HomeMy WebLinkAboutResolution 3469 $1,160,000 bond issue, SID 669
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RESOLUTION NO. 3469
RESOLUTION RELATING TO $1,160,000 SPECIAL
IMPROVEMENT DISTRICT NO. 669 BONDS; FIXING THE
FORM AND DETAILS AND PROVIDING FOR THE
EXECUTION AND DELIVERY THEREOF AND SECURITY
THEREFOR
BE IT RESOLVED by the City Commission (the "Commission") of the City of
Bozeman, Montana (the "City"), as follows:
Section 1. Recitals. It is hereby found, detennined and declared as follows:
1.01. Resolution of Intention. By Resolution No. 3416, adopted November 27, 2000
(the
"Resolution of Intention"), this Commission declared its intention to create Special
Improvement
District No. 669 (the "District"), for the purpose of making special improvements
for the special
benefit of the District. The Resolution of Intention designated the number of the
District,
described the boundaries thereof, stated whether the District was an extended district
and stated
the general character of the improvements to be made (the "Improvements") and an
approximate
estimate of the costs thereof, in accordance with the provisions of Montana Code
Annotated,
Title 7, Chapter 12, Parts 41 and 42, as amended (the "Act"). By the Resolution
of Intention this
Commission also declared its intention to cause the cost and expense of making
the
improvements specially benefiting the District to be assessed against the properties
included
within the boundaries thereof in accordance with one or more methods of assessment
authorized
in Montana Code Annotated, Sections 7-12-4161 to 7-12-4165 and as set forth in
the Resolution
of Intention.
In the Resolution of Intention, this Commission further found that it is in the
public
interest, and in the best interest of the City and the District, to secure payment
of principal of and
interest on the Bonds by the Special Improvement District Revolving Fund of the
City, on the
basis of the factors required to be considered under Section 7-12-4225 of the Act.
Those
findings are hereby ratifIed and confinned.
1.02. Notices. Notice of the passage of the Resolution of Intention was given by
two
publications, with at least six days between publications, the first no more than
21 days prior to
the hearing, in a qualified newspaper of general circulation in the county in which
the City is
located or, if no such newspaper is published, in a qualified newspaper published
in an adjacent
county, as required by Montana Code Annotated, Sections 7-12-4106(2) and 7-1-2121.
Notice
of the passage of the Resolution ofIntention was also mailed to all persons, finns
or corporations
or the agents thereof having real property within the District listed in their
names upon the last
completed assessment roll for state, county and school district taxes, at their
last known
addresses. The notice described the general character of the Improvements, stated
the estimated
cost of the Improvements and the method or methods of assessment of such costs
against
properties in the District, specified the time when and the place where the Commission
would
hear and pass upon all protests made against the making of the Improvements or
the creation or
extension ofthe District, referred to the Resolution of Intention as being on file
in the office of
the Clerk of the Commission for a description of the boundaries of the District,
all in accordance
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with the provisions of the Resolution of Intention, and included a statement that,
subject to the
limitations of Section 7-12-4222 of the Act, the general fund of the City may be
used to provide
loans to the revolving fund or a general tax levy may be imposed on all taxable
property in the
City to meet the financial requirements of the revolving fund.
1.03. Creation of District. At the time and place specified in the notice hereinabove
described, this Commission met to hear, consider and pass upon all protests made
against the
making of the Improvements and the creation of the District, and, after consideration
thereof: it
was determined and declared that insufficient protests against the creation or
extension of the
District or the proposed work had been filed in the time and manner provided by
law by the
owners of the property to be assessed for the Improvements in the District, and
this Commission
did therefore by Resolution No. 3424, adopted February 20, 2001, create the District
and order
the proposed Improvements in accordance with the Resolution of Intention.
1.04. Construction Contracts. Plans, specifications, maps, profiles and surveys
for
construction of the Improvements were prepared by the engineers acting for the
City, and were
thereupon examined and approved by this Commission. An advertisement for bids for
construction of the Improvements was published in the official newspaper of the
City in
accordance with the provisions of Montana Code Annotated, Section 7-12-4141, after
which the
bids theretofore received were opened and examined. After referring the bids to
the engineers
for the City it was determined that the lowest regular proposals for the furnishing
of all work and
materials required for constructing the Improvements in accordance with the approved
plans and
specifications were the following:
Work
Bidder Contract Price
Installation of new historic street lighting
Concrete Specialties of $726,975
and construction of new sidewalks along
Montana, Inc.
