HomeMy WebLinkAboutResolution 4073 Urban Renewal Revenue Bonds, Series 2007
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
Resolution No. 4073, entitled: "RESOLUTION RELATING TO $6,270,000 TAX
INCREMENT URBAN RENEWAL REVENUE BONDS, SERIES 2007 (DOWNTOWN
BOZEMAN IMPROVEMENT DISTRICT); RATIFYING THE SALE AND PRESCRIBING
THE FORM AND TERMS THEREOF AND THE SECURITY THEREFOR" (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 December 17,
2007, and that the meeting was duly held by the City Commission 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Resolution has not as of the date hereof been amended or repealed.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 Commission members voted in favor thereof: Cr. Jacobson, Cr. Becker,
Cr. Kirchhoff, Mayor Krauss; voted against the same: none; abstained from voting thereon:
none; or were absent: Cr. Rupp.
WITNESS my hand and seal officially this 18th day of December 2007.
TABLE OF CONTENTS
[Not a part of the Resolution; for convenience of reference only.]
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SECTION 1. DEFINITIONS, AUTHORIZATIONS AND FINDINGS ........................................1
1.01. Definitions.........................................................................................................................l
1.02. Authorization....................................................................................................................6
1.03. Prior City Actions.............................................................................................................6
1.04. The 2007 Project............................................................................................................... 7
1.05. Parking Garage Facility.................................................................................................... 7
1.06. Estimated Costs of 2007 Project....................................................................................... 7
1.07. Authorization and Sale of Series 2007 Bonds; Official Statement................................... 7
1.08. Estimate of Tax Increment................................................................................................8
1.09. Findings and Determinations............................................................................................8
SECTION 2. THE BONDS.............................................................................................................8
2.01. General Title.....................................................................................................................8
2.02. General Limitations; Issuable in Series ............ .................................................. .............. 9
2.03. Terms of Particular Series................................................................................................. 9
2.04. Form and Denominations................................................................................................ 1 0
2.05. Execution, Authentication and Delivery................. .......... ..............................................10
2.06. Temporary Bonds............................................................................................................l 0
SECTION 3. THE SERIES 2007 BONDS ....................................................................................11
3.01. Denomination, Maturities, Payment and Date of Series 2007 Bonds.............................ll
3.02. System of Registration................................................................................................... .12
3.03. Initial Bond Registrar and Paying Agent...... ............ ................................... ..... ........... ...13
3.04. Redemption.................................................................................................................... .14
3.05. Execution and Delivery of Series 2007 Bonds ...............................................................16
3 .06. Form of Series 2007 Bonds...... .......... .......... ........................ ............... .......................... ..16
3.07. Transcript Certification.................................................................................................. .16
3.08. Securities Depository ..................................................................................................... .16
3.09. Application of Proceeds and Other City Funds...................... ..... ..... ................ .......... ....18
SECTION 4. ADDITIONAL BONDS................... .......... .............................................. ............. ..18
4.01. General Provisions......................................................................................................... .18
4.02. Additional Bonds To Pay the Cost of Projects ...............................................................19
4.03. Additional Bonds for Refunding Purposes............ .................. ................... .................. ..20
4.04. Subordinate Obligations................................................................................................. .21
4.05. Notes............................................................................................................................. ..21
SECTION 5. THE TAX INCREMENT FUNDS ..........................................................................22
5.01. Bond Proceeds and Tax Increment Pledged and Appropriated ......................................22
5.02. Tax Increment Receipts............... .................................................................................. .22
5.03. Construction Account.................................................................................................... .22
5.04. Bond Account.............. ........... ....... ............ .......................... .......................................... .23
5.05. Reserve Account............................................................................................................ .24
5.06. General Tax Increment Development Fund............... ................. ......... ...........................25
5.07. Investments............................. ................... ... ................................................................. .26
SECTION 6. OTHER COVENANTS OF CITY...........................................................................26
6.01. Punctual Payment........................................................................................................... .26
6.02. Accumulation of Claims of Interest................................................................................27
6.03. Against Encumbrances............ ................... ............... ...... ............................................... .27
6.04. Management and Operation of Properties ............................................... ..................... ..27
6.05. Books and Accounts; Financial Statements.................... ................................................27
6.06. Completion of Projects................................................................................................. ..27
6.07. Taxation of Leased Property.......................................................................................... .27
6.08. Disposition of Property................................................................................................. ..28
6.09. Further Assurances............................. .................... ......... .............. ................................. .28
6.10. Amendment of Plan or Ordinance ............ ................. ................. ................................. ...28
6.11. Adjustment of Tax Incremental Base ........... ........... ............... ........................................28
6.12. Federal Tax Exemption.................................................................................................. .28
6.13. Pledge of Replacement Revenues................................................................................. ..29
6.14. Bondowner Rights......................................................................................................... .29
SECTION 7 . SUPPLEMENTAL RESOLUTIONS.................................................... ................ ..29
7.01. General.................................... ............................ .......................................................... ..29
7.02. Consent of Bondowners................................................................................................ ..30
7.03. Notice............................................................................................................................ ..30
7.04. Manner of Consent........................................................................................................ ..30
SECTION 8. DEFEASANCE........................................................................................................30
8.01. General.................. .................. ................... .................................................................... .30
8.02. Maturity................................... ...................................................... ..... ............................ .31
8.03. Redemption.................................................................................................................... .31
8.04. Escrow........................................................................................................................ .....31
SECTION 9 . TAX COVENANTS............................................................................................... .31
9.01. Security for the Series 2007 Bonds........... ......... ............................................ .......... .......31
9.02. General Covenant........................................................................................................... .31
9.03. Arbitrage Certification................................................................................................... .31
9.04. Arbitrage Rebate............................................................................................................ .32
9.05. Information Reporting................................................................................................... .32
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SECTION 10. CONTINUING DISCLOSURE............................................................................ .32
10.01. Purpose and Beneficiaries................. ....................... ..... ............................ ................. ...32
10.02. Information To Be Disclosed..................................................................................... ...33
10.03. Manner of Disclosure................................................................................................. ...36
1 0.04. Term; Amendments; Interpretation............................................................................. ..36
10.05. Further Limitation of Liability of City................... ................ .................................... ...3 7
SECTION 11. REPEAL............................................................................................................... ..3 7
SECTION 12. EFFECTIVE DATE ...............................................................................................3 7
Exhibit A-Form of Series 2007 Bonds
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RESOLUTION NO. 4073
RESOLUTION RELATING TO 6,270,000 TAX INCREMENT URBAN
RENEWAL REVENUE BONDS, SERIES 2007 (DOWNTOWN BOZEMAN
IMPROVEMENT DISTRICT); RATIFYING THE SALE AND PRESCRIBING
THE FORM AND TERMS THEREOF AND THE SECURITY THEREFOR.
BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, as
follows:
Section 1. Definitions. Authorizations and Findings.
\.01. Definitions. The terms defined in this Section 1.01 shall for all purposes of this
Resolution have the meanings herein specified, unless the context clearly otherwise requires:
A. "Resolution" means this Resolution No. 4073 as originally adopted or as it may from
time to time be amended or supplemented pursuant to the applicable provisions hereof.
B. All references in this Resolution to designated sections and other subdivisions are to
the designated sections and other subdivisions ofthis instrument as originally adopted.
C. The words "herein," "hereof' and "hereunder" and other words of similar import
without reference to any particular section or subdivision refer to this Resolution as a whole and
not to any particular section or other subdivision unless the context clearly indicates otherwise.
D. The terms defined in this Section include the plural as well as the singular.
E. All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles applicable to governmental
entities.
F. All computations provided herein shall be made in accordance with generally
accepted accounting principles applicable to governmental entities consistently applied.
G. "Or" is not intended to be exclusive, but is intended to contemplate or encompass
one, more or all of the terms or alternatives conjoined.
H. For purposes of amendments to this Resolution, direction of remedies and waivers of
default, Outstanding Notes shall be treated as "Bonds" Outstanding under this Resolution and
Owners of such Notes shall have the rights given Owners of Bonds in such circumstances.
Accountant shall mean a Person engaged in the practice of accounting as a certified
public accountant, whether or not employed by the City.
Act shall mean the Urban Renewal Law, Montana Code Annotated, Title 7, Chapter 15,
Parts 42 and 43, as amended or supplemented.
Additional Bonds shall mean any Bonds issued pursuant to Section 4.02 or 4.03.
Bond Account shall mean the account so designated in the Tax Increment Bond Fund.
Bond Counsel shall mean any firm of nationally recognized bond counsel experienced in
matters relating to tax ~exempt financing, selected by the City.
Bond Register shall mean the register maintained for the purpose of registering the
ownership, transfer and exchange of the Bonds of any series.
Bond Registrar shall mean, with respect to the Series 2007 Bonds, U.S. Bank National
Association, of Seattle, Washington, or any successor appointed pursuant to Section 3.03, and,
with respect to any series of Additional Bonds, the Person or Persons designated by or pursuant
to this Resolution or a Supplemental Resolution to receive and disburse the principal of,
premium, if any, and interest on the Bonds on behalf ofthe County and to hold and maintain the
Bond Register.
Bondowner shall mean the Owner of a Bond.
Bonds shall mean the Series 2007 Bonds and any Additional Bonds.
Business Day shall mean, with respect to the Bonds of any series, any day other than a
Saturday, Sunday or other day on which the Paying Agent and Bond Registrar for such series of
Bonds is not open for business.
City shall mean the City of Bozeman, Montana, or its successors.
City Resolution shall mean a resolution, ordinance or other appropriate enactment by the
Commission certified by the Clerk of the Commission to have been duly adopted and to be in
full force and effect.
Code shall mean the Internal Revenue Code of 1986, as amended.
Construction Account shall mean the account so designated in the Tax Increment Capital
Project Fund.
Commission shall mean the City Commission of the City or any successor governing
body thereof.
District shall mean the Downtown Bozeman Improvement District, or any successor to its
functions.
Financial Consultant shall mean an Independent Person selected by the City, qualified to
study urban renewal areas and projects and tax increment financing plans, and in the judgment of
the Commission, having a favorable repute for skill and experience in such work.
Fiscal Year shall mean the period commencing on the first day of July of any year and
ending on the last day of June of the next calendar year, or any other twelve~month period
authorized by law and specified by the Commission as the City's fiscal year.
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Government Oblillations shall mean (a) direct general obligations of, or obligations the
prompt payment ofthe principal of and the interest on which is fully and unconditionally
guaranteed by, the United States of America, (b) obligations the payment of the principal of,
premium, if any, and interest on which is fully guaranteed as a full faith and credit obligation of
the United States of America, and (c) certificates or other evidence of ownership in principal to
be paid or interest to accrue on a pool of obligations of the type described in the foregoing clause
(a) or (b), which obligations are held by a custodian, any obligations described in the foregoing
clause (a) or (b) may be issued or held in book-entry form on the books of the Department of
Treasury of the United States of America.
Independent shall mean, when used with respect to any specified Person, such a Person
who (i) is in fact independent; (ii) does not have any direct financial interest or any material
indirect financial interest in the City, other than the payment to be received under a contract for
services to be performed by such Person; and (iii) is not connected with the City as an officer,
employee, promoter, trustee, partner, director, underwriter or person performing similar
functions. Whenever it is herein provided that any Independent Person's opinion or certificate
shall be furnished, such Person shall be appointed by the City and such opinion or certificate
shall state that the signer has read this definition and that the signer is Independent within the
meaning hereof.
Interest Account shall mean the subaccount so designated in the Bond Account.
Interest Payment Date shall mean the Stated Maturity of an installment of interest on any
of the Bonds.
Maturitv shall mean, when used with respect to any Bond, the date on which the principal
of such Bond becomes due and payable as therein or herein provided, whether at its Stated
Maturity or by declaration of acceleration, redemption or otherwise.
Note shall mean any note issued in anticipation ofthe issuance of Bonds pursuant to
Section 4.05.
Opinion of Counsel shall mean a written opinion of counsel, who may (except as
otherwise expressly provided in this Resolution) be counsel for the City.
Ordinance shall mean Ordinance No. 1409, adopted by the Commission on November
20, 1995, as amended by Ordinance No. 1628, adopted by the Commission on March 7, 2005, as
such may be further amended or supplemented in accordance with the Act, the Ordinance and
this Resolution.
Orieinal Purchaser shall mean, with respect to any series of Bonds, the Person who
purchases such series of Bonds from the City when first issued. The Original Purchaser of the
Series 2007 Bonds is D.A. Davidson & Co., of Great Falls, Montana.
Outstanding shall mean, with reference to Bonds or Notes, as ofthe date of
determination, all Bonds or Notes theretofore issued and delivered under this Resolution except:
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(i) Bonds or Notes theretofore cancelled by the City or delivered to the City
cancelled or for cancellation;
(ii) Bonds and portions of Bonds for whose payment or redemption money or
Government Obligations (as provided in Section 8) shall have been theretofore deposited
in trust for the Owners of such Bonds; provided, however, that if such Bonds are to be
redeemed, notice of such redemption shall have been duly given pursuant to this
Resolution or irrevocable instructions to call such Bonds for redemption at a stated
Redemption Date shall have been given by the City; and
(iii) Bonds or Notes in exchange for or in lieu of which other Bonds or Notes
shall have been issued and delivered pursuant to this Resolution;
provided, however, that in determining whether the Owners of the requisite principal amount of
Outstanding Bonds or Notes have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Bonds or Notes owned by the City shall be disregarded and deemed
not to be Outstanding.
Owner shall mean, with respect to any Bond, the Person in whose name such Bond is
registered in the Bond Register.
