBING COVENANTS OF THE CITY FOR THE SECURITY OF THE HOLDERS OF THE BONDS BE IT RESOLVED by the City Commission of the City of Bozeman, Montana (the City), as follows: Section 1. Recitals. It is hereby found, determined and declared as follows: 1. 01 Authorization. The City is authorized pursuant to Section 7-14-4109, M.C.A. to order the construction or reconstruction of sidewalks, curbs or gutters in front of any lot or parcel of land and may order alley approaches constructed or replaced adjacent to any lot or parcel of land within the City. The Commission ordered constructed certain sidewalks, curbs, gutters and alley approach~s along streets as reflected by the minutes of the Commission and described by Exhibit A, attached hereto. As provided in the Orders and in accordance with Section 7-14-4109, M.C.A., written notice of the Orders was given to the owners or agents of owners of lots or parcels of land against which the costs of the proposed improvements were to be assessed. Upon the expiration of the 30 day notice period provided in the Orders, the City has determined which of the proposed improvements have been or will be constructed by the owners of the adjacent property and which of the proposed improvements will be constructed by the City. The improvements to be constructed by the private property owners and excepted from the City sidewalk project are described in Exhibit B, attached hereto. The City is authorized to pay the costs of constructing the Improvements by the issuance of special warrants (the Special Sidewalk, Curb, Gutter and Alley Approach Warrants) drawn against a fund to be known as the special sidewalk, curb, gutter and alley approach fund (the Special Sideewalk, Curb, Gutter and Alley Approach Fund) and to secure such Warrants by the revolving fund of the City created pursuant to Section 7-12-4221, M.C.A. 1. 02 . Sale of Special Sidewalk. Curb. Gutter and Alley Approach Bonds. This Commission authorized, by resolution adopted June 1, 1987, the issuance and public sale .- f . of special sidewalk, curb, gutter and alley approach bonds of the City in the aggregate principal amount of $90,000 (the Bonds) for the purpose of financing the construction of certain sidewalks, curbs, gutter and alley approaches heretofore ordered by this Commission (the Improvements). After a public sale noticed and conducted in accordance with applicable statutory provisions, the Bonds were sold to James E. and Anne w. Banks, of Bozeman, Montana (the Original Purchaser) at a purchase price of $91,000 at a net effective interest rate of 6.98% per annum subsequent to the sale of the Bonds, construction bids were received less than the engineer's original estimates thereby reducing the amount of Bonds to be sold. The Original Purchasers have agreed to purchase Bonds in the aggregate principal amount of $90,000 at a purchase price of $85,680 with the Bonds bearing interest at the rates provided in Section 2, resulting in a net expected rate of 6.98% per annum. 1.03. Com?liance with Constitution and Statutes. All acts, conditions and things required by the Constitution and laws of the State of Montana, including Montana Code Annotated, Title 7, Chapter 14, Part 41, and 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 required. Section 2. Confirmation of Ordering of Improvements. The Commission hereby confirms its previous activities with respect to ordering the construction of the Improvements and the assessment of the costs thereof against the parcels of land hereby described in Exhibit B hereto. Section 3. $90.000 Special Sidewalk. Curb. Gutter and Alley Approach Bonds. 3.01. Principal Amount. Maturities. Date. Denominations and Interest Rate. For the purpose of paying the costs and expenses incurred in the construction of the Improvements and in anticipation of the collection of special assessments to be levied therefor, and in accordance with the public offering and contract of sale described in Section 1.01, the City shall forthwith issue and deliver to the Purchaser its. Special Sidewalk, Curb, Gutter and Alley Approach Bonds in the aggregate principal amount of $90,000, payable solely from the 1987 Special Sidewalk, Curb, Gutter and Alley Approach Fund of the City (the Sidewalk Fund). The Bonds shall bear an original issue date and be registered as of September I, 1987, and shall be issued in the form of fully registered bonds of single -2- ,- ___m_____..__ __ . , maturities in denominations of $5,000 or any integral multiple thereof. The Bonds shall mature on July 1 in the years and amounts set forth below, subject to prior redemption, and shall bear interest from the date of original registration to their respective maturities or prior dates upon which they have been duly called for redemption at the rates per annum set forth opposite such years and amounts, respectively: Year Amount R.a.t..e. 1988 $10,000 6.25% 1989 15,000 6.45 1990 20,000 6.75 1991 20,000 7.00 1992 25,000 7.30 Each of the Bonds shall represent one or more principal installments of the issue of the same maturity. Principal installments of the issue are numbered from 1 through 18, each in the amount of $5,000. Principal of and interest on the Bonds are payable in lawful money of the United States of America. Upon the original delivery of the Bonds or upon transfer or exchange of Bonds, the Registrar (as hereinafter defined) shall date each Bond so delivered as of the date of its authentication. 