Main Street fTom Rouse A venue to Grand
Avenue
Contracts for the construction of the Improvements were therefore awarded to said
bidder, subject to the right of owners of property liable to be assessed for the
costs thereof to
elect to take the work and enter into written contracts therefor in the manner
provided by
Montana Code Annotated, Section 7-12-4147, which election the property owners failed
to
make, whereupon the City and the successful bidder entered into written contract(s)
for
construction of the Improvements upon the bidder having executed and filed bonds
satisfactory
to this Commission and in the form and manner provided by Montana Code Annotated,
Title 18,
Chapter 2, Part 2, as amended.
1.05. Costs. It is currently estimated that the costs and expenses to be assessed
against
properties benefited by the Improvements, including costs of preparation of plans,
specifications,
maps, profiles, engineering superintendence and inspection, preparation of assessment
rolls,
expenses of making the assessments, the cost of work and materials under the construction
contract and all other costs and expenses, including the deposit of proceeds in
the Revolving
Fund, are $1,160,000. Such amount will be levied and assessed upon the assessable
real
property within the District on the bases described in the Resolution of Intention.
This
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Commission has jurisdiction and is required by law to levy and assess such amount,
to collect
such special assessments and credit the same to the special improvement district
fund created for
the District, which fund is to be maintained on the official books and records
of the City separate
from all other City funds, for the payment of principal and interest when due on
the bonds herein
authorized.
1.06. Sale and Issuance of Bonds. For the purpose of financing the costs and expenses
of
making the Improvements, which are to be assessed against the property within the
District as
provided in the Resolution ofIntention, this Commission by Resolution No. 3452,
adopted
July 16,2001, caned for the public sale of bonds in the total aggregate amount
of$1 ,160,000
(the "Bonds"). Advertisements for bids for the purchase of the Bonds were published
in
accordance with the provisions of Montana Code Annotated, Sections 7-12-4204, 7-7-4252
and
17-5-106. Pursuant to the August 6,2001 minutes of the Commission, this Commission
authorized the City to enter into a contract with U.S. Bancorp/Piper Jaffray Inc.,
of Seattle,
Washington (the "Purchaser"), as the lowest responsible bidder pursuant to which
the Purchaser
agreed to purchase from the City the Bonds at a purchase price of $1,141,898.05
plus interest
accrued thereon from the date of original issue of the Bonds, at the rates of interest
set forth in
Section 2.01 hereof and upon the further terms set forth in this resolution resulting
in a true
interest cost of4.918189% and a total dollar interest cost of $547,944.64.
1.07. Recitals. All acts, conditions and things required by the Constitution and
laws of
the State of Montana, including Montana Code Annotated, Title 7, Chapter 12, Parts
41 and 42,
as amended, in order to make the Bonds valid and binding special obligations in
accordance with
their terms and in accordance with the terms of this resolution have been done,
do exist, have
happened and have been performed in regular and due form, time and manner as so
required.
Section 2. The Bonds.
2.01. Principal Amount. Maturities. Denominations. Date. Interest Rates. For the
purpose of paying the costs and expenses incurred in construction of the Improvements,
and in
anticipation of the collection of special assessments to be levied therefor, and
in accordance with
the proposal described in Section 1.06, the City shall forthwith issue and deliver
to the Purchaser
the Bonds payable solely from the Special Improvement District No. 669 Fund (the
"District
Fund") and denominated "Special Improvement District No. 669 Bonds." The Bonds
shall be
dated, as originally issued, and be registered as of August 15, 2001, shall each
be in the
denomination of $5,000 or any integral multiple thereof of single maturities, shall
mature on
July 1 in the years and principal amounts set forth below, and Bonds maturing in
such years and
principal amounts shall bear interest from the date of original registration until
paid or duly
called for redemption at the rates per annum set forth opposite such years and
amounts,
respectivel y:
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Principal
Principal
Year
Amount Rate
Year Amount Rate
2002
$65,000 3.25%
2012 $60,000 4.50%
2003
60,000 3.35
2013 60,000 4.65
2004
60,000 3.60
2014 60,000 4.75
2005
60,000 3.85
2015 60,000 4.85
2006
60,000 4.00
2016 60,000 5.00
2007
60,000 4.10
2017 60,000 5.00
2008
60,000 4.20
2018 65,000 5.10
2009
60,000 4.35
2019 65,000 5.20
2010
60,000 4.40
2020 65,000 5.30
2011
60,000 4.45
2.02. Interest Payment Dates. Interest on the Bonds shall be payable on each January
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and J ul y 1, commencing January 1, 2002, to the owners of record thereof as such
appear on the
bond registrar at the close of business on the fifteenth day ofthe immediately
preceding month,
whether or not such day is a business day. Upon the original delivery of the Bonds
to the
Purchaser and upon each subsequent transfer or exchange of a Bond pursuant to Section
2.04, the
Registrar shall date each Bond as of the date of its authentication.
