HomeMy WebLinkAboutResolution 3501 Bond resolution, $2,315,000 General Obligation bonds for Library
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RESOLUTION NO. 3501
RESOLUTION RELATING TO $2,315,000 GENERAL
OBLIGATION BONDS, SERIES 2001A; DETERMINING THE
FORM AND DETAILS, AUTHORIZING THE EXECUTION
AND DELIVERY AND LEVYING TAXES FOR THE
PAYMENT THEREOF
BE IT RESOLVED by the City Commission (the "Commission") of the City of
Bozeman, Montana (the "City"), as follows:
Section 1. Authorization and Sale~ Recitals.
1.01. Authorization and Sale. At an election duly called and held June 28, 2001,
the electors of the City authorized this Commission to issue and sell general obligation
bonds of
the City in the principal amount of $4,000,000 for the purpose of acquiring land
for and
designing, constructing and equipping either a new public library or designing,
constructing and
equipping an expansion of the existing library (the "Project") and paying costs
associated with
the sale and issuance of the bonds. The City has determined that it was necessary
and desirable
and in the best interests of the City to issue an aggregate principal amount of$2,315,OOO
of the
bonds (the "Series 2001 A Bonds") for the purpose of acquiring the land necessary
for the
Project. The City intends to issue the remaining $1,685,000 of authorized bonds
for the Project
at a later date. On November 19,2001, the City authorized and provided for the
issuance and
sale of the Series 2001A Bonds in the amount of$2,3l5,000. Pursuant to such authorization,
this
Commission at a public sale duly noticed and held on December 10, 2001, awarded
the sale of
the Series 2001A Bonds to RBC Dain Rauscher, of Denver, Colorado, on a bid to purchase
the
Series 2001A Bonds at a price of $2,284,905 and accrued interest from December
1,2001, to the
date of delivery, the Series 2001A Bonds to bear interest at the rates designated
by the Purchaser
in such bid and as set forth in Section 2.01 of this resolution, which rates result
in a true interest
rate of 4.7005%. The rates of interest designated by the Purchaser result in a
total dollar interest
cost of$1,282,297.08. It is hereby found, determined and declared that the interest
rates
designated by the Purchaser and set forth in Section 2.01 are consistent with the
Purchaser's bid
accepted by this Commission on December 10, 2001 and are hereby approved. It is
now
desirable, proper and in the best interest of the City that the form and details
of the Series 2001A
Bonds be set forth and prescribed in the official proceedings of this Commission.
1.02. Recitals. All acts, conditions and things required by the Constitution and
laws ofthe State of Montana, including Montana Code Annotated, Title 7, Chapter
7, Part 42, as
amended, in order to make the Series 2001A Bonds valid and binding general obligations
in
accordance with their terms and in accordance with the terms of this resolution
have been done,
do exist, have happened and have been performed in regular and due form, time and
manner as
so required.
The indebtedness to be evidenced by the Series 2001A Bonds and all other indebtedness
of the
City does not exceed the limitation as set forth in Montana Code Annotated Section
7-7-4201.
The City has full power and authority to issue the Series 2001A Bonds.
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Section 2. Bond Tenns. Execution and Delivery.
2.01. Tenn of Series 2001A Bonds. The Series 2001A Bonds shall be designated
"General Obligation Bonds, Series 2001A." The Series 200lA Bonds shall be in the
denomination of $5,000 each or any integral multiple thereof of single maturities.
The Series
200lA Bonds shall mature on July I in the years and amounts listed below, and Series
200lA
Bonds maturing in such years and amounts shall bear interest from date of original
issue until
paid or duly called for redemption at the rates shown opposite such years and amounts,
as
follows:
Year
Amount Rate
Year Amount Rate
2003
$ 85,000 3.50%
2013 $120,000 4.30%
2004
90,000 3.50
2014 125,000 4.40
2005
90,000 3.75
2015 135,000 4.50
2006
95,000 4.00
2016 140,000 4.60
2007
95,000 4.00
2017 145,000 4.75
2008
100,000 4.00
2018 150,000 4.80
2009
105,000 4.00
2019 160,000 4.90
2010
110,000 4.00
2020 170,000 4.95
2011
110,000 4.10
2021 175,000 5.00
2012
115,000 4.25
2.02. Registered Fonn. Interest Payment Dates. The Series 2001A Bonds shall
be issuable only in fully registered fonn, and the ownership of the Series 200lA
Bonds shall be
transferred only upon the bond register of the City hereinafter described. The
interest on the
Series 200lA Bonds shall be payable on January I and July 1 in each year, commencing
July I,
2002. Interest on the Series 200lA Bonds shall be payable to the owners of record
thereof as
such appear on the bond register as ofthe close of business on the fifteenth day
of the month
immediately preceding each interest payment date, whether or not such day is a
business day.
Interest on, and upon presentation and surrender thereof, the principal of each
Bond, and, upon
presentation and surrender thereof, shall be payable by check or draft issued by
the Registrar
described herein.
2.03. Dated Date. Each Bond shall be originally dated as of December I, 2001,
and upon authentication of any Bond the Bond Registrar, Transfer Agent and Paying
Agent shall
indicate thereon the date of such authentication.
2.04. Registration. The City shall appoint, and shall maintain, a bond registrar,
transfer agent and paying agent (the "Registrar"). The effect of registration and
the rights and
duties of the City and the Registrar with respect thereto shall be as follows:
(a) Register. The Registrar shall keep at its principal office a bond register in
which the Registrar shall provide for the registration of ownership of Series 2001A
Bonds and the registration of transfers and exchanges of Series 2001A Bonds entitled
to
be registered, transferred or exchanged.