3.02. Method of Pavrnent. The Bonds shall be issuable only in fully registered form, and the ownership of the Bonds shall be transferred only upon the bond register of the City hereinafter described. The interest on, and upon presentation and surrender thereof at the principal office of the Registrar described herein, the principal amount of each Bond at the principal office of the Registrar described herein, the amount payable with respect thereto, shall be payable by check or draft issued by the Registrar. 3.03. Interest Pavrnent Dates. Interest on the Bonds shall be payable semiannually on each January I, and July I, commencing January I, 1988, to the owners of record thereof as such appear in the bond register as of the close of business on the fifteenth day of the immediately preceding month, whether or not such day is a business day. 3.04. Reaistration. The City hereby appoints the Director of Finance of the City to act as bond registrar, transfer agent and paying agent {the -3- --- --- -- . . . Registrar). The City reserves the right to appoint a bank, trust company or fiscal company as successor bond registrar, transfer agent or paying agent, as authorized by the MOdel Public Obligations Registration Act of Montana (the Act), but the City agrees to pay the reasonable and customary charges of the Registrar for the services performed. This Section 2.05 shall establish a system of registration for the Bonds as defined by the Act. The effect of registration and the rights and duties of the City and the Registrar with respect thereto shall be as follows: (a) Bond Reaister. The Registrar shall keep at its principal office a bond register in which the Registrar shall provide for the registration of ownership of Bonds and the registration of transfers and exchanges of Bonds and Certificates entitled to be registered, transferred or exchanged. (b) Transfer. Upon surrender for transfer of any Bond duly endorsed by the registered owner thereof or accompanied by a written instrument of transfer, in form satisfactory to the Registrar, duly executed by the registered owner thereof or by an attorney duly authorized by the registered owner in writing, the Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Bonds of a like aggregate principal amount and maturity, as requested by the transferor. The Registrar may, however, close the books for registration of the transfer of any Bond or principal installment thereof to be 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) Exchanae of Bonds. 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 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. -4- . . (e) Improper or Unauthorized Transfer. When any Bond is presented to the Registrar for transfer, the Registrar may refuse to transfer the same until it is satisfied that the endorsement on such Bond or separate instrument of 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 upon such Bond to the extent of the sum or sums so paid. (g) Taxes. Fees and Charaes. For every transfer of Bonds or exchange of Bonds (except for an exchange upon the partial redemption of any Bond pursuant to Section 2.06), 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 accordance with its terms, it shall not be necessary to issue a new Bond prior to payment. -5- . 3.05. Redemption. Whenever there will be any balance in the Sidewalk Fund after paYment of the principal and interest due on all Bonds drawn against it, either from the prepayment of special assessments levied with respect to the Improvements or from the transfer of surplus moneys from the Construction Account to the Principal Account as provided in Section 3.02, the Director of Finance shall call for redemption on any interest paYment date outstanding Bonds or principal installments thereof in an amount which, together with the interest thereon to the date of redemption, will equal (as closely as the amount of the principal installment will permit) the amount of the Sidewalk Fund on the interest payment date. 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 Bonds shall not be called for redemption from the proceeds of refunding bonds before January 1, 1990. For purposes of redemption, the order of registration of the Bonds shall correspond to the order of the numbers of the principal installments represented by the Bonds. Bonds representing more than one principal installment may be redeemed in part, in one or more whole principal installments, and upon such partial redemption, a new Bond or Bonds will be delivered to the registered owner without charge, representing the remaining principal installments outstanding. Bonds shall be redeemed in the order of the principal installments they represent, at a redemption price equal to the principal installment or installments of the Bonds to be redeemed plus interest accrued thereon to the date of redemption. The date of redemption shall be fixed by the Director of Finance, 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 principal installments and Bonds to be redeemed and the date on which paYment will be made, which date shall be not less than ten days after the date of mailing notice. The Director of Finance shall at the same time mail notice of the redemption to the Original Purchaser. On the date so fixed interest on the Bonds or principal installments thereof to be redeemed shall cease to occur. 