2.03. Method of Payment. The Bonds shall be issued only in fully registered form.
The
interest on and, upon surrender thereof at the principal office of the Registrar
(as hereinafter
defined), the principal of each Bond, shall be payable by check or draft drawn
on the Registrar.
2.04. Registration. The City hereby appoints the 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. This Section 2.04 shall establish a system
of registration
tor the Bonds as defined in the Registration Act.
The effect of registration and the rights and duties of the City and the Registrar
with
respect thereto shall be as follows:
(a) Bond Register. The Registrar shall keep at its principal office a bond
register in which the Registrar shall provide for the registration of ownership
of the
Bonds and the registration of transfers and exchanges ofthe Bonds entitled to be
registered, transferred or exchanged.
(b) Transfer. Upon surrender to the Registrar for transfer of any Bond
duly endorsed by the registered owner thereof or accompanied by a written instrument
of
transfer, in form satisfactory to the Registrar, duly executed by the registered
owner
thereof or by an attorney duly authorized by the registered owner in writing, the
Registrar
shall authenticate and deliver, in the name of the designated transferee or transferees,
one
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or more new Bonds of a like aggregate principal amount and maturity, as requested
by
the transferor. The Registrar may, however, close the books for registration of
any
transfer of any Bond or portion thereof selected or called for redemption. No transfer
or
exchange of a Bond shall affect its order of registration for purposes of redemption
pursuant to Section 2.05.
(c) Exchange. Whenever any Bond is surrendered by the registered
owner for exchange, the Registrar shall authenticate and deliver one or more new
Bonds
of a like aggregate principal amount, interest rate and maturity, as requested
by the
registered owner or the owner's attorney duly authorized in writing.
(d) Cancellation. All Bonds surrendered upon any transfer or exchange
shall be promptly cancelled by the Registrar and thereafter disposed of as directed
by the
City.
(e) 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 of Bonds or exchange of
Bonds (except an exchange upon a partial redemption of a Bond), the Registrar may
impose a charge upon the owner thereof sufficient to reimburse the Registrar for
any tax,
fee or other governmental charge required to be paid with respect to such transfer
or
exchange.
(h) Mutilated. Lost. Stolen or Destroved Bonds. In case any Bond shall
become mutilated or be destroyed, stolen or lost, the Registrar shall deliver a
new Bond
of like amount, number, maturity date and tenor in exchange and substitution for
and
upon cancellation of any such mutilated Bond or in lieu of and in substitution
for any
such Bond destroyed, stolen or lost, upon the payment of the reasonable expenses
and
charges of the Registrar in connection therewith; and, in the case of a Bond destroyed,
stolen or lost, upon filing with the Registrar of evidence satisfactory to it that
such Bond
was destroyed, stolen or lost, and of the ownership thereof, and upon furnishing
to the
Registrar an appropriate bond or indemnity in form, substance and amount satisfactory
to
it, in which both the City and the Registrar shall be named as obligees. All Bonds
so
surrendered to the Registrar shall be cancelled by it and evidence of such cancellation
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shall be given to the City. If the mutilated, destroyed, stolen or lost Bond has already
matured or such Bond has been called for redemption in accordance with its terms, it
shall not be necessary to issue a new Bond prior to payment.
2.05. Redemption.
(a) Mandatorv Redemption. If on any interest payment date there will be a balance in
the District Fund after payment of the principal and interest due on all Bonds
drawn against it,
either from the prepayment of special assessments levied in the District or from
the transfer of
surplus money from the Construction Account to the Principal Account as provided
in Section
3.02 or otherwise, the Director of Administrative Services shall call for redemption
on the
interest payment date outstanding Bonds, or portions thereof, in an amount which,
together with
the interest thereon to the interest payment date, will equal the amount of such
funds on deposit
in the District Fund on that date. The redemption price shall equal the amount
of the principal
amount of the Bonds to be redeemed plus interest accrued to the date of redemption.