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(b) Transfer of Bonds. Upon surrender to the Registrar for transfer of any Bond
duly endorsed by the registered owner thereof or accompanied by a written instrument
of
transfer, in form satisfactory to the Registrar, duly executed by the registered
owner
thereof or by an attorney duly authorized by the registered owner in writing, the
Registrar
shall authenticate and deliver, in the name of the designated transferee or transferees,
one
or more new Bonds of a like aggregate principal amount and maturity, as the case
may
be, as requested by the transferor. The Registrar may, however, close the books
for
registration of any transfer after the fifteenth day of the month preceding each
interest
payment date and until such interest payment date.
(c) Exchange of Bonds. Whenever any Bond is surrendered by the registered
owner for exchange, the Registrar shall authenticate and deliver one or more new
Bonds
of a like aggregate principal amount, interest rate and maturity, as requested
by the
registered owner or the owner's attorney in writing.
(d) Cancellation. All Bonds surrendered upon any transfer or exchange shall be
promptly canceled by the Registrar and thereafter disposed of as directed by the
City.
(e) Improper or Unauthorized Transfer. When any Bond is presented to the
Registrar for transfer, the Registrar may refuse to transfer the same until it
is satisfied that
the endorsement on such Bond or separate instrument of transfer is valid and genuine
and
that the requested transfer is legally authorized. The Registrar shall incur no
liability for
the refusal, in good faith, to make transfers which it, in its judgment, deems
improper or
unauthorized.
(f) Persons Deemed Owners. The City and the Registrar may treat the person in
whose name any Bond is at any time registered in the bond register as the absolute
owner
of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving
payment of, or on account of, the principal of and interest on such Bond and for
all other
purposes, and all such payments so made to any such registered owner or upon the
owner's order shall be valid and effectual to satisfy and discharge the liability
of the City
upon such Bond to the extent of the sum or sums so paid.
(g) Taxes. Fees and Charges. For every transfer or exchange of Bonds, the
Registrar may impose a charge upon the owner thereof sufficient to reimburse the
Registrar for any tax, fee or other governmental charge required to be paid with
respect to
such transfer or exchange.
(h) Mutilated. Lost. Stolen or Destroved Bonds. In case any Bond shall become
mutilated or be lost, stolen or destroyed, the Registrar shall deliver a new Bond
of like
amount, number, maturity date and tenor in exchange and substitution for and upon
cancellation of any such mutilated Bond or in lieu of and in substitution for any
such
Bond lost, stolen or destroyed, upon the payment of the reasonable expenses and
charges
of the Registrar in connection therewith; and, in the case of a Bond lost, stolen
or
destroyed, upon filing with the Registrar of evidence satisfactory to it that such
Bond was
lost, stolen or destroyed, and of the ownership thereof, and upon furnishing to
the
Registrar of an appropriate bond or indemnity in form, substance and amount satisfactory
to it, in which both the City and the Registrar shall be named as obligees. All
Bonds so
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surrendered to the Registrar shall be canceled by it and evidence of such cancellation
shall be given to the City. If the mutilated, lost, stolen or destroyed Bond has
already
matured or such Bond has been called for redemption in accordance with its terms,
it
shall not be necessary to issue a new Bond prior to payment.
2,05. Appointment of Initial Registrar. The City hereby appoints the Director of
Administrative Services of the City to act as bond registrar, transfer agent and
paying agent (the
"Registrar"). The City reserves the right to appoint a bank, trust company or financial
institution
as successor bond registrar, transfer agent or paying agent, as authorized by the
Model Public
Obligations Registration Act of Montana, Montana Code Annotated, Title 17, Chapter
5, Part 11,
as amended (the "Registration Act"), but the City agrees to pay the reasonable
and customary
charges of the Registrar for the services performed.
2.06. Optional Redemption. Series 2001A Bonds maturing in the years 2003
through 2012 shall not be subject to redemption prior to maturity, but Series 2001A
Bonds
maturing in the years 2013 through 2021 shall each be subject to redemption at
the option of the
City, in whole or in part, and if in part from such stated maturities and in such
principal amounts
as the City may designate in writing to the Registrar (or, if no designation is
made, in inverse
order of maturities and within a maturity in $5,000 principal amounts selected
by the Registrar
by lot or other manner it deems fair), on July 1, 2012, at a price equal to the
principal amount
thereof and interest accrued to the redemption date. The date of redemption and
the principal
amount of the Series 2001A Bonds shall be fixed by the Director of Administrative
Services who
shall give notice thereof to the Registrar at least forty days prior to the date
of redemption. The
Registrar shall cause notice of redemption to be published as required by law,
and, at least thirty
days prior to the designated redemption date, shall cause notice of redemption
to be mailed, by
first class mail, or by other means required by the securities depository, to the
registered owners
of each Bond to be redeemed at their addresses as they appear on the bond register
described in
Section 2.04, but no defect in or failure to give such mailed notice shall affect
the validity of
proceedings for the redemption of any Bond not affected by such defect or failure.
The notice of
redemption shall specify the redemption date, redemption price, the numbers, interest
rates and
CUSIP numbers of the Series 2001A Bonds to be redeemed and the place at which the
Series
2001A Bonds are to be surrendered for payment, which is the principal office of
the Registrar.
Official notice of redemption having been given as aforesaid, the Series 2001A
Bonds or
portions thereof so to be redeemed shall, on the redemption date, become due and
payable at the
redemption price therein specified and from and after such date (unless the City
shall default in
the payment of the redemption price) such Series 2001A Bonds or portions thereof
shall cease to
bear interest.