Paving Agent shall mean the Person designated by or pursuant to this Resolution to
receive and disburse the principal of, premium, if any, and interest on the Bonds of a series on
behalf of the City.
Person shall mean any individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Plan shall mean the City of Bozeman Urban Renewal Plan adopted by the Commission
on November 20, 1995, as amended on March 7,2005, including all further amendments thereof
adopted in accordance with the Act and this Resolution.
Principal and Interest Requirements shall mean, with respect to any Bonds and for any
Fiscal Year or other specified period, the amount required to pay the principal of and interest on
such Bonds during such Fiscal Year or other period, determined on the assumption that each
Serial Bond is to be paid on its Stated Maturity and each Term Bond is to be paid on the Sinking
Fund Payment Dates according to the mandatory redemption requirements established for such
Term Bond by the applicable section of this Resolution or any Supplemental Resolution.
Principal Payment Date shall mean the Stated Maturity of principal of any Serial Bond
and the Sinking Fund Payment Date for any Term Bond.
Proiect shall mean the 2007 Project and any urban renewal project undertaken in or with
respect to the Urban Renewal Area under the Act, the costs of which are to be paid, in whole or
in part, from the proceeds of Bonds.
Qualified Investments shall mean the investments described as such in Section 5.06.
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Redemption Date when used with respect to any Bond to be redeemed shall mean the
date on which it is to be redeemed.
Redemption Price when used with respect to any Bond to be redeemed shall mean the
price at which it is to be redeemed.
Reimbursement Revenues shall mean reimbursements currently being received by the
City pursuant to Senate Bill 184 enacted in the 1999 Legislative Session and codified at Section
15-1-112, M.C.A., and House Bill 124 enacted in the 2001 Legislative Session and codified at
15-1-120 through 1-1-122, M.C.A.
Reserve Account shall mean the account so designated in the Tax Increment Bond Fund.
Reserve Requirement shall mean, as ofthe date of calculation, an amount equal to the
lesser of: (1) the maximum Principal and Interest Requirements on Outstanding Bonds for the
then current or any future calendar year, or (2) ten percent (10%) ofthe aggregate original
principal amount of all series of Bonds any Bond of which is then Outstanding.
Retail Space shall mean the commercial and retail space portion of the 2007 Project.
Serial Bonds shall mean Bonds which are not Term Bonds.
Series 2007 Bonds shall mean the City's Tax Increment Urban Renewal Revenue Bonds,
Series 2007 (Downtown Bozeman Improvement District), issued in the original aggregate
principal amount of $6,270,000.
Sinkinl! Fund Account shall mean the subaccount so designated in the Bond Account.
Sinkinl! Fund Payment Date shall mean a date set forth in any applicable provision of this
Resolution or a Supplemental Resolution for the making of a mandatory principal payment for
the redemption of a Term Bond.
State Entitlements shall mean the system of local government entitlements and block
grants established pursuant to HB 124 enacted by the 2001 Legislature effective, for the most
part, July 1, 2001.
Stated Maturity when used with respect to any Bond or any installment of interest thereon
shall mean the date specified in such Bond as the fixed date on which principal of such Bond or
such installment of interest is due and payable.
Subordinate Oblil!ations shall mean any bonds, notes or obligations of the City issued on
a subordinate basis to the Bonds as to the Tax Increment pursuant to Section 4.04.
Supplemental Resolution shall mean any resolution supplemental to this Resolution
adopted pursuant to Section 7.
Tax Increment shall mean the amount received by the City pursuant to the Act and the
Plan from the extension of levies of Taxes (expressed in mills), against the incremental taxable
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value, as defined in the Act, of all taxable property within the Urban Renewal Area, and shall
include any payments in lieu of Taxes attributable to the incremental taxable value, State
Entitlements, Reimbursement Revenues, and all payments received by the City designated as
replacement revenues for lost Tax Increment, as provided in Section 6.13.
Tax Increment Capital Proiect Fund shall mean the fund established pursuant to Section
5.01.
Tax Increment Bond Fund shall mean the fund established pursuant to Section 5.01.
Tax Increment Development Fund shall mean the fund established pursuant to Section
5.01.
Taxes shall mean all taxes levied on an ad valorem basis by a Taxing Body against
taxable real and personal property located within the Urban Renewal Area (exclusive of the six-
mill levy for university purposes levied by the State) and shall include all payments in lieu of
taxes received by the City with respect to property within the Urban Renewal Area.
Taxing Bodv shall mean the City; Gallatin County, Montana; High School District No.7,
Gallatin County, Montana; Elementary School District No.7, Gallatin County, Montana; the
State of Montana; and any other political subdivision or governmental unit which may hereafter
levy Taxes against property within the Urban Renewal Area.
Term Bond shall mean any Bond for the payment of the principal of which mandatory
payments are required by the Resolution or Supplemental Resolution to be made at times and in
amounts sufficient to redeem all or a portion of such Bond prior to its Stated Maturity.
2007 Proiect shall mean the Project described in Section 1.04.
Urban Renewal Area shall mean the City of Bozeman Downtown Bozeman Improvement
District, created and established pursuant to the Act and the Ordinance, as such area may be
enlarged or reduced in accordance with the Act and the Ordinance.
1.02. Authorization. Under the provisions of the Act, the City is authorized to create
urban renewal areas, prepare and adopt an urban renewal plan therefor and amendments thereto,
undertake urban renewal projects therein, provide for the segregation and collection oftax
increment with respect to taxes collected in such areas, issue its bonds to pay the costs of such
projects and to refund bonds previously issued under the Act and pledge to the repayment of the
bonds the tax increment and other revenues derived from projects undertaken within the Urban
Renewal Area.
1.03. Prior City Actions. Pursuant to the Act, the City has determined that blighted
property is located within the Urban Renewal Area, and that the rehabilitation, redevelopment or
a combination thereof is necessary for the public health, safety, morals or welfare of the residents
of the City, and the Commission has adopted the Plan which provides for the segregation and
collection of Tax Increment with respect to the Urban Renewal Area. The Urban Renewal Area
and the Plan providing for the segregation and collection of the Tax Increment have been duly
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and validly created and adopted in strict accordance with applicable provisions of the Act and are
in full force and effect.
1.04. The 2007 Proiect. Pursuant to the Act and Resolution No. 3901 adopted on April 3,
2006, the City designated and approved public hearings of which notice was duly given, the
construction of a parking garage facility consisting of a three to six floor parking garage to
provide up to 400 spaces to be owned and operated by the City, and a ground floor retail or
commercial component of approximately 13,000 square feet that to be sold to and developed by
a private party (the "Parking Garage Facility").
1.05. Parking Garage Facility. As currently designed by Prugh & Lenon Architects of
Bozeman, Montana, the Parking Garage Facility will consist of approximately 159,000 square
feet and the retail space will total approximately 10,070 square feet. The current Parking Garage
Facility design plan includes a basement parking level, a grade parking level, and three
additional above-ground parking levels. The total of 435 parking spaces will be created with the
construction of the Parking Garage Facility. Available parking on the existing surface lots that
will be eliminated from construction of the Parking Garage Facility totals 104 spaces, leaving a
net gain of 331 parking spaces to be owned and operated by the City.
1.06. Estimated Costs of 2007 Proiect. Based on construction bids received by the City,
the total cost of the Project including costs of insurance, debt service reserve and a reasonable
contingency is estimated to be $12,040,499, and is estimated as follows:
Construction Costs
Costs of Issuance of the Bonds
Underwriter's Discount
Debt Service Reserve Fund
Equipment/Contingency
Total Application of Funds
$11,039,159
70,800
103,455
426,382.50
400,703.00
$12,040,499.50
Costs of the 2007 Project in excess the amount of the Series 2007 Bond proceeds available
therefor are expected to be funded from proceeds of a grant from the United States Department
of Transportation in the amount of $4,024,659 as part of the Section 5309 Federal Transit
Administration Projects (the "Grant"), estimated investment earnings of$75,000, proceeds of the
sale ofthe Retail Space in the amount of $1,245,840, funds ofthe City on hand and available
therefor in the amount of $425,000.
The costs ofthe retail space are to be paid from $1,245,840 to be received from City Center
Commerce to acquire the Retail Space condominium of the Parking Garage Facility.
1.07. Authorization and Sale of Series 2007 Bonds: Official Statement. This
Commission determined by Resolution No. 390], adopted on Apri] 3, 2006, that it is in the best
interests of the City that the City issue its Series 2007 Bonds, as authorized by Section 7-]5-
4301(l)(b) of the Act and this Resolution, in order to provide funds to be used, with the Grant
Funds, the Developer Funds and available funds of the City, to pay the costs of the 2007 Project,
to fund a deposit to the Reserve Account and to pay costs of issuance of the Series 2007 Bonds.
Pursuant to Resolution No. 3901, this Commission, authorized the negotiated sale of the Series
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2007 Bonds to D.A. Davidson & Co., of Great Falls, Montana (the "Original Purchaser") and
authorized the Mayor, City Manager and City Finance Directorto enter into a Bond Purchase
Agreement with the Original Purchaser (the "Bond Purchase Agreement"). Pursuant to the
Bond Purchase Agreement, dated as of December 13,2007, the Original Purchaser agreed to
purchase the Series 2007 Bonds at the aggregate purchase price of $6,177 ,440. 70 (representing
the par amount of the Bonds, less Underwriter's compensation of$103,455.00 plus reoffering
premium of$10,895.70), subject to the terms and conditions of the Bond Purchase Agreement
and this Resolution. The provisions of this Resolution shall control any conflict.
The Series 2007 Bonds have been offered for sale by the Original Purchaser thereof by
means of an Official Statement, dated December 13, 2007 (the "Official Statement"). The City
hereby consents to the distribution of the Official Statement to prospective purchasers of the
Series 2007 Bonds and this Commission hereby authorizes and directs the Mayor, the Director of
Finance, and the Director of the Downtown Bozeman Improvement District Board to execute
such certificates relating to the accuracy and completeness of the Official Statement as may be
appropriate. The determination of the Mayor, the Director of Finance, and the City Manager that
the Preliminary Official Statement was "final" as of its date for purposes of Rule 15c2-12 under
the Securities Exchange Act of 1934 is hereby ratified and confirmed.
1.08. Estimate of Tax Increment. It is estimated that the Tax Increment to be received in
each of the Fiscal Years the Series 2007 Bonds that will be outstanding will be at least $554,833.
Using a collection rate for Tax Increment in the Fiscal Year ended June 30, 2007 of97% it is
projected that actual annual Tax Increment collections will be at least $540,000. The maximum
amount of principal and interest on the Series 2007 Bonds is $426,382.50.
1.09. Findings and Determinations. It is hereby found, determined and declared by this
Commission as follows:
(a) the conditions precedent to the issuance ofthe Series 2007 Bonds under the
Act, the Ordinance and this Resolution have or shall be met prior to the issuance ofthe
Series 2007 Bonds;
(b) the estimated Tax Increment to be received by the City, as set forth in
Section 1.07, and pledged to the payment of the Series 2007 Bonds will be sufficient to
pay the principal thereof and interest thereon when due; and
(c) it is in the best interests of the City to issue and sell the Series 2007 Bonds
to provided funds to pay a portion of the costs of the 2007 Project as provided in this
Resolution.
Section 2. The Bonds.
2.01. General Title. The general title of the Bonds of all series shall be "Tax Increment
Urban Renewal Revenue Bonds," with appropriate additions for refunding Bonds and to
distinguish Bonds of each series from Bonds of other series.
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2.02. General Limitations; Issuable in Series. The aggregate principal amount of Bonds
that may be authenticated and delivered and Outstanding under this Resolution is not limited,
except as provided in Section 4 and except as may be limited by law.
The Bonds may be issued in series as from time to time authorized by the Commission.
The Bonds are special, limited obligations of the City. Principal of, premium, ifany, and
interest on the Bonds (except to the extent payable out of proceeds of the Bonds) are payable
solely from the Tax Increment and from other revenues derived by the City from Projects or
other sources which may be pledged to the payment of any series of Bonds. The Bonds shall not
pledge the general credit or taxing powers of the City, and the State of Montana shall not in any
event be liable for the payment of the principal of, premium, ifany, or interest on the Bonds or
for the performance of any pledge of any kind whatsoever that may be undertaken by the City.
Neither the Bonds nor any ofthe agreements or obligations of the City contained herein or
therein shall be construed to constitute an indebtedness of the State of Montana, the City or
Gallatin County within the meaning of any constitutional or statutory provisions whatsoever.
With respect to the Bonds of any particular series, the City may incorporate in or add to
the general title of such Bonds any words, letters or figures designed to distinguish that series.
If any Stated Maturity, Redemption Date or Sinking Fund Payment Date shall be on a day
which is not a Business Day, then payment of principal, premium, if any, or interest due on such
day may be made on the next succeeding Business Day, with the same force and effect as if
made on such Stated Maturity, Redemption Date or Sinking Fund Payment Date (whether or not
such next succeeding Business Day occurs in a succeeding month).