(b) Optional Redemption. The Bonds are subject to redemption, in whole or in part, at
the option of the City from sources of funds available therefor other than those
described in
Subsection (a) of this Section 2.05 on any interest payment date; provided, however,
the Bonds
shall not be called for redemption before July 1,2006 from the proceeds of refunding
special
improvement district bonds or warrants. The redemption price shall equal the principal
amount
of the Bonds to be redeemed plus interest accrued to the date of redemption.
(c) Selection of Bonds for Redemption: Partial Redemption. If less than all of the Bonds
are to be redeemed, Bonds shall be redeemed in order ofthe stated maturities thereof.
Ifless
than all Bonds of a stated maturity are to be redeemed, the Bonds of such maturity
shall be
selected for redemption in $5,000 principal amounts selected by the Registrar by
lot or other
manner it deems fair. Upon partial redemption of a Bond, a new Bond or Bonds will
be
delivered to the registered owner without charge, representing the remaining principal
amount
thereof outstanding.
(d) Notice and Effect of Redemption. The date ofredemption shall be fixed by the
Director of Administrative Services, who shall give notice, by first class mail,
postage prepaid to
the owner or owners of such Bonds at their addresses appearing in the bond register,
of the
numbers of the Bonds or portions thereof to be redeemed and the date on which payment
will be
made, which date shall be not less than thirty (30) days after the date of mailing
notice. On the
date so fixed interest on the Bonds or portions thereof so redeemed shall cease.
2.06. Form. The Bonds shall be drawn in substantially the form set forth in Exhibit A
hereto, and by this reference made a part hereof, with such modifications as are
permitted by the
Act.
2.07. Execution, Registration and Delivery. The Bonds shall be prepared under the
direction of the Director of Administrative Services and shall be executed on behalf
ofthe City
by the signatures of the Mayor, the City Manager and the Clerk ofthe Commission;
provided
that the signatures and the corporate seal may be printed, enb'faved or lithographed
facsimiles of
the originals. The seal of the City need not be impressed or imprinted on any Bond.
In case any
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oftlcer whose signature or a facsimile of whose signature shall appear on the Bonds
shall cease
to be such onicer before the delivery of any Bond, such signature or facsimile
shall nevertheless
be valid and sufficient for all purposes, the same as if such officer had remained
in offi.ce until
delivery. Notwithstanding such execution, no Bond shall be valid or obligatory
for any purpose
or entitled to any security or benefit under this resolution unless a certificate
of authentication
and registration on such Bond has been duly executed by the manual signature of
an authorized
representative of the Registrar. Certificates of authentication and registration
on different Bonds
need not be signed by the same representative. The executed certificate of authentication
and
registration on each Bond shall be conclusive evidence that it has been authenticated
and
delivered under this resolution. The Bonds shall be registered in order of their
serial numbers by
the Registrar, as attested by the Certificate of Authentication, as of the date
of their delivery.
When the Bonds have been so executed, authenticated and registered, they shall
be delivered by
the Registrar to the Purchaser upon payment of the purchase price in accordance
with the
contract of sale heretofore made and executed. The Purchaser shall not be obligated
to see to the
application of the purchase price, but from the proceeds of the Bonds the Director
of
Administrative Services shall credit forthwith $58,000 to the Revolving Fund, as
required by
Section 7-12-4169(2) of the Act, any accrued interest to the Interest Account in
the District
Fund, and the balance of such proceeds to the Construction Account in the District
Fund.
2.08. Securities Depository for the Bonds.
(a) For purposes of this Section 2.08, the following terms shall have the following
meamngs:
"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 Bonds.
"DTC" shall mean The Depository Trust Company of New York, New York.
"Participant" shall mean any broker-dealer, bank or other financial institution
for which
DTC holds the Bonds as securities depository.
"Representation Letter" shall mean the Blanket Issuer Letter of Representations
from
the City to DTC, attached to this resolution as Exhibit B, which is hereby incorporated
herein by reference and made a part hereof.
(b) The Bonds shall be initially issued as separately authenticated fully registered
Bonds,
and one Bond shall be issued in the principal amount of each stated maturity of
the Bonds. Upon
initial issuance, the ownership of such Bonds shall be registered in the Bond register
in the name
of Cede & Co., as nominee of DTC. The Registrar and the City may treat DTC (or
its nominee)
as the sole and exclusive owner of the Bonds registered in its name for the purposes
of payment
of the principal of or interest on the Bonds, selecting the Bonds or portions thereof
to be
redeemed, if any, giving any notice permitted or required to be given to registered
owners of
Bonds under this Resolution, registering the transfer of Bonds, and for all other
purposes
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whatsoever; and neither the Registrar nor the City shall be affected by any notice
to the contrary.