In addition to the notice prescribed by the preceding paragraph, the Registrar
shall
also give, or cause to be given, notice of the redemption of any Bond or Bonds
or portions
thereof at least 35 days before the redemption date by certified mail or te1ecopy
to the Purchaser
and all registered securities depositories then in the business of holding substantial
amounts of
obligations ofthe character of the Series 200lA Bonds (such depository now being
The
Depository Trust Company, of New York, New York) and 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 Bond or portion
thereof.
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2.07. Execution and Delivery. The Series 2001A Bonds shall be forthwith
prepared for execution under the direction of the Director of Administrative Services
and shall be
executed on behalf of the City by the signatures of the Mayor, the City Manager
and the Clerk of
the Commission, provided that said signatures and the corporate seal may be printed,
engraved or
lithographed facsimiles thereof. In case any officer whose signature or a facsimile
of whose
signature shall appear on the Series 200lA Bonds shall cease to be such officer
before the
delivery thereof, such signature or facsimile shall nevertheless be valid and sufficient
for all
purposes, the same as if such officer had remained in office until delivery. When
the Series
200lA Bonds have been so executed by said City officers, they shall be registered
by the
Director of Administrative Services in accordance with Montana Code Annotated,
Section 7-7-
4257. Notwithstanding such execution, 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 Registrar. Certificates of authentication on different Series
200lA Bonds
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. When the Series 2001A Bonds have been fully executed and authenticated,
they shall
be delivered by the Registrar to the Purchaser upon payment of the purchase price
in accordance
with the contract of sale heretofore made and executed, and the Purchaser shall
not be obligated
to see to the application ofthe purchase price.
2.08. Securities Depository for the Bonds.
(a) For purposes of this Section 2.08, the following terms shall have the following
meanmgs:
"Beneficial Owner" shall mean, whenever used with respect to a Bond, the person
in whose name such Bond is recorded as the beneficial owner of such Bond by a
Participant on the records of such Participant, or such person's subrogee.
"Cede & Co." shall mean Cede & Co., the nominee ofDTC, and any successor
nominee ofDTC with respect to the Series 2001A 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 2001A Bonds as securities depository.
"Representation Letter" shall mean the Blanket Issuer Letter of Representations
from the City to DTC, attached to this resolution as Exhibit A, which is hereby
incorporated by reference and made a part hereof.
(b) The Series 2001A Bonds shall be initially issued as separately authenticated
fully registered Bonds, and one Bond shall be issued in the principal amount of
each
stated maturity of the Series 2001A Bonds. Upon initial issuance, the ownership
of such
Series 2001A Bonds shall be registered in the Bond register in the name of Cede
& Co.,
as nominee ofDTC. The Registrar and the City may treat DTC (or its nominee) as
the
sole and exclusive owner of the Series 2001A Bonds registered in its name for the
purposes of payment of the principal of or interest on the Series 2001A Bonds,
selecting
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the Series 2001A Bonds or portions thereof to be redeemed, if any, giving any notice
permitted or required to be given to registered owners of Series 2001A Bonds under
this
Resolution, registering the transfer of Series 2001A Bonds, and for all other purposes
whatsoever; and neither the Registrar nor the City shall be affected by any notice
to the
contrary. Neither the Registrar nor the City shall have any responsibility or obligation
to
any Participant, any Person claiming a beneficial ownership interest in the Series
2001A
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 2001A 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 2001A Bonds, with respect to any notice which is permitted
or
required to be given to owners of Series 2001A 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 ofthe Series 2001A Bonds, or with respect to any consent
given
or other action taken by DTC as registered owner of the Series 2001A Bonds. So
long as
any Bond is registered in the name of Cede & Co., as nominee ofDTC, the Registrar
shall pay all principal of and interest on such Bond, and shall give all notices
with respect
to such Bond, only to Cede & Co. in accordance with the Representation Letter,
and all
such payments shall be valid and effective to fully satisfy and discharge the City's
obligations with respect to the principal of and interest on the Series 2001A Bonds
to the
extent of the sum or sums so paid. No Person other than DTC shall receive an
authenticated Bond for each separate stated maturity evidencing the obligation
of the City
to make payments of principal and interest. Upon delivery by DTC to the Registrar
of
written notice to the effect that DTC has determined to substitute a new nominee
in place
of Cede & Co., the Series 2001A Bonds will be transferable to such new nominee
in
accordance with paragraph (e) hereof.
(c) In the event the City determines that it is in the best interest of the Beneficial
Owners that they be able to obtain Series 2001A Bonds in the form of Bond certificates,
the City may notify DTC and the Registrar, whereupon DTC shall notify the Participants
of the availability through DTC of Series 2001A Bonds in the form of certificates.
In
such event, the Series 2001A Bonds will be transferable in accordance with paragraph
(e)
hereof. DTC may determine to discontinue providing its services with respect to
the
Series 2001A Bonds at any time by giving notice to the City and the Registrar and
discharging its responsibilities with respect thereto under applicable law. In
such event
the Series 2001A Bonds will be transferable in accordance with paragraph (e) hereof.
(d) The Representation Letter sets forth certain matters with respect to, among
other things, notices, consents and approvals by registered owners of the Series
2001A
Bonds and Beneficial Owners and payments on the Series 2001A Bonds. The Registrar
shall have the same rights with respect to its actions thereunder as it has with
respect to
its actions under this resolution.