3.06. Execution. Reaistration and Deliverv of Bonds. The Bonds shall be prepared under the direction of the Clerk of the Commission and shall be executed on behalf of the City by the signatures of the Mayor and the Clerk of the Commission and sealed with the official seal of the City; provided that the seal and all signatures may be printed, engraved or lithographed facsimiles of the originals. In case any officer whose signature or a facsimile of whose signature shall appear on the Bonds shall cease to be such officer before the delivery of any Bond, such signature or facsimile shall nevertheless be -6- ---...--...--.-.-- . valid and sufficient for all purposes, the same as if he had remained in office until delivery. Notwithstanding such execution, no Bond shall be valid or obligatory for any purpose or entitled to any security or benefit under this resolution unless and until a certificate of authentication 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 Resolution. The Bonds shall be registered in order of their serial numbers by the Director of Finance as of September 1, 1987, and the Bonds shall be delivered by the Registrar to the Original Purchaser upon payment of $90,000 for the principal of the Bonds plus accrued interest from the registration date to the date of such delivery and payment. The Original Purchaser shall not be obligated to see to the application of the purchase price, but from the proceeds of the Bonds the Director of Finance shall credit forthwith $3,550 to the Special Improvement District Revolving Fund of the City, and the balance of such proceeds to the Construction Account in the Sidewalk Fund to be used solely for the payment of the cost and expenses necessarily incurred in the construction of the Improvements, except that the accrued interest received shall be deposited in the Interest Account in the Sidewalk Fund and applied in payment of interest on the Bonds when due. 3.07. Form of Bonds. The Bonds shall be prepared in substantially the form set forth in Montana Code Annotated, Section 7-12-4202, as more fully set forth in Exhibit A hereto and by this reference made a part hereof. Section 4. Special Sidewalk. Curb. Gutter and Alley Approach Fund. 4.0l. Sidewalk Fund. The Sidewalk Fund is hereby created and designated as the "Special Sidewalk, Curb, Gutter and Alley Approach Fund." The Sidewalk Fund shall be maintained as a separate bookkeeping account by the Director of Finance on the books and records of the City. Within the Sidewalk Fund there shall be maintained separate accounts, designated as the "Construction Account," the "Principal Account" and the "Interest Account," respectively. 4.02. Construction Account. There shall be credited to the Construction Account of the Sidewalk Fund the proceeds of the sale of the Bonds, less any interest accrued thereon to the date of delivery to the Purchaser and less $3,550 which -7- ~ . amount shall be deposited in the Special Improvement District Revolving Fund. 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 moneys in such Construction Account shall be used for no other purpose; provided that after all claims and expenses with respect to the Improvements have been fully paid and satisfied, any moneys remaining in the Construction Account shall be transferred to the Principal Account in the Sidewalk Fund and applied to the redemption of Bonds. 4.03. principal Account and Interest Account. Moneys 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 prepay and redeem Bonds. Upon the collection of the installment of principal and interest due on November 30 and May 31 of each year on the special assessments to be levied with respect to the Improvements, the Director of Finance shall credit to the Interest Account in the Sidewalk Fund so much of said special assessments as is collected as interest payment, and credit the balance of such assessments to the Principal Account. Any installment of any special assessment paid prior to its due date with interest accrued thereon to the nearest bond call date shall be credited with respect to principal and interest paYments in the same manner as other assessments are credited to the Sidewalk Fund. All moneys in the Interest Account and the Principal Account shall be used first to pay interest due, and any remaining moneys shall be used to pay Bonds then due and, if moneys are available, to redeem Bonds or principal installments thereof in accordance with Section 2.05; provided that any money transferred to the Principal Account from the Construction Account pursuant to Section 3.02 or any prepaid special assessments shall be applied to redeem Bonds or principal installments thereof 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 from the Principal Account shall be in order of the principal installments they represent as provided in Section 2.05, and interest shall be paid from the Interest Account as accrued thereon to the date of redemption, in accordance with the provisions of Montana Code Annotated, Sections 7-12-4206. 