Neither the Registrar nor the City shall have any responsibility or obligation
to any Participant,
any Person claiming a beneficial ownership interest in the Bonds under or through
DTC or any
Participant, or any other Person which is not shown on the Bond register as being
a registered
owner of any Bonds, with respect to the accuracy of any records maintained by DTC
or any
Participant, with respect to the payment by DTC or any Participant of any amount
with respect to
the principal of or interest on the Bonds, with respect to any notice which is
permitted or
required to be given to owners of Bonds under this Resolution, with respect to
the selection by
DTC or any Participant of any person to receive payment in the event of a partial
redemption of
the Bonds, or with respect to any consent given or other action taken by DTC as
registered owner
of the Bonds. So long as any Bond is registered in the name of Cede & Co., as nominee
of DTC,
the Registrar shall pay all principal of and interest on such Bond, and shall give
all notices with
respect to such Bond, only to Cede & Co. in accordance with the Representation
Letter, and all
such payments shall be valid and effective to fully satisfy and discharge the City's
obligations
with respect to the principal of and interest on the Bonds to the extent of the
sum or sums so
paid. No Person other than DTC shall receive an authenticated Bond for each separate
stated
maturity evidencing the obligation of the City to make payments of principal and
interest. Upon
delivery by DTC to the Registrar of written notice to the effect that DTC has determined
to
substitute a new nominee in place of Cede & Co., the Bonds will be transferable
to such new
nominee in accordance with paragraph (e) hereof
(c) In the event the City determines that it is in the best interest of the Beneficial
Owners
that they be able to obtain Bonds in the form of Bond certificates, the City may
notify DTC and
the Registrar, whereupon DTC shall notify the Participants of the availability
through DTC of
Bonds in the form of certificates. In such event, the Bonds wi11 be transferable
in accordance
with paragraph (e) hereof. DTC may determine to discontinue providing its services
with respect
to the Bonds at any time by giving notice to the City and the Registrar and discharging
its
responsibilities with respect thereto under applicable law. In such event the Bonds
wi11 be
transferable in accordance with paragraph (e) hereof.
(d) The Representation Letter sets forth certain matters with respect to, among
other
things, notices, consents and approvals by registered owners of the Bonds and Beneficial
Owners
and payments on the Bonds. The Registrar shall have the same rights with respect
to its actions
thereunder as it has with respect to its actions under this resolution.
(e) In the event that any transfer or exchange of Bonds is permitted under paragraph
(b)
or (c) hereof: such transfer or exchange shall be accomplished upon receipt by
the Registrar of
the Bonds to be transferred or exchanged and appropriate instruments of transfer
to the permitted
transferee in accordance with the provisions of this resolution. In the event Bonds
in the form of
certificates are issued to owners other than Cede & Co., its successor as nominee
for DTC as
owner of all the Bonds, or another securities depository as owner of all the Bonds,
the provisions
of this Resolution shall also apply to all matters relating thereto, including,
without limitation,
the printing of such Bonds in the form of Bond certificates and the method of payment
of
principal of and interest on such Bonds in the form of Bond certificates.
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Section 3. District Fund; Assessments.
3.01. District Fund. There is hereby created and established the District Fund
designated
as the "Special Improvement District No. 669 Fund," which shall be maintained by
the Director
of Administrative Services on the books and records of the City separate and apart
from all other
funds of the City. Within the District Fund there shall be maintained three separate
accounts,
designated as the "Construction Account," "Principal Account" and "Interest Account",
respectively.
3.02. Construction Account. There shall be credited to the Construction Account
certain
proceeds of the sale of the Bonds as provided in Section 2.07. Any earnings on
investment of
money in the Construction Account shall be retained therein. All costs and expenses
of
constructing and acquiring the Improvements to be paid from proceeds of the Bonds
shall be
paid from time to time as incurred and allowed from the Construction Account in
accordance
with the provisions of applicable law, and money in the Construction Account shall
be used for
no other purpose; provided that upon completion of the Improvements and after all
claims and
expenses with respect to the Improvements have been fully paid and satisfied, any
money
remaining in the Construction Account shall be transferred to the Principal Account
and used to
redeem Bonds as provided in Section 3.03.