(e) In the event that any transfer or exchange of Series 2001A Bonds is permitted
under paragraph (b) or (c) hereof, such transfer or exchange shall be accomplished
upon
receipt by the Registrar of the Series 2001A 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 2001A Bonds in the form of certificates
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are issued to owners other than Cede & Co., its successor as nominee for DTC as
owner
of all the Series 2001A Bonds, or another securities depository as owner of all
the Series
2001A Bonds, the provisions of this Resolution shall also apply to all matters
relating
thereto, including, without limitation, the printing of such Series 2001A Bonds
in the
form of Bond certificates and the method of payment of principal of and interest
on such
Series 200lA Bonds in the form of Bond certificates.
Section 3. Form of Series 200lA Bonds. The Series 2001A Bonds shall be
drawn in substantially the form set forth in Exhibit A hereto, and by this reference
made a part
hereof.
Section 4. Security Provisions.
4.01. Bond Proceeds Account: Use of Proceeds. There is hereby created a
special account to be designated as the "2001A Bond Proceeds Account" (the "Bond
Proceeds
Account"), to be held and administered by the Director of Administrative Services
of the City
separate and apart from all other funds of the City. The City appropriates to the
Bond Proceeds
Account (a) the proceeds of the sale ofthe Series 2001A Bonds in the amount of
$2,284,905 and
(b) all income derived from the investment of amounts on hand in the Bond Proceeds
Account.
The Bond Proceeds Account shall be used solely to defray expenses of the Project,
including but
not limited to the transfer to the Debt Service Account described in Section 4.02
of amounts
sufficient for the payment of interest and principal, if any, due upon the Series
2001A Bonds
prior to the completion and payment of all costs of the Project. Upon completion
and payment of
all costs of the Project, any remaining proceeds of Series 2001-A Bonds in the
Bond Proceeds
Account shall be credited and paid to the Debt Service Account.
4.02. Debt Service Account. So long as any of the Series 2001A Bonds are
outstanding and any principal thereof or interest thereon unpaid, the Director
of Administrative
Services shall maintain a separate and special2001A Debt Service Account (the "Debt
Service
Account") to be used for no purpose other than the payment of the principal of
and interest on
the Series 2001A Bonds. The City irrevocably appropriates to the Debt Service Account:
(a)
any proceeds of the Series 2001A Bonds in excess of $2,284,905, (b) all funds to
be credited and
paid thereto in accordance with the provisions of Section 4.01, (c) any taxes levied
in accordance
with this resolution, (d) all income derived from the investment of amounts on
hand in the Debt
Service Account, and (e) such other money as shall be received and appropriated
to the Debt
Service Account from time to time.
Section 5. Tax Levies. The full faith, credit and taxing powers of the City shall
be and are hereby irrevocably pledged to the payment of the Series 2001A Bonds
and interest
due thereon, and the City shall cause taxes to be levied annually on all taxable
property in the
City sufficient to pay the interest on the Series 200lA Bonds when it falls due
and to pay and
discharge the principal at maturity of each and all of the Series 2001A Bonds as
they respectively
become due.
Section 6. Arbitrage and Certification of Proceedings.
6.01. Certification. The Mayor, the City Manager, the Director of Administrative
Services and the Clerk of the Commission, being the officers of the City charged
with the
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responsibility for issuing the Series 2001A Bonds pursuant to this resolution,
are authorized and
directed to execute and deliver to the Purchaser a certificate in accordance with
the provisions of
Section 148 of the Code, and 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
2001A Bonds, it is reasonably expected that the proceeds of the Series 200lA Bonds
will be
used in a manner that would not cause the Series 200lA Bonds to be "arbitrage bonds"
within
the meaning of Section 148 of the Code and the Regulations.
6.02. Covenant. The City covenants and agrees with the holders from time to
time of the Series 2001 A Bonds that it will not take or permit to be taken by
any of its officers,
employees or agents any action that would cause the interest on the Series 2001A
Bonds to
become subject to taxation under the provisions ofthe Code and the Treasury Regulations
applicable thereunder, and covenants and agrees that it will take or cause its
officers, employees
or agents to take any action within its or their powers to prevent the interest
on the Series 2001A
Bonds from becoming includable in gross income for purposes of federal income taxation
under
the Code and applicable Treasury Regulations.
6.03. Arbitra~e Rebate. The City acknowledges that the Series 2001A 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 2001A Bonds from
gross income
for federal income tax purposes, unless the Series 2001A Bonds qualify for the
exception from
the rebate requirement under Section 148(f)(4)(B) of the Code and no "gross proceeds"
ofthe
Series 2001A Bonds (other than amounts constituting a "bona fide debt service fund")
arise
during or after the expenditure of the original proceeds thereof. In furtherance
of the foregoing,
the Mayor, the City Manager, the Director of Administrative Services and the Clerk
of the
Commission are hereby authorized and directed to execute a Rebate Certificate,
substantially in
the form to be 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.
6.04. Information Reporting. The City shall file with the Secretary of the
Treasury, not later than February 15,2002, a statement concerning the Series 2001A
Bonds
containing the information required by Section 149(e) of the Code.
Section 7. Defeasance.
7.01. General. When the liability ofthe City on all Series 2001A 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 Holders of
such Series 2001A Bonds shall cease.
7.02. Maturity. The City may discharge its liability with reference to all Series
2001A Bonds and interest thereon which are due on any date by depositing with the
Registrar for
such Series 2001A Bonds on or before the date a sum sufficient for the payment
thereofin full;
or if any Bond or interest thereon shall not be paid when due, the City may nevertheless
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discharge its liability with reference thereto by depositing with the Registrar
a swn sufficient for
the payment thereof in full with interest accrued to the date of such deposit.