4.04. Loans From Revolvina Fund. The Commission shall annually or more often if necessary issue an order authorizing a loan or advance from the Special Improvement District Revolving Fund to the Sidewalk Fund in an amount sufficient to make good any deficiency then existing in the Interest Account in the Sidewalk Fund, and shall issue an order -8- -.-.-.----.--....-.....-.--.... . authorizing a loan or advance from the Revolving Fund to the Sidewalk Fund in an amount sufficient to make good any deficiency then existing in the Bond Account of the Sidewalk Fund, to the extent that moneys are available in the Revolving Fund. Pursuant to Ordinance No. 612 and in connection with the public offering of the Bonds, 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 and sidewalk, curb, gutter and alley approach warrants of the City is not sufficient to make good all deficiencies then existing in the improvement district fund or sidewalk, curb, gutter and alley approach fund for which the City has promised to make loans from the Revolving Fund, the balance on hand in the Revolving Fund shall be allocated to the funds in which such deficiencies then exist in proportion to the amounts of the deficiencies on the respective dates of receipt of such money, until all interest accrued on such special improvement district bonds and sidewalk, curb, gutter and alley approach warrants of the City has been paid. On any date when all accrued interest on special improvement district bonds and sidewalk, curb, gutter and alley approach warrants of the City payable from funds for which the City has promised to make loans from the Revolving Fund has been paid, any balance remaining in the Revolving Fund shall be loaned or advanced to the improvement district fund or sidewalk, curb, gutter and alley approach fund for paYment and redemption of bonds or warrants to the extent the improvement district fund or sidewalk, curb, gutter and alley approach fund is deficient for such purpose, in an amount proportionate to the amount of such deficiency. Section 5. City Covenants. The City covenants and agrees with the holders from time to time of each of the Bonds that until all of the Bonds and interest thereon are fully paid: 5.01. Compliance with Covenants. The City will hold the Sidewalk Fund and the Special Improvement District Revolving Fund of the City created by Ordinance No. 612, adopted October 2, 1951 (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 covenants hereinabove made with respect to the Sidewalk 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. -9- I 5.02. Construction of Improvements. The City will do all acts and things necessary to enforce the provisions of the construction contracts entered into or to be entered into for the Improvements and to ensure the completion of the Improvements in accordance with the plans and specifications therefor and within the time therein provided, and will pay all costs thereof promptly as incurred and allowed, out of the Construction Account and within the amount of the bond proceeds appropriated thereto. 5.03. Assessments. The City will do all acts and things necessary for the final and valid levy of special assessments upon all assessable property benefited by the Improvements, 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 $90,000. Such special assessments shall be levied on each lot or parcel of land in front of which sidewalks, curbs and gutters are to be constructed and each lot or parcel of land having an access via the alley approach and, unless prepaid in full, shall be payable in equal semi-annual installments over a period of five years, each installment being due in an amount equal to one-tenth (1/10th) of the principal amount of each assessment with interest on the whole amount remaining unpaid at an annual rate equal to the average annual interest rate borne by the Bonds plus up to one-half of one percent per annum as may be determined by the Commission, interest being payable with principal installments. The assessments to be levied will be payable on the 31st day of May in the years 1988 through 1992 and on the 30th day of November in each of the years 1987 through 1991. The first partial payment of each such assessment shall include interest on the entire assessment from August I, 1987, the date of original registration of the Bonds, to January I, 1988, and each subsequent partial paYment shall include interest for six months on the unpaid balance of such special assessment. All installments of special assessments not paid in full on or before the date due shall become delinquent on that date. 