2.03. Terms of Particular Series. Each series of Bonds (except the Series 2007 Bonds,
which are created by Section 3) shall be created by a Supplemental Resolution. The Bonds of
each series (other than the Series 2007 Bonds, as to which specific provision is made in Section
3) shall bear such date or dates, shall be payable at such place or places, shall have such Stated
Maturities and Redemption Dates, shall bear interest at such rate or rates, from such date or
dates, payable in such installments and on such dates and at such place or places, and may be
redeemable at such price or prices and upon such terms (in addition to the prices and terms
herein specified for redemption of all Bonds) as shall be provided in the Supplemental
Resolution creating that series. The City may, at the time of the creation of any series of Bonds
or at any time thereafter, make, and the Bonds ofthat series may contain, provision for:
A. a sinking, amortization, improvement or other analogous fund;
B. limiting the aggregate principal amount of the Bonds ofthat series or of all
Additional Bonds thereafter issued;
C. exchanging Bonds of that series, at the option ofthe Owners thereof, for
other Bonds ofthe same series ofthe same aggregate principal amount of a different
authorized kind and/or authorized denomination or denominations; or
D. the issuance of Bonds not registered as to principal or interest and the
exchange of such Bonds for fully registered Bonds;
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all upon such terms as the City may determine. All Bonds of the same series shall be
substantially identical except as to denomination and the differences specified herein or in a
Supplemental Resolution between interest rates, Stated Maturities and redemption provisions.
2.04. Form and Denominations. The form ofthe Bonds (other than the Series 2007
Bonds, as to which specific provision is made in Section 3) shall be established by the
Supplemental Resolution creating such series. The Bonds of each series shall be distinguished
from the Bonds of other series in such manner as the Commission may determine.
The Bonds of any series shall be issuable as fully registered Bonds unless the
Supplemental Resolution provides otherwise.
The Bonds of each series shall be issuable in such denominations as shall be provided in
the provisions of the Supplemental Resolution creating such series (other than the Series 2007
Bonds, as to which specific provision is made in Section 3). In the absence of any such
provision with respect to the Bonds of any particular series, Bonds shall be in the denomination
of$5,000 or any integral multiple thereof, ofa single Stated Maturity.
2.05. Execution. Authentication and Deliverv. Each Bond shall be executed on behalf of
the City by the manual or facsimile signature of the Mayor and Director of Finance, and attested
by the signature of the Clerk of the Commission (or other officers of the City authorized by City
Resolution); provided that if required by applicable laws, one such signature on each Bond shall
be a manual signature. The seal of the City need not be affixed to or imprinted on any Bond.
Any Bond bearing the manual or facsimile signature of an individual who was at any time an
appropriate officer of the City shall be valid and sufficient for all purposes, regardless whether
such individual held such office as of the date of sale, issue or delivery of such Bond or
certificate. No Bond shall be valid or obligatory for any purpose or be entitled to any security or
benefit under this Resolution unless and until a certificate of authentication on such Bond has
been duly executed by the manual signature of an authorized representative of the Bond
Registrar. Certificates of authentication on each Bond need not be signed by the same
representative. The executed certificate of authentication on each Bond shall be conclusive
evidence that it has been authenticated and delivered under this Resolution and in accordance
with the provisions hereof.
2.06. Temporary Bonds. Pending the preparation of definitive Bonds, the City, if
authorized by law, may execute and deliver, temporary Bonds which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination, substantially of the
tenor ofthe definitive Bonds in lieu of which they are issued, in registered form, and with such
appropriate insertions, omissions, substitutions and other variations as the officers of the City
executing such Bonds may determine, as evidenced by their signing of such Bonds.
Iftemporary Bonds are issued, the City will cause definitive Bonds to be prepared
without unreasonable delay. After the preparation of definitive Bonds, the temporary Bonds
shall be exchangeable for definitive Bonds upon surrender of the temporary Bonds, without
charge to the Owner. Upon surrender for cancellation of anyone or more temporary Bonds the
City shall execute and deliver in exchange therefor a like principal amount of definitive Bonds of
authorized denominations. Until so exchanged the temporary Bonds shall in all respects be
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entitled to the security and benefits under this Resolution, and interest thereon, when and as
payable, shall be paid to the bearers of the temporary Bonds upon presentation thereof for
notation of such payment thereon, unless such temporary Bonds shall be fully registered Bonds.
Section 3. The Series 2007 Bonds.
3.01. Denomination, Maturities, Payment and Date of Series 2007 Bonds. The Series
2007 Bonds to be issued hereunder, in the aggregate principal amount of $6,270,000, shall be
denominated "Tax Increment Urban Renewal Revenue Bonds, Series 2007 (Downtown
Bozeman Improvement District)," shall be issued as fully registered bonds of single Stated
Maturities in any denomination which is an integral multiple of $5,000. The Series 2007 Bonds
shall mature on July 1 in the years and principal amounts set forth below, and Series 2007 Bonds
maturing in such years and principal amounts 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, respectively:
Principal Interest Principal Interest
Year Amount Rate Year Amount Rate
2008 270,000.00 4.00% 2018 210,000.00 4.15%
2009 150,000.00 4.00 2019 220,000.00 4.25
2010 155,000.00 4.00 2020 230,000.00 4.40
2011 160,000.00 4.00 2021 240,000.00 4.50
2012 165,000.00 4.00 2022 250,000.00 4.60
2013 175,000.00 4.00 2023 260,000.00 4.70
2014 180,000.00 4.00 2024 275,000.00 4.80
2015 190,000.00 4.00 2028 * 1,235,000.00 4.95
2016 195,000.00 4.00 2032 * 1,505,000.00 5.00
2017 205,000.00 4.00
* Term bond subject to mandatory sinking fund redemption as set forth in Section 3.04(b) below.
Interest shall be calculated on the basis of a year of 360 days composed of twelve 30-day
months.
The Series 2007 Bonds shall be issuable only in fully registered form, and the ownership
of the Series 2007 Bonds shall be transferred only upon the Bond Register of the City hereinafter
described. Principal of and interest on the Series 2007 Bonds are payable in lawful money of the
United States of America. Principal and premium, if any, shall be payable by check or draft
drawn on the Paying Agent hereinafter described upon presentation and surrender of the Series
2007 Bonds at maturity or upon redemption at the principal office of the Paying Agent. Interest
on the Series 2007 Bonds shall be payable on July 1 in each year, commencing July 1, 2008, by
check or draft of the Paying Agent mailed 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.
Each Series 2007 Bond shall bear an original issue date as of December 27,2007. Upon
delivery of the Series 2007 Bonds to the Original Purchaser thereof pursuant to Section 3.05 or
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upon the delivery of Series 2007 Bonds upon a transfer or exchange pursuant to Section 3.02, the
Bond Registrar shall date each such Series 2007 Bond so delivered as of the date of its
authentication.
3.03. System of Registration. The City shall appoint, and shall maintain, a bond
registrar, transfer agent and paying agent for the Series 2007 Bonds (the Bond Registrar). This
Section 3.02 shall establish a system of registration for the Series 2007 Bonds as defined in the
Model Public Obligations Registration Act of Montana, and shall govern in the event provisions
of the Resolution relating to registration, transfer or exchange of Series 2007 Bonds are
inconsistent herewith, except as otherwise provided in Section 3.08. The effect of registration
and the rights and duties of the City and the Bond Registrar with respect thereto shall be as
follows:
(a) Bond Register. The Bond Registrar shall keep at its principal office a Bond
Register in which the Bond Registrar shall provide for the registration of ownership of
Series 2007 Bonds and the registration of transfers and exchanges thereof.
(b) Transfer. Upon surrender for transfer of any Series 2007 Bond duly
endorsed by the registered owner thereof or accompanied by a written instrument of
transfer, in form satisfactory to the Bond Registrar, duly executed by the registered
owner thereof or by an attorney duly authorized by the registered owner in writing, the
Bond Registrar shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Series 2007 Bonds of the same series and a like
aggregate principal amount, interest rate and maturity as requested by the transferor.
The Bond Registrar may, however, close the books for registration of the transfer of
any Series 2007 Bond or portion thereof selected or called for redemption.
(c) Exchange. Whenever any Series 2007 Bond is surrendered by the
registered owner for exchange, the Bond Registrar shall authenticate and deliver one or
more new Series 2007 Bonds of the same series and 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 2007 Bonds surrendered upon any transfer or
exchange shall be promptly cancelled by the Bond Registrar and thereafter disposed of
as directed by the City.
(e) Improper or Unauthorized Transfer. When any Series 2007 Bond is
presented to the Bond Registrar for transfer, the Bond Registrar may refuse to transfer
the same until it is satisfied that the endorsement on such Series 2007 Bond or separate
instrument of transfer is legally authorized. The Bond 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 Bond Registrar may treat the
Person in whose name any Series 2007 Bond is at any time registered in the Bond
Register as the absolute owner of such Series 2007 Bond, whether such Series 2007
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Bond shall be overdue or not, for the purpose of receiving payment of, or on account of,
the principal of, premium, if any, and interest on such Series 2007 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 2007 Bond to the extent ofthe sum or sums so paid.
(g) Taxes. Fees and Charges. For every transfer or exchange of Series 2007
Bonds (except upon a partial redemption of a Series 2007 Bond pursuant to Section
3.04), the Bond Registrar may impose a charge upon the owner thereof sufficient to
reimburse the Bond Registrar for any tax, fee or other governmental charge required to
be paid with respect to such transfer or exchange.
(h) Mutilated. Lost. Stolen or Destroyed Series 2007 Bonds. In case any Series
2007 Bond shall become mutilated or be lost, stolen or destroyed, the Bond Registrar
shall deliver a new Series 2007 Bond oflike amount, number, maturity date and tenor
in exchange and substitution for and upon cancellation of any such mutilated Series
2007 Bond or in lieu of and in substitution for any such Series 2007 Bond lost, stolen or
destroyed, upon the payment of the reasonable expenses and charges of the Bond
Registrar in connection therewith; and, in the case of a Series 2007 Bond lost, stolen or
destroyed, upon filing with the Bond Registrar of evidence satisfactory to it that such
Series 2007 Bond was lost, stolen or destroyed, and of the ownership thereof, and upon
furnishing to the Bond Registrar of an appropriate bond or indemnity in form,
substance and amount satisfactory to it, in which both the City and the Bond Registrar
shall be named as obligees. All Series 2007 Bonds so surrendered to the Bond
Registrar shall be cancelled by it and evidence of such cancellation shall be given to the
City. Ifthe mutilated, lost, stolen or destroyed Series 2007 Bond has already matured
or such Series 2007 Bond has been called for redemption in accordance with its terms,
it shall not be necessary to issue a new Series 2007 Bond prior to payment.
3.04. Initial Bond Registrar and Paying: Agent. The City hereby appoints U. S. Bank
National Association, of Seattle, Washington, as the initial Bond Registrar and the Paying Agent
for the Series 2007 Bonds. The City reserves the right to appoint a successor Bond Registrar or
Paying Agent, and the City agrees to pay the reasonable and customary charges of the Bond
Registrar and the Paying Agent for the services performed. Upon merger or consolidation of a
bank or trust company that is acting as the Bond Registrar or the Paying Agent, 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 Bond Registrar or Paying Agent, as the case
may be. The City reserves the right to remove any Bond Registrar or Paying Agent upon 30
days' notice and upon the appointment of a successor Bond Registrar or Paying Agent, in which
event the predecessor Bond Registrar or Paying Agent shall deliver all cash and Series 2007
Bonds in its possession as Bond Registrar or Paying Agent to the successor Bond Registrar or
Paying Agent and shall deliver the Bond Register to the successor Bond Registrar. On or before
each principal or interest due date, without further order of this Commission, the Director of
Finance shall transmit to the Bond Registrar, solely from money in the Bond Account of the Tax
Increment Fund available therefor, money sufficient for the payment of all principal, premium, if
any, and interest then due on the Series 2007 Bonds.
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3.05. Redemption.
(a) Optional Redemption. The Series 2007 Bonds with stated maturities in years 2008
through 2019 shall not be subject to redemption prior to maturity, but Series 2007 Bonds having
stated maturities in the years 2020 and any date thereafter, will be subject to redemption and
prepayment at the option of the City, in whole or in part, and ifin part in principal amounts and
from Stated Maturities selected by the City, and within a Stated Maturity in $5,000 principal
amounts selected by lot or such other manner as determined by the Paying Agent, on July 1,
2020 and any date thereafter, at a price equal to the principal amount thereof to be redeemed plus
interest accrued to the redemption date, without premium.
(b) Mandatory Sinking Fund Redemption. The Series 2007 Bonds having Stated
Maturities in the years 2028 and 2032 are Term Bonds and are subject to mandatory sinking fund
redemption prior to maturity on July 1 in the respective years and the respective principal
amounts set forth below, in $5,000 principal amounts selected by the Bond Registrar, by lot or
other manner it deems fair, at a redemption price equal to the principal amount thereofto be
redeemed plus interest accrued thereon to the redemption date:
Stated Principal
Maturity of Sinking Fund Amount on
Term Bonds Payment Date Sinking Fund
(July 1 ) (Julv 1) Payment Date
2028 2025 $290,000
2026 300,000
2027 315,000
2028 330,000
2032 2029 350,000
2030 365,000
2031 385,000
2032 405,000
The Bond Registrar shall select the Series 2007 Term Bonds to be redeemed on each
Sinking Fund Payment Date in accordance with Section 3.02, and the Series 2007 Bonds selected
by the Bond Registrar shall become due and payable on such date. The City may reduce the
amount of any Mandatory Sinking Fund Payment payable on any Sinking Fund Payment Date or
Dates by an amount equal to the principal amount of Outstanding Series 2007 Term Bonds then
to be redeemed that shall be surrendered uncancelled by the City to the Bond Registrar; provided
that the City shall have surrendered such Series 2007 Term Bonds to the Bond Registrar not less
than forty-five days before the first such Sinking Fund Payment Date, together with a City
Certificate stating its election to use such Series 2007 Term Bonds for such purpose and
designating the Sinking Fund Payment Date or Dates as to which such credit is to be applied (if
no such designation is made, such credits shall be applied in inverse order of Sinking Fund
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Payment Dates). In such case, the City may reduce the amount of Series 2007 Bonds to be
redeemed on the Sinking Fund Payment Date or Dates so determined by the principal amount of
Series 2007 Term Bonds so surrendered by the City.