7.03. Redemption. The City may also discharge its liability with reference to any
prepayable Series 2001A Bonds which are called for redemption on any date in accordance
with
their terms; by depositing with the Registrar on or before that date an amount
equal to the
principal, 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.
7.04. Escrow. The City may also at any time discharge its liability in its entirety
with reference to any Series 2001A Bonds 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 pwpose, cash or securities which are
general
obligations of the United States or securities of United States agencies which
are authorized by
law to be so deposited, bearing interest payable at such times and at such rates
and maturing on
such dates as shall be required, without reinvestment, to provide funds sufficient
to pay all
principal, interest and redemption premiwns, if any, to become due on such Series
2001A Bonds
at their Stated Maturities or, if such Series 200lA Bonds are prepayable and notice
of
redemption thereof has been given or irrevocably provided for, to such earlier
Redemption Date.
Section 8. Designation as Qualified Tax-Exempt Obligations. Pursuant to
Section 265(b )(3)(B)(ii) of the Code, the City hereby designates the Series 2001A
Bonds as
"qualified tax -exempt obligations" for the purposes of Section 265(b )(3) of the
Code. The City
has not designated any bonds in 2001 under Section 265(b)(3)-other than the Series
200lA
Bonds, except for its $1,160,000 Special Improvement District No. 669 Bonds. The
City hereby
represents that it does not anticipate that the City and all "subordinate entities"
of the City will
issue in 2001 obligations bearing interest exempt ftom federal income taxation
under Section
103 of the Code (including "qualified 502(c)(3) bonds" but excluding other "private
activity
bonds," as defined in Sections 141(a) and 145(a) of the Code) in an amount greater
than
$10,000,000.
Section 9. Continuing Disclosure.
(a) Purpose and Beneficiaries. To provide for the public availability of certain
information relating to the Series 2001A Bonds and the security therefor and to
permit the
original purchaser and other participating underwriters in the primary offering
of the Series
2001A 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. g
240.15c2-12), relating to continuing disclosure (as in effect and interpreted ftom
time to time,
the "Rule"), which will enhance the marketability of the Series 200lA Bonds, the
City hereby
makes the following covenants and agreements for the benefit ofthe Owners (as hereinafter
defined) from time to time of the Outstanding Bonds. The City is the only "obligated
person" in
respect of the Series 2001A 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 9, any person aggrieved
thereby, including the Owners of any Outstanding Bonds, may take whatever action
at law or in
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equity may appear necessary or appropriate to enforce performance and observance
of any
agreement or covenant contained in this Section 9, including an action for a writ
of mandamus or
specific performance. Direct, indirect, consequential and punitive damages shall
not be
recoverable for any default hereunder to the extent permitted by law. Notwithstanding
anything
to the contrary contained herein, in no event shall a default under this Section
9 constitute a
default under the Series 200lA Bonds or under any other provision of this resolution.
As used in this Section 9, "Owner" or "Bondowner" means, in respect of a Bond,
the
registered owner or owners thereof appearing in the bond register maintained by
the Registrar or
any "Beneficial Owner" (as hereinafter defined) thereof, if such Beneficial Owner
provides to
the Registrar evidence of such beneficial ownership in form and substance reasonably
satisfactory to the Registrar. As used herein, "Beneficial Owner" means, in respect
of a Bond,
any person or entity which (i) has the power, directly or indirectly, to vote or
consent with
respect to, or to dispose of ownership of, such Bond (including persons or entities
holding Series
2001A Bonds through nominees, depositories or other intermediaries), or (b) is
treated as the
owner ofthe Bond for federal income tax purposes.
(b) Information To Be Disclosed. The City will provide, in the manner set forth
in
subsection (c) hereof, either directly or indirectly through an agent designated
by the City, the
following information at the following times:
(1) on or before 270 days after the end of each fiscal year of the City, commencing
with
the fiscal year ending June 30, 2002, the following financial information and operating
data in
respect ofthe City (the "Disclosure Information"):
(A) the comprehensive annual financial report of the City for such
fiscal year, containing the audit report and opinion of the accountant or
government auditor relating thereto, as permitted or required by the laws
of the State of Montana, containing balance sheets as of the end of such
fiscal year and a statement of operations, changes in fund balances and
cash flows for the fiscal year then ended, for required funds, prepared in
accordance with generally accepted accounting principles promulgated by
the Financial Accounting Standards Board, as modified in accordance with
the governmental accounting standards promulgated by the Governmental
Accounting Standards Board or as otherwise provided under Montana law,
as in effect from time to time, or, if and to the extent such financial
statements have not been prepared in accordance with such generally
accepted accounting principles for reasons beyond the reasonable control
ofthe City, noting the discrepancies therefrom and the effect thereof, and
certified as to accuracy and completeness in all material respects by the
Director of Administrative Services; and
(B) To the extent not included in the financial report referred to in
paragraph (A) hereof, the information ofthe type set forth below
contained in the official statement dated November 28,2001 and an
addendum dated December 14,2001 (the "Official Statement"), for such
fiscal year or for the period most recently available, which information
may be unaudited, but is to be certified as to accuracy and completeness in
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I
all material respects by the Director of Administrative Services as to the
best of his or her knowledge (which certification may be based on the
reliability of information obtained from third party sources):
(1)
Information, for each fiscal year, regarding the summary of all
debt, debt limitation, overlapping indebtedness and general obligation debt
ratios of the type shown in the tables under the captions "Legal Debt Limit
and Margin", "General Obligation Debt Supported by Taxes", "Debt
Supported by Water Revenues", "Annual Debt Service Payments Including
This Issue", "Debt Supported by Special Assessments", "Notes Payable",
"Indirect Debt" and "Debt Ratios" in the Official Statement;
(2)
Information, as of January 1 for the current tax year, relating to
the appraised value and taxable value of taxable property in the City of the
type contained in the table and under the caption "City Property Values" in
the Official Statement;
(3)
Identification of the ten taxpayers in the City with the largest
taxable value of property by name, type of property and taxable value of the
type contained in the table under the caption "Ten of the Largest Taxpayers in
the City" in the Official Statement;
(4)
Information regarding property tax collections by the City and of
the type contained in the tables and under the caption "City Tax Rates, Levies
and Collections" in the Official Statement;
(5)
Information regarding the mill levies of the City of the type
contained in the table under the caption "City Tax Rates, Levies and
Collections" in the Official Statement;
(6)
Information, as of the most recent date available, regarding
employment in the City, Gallatin County and the State of Montana of the type
contained in the table under the caption "Labor Force and Employment" in the
Official Statement; and
(7)
Information, as of the most recent date available, regarding the
larger employers in the City, identifying the employer and estimated number
of employees of the type contained in the table under the caption "Major
Employers Within the City" in the Official Statement.