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 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 15-18-309. -IO- u " .u".._ __ --,,--- , 5.04. Hearina on Assessment. The City will provide and conduct a public hearing on the levy of the special assessments for the Improvements in accordance with the provisions of Section 7-12-4176 through Section 7-12-4178, M.C.A. 5.05. Re-assess and Re-levv. 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 re-assess and re-levy 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 re-assess and re-levy 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 re-assessment or re-levy shall, so far as 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 the 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 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 re-assess and relevy 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. 5.06. Litiaation. There is now no litigation pending or, to the best knowledge of the City, threatened, questioning the validity or regularity of the ordering of the Improvements, any contract for construction of the Improvements, the levy and collection of special assessments as described herein or the undertaking and agreement of the City to make up any deficiency in the collection of special assessments through the levy of taxes and the making of advances from the Revolving Fund, or the right and powers 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 Original Purchaser, and -11- . will furnish the Original Purchaser a copy of all documents, including pleadings, in connection with such litigation. Section 6. Investment of Monevs. 6.0l. Covenant. The City covenants and agrees with the holders 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 that would cause the interest on the Bonds to become subject to taxation under the provisions of the Internal Revenue Code of 1986 (the Code), and the Treasury Regulations promulgated thereunder in effect at the time of such action, and covenants and agrees that it will take or cause its officers, employees or agents to take any action within its or their powers to prevent the interest on the Bonds from becoming subject to taxation under the Code and applicable Treasury Regulations. 6.02. Certification. The Mayo r , the Director of Finance and the Clerk of the Commission, being the officers of the City charged with the responsibility for issuing the Bonds, are authorized and directed to execute and deliver to the Purchaser a certification in accordance with the provisions of Section 148 of the Code and Treasury Regulations, Sections 1.103-13, -14, and -15, stating the facts, estimates and circumstances in existence on the date of issue and delivery of the Bonds which make it reasonable to expect that the proceeds of the Bonds will not be used in a manner that would cause the Bonds to be arbitrage Bonds within the meaning of Section 148 of the Code and applicable Treasury Regulations. The certification shall further state that to the best of the knowledge and belief of the certifying officers no other facts, estimates or circumstances exist which would materially change this expectation. 6.03. Arbitraae Rebate. (a) The City hereby represents that it qualifies 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) The facilities financed in part with proceeds of the Bonds are to be used solely by members of the general public and no special concession or contract is granted to any user of such facilities. -12- I (2) Substantially all (not less than 95%) of the proceeds of the Bonds will be used for local governmental activities of the City. (3) The aggregate face amount of all tax-exempt bonds (other than private activity bonds) issued by the City and all subordinate entities thereof during 1987 is not reasonably expected to exceed $5,000,000. To date in 1987, the City has not issued any such tax-exempt bonds, and in the calendar years 1983 through 1986 the average annual principal amount of such tax-exempt bonds issued by the City was $588,125. (b) If notwithstanding the provisions of paragraph (a) of this Section 5.03, 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, required by said Section 148(f). (c) As provided in Section 3.04, paYment of principal of and interest on the Bonds is secured by the Revolving Fund. The amount on deposit in the Revolving Fund allocable to the Bonds (the Reserve Amount) constitutes a reasonably required reserve fund which may be invested without yield limitation if the Reserve Amount does not at any time exceed the Maximum Reserve Requirement, which is the lesser of: (i) 10 percent of the original proceeds of the Bonds ($9,000), (ii) the maximum amount of principal and interest payable on the Bonds in any fiscal year, or (iii) 125 percent of the average amount of principal and interest payable on the Bonds in any fiscal year. To ensure that the Reserve Amount never exceeds the Maximum Reserve Requirement, the City agrees that following the payment of Bonds on each July 1, the City will calculate the Reserve Amount, and that, if the Reserve Amount exceeds the maximum amount of principal and interest payable on the Bonds then outstanding in any future fiscal year, the City will within 30 days thereafter either (a) reduce the Reserve Amount so that it does not exceed such amount or (b) limit the yield of the investments allocated to the Reserve Amount in excess of such amount to the yield of the Bonds if and to the extent such reduction or limitation is necessary to prevent the Bonds from becoming "arbitrage bonds" within the meaning of the Act. In determining the Reserve Amount, the City shall allocate amounts on deposit in the Revolving Fund to outstanding special improvement -13- ~ I district bonds or warrants secured thereby in proportion to their original principal amounts. Section 7. Authentication of Transcript. The officers of the City are hereby authorized and directed to furnish to the Original Purchaser and to the attorneys approving the legality of the Bonds 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 statements contained therein. Section 8. Defeasance. 8.01. 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 8, all pledges, covenants and other rights granted by this Resolution to the owners of the Bonds shall cease. 8.02. Pavrnent. The City may discharge its liability with reference to any Bond, principal installment thereof or installment of interest thereon which is due on any date by depositing with the Registrar on or before that date 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 a sum sufficient and providing proceeds available for the paYment thereof in full with interest accrued to the date of such deposit. 8.03. Redemption. The City may also discharge its liability with reference to any prepayable Bonds which are called for redemption on any date in accordance with their terms by depositing with the Registrar on or before that date an amount equal to the principal and interest which are then due thereon; provided that notice of such redemption has been duly given as provided in this Resolution. 8.04. Defeasance bv 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 -14- ------ \ , 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 provision irrevocably made therefor, on or before the designated redemption date. Section 9. Repeals and Effective Date. 9.01. Repeal. 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 including but not limited to Resolution No. 2667 are repealed, amended and rescinded to the full extent necessary to give full force and effect to the provisions of thi~ rp.~nl11t-inn. ,.~'" 'ii^!" "'1/: < ' # I~' ';',-;#I!I;i~! , I I ~ . t, ,', ' '. ,""", , ~ ,....UnO to ... 010 .,.... 8IdeW.lk. Curb, I ~,_ AlIeJ,ApproMh ............. _.C,.. Itft i~st i t of 'ub1itstiou IfI8 ,....... ~1. CIn, G..... inef AIItJ -..... '1Ind MdP"~coW- _..or r..... -.~ .... ...,11, of tiW' _' of the BOnd.. Oll~.ofeolemap Stale. of Montane STATE OF MONTANA, } ss. &OUnty oLGallatin ",', '_', ' I. RobinL $J;Jlllvan, Clerk 01 County of Gallatin, the ,City , Comlri~ion.of ',' the City; Of, Bozeman; Montana, do Vivie Portnell , being duly sworn, heraby oer.flfy that ,the forago- ing is tha true'and,correot titla Principal Clerk and number ,of OommlSslon deposes and says: That ..a. he is Resolution No. 2669 passed and adoPti!d" at a -regular of the Bozeman DRily Chronicle, a newspaper of general circulation, session thl'l'IIOf..held on the 17th day ot. August. 1987. Dalad this "18th day '61 Au- printed and published in Bozeman, Gallatin County, Montana; and that the gust, 19$i. ,.1 ..:...i,u;'jm.oc" ~1':'ha C,_" I1\js notice hereunto annexed ( Resolution No. 2669 ",.,;- . "/., , ) , has been correctly published in the regular and entire issue of every number of said paper for ---1....- cuns-ecutive- insertion day of August 19...!U-, and the last on the 19 87 Subscribed and sworn to before me this ?Or.h day of ~st c 19 87 ( c LI A_4t-4J5&7- . Notary Public for the State of Montana, residing at Bozeman, Montana NOTARY PUBLlC.for the stale of MonIana Residing al Bozeman, Montana My Commission expires July 6, 19QQ - ---- ......-...---- ~_.- .---.-".--..".-..-- ""- I . and was signed by the Mayor, which signature was attested by the Clerk of the Commission. -16- ...-.--...-..---..-. ..-.-...-. ... -..".........--.---... ; . EXHIBIT A [Face of the Bond] UNITED STATES OF AMERICA STATE OF MONTANA GALLATIN COUNTY CITY OF BOZEMAN SPECIAL SIDEWALK, CURB, GUTTER AND ALLEY APPROACH BOND, SERIES 1987 Interest at the rate per annum specified below Payable on January 1, 1988 and semi-annually thereafter on the 1st day of January and the 1st day of July in each year Issued by the City of Bozeman, Gallatin County, Montana No. $ Representing Principal Installment Nos. Date of Original Interest Rate Maturitv Issue CUSIP September 1, 1987 SEE REVERSE FOR CERTAIN DEFINITIONS REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS The Director of Finance of the City of Bozeman, Montana, will pay to the registered owner specified above or registered assigns, the principal amount specified above on the maturity date specified above, as authorized by Resolution No. 2669, adopted on August 17, 1987 (the Bond Resolution), all -17- . : 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 the most recent date to which interest 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 Finance. Interest on this Bond is payable semi-annually, commencing January I, 1988, on the first day of January and the first day of July in each year, to the 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 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 Director of Finance of the City, of Bozeman, Montana, as bond registrar and paying agent, or its successor designated under the Bond Resolution described herein (the Registrar). 