If Series 2007 Term Bonds are redeemed at the option ofthe City pursuant to Subsection
(a) of this Section 3.02, the Series 2007 Bonds so optionally redeemed may, at the option of the
City, be applied as a credit against any subsequent Mandatory Sinking Fund Payment or
Payments with respect to Series 2007 Term Bonds, such credit to be equal to the principal
amount of such Series 2007 Term Bonds redeemed pursuant to Subsection (a) of this Section
3.02; provided that the City shall have delivered to the Bond Registrar not less than forty-five
(45) days before the first such Sinking Fund Payment Date a City Certificate stating its election
to apply such Series 2007 Term Bonds as such a credit and designating the Sinking Fund
Payment Date or Dates as to which such credit is to be applied (if no such designation is made,
such credits shall be applied in inverse order of Sinking Fund Payment Dates). In such case, the
City may reduce the amount of Series 2007 Bonds to be redeemed on the Sinking Fund Payment
Date or Dates so determined by the principal amount of Series 2007 Bonds of the same Stated
Maturity so redeemed pursuant to Subsection (b) of this Section 3.02.
Any credit given to Mandatory Sinking Fund Payments pursuant to this Section 3.02(b)
shall not affect any other Mandatory Sinking Fund Payments, which shall remain payable as
otherwise provided in this Section 3.02(c), unless and until another credit is given in accordance
with the provisions hereof.
(c) Notice of Redemption. The Director of Finance shall cause notice of redemption,
stating the series, the amount, the serial numbers, the maturities, the CUSIP numbers and the
interest rates of the Series 2007 Bonds or portions thereof called for redemption, to be mailed to
the Bond Registrar, the Paying Agent and to the registered owner of each Series 2007 Bond to be
redeemed at his address shown in the Bond Register not less than 30 days before the redemption
date therefor; 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 2007 Bond not affected thereby. Notice
of the call of any Series 2007 Bond for redemption having been mailed as herein provided, and
funds sufficient for the payment thereof with accrued interest having been deposited with the
Paying Agent on or before the redemption date, interest on such Series 2007 Bond shall cease to
accrue on said date, and the Owner 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 Director of Finance
shall also give, or cause the Bond Registrar to give, notice of the redemption of any Series 2007
Bond or Bonds or portions thereof at least 35 days before the Redemption Date by certified mail,
telecopy or express delivery service to the Original Purchaser of the Series 2007 Bonds and all
registered securities depositories then in the business of holding substantial amounts of
obligations of the character of the Series 2007 Bonds (such depositories now being The
Depository Trust Company, of New York, New York) 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 2007 Bond or portion
thereof.
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3.06. Execution and Delivery of Series 2007 Bonds. The Series 2007 Bonds shall be
forthwith prepared for execution under the direction of the Clerk of the Commission, at the
expense ofthe City, and shall be executed on behalf ofthc City and authenticated as provided in
Section 2.05. When the Series 2007 Bonds have been fully executed and authenticated, they
shall be delivered by the Bond Registrar to the Original Purchaser thereof upon payment of the
purchase price in accordance with the contract of sale heretofore made and executed, and the
Original Purchaser thereof shall not be obligated to see to the application ofthe purchase price.
3.07. Form of Series 2007 Bonds. The Series 2007 Bonds shall be in substantially the
form set forth in Exhibit B hereto (which is hereby incorporated herein and made a part hereoi),
with such appropriate variations, omissions and insertions as are permitted or required by this
Resolution.
3.08. Transcript Certification. The officers of the City are directed to furnish to the
Original Purchaser of the Series 2007 Bonds and to Bond Counsel certified copies of all
proceedings and information in their official records relevant to the authorization, sale and
issuance of the Series 2007 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 ofthe Series 2007 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.
3.09. Securities Depository.
(a) For purposes of this Section 3.08, the following terms shall have the following
meanmgs:
"Beneficial Owner" shall mean, whenever used with respect to a Series 2007
Bond, the Person in whose name such Series 2007 Bond is recorded as the beneficial
owner of such Series 2007 Bond by a Participant on the records of such Participant, or
such Person's subrogee.
"CEDE & Co." shall mean CEDE & CO., the nominee ofDTC, and any
successor nominee of DTC with respect to the Series 2007 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 2007 Bonds as securities depository.
"Representation Letter" shall mean the Blanket Issuer Letter of Representation
executed by the City to DTC pursuant to which the City agrees to comply with DTC's
Operational Arrangements.
(b) The Series 2007 Bonds shall be initially issued as separately authenticated fully
registered bonds, and one Series 2007 Bond shall be issued in the principal amount of each
Stated Maturity of the Series 2007 Bonds. Upon initial issuance, the ownership of such Series
16
2007 Bonds shall be registered in the Bond Register in the name of Cede & Co., as nominee of
DTC. The Bond Registrar, Paying Agent and the City may treat DTC (or its nominee) as the
sole and exclusive owner of the Series 2007 Bonds registered in its name for the purposes of
payment of the principal of or interest on the Series 2007 Bonds, selecting the Series 2007 Bonds
or portions thereof to be redeemed, if any, giving any notice permitted or required to be given to
registered owners of Series 2007 Bonds under this resolution, registering the transfer of Series
2007 Bonds, and for all other purposes whatsoever; and neither the Bond Registrar, Paying
Agent nor the City shall be affected by any notice to the contrary. Neither the Bond Registrar,
Paying Agent nor the City shall have any responsibility or obligation to any Participant, any
Person claiming a beneficial ownership interest in the Series 2007 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 2007 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 2007 Bonds, with respect to
any notice which is permitted or required to be given to owners of Series 2007 Bonds under this
resolution, with respect to the selection by DTC or any Participant of any Person to receive
payment in the event of a partial redemption of the Series 2007 Bonds, or with respect to any
consent given or other action taken by DTC as registered owner of the Series 2007 Bonds. So
long as any Series 2007 Bond is registered in the name of Cede & Co., as nominee of DTC, the
Paying Agent shall pay all principal of and interest on such Series 2007 Bond, and shall give all
notices with respect to such Series 2007 Bond, only to Cede & Co. in accordance with DTC's
Operational Arrangements, and all such payments shall be valid and effective to fully satisfy and
discharge the City's obligations with respect to the principal of and interest on the Series 2007
Bonds to the extent of the sum or sums so paid. No Person other than DTC shall receive an
authenticated Series 2007 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 Bond Registrar of
written notice to the effect that DTC has determined to substitute a new nominee in place of
Cede & Co., the Series 2007 Bonds will be transferable to such new nominee in accordance with
paragraph (d) hereof.
(c) In the event the City determines to discontinue the book-entry only system, the City
may notify DTC and the Bond Registrar and Paying Agent, whereupon DTC shall notify the
Participants of the availability through DTC of Series 2007 Bonds in the form of certificates. In
such event, the Series 2007 Bonds will be transferable in accordance with paragraph (d) hereof.
DTC may determine to discontinue providing its services with respect to the Series 2007 Bonds
at any time by giving notice to the City, the Paying Agent and the Bond Registrar and
discharging its responsibilities with respect thereto under applicable law. In such event the
Series 2007 Bonds will be transferable in accordance with paragraph (d) hereof.
(d) In the event that any transfer or exchange of Series 2007 Bonds is permitted under
paragraph (b) or (c) hereof, such transfer or exchange shall be accomplished upon receipt by the
Bond Registrar of the Series 2007 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 2007 Bonds in the form of certificates are issued to owners other
than Cede & Co., its successor as nominee for DTC as owner of all the Series 2007 Bonds, or
another securities depository as owner of all the Series 2007 Bonds, the provisions ofthis
resolution shall also apply to all matters relating thereto, including, without limitation, the
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printing of such Series 2007 Bonds in the form of bond certificates and the method of payment
of principal of and interest on such Series 2007 Bonds in the form of bond certificates.
3.10. Application of Proceeds and Other City Funds. The City shall deposit the proceeds
of the sale of the Series 2007 Bonds (including accrued interest thereon from the date from
which interest is to be paid thereon to the date of delivery to the Original Purchaser thereof) as
follows:
(a) Deposit to the credit ofthe Interest Account in the Tax Increment Fund the
amount of interest accrued on the Series 2007 Bonds from December 27,2007 to the
date of delivery thereof;
(b) Deposit a sufficient amount to the Reserve Account as to cause the balance
therein to equal the Reserve Requirement in respect of the Series 2007 Bonds; and
(c) Deposit the balance of the proceeds of the Series 2007 Bonds in the
Acquisition and Construction Account in the Tax Increment Fund to be used to pay costs
of the 2007 Project and to pay costs of issuance of the Series 2007 Bonds.
Section 4. Additional Bonds.
4.01. General Provisions. In addition to the Series 2007 Bonds, whose issuance and
delivery is provided for in Section 3, Additional Bonds may at any time and from time to time be
issued, sold and delivered by the City but only upon compliance with the conditions of, Sections
4.02 and 4.03, whichever may be applicable, and upon filing with the Clerk of the Commission
the following:
A. A Supplemental Resolution authorizing the issuance and creating the
designated series of Additional Bonds and the sale thereof to the Original Purchaser or
Purchasers named therein for the purchase price set forth therein;
B. A certificate executed by the Mayor, City Manager and City Finance
Oirectorstating that upon the issuance of the Additional Bonds, no default hereunder
has occurred and is continuing which would not be cured upon the issuance ofthe
Additional Bonds and application of the proceeds thereof.
C. An Opinion of Bond Counsel (who may rely on factual representations of
the City and whieh opinion may be qualified by customary qualifications and
exceptions) stating that:
(1) all conditions precedent provided for in this Resolution relating to the
issuance and delivery of such Additional Bonds have been complied with,
including any conditions precedent specified in this Section;
(2) the series of Additional Bonds when issued and delivered by the City
will be valid and binding special, limited obligations of the City in accordance
with their terms and entitled to the benefits of and secured by this Resolution;
and
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(3) the issuance of such Additional Bonds will not affect the tax-exempt
nature for federal income tax purposes ofthe Bonds then Outstanding.
No Additional Bonds shall be issued unless, immediately after the issuance thereof and
the application of the proceeds thereof the balance on hand in the Reserve Account will be at
least equal to the Reserve Requirement after giving effect to the issuance of such Additional
Bonds.
Any Additional Bonds shall be dated, shall bear interest at a rate or rates not exceeding
the maximum rate, if any, permitted by law, shall have Stated Maturities, and may be subject to
redemption at such times and prices and on such terms and conditions, all as may be provided by
the Supplemental Resolution authorizing their issuance. All Additional Bonds issued pursuant to
Sections 4.02 and 4.03 shall be payable and secured ratably and equally and on a parity with the
Series 2007 Bonds and any Additional Bonds theretofore issued, entitled to the same benefits
and security of this Resolution.
4.02. Additional Bonds To Pav the Cost of Projects. Additional Bonds may be issued
under this Section 4.02, at one time or from time to time, subject to the conditions provided in
Section 4.01 and this Section 4.02, for the purpose of providing funds, in an aggregate amount
sufficient with any other funds available and committed therefor to pay the cost of one or more
Projects.
Before any Additional Bonds shall be issued under this Section 4.02, the City shall adopt
a Supplemental Resolution authorizing the issuance of such series of Additional Bonds, fixing
the amount and the details thereof, describing in brief and general terms the Projects to be
acquired, constructed, altered or improved and estimating the costs thereof.
In addition, prior to the execution and delivery of any series of Additional Bonds under
this Section 4.02, there shall be filed with the Clerk of the Commission:
(a) A certificate executed by the Mayor, City Manager and City Finance
Directorstating: (i) the estimated cost of the Projects being financed thereby, including
an allowance for contingencies and all fees, expenses and financing costs, (ii) the
amount, if any, which will be required to be deposited to the credit ofthe Reserve
Account in connection with the issuance of the Additional Bonds, (iii) the amount, if
any, which will be required to be credited to the Bond Account to pay interest on the
Additional Bonds prior to collection of sufficient Tax Increment available therefor, (iv)
the amount of Tax Increment received by the City in the last completed Fiscal Year, (v)
the amount of the maximum Principal and Interest Requirements on the Outstanding
Bonds and the Additional Bonds proposed to be issued for any future Fiscal Year
during the term of the Outstanding Bonds, and (vi) that the principal amount of such
Additional Bonds is sufficient to provide for the payment of all estimated costs of
Projects to be financed thereby and credits to the Reserve Account and Bond Account
as set forth above; and
(b) a certificate executed by the Mayor, City Manager and City Finance
Directorstating that:
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(i) the Tax Increment received by the City in the last completed Fiscal
Year was equal to at least 130% of the maximum Principal and Interest
Requirements for any future calendar year (during the term of the Outstanding
Bonds) with respect to Outstanding Bonds and the Additional Bonds proposed
to be issued; and
(ii) the Tax Increment received by the City in the last completed Fiscal
Year, adjusted as provided in this Section 4.02(b )(ii), was, and the Tax
Increment estimated to be received in the next succeeding three Fiscal Years,
adjusted as provided in Section 4.02(c), is estimated to be, equal to at least
130% of the maximum Principal and Interest Requirements for any future
calendar year (during the term of the Outstanding Bonds) with respect to the
Outstanding Bonds and the Additional Bonds proposed to be issued. For this
purpose, the Tax Increment received by the City in the last completed Fiscal
Year may be adjusted by adding any increase in Tax Increment which would
have resulted from applying the aggregate tax rates of the Taxing Bodies
effective for the last completed Fiscal Year to the value, as determined by
certification of the Montana Department of Revenue, of any projects which
have been completed in the Urban Renewal Area before the date of issuance of
the Additional Bonds and the taxable values of which as so completed are not
included in the "actual taxable value" of the Urban Renewal Area (within the
meaning ofthe Act).