Notwithstanding the foregoing, if the audited financial statements are not
available by the date specified, the City shall provide on or before such date
unaudited financial
statements in the format required for the audited financial statements as part
of the Disclosure
Information and, within 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
(c) or the SEe. If
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,
the document incorporated by reference is a final Official Statement, it must be
available from
the Municipal Securities Rulemaking Board. The City shall clearly identify in the
Disclosure
Information each document so incorporated by reference.
If any part ofthe Disclosure Information can no longer be generated because the
operations of the City have materially changed or been discontinued, such Disclosure
Information need no longer be provided if the City includes in the Disclosure Information
a
statement to such effect; provided, however, if such operations have been replaced
by other City
operations in respect of which data is not included in the Disclosure Information
and the City
determines that certain specified data regarding such replacement operations would
be a Material
Fact (as defined in paragraph (3) hereof), then, from and after such determination,
the Disclosure
Information shall include such additional specified data regarding the replacement
operations.
If the Disclosure Information is changed or this Section 9 is amended as permitted
by this paragraph (b)(1) or subsection (d), then the City shall include in the
next Disclosure
Information to be delivered hereunder, to the extent necessary, an explanation
in narrative form
of the reasons for the amendment and the effect of any change in the type of financial
information or operating data provided.
(2) In a timely manner, notice of the occurrence of any of the following events
which is a
Material Fact (as hereinafter defined):
(A) Principal and interest payment delinquencies;
(B) Non-payment related defaults;
(C) Unscheduled draws on debt service reserves reflecting financial difficulties;
(D) Unscheduled draws on credit enhancements reflecting financial difficulties;
(E) Substitution of credit or liquidity providers, or their failure to perform;
(F) Adverse tax opinions or events affecting the tax-exempt status of the security;
(G) Modifications to rights of security holders;
(H) Bond calls;
(I) Defeasances;
(J) Release, substitution, or sale of property securing repayment of the securities;
and
(K) Rating changes.
As used herein, a "Material Fact" is a fact as to which a substantial likelihood
exists that a reasonably prudent investor would attach importance thereto in deciding
to buy,
hold or sell a Bond or, if not disclosed, would significantly alter the total information
otherwise
available to an investor from the Official Statement, information disclosed hereunder
or
information generally available to the public. Notwithstanding the foregoing sentence,
a
"Material Fact" is also an event that would be deemed "material" for purposes of
the purchase,
holding or sale of a Bond within the meaning of applicable federal securities laws,
as interpreted
at the time of discovery of the occurrence of the event.
(3) In a timely manner, notice of the occurrence of any of the following events
or
conditions:
12
(A) the failure of the City to provide the Disclosure Infonnation
required under paragraph (b)(I) at the time specified thereunder;
(B) the amendment or supplementing of this Section 9 pursuant to
subsection (d), together with a copy of such amendment or supplement and
any explanation provided by the City under subsection (d)(2);
(C) the tennination of the obligations of the City under this Section 9
pursuant to subsection (d);
(D) any change in the accounting principles pursuant to which the financial
statements constituting a portion of the Disclosure Infonnation are prepared; and
(E) any change in the fiscal year of the City.
(c) Manner of Disclosure. The City agrees to make available the infonnation
described in subsection (b) to the following entities by telecopy, overnight delivery,
mail or other
means, as appropriate:
(1) the infonnation described in paragraph (1) of subsection (b), to each then
nationally recognized municipal securities infonnation repository under the Rule
and to any state
infonnation depository then designated or operated by the State of Montana as contemplated
by
the Rule (the "State Depository"), if any;
(2) the infonnation described in paragraphs (2) and (3) of subsection (b), to the
Municipal Securities Rulemaking Board and to the State Depository, if any; and
(3) the infonnation described in subsection (b), to any rating agency then
maintaining a rating of the Series 2001A Bonds and, at the expense of such Bondowner,
to any
Bondowner who requests in writing such infonnation, at the time of transmission
under
paragraphs (1) or (2) of this subsection (c), as the case may be, or, if such infonnation
is
transmitted with a subsequent time of release, at the time such infonnation is
to be released.
(d) Tenn: Amendments: Interpretation.