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. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Resolution until the Certificate of Authentication and Registration 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 to be executed by the facsimile signatures of the Mayor and the Clerk of the Commission and by a facsimile of the official seal of the City. CITY OF BOZEMAN, MONTANA Dated: (Facsimile signature) Mayor (Facsimile signature) Clerk of the Commission (Facsimile Seal) -18- . ~ . CERTIFICATE OF AUTHENTICATION AND REGISTRATION This is one of the Bonds delivered pursuant to the Bond Resolution mentioned herein and this Bond has been registered as required by law on the books of the City as of the 1st day of September, 1987. DIRECTOR OF FINANCE, CITY OF BOZEMAN, as Registrar By Authorized Representative Date: [Reverse of the Bonds] This Bond is one of an issue in the aggregate principal amount of $90,000 (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 14, Part 41 and Title 7, Chapter 12, Parts 41 and 42, as amended, for the purpose of financing the construction of sidewalk, curb, gutter and alley approach improvements in the City (the Improvements). The Bonds are issuable only as fully registered bonds of single maturities in denominations of $5,000 or any integral multiple thereof. This Bond represents one or more principal installments of the Bonds numbered as set forth on the face hereof. The principal installments for the Bonds are numbered from 1 through 18, each in the amount of $5,000. This Bond is payable from the collection of a special tax or assessment levied upon all assessable property benefited by the Improvements. This Bond is not a general obligation of the City. The principal installments represented by this Bond are subject to mandatory redemption in order of registration 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 Special Sidewalk, Curb, Gutter and Alley Approach Fund, from surplus funds not required to pay costs of the -19- .. ----.-.-----..-..--- . , . ; . Improvements or from the prepayment of special assessments to be levied on the benefited property, 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 Bonds shall not be called for redemption from the proceeds of refunding bonds before January I, 1990. The redemption price is equal to the amount of the principal installment or installments of the Bonds to be redeemed plus interest accrued thereon to the date of redemption. The date of redemption shall be fixed by the Director of Finance, who shall give notice by mail to the owners of such Bonds at their addresses shown on the bond register, of the numbers of the principal installments and Bonds to be redeemed and the date on which payment will be made, which date shall not be less than ten days after the date of mailing of notice, on which date so fixed interest shall cease. Upon partial redemption of any Bond, a new Bond or Bonds will be delivered to the registered owner without charge, representing the remaining principal installments outstanding. As provided in the Bond 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 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, representing the same principal installments, 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 AND RECITED 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 hereof. -20- . I . ; 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 UNIF GIFT MIN ACT.....Custodian..... in common (Cust) (Minor) TEN ENT -- as tenants by the entireties under Uniform Gifts to JT TEN -- as joint tenants Minors with right of survivorship and Ac t . . . . . . . . . . III . . . .. .. . . .. . . . not as tenants in (State) common Additional abbreviations may also be used. ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto the within Bond and all rights thereunder, and 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 OF ASSIGNEE: this 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. -21- . , , ( . SIGNATURE GUARANTEE: Signature(s) must be guaranteed by a commercial bank or trust company or by a brokerage firm having a membership in one of the major stock exchanges. Certificate as to Legal Opinion The following certificate shall be printed on the reverse side of each Bond, following a full, true and correct copy of the text of the legal opinion given at the time of delivery of the Bonds: We certify that the above is a full, true and correct copy of the legal opinion on the issue of Bonds of the City of Bozeman, Montana, which includes the within Bond, dated as of the date of delivery of and paYment for the Bonds. (Facsimile Signature) (Facsimile Signature) Mayor Clerk of the Commission -22- --------