The Commission shall approve and confirm the findings and estimates set forth in the
above-described certificates in the Supplemental Resolution authorizing the issuance of the
Additional Bonds.
(c) For purposes of the foregoing paragraph (b), in estimating the Tax Increment to
be received in any future Fiscal Year, the Mayor, City Manager and City Finance
Directorshall assume that: (I) 90% of the Taxes levied in the Urban Renewal Area will
be collected in any Fiscal Year, (2) no Taxes delinquent in a prior Fiscal Year will be
collected in any subsequent Fiscal Year, and (3) there will be no increase in the Tax
Increment to be received in any future Fiscal Year resulting from projected inflation in
property values or projected increases in Taxes.
4.03. Additional Bonds for Refunding: Purposes. Additional Bonds may be issued at any
time or from time to time, subject to the conditions hereinafter stated in this Section 4.03, for the
purpose of providing funds, with any other funds available and committed therefor, for paying at,
or redeeming prior to, their Stated Maturities any Outstanding Bonds, including the payment of
any redemption premium thereon and interest which will accrue on such Bonds to any
Redemption Date or the Stated Maturities thereof, and any expenses in connection with such
financing. Such Additional Bonds shall be designated substantially as the Bonds to be refunded,
with the addition of the term "Refunding".
Prior to authentication and delivery of any Additional Bonds under this Section 4.03 there
shall be filed with the Clerk of the Commission such documents as shall be required to show that
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provisions have been duly made in accordance with the provisions of this Resolution for the
redemption of all of the Outstanding Bonds to be refunded.
The City shall not deliver any Additional Bonds under this Section 4.03 unless there shall
be filed with the Clerk of the Commission:
(i) a report of an Independent Accountant to the effect that (a) the proceeds
(excluding accrued interest but including any premium) of the Additional Bonds plus
any moneys to be withdrawn from the Bond Account for such purpose, together with
any other funds deposited for such purpose, will be not less than an amount sufficient to
pay the principal of and redemption premium, ifany, on the Outstanding Bonds to be
refunded and the interest which will become due and payable on and prior to the
Redemption Date or Stated Maturities of the Bonds to be refunded, or (b) from such
proceeds there shall be deposited in trust, Government Obligations which do not permit
the redemption thereof at the option of the issuer, the principal of and the interest on
which when due and payable (or redeemable at the option of the holder thereof) will
provide, together with any other moneys which shall have been deposited in trust
irrevocably for such purpose, but without reinvestment, sufficient moneys to pay such
principal, redemption premium and interest;
(ii) an opinion of Bond Counsel to the effect that the issuance of such
Additional Bonds will not prejudice the exclusion from gross income for purposes of
federal income taxation of the interest accruing on any of the Outstanding Bonds; and
(iii) if Additional Bonds are issued to refund Subordinate Obligations issued
pursuant to Section 4.04, the conditions for the issuance of Additional Bonds pursuant
to Section 4.02 be satisfied.
4.04. Subordinate Obligations. Except as provided in Sections 4.01 to 4.03, no bonds,
notes or other evidence of indebtedness of the City will be issued under or secured by the
provisions of this Resolution, and no bonds, notes or other evidence of indebtedness will be
made payable from the Bond Account, unless the pledge and appropriation of such Tax
Increment for the payment and security of such bonds, notes or other evidence of indebtedness is
expressly subordinated to the pledge and appropriation made for the benefit and security of the
Series 2007 Bonds and all Additional Bonds issued and to be issued under and secured by this
Resolution in accordance with Sections 4.01 to 4.03. In the event of the issuance of any such
Subordinate Obligations, the principal, interest and redemption premiums thereon will be made
payable from one or more additional accounts created within the Tax Increment Funds for that
purpose, and the balance of funds at any time on hand in any such accounts shall be available
and shall be transferred whenever needed to meet the current requirements of the Bond Account
and Reserve Account set forth in Sections 5.03 and 5.04.
4.05. Notes. When and if the City has established that all of the conditions precedent to
the issuance of a series of Additional Bonds have been satisfied (assuming a specified principal
amount, maturity schedule and interest rate to be borne by such Additional Bonds), the City may,
after authorizing the issuance of such series of Additional Bonds but in lieu of issuing such series
of Additional Bonds, issue a series of special, limited Notes, denominated as "Bond Anticipation
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Notes," which shall have a Stated Maturity not more than three years from their date of original
issue and which shall be secured by a lien on the Tax Increment subordinate to all Outstanding
Bonds except that at their Stated Maturity they shall be paid as to principal and interest to the
extent required from the proceeds of the series of Additional Bonds in anticipation of which they
were issued or, if for any reason the City has been unable to sell and issue that series of
Additional Bonds, then, at the option of the holders of such Notes, Bonds of such series of
Additional Bonds shall be issued to the Holders of the Notes, in exchange therefor, on a par-for-
par basis, without the necessity for meeting the other requirements of this Section 4 in respect of
such Additional Bonds.
Section 5. The Tax Increment Funds.
5.01. Bond Proceeds and Tax Increment Pledged and Appropriated. Within the City's
Downtown Bozeman Improvement District Tax Increment Fund, the City hereby establishes on
its books and records three funds designated as the Tax Increment Capital Project Fund, the Tax
Increment Bond Fund and the Tax Increment Development Fund (collectively, the Tax
Increment Funds) related to the Series 2007 Bonds and any Additional Parity Bonds (the Bonds).
The Tax Increment Funds shall be maintained as separate and special bookkeeping accounts on
the official books and records ofthe City until all Bonds have been fully paid, or the City's
obligation with reference to all Bonds has been discharged as provided in this Resolution. All
proceeds of Bonds and all other funds hereafter received or appropriated for purposes of the
Projects are appropriated to the Tax Increment Funds. All Tax Increment is irrevocably pledged
and appropriated and shall be credited as received to the Tax Increment Bond Fund. The Bonds
shall be secured by a first pledge of and lien on all of the Tax Increment and of all other moneys
from time to time in the Tax Increment Funds in the manner and to the extent provided in this
Section 5. The City shall not issue any obligation or security superior to or on a parity with the
Series 2007 Bonds, payable or secured, in whole or in part, from or by the Tax Increment other
than Additional Bonds issued pursuant to Section 4, until all of the Series 2007 Bonds have been
paid or discharged as provided herein. The Tax Increment Funds shall be subdivided into
separate accounts as designated and described in Sections 5.03 to 5.06.
5.02. Tax Increment Receipts. All Tax Increment received by the City and credited to the
Tax Increment Bond Fund, as required in Section 5.01, shall be credited as received as follows:
(a) first, to the Interest Account, until the balance on hand in the Interest Account is at least equal
to all interest on Bonds due and payable from the Interest Account within the next six full
calendar months; (b) second, after any credit to the Interest Account required by the preceding
clause, to the Sinking Fund Account, until the balance on hand in the Sinking Fund Account is at
least equal to all principal of and premium, if any, on Outstanding Bonds due and payable from
the Sinking Fund Account (including amounts due and payable on a Sinking Fund Payment
Date) within the next twelve full calendar months; (c) third, after any credit to the Interest
Account or the Sinking Fund Account required by the preceding clauses, to the Reserve Account
until the balance on hand in the Reserve Account is equal to the Reserve Requirement; and (d)
fourth, after any credit to the Interest Account, the Sinking Fund Account or the Reserve
Account required by the preceding clauses, to the Tax Increment Development Fund.
5.03. Construction Account. For each Project there shall be a separate Construction
Account within the Tax Increment Capital Project Fund, to be used only to pay allowed costs as
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incurred, which under accepted accounting principles are costs of the particular Project,
including but not limited to payments due for work and materials performed and delivered under
construction contracts, architectural, engineering, inspection, supervision, fiscal and legal
expenses, the cost of lands and easements, and other interests in land, interest accruing on Bonds
during the period of construction of a Project financed thereby and for a period oftime thereafter
authorized by the Act and deemed necessary by the Commission, if and to the extent that the
Interest Account is not sufficient for payment of such interest, reimbursement of any advances
made from other City funds, and all other expenses incurred in connection with the acquisition,
construction and financing of the Project. To the Construction Account shall be credited as
received all proceeds of Bonds issued to finance such Project, except amounts otherwise
appropriated in Section 3.09 or in a Supplemental Resolution or received from Additional Bonds
issued to refund Outstanding Bonds pursuant to Section 4 and all other funds appropriated by the
City for the Project, and all income received from the investment of the Construction Account.
Upon completion of any Project and payment ofthe cost thereof, the City may transfer any
money then remaining in the Construction Account for that Project, if permitted by the Act and if
such transfer will not adversely affect the tax exemption of interest on the series of Bonds that
financed the Project, to the Tax Increment Development Fund. Money in the Construction
Account shall be transferred as needed to the Interest Account to pay interest on Bonds payable
therefrom to the extent moneys therein are insufficient.
5.04. Bond Account.
(a) General. The Bond Account is hereby established as a special account within the Tax
Increment Bond Fund. There are hereby established within the Bond Account two separate
subaccounts, designated as the Interest Account and the Sinking Fund Account.
(b) Interest Account. There shall be credited to the Interest Account the following
amounts: (i) the amount specified in clause (a) of Section 3.09; (ii) any amount specified in any
Supplemental Resolution to be credited to the Interest Account; (iii) from the Tax Increment as
received by the City, the amount specified in clause (a) of Section 5.02; and (iv) any other
amounts appropriated from time to time to the Interest Account.
On or before each Interest Payment Date, the City shall withdraw from the Interest
Account an amount sufficient to pay the interest coming due on the Bonds on such Interest
Payment Date, and shall use such amount to pay, or make provision with the Paying Agent for
the payment of, interest on the Bonds on such Interest Payment Date.
If on any Interest Payment Date the balance in the Interest Account is not sufficient to
pay the total amount of interest due on such Interest Payment Date, the City shall transfer any
money then on hand in the Tax Increment Development Fund, the Construction Account, the
Reserve Account or the Sinking Fund Account, in the order listed and in an amount equal to such
deficiency, to the Interest Account.
All income derived from the investment of amounts in the Interest Account shall be
credited as received to the Interest Account.
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(c) Sinkina Fund Account. There shall be credited to the Sinking Fund Account the
following amounts: (i) any amount specified in a Supplemental Resolution to be credited to the
Sinking Fund Account; (ii) from the Tax Increment as received by the City, the amount specified
in clause (b) of Section 5.02; investment income from the Reserve Account as provided in
Section 5.05; and (iv) any other amounts appropriated from time to time to the Sinking Fund
Account.
Amounts on hand in the Sinking Fund Account shall be used on any Interest Payment
Date to make up a deficiency in the Interest Account, if and to the extent required by the third
subparagraph of paragraph (b) of this Section.
On or before each Principal Payment Date, the City shall withdraw from the Sinking
Fund Account an amount sufficient to pay the principal due on the Bonds on such Principal
Payment Date, and shall use such amount to pay, or make provision with the Paying Agent for
the payment of, principal ofthe Bonds on such Principal Payment Date, whether a Stated
Maturity or a Sinking Fund Payment Date.
If on any Principal Payment Date the balance in the Sinking Fund Account is not
sufficient to pay the total amount of principal due on such Principal Payment Date, the City shall
transfer any money then on hand in the Tax Increment Development Fund, Construction Account
or Reserve Account, in the order listed and in an amount equal to such deficiency, to the Sinking
Fund Account.
5.05. Reserve Account. The Reserve Account is hereby established as a special account
within the Tax Increment Bond Fund. There shall be credited to the Reserve Account the
following amounts: (i) $426,382.50 from proceeds of the Series 2007 Bonds, as provided in
Section 3.09; (ii) from the Tax Increment as received by the City, the amount specified in clause
(c) of Section 5.02; (iii) any amount specified in any Supplemental Resolution to be credited to
the Reserve Account; and (iv) any other amounts appropriated from time to time to the Reserve
Account.
If on any Interest Payment Date or on any Principal Payment Date there shall exist, after
the other transfers required by Sections 5.03(a) and (b), a deficiency in the Interest Account or
Sinking Fund Account, the City shall transfer from the Reserve Account to such account an
amount equal to such deficiency.
All income derived from the investment of amounts in the Reserve Account shall be
credited as received to the Reserve Account until such time as the balance in the Reserve
Account is equal to the Reserve Requirement, and thereafter all such investment income as
received shall be transferred to the Sinking Fund Account.
Money in the Reserve Account shall be used only to pay when due principal of, premium,
if any, and interest on Bonds when the balance on hand in the Bond Account is insufficient
therefor; provided that on any date when the balance then on hand in the Bond Account allocable
to a series of Bonds, plus the balance then on hand in the Reserve Account allocable to the series
of Bonds, is sufficient with other money available for the purpose to payor discharge all
Outstanding Bonds of that series and the interest accrued thereon in full, and the balance
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thereafter on hand in the Reserve Account will be at least equal to the Reserve Requirement for
all Outstanding Bonds not to be discharged, it may be used for that purpose. In addition,
amounts on hand in the Reserve Account may be used to make any arbitrage rebate payments
due under Section 148(f) of the Code in respect of any Bonds if available mounts on hand in the
Tax Increment Development Fund are insufficient therefor.