(1) The covenants ofthe City in this Section 9 shall remain in effect so long as
any Series 2001A Bonds are Outstanding. Notwithstanding the preceding sentence,
however, the
obligations of the City under this Section 9 shall tenninate and be without further
effect as of any
date on which the City delivers to the Registrar an opinion of Bond Counsel to
the effect that,
because of legislative action or final judicial or administrative actions or proceedings,
the failure
of the City to comply with the requirements of this Section 9 will not cause participating
underwriters in the primary offering ofthe Series 2001A 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 9 and the fonn and requirements of the Disclosure Infonnation
may be amended or supplemented by the City from time to time, without notice to
(except as
provided in paragraph (c)(3) hereof) or the consent of the Owners of any Series
2001A Bonds,
by a resolution of the City Commission filed in the office of the Clerk of the
Commission of the
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City accompanied by an opinion of Bond Counsel, who may rely on certificates of
the City and
others and the opinion may be subject to customary qualifications, to the effect
that: (i) such
amendment or supplement (a) is made in connection with a change in circumstances
that arises
from a change in law or regulation or a change in the identity, nature or status
of the City or the
type of operations conducted by the City, or (b) is required by, or better complies
with, the
provisions bfparagraph (b)(5) of the Rule; (ii) this Section 9 as so amended or
supplemented
w01;11d have complied with the requirements of paragraph (b)(5) of the Rule at
the time of the
primary offering of the Series 2001A Bonds, giving effect to any change in circumstances
applicable under clause (i)(a) and assuming that the Rule as in effect and interpreted
at the time
of the amendment or supplement was in effect at the time of the primary offering;
and (iii) such
amendment or supplement does not materially impair the interests of the Bondowners
under the
Rule.
If the Disclosure Information is so amended, the City agrees to provide,
contemporaneously with the effectiveness of such amendment, an explanation, in
narrative form,
of the reasons for the amendment and the effect, if any, of the change in the type
of financial
information or operating data being provided hereunder.
(3) This Section 9 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.
Section 10. Repeals and Effective Date.
10.01. Repeal. All provisions of other resolutions and other actions and
proceedings of the City and this Commission that are in any way inconsistent with
the terms and
provisions of this resolution are repealed, amended and rescinded to the full extent
necessary to
give full force and effect to the provisions of this resolution.
10.02. Effective Date. This resolution shall take effect immediately upon its
passage and adoption by this Commission.
PASSED AND ADOPTED by the City Commission of the City of Bozeman,
Montana, this 17th day of December, 2001.
~' /1t~/J~
N/Jyor \
Attest: ~y~
Clerk -G!. the Commission
~
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(SEAL)
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[Face of the Bonds]
UNITED STATES OF AMERICA
STATE OF MONT ANA
COUNTY OF GALLATIN
CITY OF BOZEMAN
GENERAL OBLIGATION BOND, SERIES 2001A
No.
$
Maturity Date of
Rate
Date Original Issue
CUSIP
July 1, December 1, 2001
REGISTERED OWNER:
CEDE & CO.
PRINCIP AL AMOUNT:
DOLLARS
The City of Bozeman, Gallatin County, State of Montana (the "City"),
acknowledges itself to be indebted and for value received hereby promises to pay
to the
registered owner named above, or registered assigns, the principal amount specified
above on the
maturity date specified above or, ifthis Bond is prepayable as stated herein, on
any date prior
thereto on which this Bond shall have been duly called for redemption, and to pay
interest on
said principal amount to the registered owner hereof from December 1, 2001 or from
such later
date to which interest has been paid or duly provided for until this Bond is paid
or, if this Bond is
prepayable, until it has been duly called for redemption, at the rate specified
above. Principal of
this Bond is payable upon presentation and surrender hereof to the Director of
Administrative
Services of the City of Bozeman, Montana, as Bond Registrar, Transfer Agent and
Paying Agent,
or its successor designated under the Resolution, as hereinafter defined (the "Registrar").
Interest on this Bond is payable semiannually on each January 1 and July 1, commencing
on
July 1, 2002, by check or draft mailed by the Registrar to the person in whose
name this Bond is
registered as of the close of business on the 15th day (whether or not a Business
Day) of the
immediately preceding month, at his address as it appears on the bond register
maintained by the
Registrar. "Business Day" means any day other than a Saturday, Sunday or legal
holiday of the
State of Montana.
The principal of and interest on this Bond are payable in lawful money of the
United States of America. For the prompt and full payment of such principal and
interest as the
same respectively become due, the full faith, credit and taxing powers of the City
have been and
are hereby irrevocably pledged.
Notwithstanding any other provisions ofthis Bond, so long as this Bond is
registered in the name of Cede & Co., as nominee of The Depository Trust Company,
or in the
.
name of any other nominee of The Depository Trust Company or other securities depository,
the
Registrar shall pay all principal of and interest on this Bond, and shall give
all notices with
respect to this Bond, only to Cede & Co. or other nominee in accordance with the
operational
arrangements of The Depository Trust Company or other securities depository as
agreed to by
the City.
This Bond is one ofan issue in the total principal amount of$2,3l5,000 (the
"Series 200lA Bonds"), all oflike date of original issue and tenor except as to
serial number,
denomination, maturity date, interest rate and redemption privilege, all authorized
by the
favorable vote of more than the requisite majority of the qualified electors of
the City voting on
the question of the issuance thereof at an election duly held, for the City for
the purpose of
acquiring land for and designing, constructing and equipping either a new public
library or
designing, constructing and equipping an expansion of the existing library and
paying costs
associated with the sale and issuance of bonds, all pursuant to resolutions duly
adopted by the
City Commission, including a resolution adopted on December 17,2001 (the "Resolution"),
and
in full conformity with the Constitution and laws of the State of Montana thereunto
enabling.