3.03. Principal Account and Interest Account. Money in the Principal Account and
the
interest Account shall be used only for payment of the principal of and interest
on the Bonds as
such payments become due or to redeem Bonds. From the proceeds of the Bonds, there
shall be
deposited in the Interest Account any interest on the Bonds accrued to the date
of their delivery.
interest income on funds in the Accounts shall be retained therein and used as
any other funds
therein.
Upon collection ofthe installment of principal and interest due on November 30
and May
31 of each fiscal year on the special assessments to be levied with respect to
the Improvements,
the Director of Administrative Services shall credit to the Interest Account so
much of said
special assessments as is collected as interest payment and the balance thereof
to the Principal
Account. Any installment of any special assessment paid prior to its due date with
interest
accrued thereon to the next succeeding interest payment date shall be credited
with respect to
principal and interest payments in the same manner as other assessments are credited
to the
District Fund. All money in the Interest Account and the Principal Account shall
be used first to
pay interest due, and any remaining money shall be used to pay Bonds then due and,
if money is
available, to redeem Bonds in accordance with Section 2.05; provided that any money
transferred to a Principal Account from the Construction Account pursuant to Section
3.02 shall
be applied to redeem Bonds to the extent possible on the next interest payment
date for which
notice of redemption may properly be given pursuant to Section 2.05. Redemption
of Bonds
shall be as provided in Section 2.05, and interest shall be paid as accrued thereon
to the date of
redemption, in accordance with the provisions of Section 7-12-4206 of the Act.
3.04. Loans from Revolving Fund. The Commission shall annually or more often if
necessary issue an order authorizing a loan or advance from the Revolving Fund
to the District
Fund in an amount sufficient to make good any deficiency then existing in the Interest
Account
and shall issue an order authorizing a loan or advance from the Revolving Fund
to the District
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Fund in an amount sufficient to make good any deficiency then existing in the Principal
Account
in such order and in each case to the extent that money is available in the Revolving
Fund. A
deficiency shall be deemed to exist in the Principal Account or the Interest Account
if the money
on deposit therein on any December 15 or June 15 (excluding amounts in the Principal
Account
representing prepaid special assessments) is less than the amount necessary to
pay Bonds due
(other than upon redemption), and interest on all Bonds payable, on the next succeeding
interest
payment date.
Pursuant to Ordinance No. 612, the City has undertaken and agreed to provide funds
for
the Revolving Fund by levying such tax or making such loan from the General Fund
as
authorized by Montana Code Annotated, Section 7-12-4222. In the event that the
balance on
hand in the Revolving Fund fifteen days prior to any date when interest is due
on special
improvement district bonds or warrants of the City is not sufficient to make good
all deficiencies
then existing in the special improvement district funds for which the City has
covenanted to
make loans from the Revolving Fund, the balance on hand in the Revolving Fund shall
be
allocated to the funds of the special improvement districts in which such deficiencies
then exist
in proportion to the amounts of the deficiencies on the respective dates ofreceipt
of such money,
until all interest accrued on such special improvement district bonds or warrants
of the City has
been paid. On any date when all accrued interest on special improvement district
bonds and
warrants of the City payable from funds for which the City has covenanted to make
loans from
the Revolving Fund has been paid, any balance remaining in the Revolving Fund shall
be lent or
advanced to the special improvement district funds for payment and redemption of
bonds to the
extent the special improvement district funds are deficient for such purpose, and,
if money in the
Revolving Fund is insufficient therefor, pro rata, in an amount proportionate to
the amount of
such deficiency.
Any property tax levy to be made by the City to provide funds for the Revolving
Fund is
subject to levy limits under current law. The City has agreed to levy property
taxes to provide
funds for the Revolving Fund to the extent described in the immediately preceding
paragraph
and, if necessary, to reduce other property tax levies correspondingly to meet
applicable levy
limits.
Section 4. Covenants. The City covenants and agrees with the owners from time to
time
of each of the Bonds that until all the Bonds and interest thereon are fully paid:
4.01. Compliance with Resolution. The City will hold the District Fund and the
Revolving Fund as trust funds, separate and apart from al1 of its other funds,
and the City, its
offIcers and agents, will comply with al1 covenants and agreements contained in
this resolution.
The provisions hereinabove made with respect to the District Fund and the Revolving
Fund are
in accordance with the undertaking and agreement of the City made in connection
with the
public offering of the Bonds and the sale of the Bonds as set forth in Section
1.06.