If at any time (including, but not limited to, any Principal Payment Date and any
Redemption Date), the balance in the Reserve Account exceeds the Reserve Requirement, the
City shall transfer such excess to the Sinking Fund Account.
5.06. General Tax Increment Development Fund. There shall be credited to the Tax
Increment Development Fund any and all Tax Increment remaining after the required credits to
the Bond Account and Reserve Account, subject to the creation of any other accounts and the
appropriation of Tax Increment thereto as provided in Sections 4.04 and 4.05, any investment
income and other moneys in any of the accounts within the Tax Increment Funds in excess of the
requirements of said accounts and which the City determines in its discretion to transfer to the
Tax Increment Development Fund. Money from time to time on hand in the Tax Increment
Development Fund shall be transferred to the Bond Account and Reserve Account as provided
by Sections 5.04 and 5.05 and in addition may be used for any of the following purposes and not
otherwise:
( a) to be transferred to the Construction Account to pay costs authorized to be
paid therefrom;
(b) to pay costs incurred in connection with Projects within the Urban Renewal
Area as authorized by the Act and approved by the Commission;
(c) to make arbitrage rebate payments owing in respect of Bonds under Section
148(f) of the Code;
(d) to redeem or discharge Bonds prior to their Stated Maturities in accordance
with the provisions ofthis Resolution or any Supplemental Resolution;
(e) to purchase Bonds on the open market;
(f) to pay, redeem or otherwise secure the payment of any Subordinate
Obligations; and
(g) to pay to Taxing Bodies a portion of the annual Tax Increment received by
the City pursuant to an agreement authorized by the Act; provided that the City may
remit to Taxing Bodies pursuant to such an agreement only from Tax Increment
received in the fiscal year and on hand in the Tax Increment Development Fund, only
if, on the date of remittance, the balance in the Reserve Account is not less than the
Reserve Requirement and the funding requirements of the Bond Account have been
satisfied, and only to the extent that the balance on deposit in the Tax Increment
Development Fund, after such remittance, is not less than 50% of the principal of and
interest payable on Outstanding Bonds in the Fiscal Year such Tax Increment is
received; and provided, further, that ifthe Constitution or laws of the State of Montana
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are amended to abolish or substantially reduce or eliminate real property taxation, and
so long as replacement revenues are not available to pay principal of and interest on the
Bonds in accordance with the provisions of Section 6.13, money in the Tax Increment
Development Fund is to be used, so long as any Bonds are Outstanding, solely for the
payment of principal of, interest or premium, ifany, on Outstanding Bonds, whether at
their Stated Maturities, on a Redemption Date or otherwise, or to purchase Outstanding
Bonds on the open market.
5.07. Investments. The Director of Finance shall cause all moneys from time to time in
the Tax Increment Funds to be deposited as received with one or more depository banks duly
qualified in accordance with the provisions of Montana Code Annotated, Section 7-6-201, as
amended, and shall cause the balances in such accounts, except any part thereof covered by
federal deposit insurance, to be secured by the pledge of bonds or securities ofthe kinds required
by law, and no money shall at any time be withdrawn from such deposit accounts except for the
purposes of the Tax Increment Funds as defined and authorized by this Resolution. The funds to
the credit of the several accounts within the Tax Increment Funds may be commingled in one or
more deposit accounts. The balance on hand in any of the accounts ofthe Tax Increment Funds
may at any time be invested and reinvested in Qualified Investments as provided below,
maturing and bearing interest payable at the times and in the amounts estimated to be required to
provide cash when needed for the purposes of the respective accounts; provided that the Reserve
Account and Tax Increment Development Fund shall be invested in Qualified Investments
maturing not later than five years from the date of investment. Income from the investment of
the moneys in the various accounts shall be credited thereto. Subject to the provisions of law
now or hereafter controlling investment of such funds, money on hand in any of the accounts of
the Tax Increment Funds may be invested in any ofthe following Qualified Investments, but no
others:
(a) direct obligations of or obligations guaranteed by the United States of
America;
(b) bank time deposits or certificates of deposit secured by obligations and
securities described in clause (a) above; and
(c) the Montana short-term investment pool administered by the Board of
Investments of the State of Montana or any similar pool hereafter created for the
investment of public funds.
Section 6. Other Covenants of City.
6.01. Punctual Payment. The City will punctually payor cause to be paid the principal
and interest to become due in respect to all the Bonds, in strict conformity with the terms of the
Bonds and of this Resolution, and it will faithfully observe and perform all of the conditions,
covenants and requirements of this Resolution and all Supplemental Resolutions and of the
Bonds. Nothing herein contained shall prevent the City from making advances of its own
moneys however derived to any of the uses or purposes referred to herein, nor shall be deemed or
constitute a pledge or appropriation of funds or assets of the City other than those expressly
pledged or appropriated hereby.
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6.02. Accumulation of Claims of Interest. In order to prevent any accumulation of claims
for interest after maturity, the City will not, directly or indirectly, extend or consent to the
extension of the time for the payment of any claim for interest on any of the Bonds and will not,
directly or indirectly, be a party to or approve any such arrangements by purchasing or funding
said claims for interest or in any other manner. In case any such claim for interest shall be
extended or funded, whether or not with the consent of the City, such interest so extended or
funded shall not be entitled, in case of default hereunder, to the benefits of this Resolution,
except subject to the prior payment in full ofthe principal of all ofthe Bonds then outstanding
and of all claims for interest which shall not have been so extended or funded.
6.03. Against Encumbrances. The City will not encumber, pledge or place any charge or
lien upon any of the Tax Increment superior to or on a parity with the pledge and lien herein
created for the benefit of the Bonds.
6.04. Management and Operation of Properties. The City will manage and operate or
cause to be managed and operated all Projects owned by the City in a sound and businesslike
manner, and will keep such Projects insured at all times in conformity with sound business
practice.
6.05. Books and Accounts: Financial Statements. The City will keep, or cause to be kept,
proper books of record and accounts, separate from all other records and accounts of the City, in
which complete and correct entries shall be made of all transactions relating to the Projects, Tax
Increment and the Tax Increment Funds. Such books of record and accounts shall be at all time
during business hours subject to the inspection of the Owners of not less than ten percent (10%)
of the principal amount of the Bonds then Outstanding, or their representatives authorized in
writing.
The City will prepare and file with the Clerk of the Commission annually, within one
hundred eighty (180) days after the close of each Fiscal Year so long as any of the Bonds are
Outstanding, complete financial statements with respect to the preceding Fiscal Year showing (1 )
the actual taxable value, the base taxable value and the incremental taxable value (each as
defined in the Act) ofthe Urban Renewal Area; (2) the mill rates of all Taxing Bodies; (3) the
Tax Increment, including a breakdown of Tax Increment attributable to current and delinquent
property tax collections; (4) all disbursements from the Tax Increment Funds; (5) the financial
conditions of the Projects; and (6) the balances in the Tax Increment Funds and accounts therein
as of the end of each such Fiscal Year, which statements shall be accompanied by a certificate or
opinion in writing of an Independent Accountant.
6.06. Completion of Proiects. The City will commence, and will continue to completion,
with all practicable dispatch all Projects undertaken in the Urban Renewal Area in conformity
with the Urban Renewal Plan and the Act.
6.07. Taxation of Leased Property. Other than a Project owned and operated as a public
improvement or facility, whenever the City leases real property in the Urban Renewal Area to
any Person other than a governmental entity, the property shall to the extent authorized by law be
assessed and taxed in the same manner as privately-owned property and the lease shall provide
(1) that the lessee shall pay Taxes upon the taxable value for the entire property and not merely
27
upon the assessed value of his or its leasehold interest, and (2) that if for any reason the Taxes
paid by the lessee on such property in any year during the term of the lease shall be less than the
Taxes which would have been payable upon the assessed value ofthe entire property ifthe
property were assessed and taxed in the same manner as privately-owned property, the lessee
shall pay such difference to the City within thirty days after the Taxes for such year become
payable to the Taxing Bodies and in any event prior to the delinquency date of such Taxes
established by law. All such payments to the City shall be treated as Tax Increment and shall be
deposited by the City in the Tax Increment Funds.
6.08. Disposition of Property. The City will not authorize the disposition of any land or
real property in the Urban Renewal Area to anyone which will result in such property becoming
exempt from taxation because of public ownership or use or otherwise (except property planned
for such ownership or use by the Urban Renewal Plan in effect on the date of this Resolution) if
such disposition shall consist of more than two percent (2%) of the land area in the Urban
Renewal Area, except as provided in this Section 6.08. The City shall appoint a reputable
Independent Financial Consultant and direct said consultant to report on the effect of said
disposition. Ifthe Report ofthe Independent Financial Consultant concludes that Tax Increment
(including any amounts resulting from payments in lieu of taxes agreed to be paid with respect to
the property) will not be reduced by the proposed disposition in each of the three complete Fiscal
Years following such disposition (based on tax levies not greater than those for the current Fiscal
Year) below 200% of the maximum Principal and Interest Requirements on all Outstanding
Bonds in any future Fiscal Year and that the security of the Bonds or the rights of the
Bondowners will not be materially impaired by said proposed disposition, the City may make the
proposed disposition.
6.09. Further Assurances. The City will adopt, make, execute and deliver any and all
such further resolutions, instruments and assurances as may be reasonably necessary or proper to
carry out the intention or to facilitate the performance of this Resolution, and for the better
assuring and confirming unto the Owners of the Bonds ofthe rights and benefits provided in this
Resolution.
6.10. Amendment of Plan or Ordinance. Except to authorize additional Projects, the City
will not amend or modify the Plan or the Ordinance or reduce the size of the Urban Renewal
Area if an effect thereof will be to materially and adversely affect the security of the Outstanding
Bonds; provided, however, the City may reduce the size of the Urban Renewal Area if a report as
provided in Section 6.08 is received from the Financial Consultant regarding the reduction in
size ofthe Urban Renewal Area.
6.11. Adiustment of Tax Incremental Base. The City shall not adjust the tax incremental
base of the Urban Renewal Area pursuant to Section 7-15-4287 of the Act so long as any Bonds
are Outstanding, if the effect would be to reduce the base.
6.12. Federal Tax Exemption. The City will not use the proceeds of any Bonds or use or
permit the use of any Project financed from the proceeds of the Bonds or revenues derived
therefrom in such a way as to cause the exemption from federal income taxation of interest on
any Bonds to become adversely affected.
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6.13. Pledae of Replacement Revenues. In the event the Constitution or laws of the State
of Montana are amended to abolish or substantially reduce or eliminate real or personal property
taxation and State law then or thereafter provides to the City an alternate or supplemental source
or sources of revenue specifically to replace or supplement reduced or eliminated Tax Increment,
then the City pledges, and covenants to appropriate annually, subject to the limitations of then
applicable law, to the Bond Fund from such alternate or supplemental revenues an amount that
will, with money on hand in the Bond Fund or available and to be transferred to the Bond Fund
during such Fiscal Year, be sufficient to pay the principal of, premium, if any, and interest on the
Outstanding Bonds payable in that Fiscal Year.
6.14. Bondowner Rights. No Owner of any Bond issued and secured under the
provisions ofthis Resolution shall have the right to institute any proceeding, judicial or
otherwise, for the enforcement of the covenants herein contained, without the written
concurrence of the Owners of not less than 25% in aggregate principal amount of all Bonds
which are at the time Outstanding; but the Owners of this amount of such Bonds may, either at
law or in equity, by suit, action or other proceedings, protect and enforce the rights of all Owners
of such Bonds and compel the performance of any and all of the covenants required herein to be
performed by the City and its officers and employees. The Owner of a majority in principal
amount of such Outstanding Bonds shall have the right to direct the time, method and place of
conducting any proceedings for any remedy available to the Owners or the exercise of any power
conferred on them, and the right to waive a default in the performance of any such covenant, and
its consequences, except a default in the payment of the principal of or interest on any Bond
when due. However, nothing herein shall impair the absolute and unconditional right of the
Owner of each Bond to receive payment of the principal of and interest on such Bond as such
principal and interest respectively become due, and to institute suit for the enforcement of any
such payment. In the Event of Default in any such payment, any court having jurisdiction of the
action may appoint a receiver to administer the Tax Increment Funds and to collect and segregate
and apply the Tax Increment and other revenues pledged thereto as provided by this Resolution
and the Act.
Section 7. Supplemental Resolutions.
7.0 I. General. The City reserves the right to adopt Supplemental Resolutions to this
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 herein, or of making such
provisions with regard to matters or questions arising hereunder as the City may deem necessary
or desirable and not inconsistent with this Resolution, and which shall not adversely affect the
interests of the Owners of Bonds issued hereunder, or for the purpose of adding to the covenants
and agreements herein contained, or to the Tax Increment herein pledged, other covenants and
agreements thereafter to be observed and additional revenues or income thereafter appropriated
to the Tax Increment Funds, or for the purpose of surrendering any right or power herein
reserved to or conferred upon the City, or for the purpose of authorizing the creation and
issuance of a series of Additional Bonds, as provided in and subject to the conditions and
requirements of Section 4. Any such Supplemental Resolution may be adopted by resolution,
without the consent of the Owner of any ofthe Bonds issued hereunder.