The Series 200lA Bonds are issuable only as fully registered Series 200lA Bonds
of single
maturities, in denominations of $5,000 or any integral multiple thereof.
Series 200lA Bonds ofthis issue maturing in the years 2003 through 2012 are
payable on their respective stated maturity dates without option of prior payment,
but Series
200lA Bonds having stated maturity dates in the years 2013 through 2021 are each
subject to
redemption at the option of the City, in whole or in part, and if in part from
such stated maturities
and in such principal amounts as the City may designate in writing to the Registrar
(or, if no
designation is made, in inverse order of maturities and within a maturity in $5,000
principal
amounts selected by the Registrar by lot or other manner it deems fair), on July
I, 2012 and any
day thereafter, at a price equal to the principal amount thereofto be redeemed
plus interest
accrued to the redemption date. The date of redemption and the principal amount
of the Bonds
shall be fixed by the Director of Administrative Services who shall give notice
thereof to the
Registrar at least forty days prior to the date of redemption. The Registrar shall
cause notice of
redemption to be published as required by law, and, at least thirty days prior
to the designated
redemption date, shall cause notice ofredemption to be mailed, by first class mail,
or by other
means required by the securities depository, to the registered owners of each Bond
to be
redeemed at their addresses as they appear on the bond register. Upon partial redemption
of any
Series 2001A Bond, a new Bond or Bonds will be delivered to the registered owner
without
charge, representing the remaining principal amount outstanding.
As provided in the Resolution and subject to certain limitations set forth therein,
this Bond is transferable upon the books of the City in the principal office ofthe
Registrar, by the
registered owner hereof in person or by his attorney duly authorized in writing,
upon surrender
hereof together with a written instrument of transfer satisfactory to the Registrar,
duly executed
by the registered owner or his attorney, and may also be surrendered in exchange
for Series
2001A Bonds of other authorized denominations. Upon any such transfer or exchange,
the City
will cause a new Series 200lA Bond or Bonds to be issued in the name of the transferee
or
registered owner, of the same aggregate principal amount, bearing interest at the
same rate and
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.
maturing on the same date, subject to reimbursement for any tax, fee or governmental
charge
required to be paid with respect to such transfer or exchange.
The City and the Registrar may deem and treat the person in whose name this
Bond is registered as the absolute owner hereof, whether this Bond is overdue or
not, for the
purpose ofreceiving payment and for all other purposes, and neither the City nor
the Registrar
shall be affected by any notice to the contrary.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that
all acts, conditions and things required by the Constitution and laws of the State
of Montana to
be done, to exist, to happen and to be performed precedent to and in the issuance
of this Bond, in
order to make it a valid and binding general obligation ofthe City according to
its terms, have
been done, do exist, have happened and have been performed in regular and due form,
time and
manner as so required; that the City Commission will annually levy an ad valorem
tax on all of
the taxable property in the City sufficient to pay the interest hereon when it
falls due and also to
pay and discharge the principal of this Bond at maturity; that this Bond, together
with all other
indebtedness of the City outstanding on the date of original issue hereof and on
the date of the
delivery of the Series 2001A Bonds of this issue to the original purchaser thereof,
does not
exceed any constitutional or statutory limitation of indebtedness; and that the
opinion attached
hereto is a true copy of the legal opinion given by Bond Counsel with reference
to the Series
2001A Bonds, dated the date of original issuance and delivery ofthe Series 2001A
Bonds.
This Bond shall not be valid or become obligatory for any purpose or be entitled
to any security or benefit under the Resolution until the Certificate of Authentication
hereon shall
have been executed by the Registrar by the manual signature of one of its authorized
representatives.
IN WITNESS WHEREOF, the City of Bozeman, Gallatin County, Montana, by
its City Commission, has caused this Bond to be executed by the facsimile signatures
of the
Mayor, the City Manager and the Clerk of the Commission, and by a facsimile of
the official seal
ofthe City.
(Facsimile Signature)
Mayor
(Facsimile Signature)
City Manager
(Facsimile Seal)
(Facsimile Signature)
Clerk of the Commission
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Date of Authentication:
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2001A Bonds delivered pursuant to the Resolution
mentioned within.
ADMINISTRATIVE SERVICES DIRECTOR
OF THE CITY OF BOZEMAN,
as Bond Registrar, Transfer Agent,
and Paying Agent
By
Authorized Signature
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The following abbreviations, when used in the inscription on the face of this
Bond, shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM -- as tenants UTMA........... .Custodian.....................
In common
(Cust) (Minor)
TEN ENT -- as tenants
by the entireties
under Uniform Gifts to
JT TEN -- as joint tenants
Minor Act............................................
with right of
(State)
survivorship and
not as tenants in
common
Additional abbreviations may also be used.
ASSIGNMENT
FOR V ALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
the within Bond and all rights thereunder, and hereby
irrevocably constitutes and appoints attorney to transfer the within
Bond on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER NOTICE: The signature to this assignment
OF ASSIGNEE: must correspond with the name as it appears
upon the face of the within Bond in every
/
/ particular, without alteration, enlargement
or any change whatsoever.
SIGNATURE GUARANTEED
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Bond Registrar,
which requirements include membership
or participation in STAMP or such other
"signature guaranty program" as may be
determined by the Bond Registrar in
addition to or in substitution for STAMP,
all in accordance with the Securities
Exchange Aet of 1934, as amended.
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