4.02. Construction of Improvements. The City will do all acts and things necessary
to
enforce the provisions ofthe construction contracts and bonds referred to in Section
1.04 and to
ensure the completion of the Improvements for the benefit of the District in accordance
with the
plans and specifications and within the time therein provided, and will pay all
costs thereof
10
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promptly as incurred and allowed, out of the District Fund and within the amount
of the proceeds
of the Bonds appropriated thereto.
4.03. Levv of Assessments. The City will do all acts and things necessary for the
final
and valid levy of special assessments upon all assessable real property within
the boundaries of
the District in accordance with the Constitution and laws of the State of Montana
and the
Constitution of the United States, in an aggregate principal amount not less than
$1,160,000.
Such special assessments shall be levied on the basis or bases prescribed in the
Resolution of
Intention, and shall be payable in equal, semiannual installments over a period
of 19 years, with
interest on the whole amount remaining unpaid at an annual rate equal to the sum
of: (i) the
average annual interest rate borne by the Bonds, plus (ii) one-half of one percent
(0.50%) per
annum, interest being payable with principal installments. The assessments to be
levied will be
payable on the 30th day of November in each ofthe years 2001 through 2019, and
on the 31 st
day of May in the years 2002 through 2020, inclusive, if not theretofore paid,
and shall become
delinquent on such date unless paid in full. The first partial payment of each
assessment shall
include interest on the entire assessment from the date of original registration
of the Bonds to
January 1, 2002 and each subsequent partial payment shall include interest for
six months on that
payment and the then remaining balance ofthe special assessment. The assessments
shall
constitute a lien upon and against the property against which they are made and
levied, which
lien may be extinguished only by payment of the assessment with all penalties,
cost and interest
as provided in Montana Code Annotated, Section 7-12-4191. No tax deed issued with
respect to
any lot or parcel ofland shall operate as payment of any installment of the assessment
thereon
which is payable after the execution of such deed, and any tax deed so issued shall
convey title
subject only to the lien of said future installments, as provided in Montana Code
Annotated,
Section 15-18-214.
4.04. Reassessment. If at any time and for whatever reason any special assessment
or
tax herein agreed to be levied is held invalid, the City and this Commission, its
officers and
employees, will take all steps necessary to correct the same and to reassess and
re-levy the same,
including the ordering of work, with the same force and effect as if made at the
time provided by
law, ordinance or resolution relating thereto, and will reassess and re-levy the
same with the
same force and effect as an original levy thereof, as authorized in Montana Code
Annotated,
Section 7-12-4186. Any special assessment, or reassessment or re-levy shall, so
far as is
practicable, be levied and collected as it would have been if the first levy had
been enforced
including the levy and collection of any interest accrued on the first levy.
If proceeds of the Bonds, including investment income thereon, are applied to the
redemption of such Bonds, as provided in Montana Code Annotated, Sections 7-12-4205
and 7-
12-4206, or if refunding bonds are issued and the principal amount of the outstanding
Bonds of
the District is decreased or increased, the City will reduce or increase, respectively,
the
assessments levied in the District and then outstanding pro rata by the principal
amount of such
prepayment or the increment above or below the outstanding principal amount of
bonds
represented by the refunding bonds. The City and this Commission, its officers
and employees
will reassess and re-levy such assessments, with the same effect as an original
levy, in such
reduced or increased amounts in accordance with the provisions of Montana Code
Annotated,
Sections 7-12-4176 through 7-12-4178.
11
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4.05. Absence of Litigation. There is now no litigation pending or, to the best
knowledge of the City, threatened questioning the validity or regularity of the
creation of the
District, the contracts for construction of the Improvements or the undertaking
and agreement of
the City to levy special assessments therefor and to make good any deficiency in
the col1ection
thereof through the levy of taxes for and the making of advances from the Revolving
Fund, or
the right and power of the City to issue the Bonds or in any manner questioning
the existence of
any condition precedent to the exercise ofthe City's powers in these matters. If
any such
litigation should be initiated or threatened, the City will forthwith notify in
writing the Purchaser,
and will furnish the Purchaser a copy of al1 documents, including pleadings, in
connection with
such litigation.
4.06. Waiver of Penal tv and Interest. The City covenants not to waive the payment
of
penalty or interest on delinquent assessments levied on property in the District
for costs of the
Improvements, unless the City determines, by resolution ofthe City Commission,
that such
waiver is in the best interest of the owners of the outstanding Bonds.