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7.02. Consent of Bondowners. With the consent of the Owners of Outstanding Bonds as
provided in Section 7.03, the City may from time to time and at any time adopt a Supplemental
Resolution for the purpose of amending this Resolution by adding any provisions hereto or
changing in any manner or eliminating any of the provisions hereof or of any Supplemental
Resolution, except that no Supplemental Resolution shall be adopted at any time without the
consent of the Owners of all Outstanding Bonds affected thereby, ifit would extend the time of
payment of interest thereon, would reduce the amount of the principal thereof or redemption
premium thereon, would give to any Bond or Bonds any privilege over any other Bond or Bonds
(except for the privilege accorded Bonds over Subordinate Bonds), would reduce the sources of
Tax Increment or other revenues or income appropriated to the Tax Increment Funds, or would
reduce the percentage in principal amount of such Bonds required to authorize or consent to any
such Supplemental Resolution.
7.03. Notice. Notice of a Supplemental Resolution to be adopted pursuant to Section
7.02 shall be mailed by first-class mail, postage prepaid, to the Owners of all Outstanding Bonds
at their addresses appearing in the Bond Register and shall become effective only upon the filing
of written consents with the Clerk of the Commission, signed by the Owners of not less than
two-thirds in principal amount ofthe Bonds issued hereunder which are then Outstanding. Any
written consent to the Supplemental Resolution may be embodied in and evidenced by one or
any number of concurrent written instruments of substantially similar tenor signed by Owners in
person or by agent duly appointed in writing, and shall become effective when delivered to the
Clerk of the Commission. Any consent by the Owner of any Bond shall bind that Owner and
every future Owner of the same Bond with respect to any Supplemental Resolution adopted by
the City pursuant to such consent; provided than any Owner may revoke his consent with
reference to any Bond by written notice received by the Clerk of the Commission before the
Supplemental Resolution has become effective. In the event that unrevoked consents of the
Owners ofthe required amount of Bonds have not been received by the Clerk of the Commission
within one year after the publication of notice of the Supplemental Resolution, the Supplemental
Resolution and all consents theretofore received shall be of no further force and effect.
7.04. Manner of Consent. Proof of the execution of any consent, or ofa writing
appointing any agent to execute the same shall be sufficient for any purpose of this Resolution
and shall be conclusive in favor of the City ifmade in the manner provided in this Section 7.04.
The fact and date of the execution by any Person of any such consent or appointment may be
proved by the affidavit of a witness of such execution or by the certification of any notary public
or other officer authorized by law to take acknowledgment of deeds, certifying that the Person
signing it acknowledged to him the execution thereof. The fact and date of execution of any
such consent may also be proved in any other manner which the City may deem sufficient; but
the City may nevertheless, in its discretion, require further proof in cases where it deems further
proof desirable. The ownership of any registered Bonds shall be proved by the Bond Register.
Section 8. Defeasance.
8.01. General. When the liability of the City on all Bonds issued under and secured by
this Resolution and all interest thereon has been discharged as provided in this section, all
pledges, covenants and other rights granted by this Resolution to the Owners of such Bonds shall
cease.
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8.02. Maturitv. The City may discharge its liability with reference to all Bonds and
interest thereon which are due on any date by depositing with the Paying Agent for such Bonds
on or before the date a sum sufficient for the payment thereof in full; or if any Bond or interest
shall not be paid when due, the City may nevertheless discharge its liability with reference
thereto by depositing with the Paying Agent a sum sufficient 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 Bonds
which are called for redemption on any date in accordance with their terms, by depositing with
the Paying Agent on or before that date an amount equal to the principal, interest and redemption
premium, if any, which are then due thereon; provided that notice of such redemption has been
duly given as provided in this Resolution or a Supplemental Resolution.
8.04. Escrow. The City may also at any time discharge its liability with reference to any
Bond subject to the provisions oflaw 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 Government Obligations which are authorized by law to be
so deposited, bearing interest payable at such times and at such rates and maturing on such dates
as shall be required to provide funds sufficient to pay all principal and interest to become due on
all such Bonds on or before the Stated Maturities thereof or, if such Bonds are subject to
redemption and the City has given the redemption notice required therefor or given irrevocable
instructions to give such notice and the funds provided will also be sufficient to pay any
applicable redemption premium, to an earlier Redemption Date.
Section 9. Tax Covenants.
9.01. Security for the Series 2007 Bonds. The City shall not enter into any lease, use or
other agreement with any non-governmental Person relating to the security for the payment of
the Series 2007 Bonds which might cause the Series 2007 Bonds to be considered "private
activity bonds" or "private loan bonds" within the meaning of Section 141 of the Code. No
"impermissible agreement" as defined in Treasury Regulations, Section 1.141A(e)(4)(ii), has
been or will be entered into by the City in respect of the Tax Increment or otherwise to secure the
Series 2007 Bonds.
9.02. General Covenant. The City covenants and agrees with the owners from time to
time of the Series 2007 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 2007 Bonds to
become includable in gross income for federal income tax purposes under the Code and
applicable Treasury Regulations promulgated thereunder (the "Regulations"), and covenants to
take any and all actions within its powers to ensure that the interest on the Series 2007 Bonds
will not become includable in gross income for federal income tax purposes under the Code and
the Regulations.
9.03. Arbitrage Certification. The Mayor, the Clerk of the Commission and the Director
of Finance, being the officers of the City charged with the responsibility for issuing the Series
2007 Bonds pursuant to this resolution, are authorized and directed to execute and deliver to the
Original Purchaser a certificate in accordance with the provisions of Section 148 of the Code,
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and Section 1. 148-2(b) of the Regulations, stating that on the basis of facts, estimates and
circumstances in existence on the date of issue and delivery of the Series 2007 Bonds, it is
reasonably expected that the proceeds of the Series 2007 Bonds will be used in a manner that
would not cause the Series 2007 Bonds to be "arbitrage bonds" within the meaning of Section
148 of the Code and the Regulations.
9.04. Arbitrage Rebate. The City acknowledges that the Series 2007 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 2007 Bonds from gross income for federal
income tax purposes, unless the Series 2007 Bonds qualify for the spending exceptions from the
rebate requirement under Section 148(f)(4)(B) of the Code and the Treasury Regulations and no
"gross proceeds" of the Series 2007 Bonds (other than amounts constituting a "bona fide Bond
Fund") arise during or after the expenditure ofthe sale 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 prepared by Bond Counsel 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.
9.05. Information Reporting. The City shall file with the Secretary of the Treasury, not
later than February 15, 2008, a statement concerning the Series 2007 Bonds containing the
information required by Section 149( e) of the Code.
Section 10. Continuing Disclosure.
10.01. Purpose and Beneficiaries. To provide for the public availability of certain
information relating to the Series 2007 Bonds and the security therefor and to permit the Original
Purchaser and other participating underwriters in the primary offering of the Series 2007 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. S 240.15c2-12),
relating to continuing disclosure (as in effect and interpreted from time to time, the "Rule"),
which will enhance the marketability of the Series 2007 Bonds, the City hereby makes the
following covenants and agreements for the benefit of the Owners (as hereinafter defined) from
time to time ofthe Outstanding Series 2007 Bonds. The Tax Increment Fund of the City and the
City are the only "obligated persons" in respect of the Series 2007 Bonds within the meaning of
the Rule for purposes of identifying the entities in respect of which continuing disclosure must
be made. The City has complied in all material respects with any undertaking previously entered
into by it under the Rule.
If the City fails to comply with any provisions of this Section 10, any Person aggrieved
thereby, including the Owners of any Outstanding Bonds, may take whatever action at law or in
equity may appear necessary or appropriate to enforce performance and observance of any
agreement or covenant contained in this Section 10, 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. Notwithstanding anything to the contrary contained
32
herein, in no event shall a default under this Section 10 constitute a default under the Series 2007
Bonds or under any other provision of this Resolution.
As used in this Section 10, "Owner" or "Bondowner" means, in respect of a Series 2007
Bond, the registered owner or owners thereof appearing in the Bond Register maintained by the
Bond Registrar or any "Beneficial Owner" (as hereinafter defined) thereof, if such Beneficial
Owner provides to the Bond Registrar evidence of such beneficial ownership in form and
substance reasonably satisfactory to the Bond Registrar. As used herein, "Beneficial Owner"
means, in respect of a Series 2007 Bond, any Person which (i) has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, such Series 2007
Bond (including Persons or entities holding Series 2007 Bonds through nominees, depositories
or other intermediaries), or (b) is treated as the owner of the Series 2007 Bond for federal income
tax purposes.
10.02. Information To Be Disclosed. The City will provide, in the manner set forth in
subsection (c) hereof, either directly or indirectly through an agent designated by the City, the
following information at the following times:
(1) on or before 270 days after the end of each Fiscal Year, commencing with the Fiscal
Year ended June 30, 2007, the following financial information and operating data in relating to
the Urban Renewal Area and the City for the preceding Fiscal Year of the City as hereinafter
specified (the "Disclosure Information").
The Disclosure Information comprises the following (subject to modification as described
below):
(A) the financial statements of the City for such Fiscal Year,
accompanied by the complete audit report and opinion of an independent
certified public accountant or state legislative auditor relating thereto,
including the financial statements of the Tax Increment Fund of the City, as
permitted or required by the laws of the State of Montana, containing balance
sheets as ofthe 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 City
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
Director of Finance; and
(B) To the extent not included in the financial statements referred to
in paragraph (A) hereof, the information for such Fiscal Year or for the period
33
most recently available of the type identified below contained in the Official
Statement, which information may be unaudited, but shall be certified as to
accuracy and completeness in all material respects by the Director of Finance
to the best of his or her knowledge, which certification may be based on the
reliability of information obtained from governmental of other third-party
sources:
(I) updated figures for the City for the then current fiscal year to
information relating to Tax Increment revenue, investment earnings,
debt service and debt service coverage and incremental taxable
value, amount of Tax Increment resulting from property tax levy and
Tax Increment actually received of the type contained under the
captions "Estimated Debt Service Requirements and Coverage,"
"Bozeman Downtown Improvement District-Property Tax Levies
in the District," "-Major Taxpayers in the District," and "-
Comparison of Incremental Taxable Value of the District to City
Taxable Value" and "-Financial Statement Regarding the District
Tax Increment Fund";
(2) updated figures for the City for the then current fiscal year to include
information relating to the market value and taxable value of taxable
property in the District in format similar to the table on page 23 in
the section "Bozeman Downtown Improvement District-Value of
Property in the District"; and
(3) updated figures for the City for the then current fiscal year to include
information relating to identification of the ten taxpayers in District
with the largest taxable value of property by name, type of property
and taxable value in format similar to the table on page 27 in the
section "Bozeman Downtown Improvement District-Major
Taxpayers in the District."
Notwithstanding the foregoing paragraph, ifthe audited financial statements from which
such extracts are to be taken are not available by the date specified, the City shall provide on or
before such date extracts from 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 SEC.
If the document incorporated by reference is a final official statement, it must also be available
from the Municipal Securities Rulemaking Board. The City shall clearly identify in the
Disclosure Information each document so incorporated by reference.
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If any part of the Disclosure Information can no longer be generated because the
operations ofthe City have materially changed or been discontinued, such Disclosure
Information need no longer be provided if the City includes in the Disclosure Information a
statement to such effect; provided, however, if such operations have been replaced by other City
operations in respect of which data is not included in the Disclosure Information and the City
determines that certain specified data regarding such replacement operations would be a Material
Fact (as defined in paragraph (2) 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 10.02 is amended in accordance
with its terms, 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;
(1) 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 2007 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 ofthe purchase,
holding or sale of a Series 2007 Bond within the meaning of applicable federal securities laws, as
interpreted at the time of discovery of the occurrence of the event.
(3) In a timely manner, notice of the occurrence of any of the following events or
conditions:
(A) the failure of the City to provide the Disclosure Information at the time
specified under "Annual Information" above;
(B) the amendment or supplementing of the Disclosure Covenants
pursuant to the Resolution, together with a copy of such amendment or
35
supplement and any explanation provided by the City under the Disclosure
Covenants;
(C) the termination of the obligations of the City under the Disclosure
Covenants pursuant to the Resolution; and
(D) any change in the Fiscal Year of the City.
[0.03. Manner of Disclosure. The City agrees to make available the information
described in Section 10.02 to the following entities by telecopy, overnight delivery, mail or other
means, as appropriate:
(1) the information described in paragraph (1) of Section 10.02, 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) Section 10.02, to the Municipal
Securities Rulemaking Board and to the State Depository, if any.
In addition, any filing under this Section 10 may be made solely by transmitting such
filing to the Texas Municipal Advisory Commission ("MAC") as provided at
http://www.disclosureusa.org, unless the United States Securities and Exchange Commission has
withdrawn the interpretative advice in its letter to MAC dated September 7,2004.
[0.04. Term; Amendments; Interpretation.
(1) The covenants of the City in this Section 10 shall remain in effect so long as any
Series 2007 Bonds are Outstanding. Notwithstanding the preceding sentence, however, the
obligations of the City under this Section 10 shall terminate and be without further effect as of
any date on which the City files in the office ofthe Clerk ofthe Commission 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 10 will not
cause participating underwriters in the primary offering of the Series 2007 Bonds to be in
violation of the Rule or other applicable requirements of the Securities Exchange Act of 1934, as
amended, or any statutes or laws successory thereto or amendatory thereof.
(2) This Section 10 (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 13.02(3) hereof) or the consent of the Owners of any Series 2007 Bonds,
by a resolution of the City Commission filed in the office of the Clerk of the Commission
accompanied by an opinion of Bond Counsel, who may rely on certificates of the City and others
and the opinion may be subject to customary qualifications, to the effect that: (i) such
amendment or supplement (a) is made in connection with a change in circumstances that arises
from a change in law or regulation or a change in the identity, nature or status of the City, the
Urban Renewal Area or the Tax Increment Fund or the type of operations conducted by the City
or the Urban Renewal Area, or (b) is required by, or better complies with, the provisions of
paragraph (b)(5) of the Rule; (ii) this Section 10 as so amended or supplemented would have
36
complied with the requirements of paragraph (b)(5) of the Rule at the time of the primary
offering of the Series 2007 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 ofthe 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 ofthe 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 10 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.
10.05. Further Limitation of Liabilitv of City. In and to the extent the limitations of
liability contained in Section 10.01 are not effective, anything contained in this Section 10 to the
contrary notwithstanding, in making the agreements, provisions and covenants set forth in this
Section 10, the City has not obligated itself except with respect to the Tax Increment and other
amounts specifically pledged under this Resolution. 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 ofthe City.
Section 11. Repeal. All provisions of ordinances, resolutions and other actions and
proceedings of the City which are in any way inconsistent with the terms and provisions of this
Resolution are repealed, amended and rescinded to the full extent necessary to give full force and
effect to the provisions of this Resolution.
Section 12. Effective Date. This Resolution shall be in full force and effect from and
after its final passage and approval according to law.
PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana,
this 17th day of December 2007.
~ K ~~-,---
F K SS, Mayor
ATTEST:
" "1'
37
EXHIBIT A
FORM OF SERIES 2007 BONDS
UNITED STATES OF AMERICA
STATE OF MONT ANA
COUNTY OF GALLATIN
CITY OF BOZEMAN
TAX INCREMENT URBAN RENEWAL REVENUE BOND
SERIES 2007 (DOWNTOWN BOZEMAN IMPROVEMENT DISTRICT)
$
No.
Interest
Rate
Stated
Maturity
Date of
Original Issue
CUSIP
July 1,_
December 27,2007
REGISTERED OWNER:
PRINCIP AL AMOUNT:
FOR VALUE RECEIVED, THE CITY OF BOZEMAN (the "City"), a duly organized
municipal corporation located in Gallatin County, Montana, acknowledges itself to be specially
indebted and hereby promises to pay to the registered owner specified above or registered
assigns, solely from the Tax Increment received by the City from certain taxable property in its
Urban Renewal Area (as hereinafter defined) which has been pledged and appropriated for the
payment hereof as stated below, the principal amount specified above on the maturity date
specified above, or, if this Bond is prepayable as stated below, on an earlier date on which it
shall have been duly called for redemption, with interest thereon from the date of original issue
hereof, or such later date to which interest hereon has been paid or duly provided for, until the
principal amount is paid or until this Bond, if prepayable, has been duly called for redemption, at
the annual rate specified above. Interest hereon is payable annually on July 1 in each year,
commencing July 1, 2008, by check or draft drawn on U. S. Bank National Association, in
Seattle, Washington as Bond Registrar, Transfer Agent and Paying Agent, or its successor
designated under the Resolution described herein (the "Bond Registrar"), mailed 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. The principal
of this Bond is payable upon presentation and surrender hereof at maturity or earlier redemption
at the principal office of the Bond Registrar. Such principal and interest arc payable in lawful
money of the United States of America.
A-I
Notwithstanding any other provisions of this Bond, so long as this Bond is registered in
the name of Cede & Co., as nominee of The Depository Trust Company, or in the name of any
other nominee of The Depository Trust Company or other securities depository, the Bond
Registrar shall pay all principal of and interest on this Bond, and shall give all notices with
respect to this Bond, only to Cede & Co. or other nominee in accordance with the operational
arrangements of The Depository Trust Company or other securities depository as agreed to by
the City.
This Bond is one of a duly authorized issue of Bonds of the City designated as "Tax
Increment Urban Renewal 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. 4073, adopted
by the City Commission on December 17, 2007 (as amended or supplemented in accordance
with the provisions thereof, the Resolution), to which Resolution, copies of which are on file
with the City, reference is hereby made for a description of the nature and extent of the security,
the respective rights thereunder of the Owners of the Bonds and the City and the terms upon
which the Bonds are to be issued and delivered. As provided in the Resolution, the Bonds are
issuable in series which may vary as in the Resolution provided or permitted. This Bond is one
of the series specified in its title, issued in the aggregate principal amount of $6,270,000 (the
"Series 2007 Bonds"), all of like date of original issue and tenor except as to serial number,
denomination, date, interest rate, maturity date and redemption privilege. The Series 2007
Bonds are issued by the City for the purpose of financing a portion of the cost of a portion of an
urban renewal project within the City of Bozeman Downtown Bozeman Improvement District
(the "Urban Renewal Area") of the City, thereby assisting activities in the public interest and for
the public welfare of the City.
The Series 2007 Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the State of Montana, particularly Montana Code Annotated, Title 7,
Chapter 15, Parts 42 and 43, as amended (the "Act"), and pursuant to the Resolution. The Bonds
are payable solely and ratably from Tax Increment received by the City and resulting from the
extension of ad valorem taxes levied by certain Taxing Bodies against the incremental taxable
value of properties within the Urban Renewal Area pursuant to the Act, except that under certain
conditions as described in the Resolution, the Bonds may be payable from replacement revenues,
if any, provided in the event of the abolition or substantial elimination of property taxation in
Montana.
The Bonds are not general obligations ofthe City and the City's general credit and taxing
powers are not pledged to the payment of the Bonds or the interest thereon. The Bonds shall not
constitute an indebtedness of the City within the meaning of any constitutional or statutory
limi tati ons.
Series 2007 Bonds maturing in the years 2008 through 2019 are not subject to
redemption, but Series 2007 Bonds having stated maturities in 2020 and later years are subject to
redemption at the option of the City and in whole or in part, and if in part from such stated
maturities and in such principal amounts as the City may designate and, within a stated maturity,
in $5,000 principal amounts selected by lot or other manner deemed fair, on July 1, 2020, and
any date thereafter, at a redemption price equal to the par amount of the Series 2007 Bonds to be
A-2
redeemed together with the interest accrued on the principal amount to be redeemed to the date
fixed for redemption.
The Series 2007 Bonds having Stated Maturities in the years 2028 and 2032 are Term
Bonds and are subject to mandatory sinking fund redemption prior to maturity on July 1 in the
respective years and the respective principal amounts set forth below, in $5,000 principal
amounts selected by the Bond Registrar, by lot or other manner it deems fair, at a redemption
price equal to the principal amount thereof to be redeemed plus interest accrued thereon to the
redemption date:
Stated Principal
Maturity of Sinking Fund Amount on
Term Bonds Payment Date Sinking Fund
(July 1 ) (July 1) Payment Date
2028 2025 $290,000
2026 300,000
2027 315,000
2028 330,000
2032 2029 350,000
2030 365,000
2031 385,000
2032 405,000
The Bond Registrar shall select the Series 2007 Term Bonds to be redeemed on each
Sinking Fund Payment Date in accordance with Section 3.02, and the Series 2007 Bonds selected
by the Bond Registrar shall become due and payable on such date. The City may reduce the
amount of any Mandatory Sinking Fund Payment payable on any Sinking Fund Payment Date or
Dates by an amount equal to the principal amount of Outstanding Series 2007 Term Bonds then
to be redeemed that shall be surrendered uncancelled by the City to the Bond Registrar; provided
that the City shall have surrendered such Series 2007 Term Bonds to the Bond Registrar not less
than forty.five days before the first such Sinking Fund Payment Date, together with a City
Certificate stating its election to use such Series 2007 Term Bonds for such purpose and
designating the Sinking Fund Payment Date or Dates as to which such credit is to be applied (if
no such designation is made, such credits shall be applied in inverse order of Sinking Fund
Payment Dates). In such case, the City may reduce the amount of Series 2007 Bonds to be
redeemed on the Sinking Fund Payment Date or Dates so determined by the principal amount of
Series 2007 Term Bonds so surrendered by the City.
If Series 2007 Term Bonds are redeemed at the option of the City pursuant to Subsection
the Resolution, the Series 2007 Bonds so optionally redeemed may, at the option of the City, be
applied as a credit against any subsequent Mandatory Sinking Fund Payment or Payments with
respect to Series 2007 Term Bonds, such credit to be equal to the principal amount of such Series
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2007 Term Bonds redeemed pursuant to the Resolution; provided that the City shall have
delivered to the Bond Registrar not less than forty-five (45) days before the first such Sinking
Fund Payment Date a City Certificate stating its election to apply such Series 2007 Term Bonds
as such a credit and designating the Sinking Fund Payment Date or Dates as to which such credit
is to be applied (if no such designation is made, such credits shall be applied in inverse order of
Sinking Fund Payment Dates). In such case, the City may reduce the amount of Series 2007
Bonds to be redeemed on the Sinking Fund Payment Date or Dates so determined by the
principal amount of Series 2007 Bonds of the same Stated Maturity so redeemed pursuant to the
Resolution.
Any credit given to Mandatory Sinking Fund Payments pursuant to the Resolution shall
not affect any other Mandatory Sinking Fund Payments, which shall remain payable as otherwise
provided in the Resolution, unless and until another credit is given in accordance with the
provisions hereof.
The Resolution permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the City and the Owners of the
Bonds at any time without the consent of any Bondowners or with the consent of the Owners of a
majority in aggregate principal amount of the Bonds at the time Outstanding (as defined in the
Resolution) which are affected by such modifications. The Resolution also contains provisions
permitting Owners of a majority in aggregate principal amount of the Bonds of all series at the
time Outstanding, on behalf of all the Owners of all Bonds, to waive compliance by the City with
certain provisions of the Resolution and certain past defaults under the Resolution and their
consequences. Any such consent or waiver by the Owner of this Bond shall be conclusive and
binding upon such Owner and on all future Owners of this Bond and of any Bond issued in lieu
hereof, whether or not notation of such consent or waiver is made upon this Bond.
The Owner of this Bond shall have no right to enforce the provisions of the Resolution,
or to institute action to enforce the covenants therein or take any action with respect to a default
under the Resolution or to institute, appear in or defend any suit or other procedure with respect
thereto except as provided in the Resolution.
This Series 2007 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 Series 2007 Bond is transferable upon the books of the City at the principal
office of the Bond 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 Bond Registrar, duly executed by the registered owner or his attorney; and
may also be surrendered in exchange for Series 2007 Bonds of other authorized denominations.
Upon such transfer or exchange, the City will cause a new Series 2007 Bond or Bonds to be
issued in the name of the transferee or registered owner, of the same aggregate principal amount,
bearing interest at the same rate and maturing on the same date, subject to reimbursement for any
tax, fee or governmental charge required to be paid with respect to such transfer or exchange.
The City, the Bond Registrar and Paying Agent may deem and treat the Person in whose
name this Series 2007 Bond is registered as the absolute owner hereof, whether this Series 2007
Bond is overdue or not, for the purpose of receiving payment and for all other purposes, and
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neither the City, the Bond Registrar nor the Paying Agent shall be affected by any notice to the
contrary.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things
required by the Constitution and laws of the State of Montana and ordinances and resolutions of
the City to be done, to exist, to happen and to be performed in order to make this Series 2007
Bond a valid and binding special, limited obligation of the City in accordance with its terms have
been done, do exist, have happened and have been performed as so required; that this Series
2007 Bond has been issued by the City in connection with an urban renewal project (as defined
in the Act); that the City, in and by the Resolution, has validly made and entered into covenants
and agreements with and for the benefit of the Owners from time to time of all Bonds issued
thereunder, including covenants that it will pledge, appropriate and credit the Tax Increment
derived from properties in the Urban Renewal Area to the Tax Increment Bond Fund of the City;
that additional bonds may be issued and made payable from the Tax Increment Bond Fund on a
parity with the Series 2007 Bonds upon certain conditions set forth in the Resolution, but no
obligation will be otherwise incurred and made payable from the Tax Increment, unless the lien
thereof shall be expressly made subordinate to the lien of the Series 2007 Bonds on the Tax
Increment; that all provisions for the security of the Owners of the Bonds as set forth in the
Resolution will be punctually and faithfully performed as therein stipulated; and that the issuance
of the Series 2007 Bonds does not cause the obligations of the City to exceed any constitutional
or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until the Certificate of Authentication hereon shall have
been executed by the Bond Registrar by the manual signature of an authorized representative.
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, the Clerk of the
Commission and Director of Finance.
CITY OF BOZEMAN, MONTANA
(Facsimile Signature)
Mayor
(F acsimile Signature)
City Clerk
(Facsimile Signature)
Director of Finance
Dated:
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CERTIFICATE OF AUTHENTICATION
This Bond is one of the Tax Increment Urban Renewal Revenue Bonds, Series 2007
(Downtown Bozeman Improvement District) delivered pursuant to the Resolution mentioned
within.
U. S. Bank National Association,
as Bond Registrar, Transfer
Agent and Paying Agent
By
Authorized Representative
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 in common
UTMA ........... .as Custodian for ..............
(Cust) (Minor)
TEN ENT -- as tenants by entireties
under Uniform Transfers to Minors Act. . . . . . . . .
(State)
JT TEN -- as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT
FOR V ALUED 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
Agreement
OF ASSIGNEE:
NOTICE: The signature to this
must correspond with the name as it appears
upon the face of the within Bond in every
particular, without alteration or
enlargement
/
/
or any change whatsoever.
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Bond Registrar, which requirements include
membership or participation in the Securities
Transfer Association Medallion Program CST AMP)
or such other "signature guaranty program"
determined to be acceptable by the Bond Registrar
in addition to or in substitution for STAMP, all
in accordance with the Securities Exchange
Act of 1934, as amended.
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