Section 5. Tax Matters.
5.01. Use ofImprovemcnts. The Improvements will be owned and operated by the City
and available for use by members of the general public on a substantial1y equal
basis. The City
shall not enter into any lease, use or other agreement with any non~governmental
person relating
to the use of the Improvements or security for the payment of the Bonds which might
cause the
Bonds to be considered "private activity bonds" or "private loan bonds" within
the meaning of
Section 141 of the Internal Revenue Code of 1986, as amended (the "Code").
5.02. General Covenant. The City covenants and agrees with the owners from time
to
time of the Bonds that it will not take or permit to be taken by any of its officers,
employees or
agents any action which would cause the interest on the Bonds to become includable
in gross
income for federal income tax purposes under the Code and applicable Treasury Regulations
applicable to the Bonds and promulgated under the Code, including, without limitation,
Treasury
Regulations (the "Regulations"), and covenants to take any and all actions within
its powers to
ensure that the interest on the Bonds wil1 not become includable in gross income
for federal
income tax purposes under the Code and the Regulations.
5.03. Arbitrage Certification. The Mayor, the City Manager, the Director of
Administrative Services and the Clerk of the Commission, being the officers ofthe
City charged
with the responsibility for issuing the Bonds pursuant to this resolution, are
authorized and
directed to execute and deliver to the Purchaser a certificate in accordance with
the 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 Bonds, it
is reasonably expected that the proceeds of the Bonds will be used in a manner
that would not
cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code and the
Regulations.
5.04. Arbitrage Rebate. The City acknowledges that the Bonds are subject to the
rebate
requirements of Section l48(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
12
such timcs as are required under said Section 1 48(f) and applicable Treasury Regulations
to
preserve the exclusion of interest on the Bonds from gross income for federal income
tax
purposes, unless the Bonds qualify for the exception trom the rebate requirement
under Section
I 48(f)(4 )( B) of the Code and no "gross proceeds" of the 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.
5.05. Information Reporting. The City shall file with the Secretary of the Treasury,
not
later than November 15, 2001, a statement concerning the Bonds containing the information
required by Section 149(e) of the Code.
5.06. "Qualified Tax-Exempt Obligations." Pursuant to Section 265(b)(3)(B)(ii)
of the
Code, the City hereby designates the Bonds as "qualified tax-exempt obligations"
for purposes of
Section 265(b)(3) of the Code. The City has not designated any obligations in 2001
other than
the Bonds under Section 265(b)(3). The City hereby represents that it does not
anticipate that
obligations bearing interest not includable in gross income for purposes of federal
income
taxation under Section 103 of the Code (including refunding obligations as provided
in Section
265(b)(3) of the Code and including "qualified 501(c)(3) Bonds" but excluding other
"private
activity bonds," as defined in Sections 141(a) and 145(a) ofthe Code) will be issued
by or on
behalf of the City and all "subordinate entities" of the City in 2001 in an amount
greater than
$10,000,000.
Section 6. Authentication of Transcript. The officers of the City are hereby authorized
and directed to furnish to the Purchaser and to bond counsel certified copies of
all proceedings
relating to the issuance of the Bonds and such other certificates and affidavits
as may be required
to show the right, power and authority of the City to issue the Bonds, and all
statements
contained in and shown by such instruments, including any heretofore furnished,
shall constitute
representations of the City as to the truth of the statements purported to be shown
thereby.
Section 7. Discharge.
7.01. Genera1. When the liability of the City on all Bonds issued under and secured
by
this resolution has been discharged as provided in this Section 7, all pledges,
covenants and other
rights granted by this resolution to the owners of such obligations shall cease.
7.02. Payment. The City may discharge its liability with reference to any Bond
or
installment of interest thereon which is due on any date by on or before that date
depositing with
the Registrar funds sufficient, or, if a City officer is the Registrar, mailing
to the registered owner
of such Bond a check or draft in a sum sufficient and providing proceeds available,
for the
payment thereof in full; or if any Bond or installment of interest thereon shall
not be paid when
due, the City may nevertheless discharge its liability with reference thereto by
depositing with
the Registrar funds sufficient, or, if a City officer is the Registrar, by mailing
to the registered
13
owner thereof a check or draft in a sum sufficient and providing proceeds available,
for the
payment thereof in full with interest accrued to the date of such deposit or mailing.
7.03. Prepayment. The City may also discharge its obligations with respect to any
Bonds
called for redemption on any date when they are prepayable according to their tenns,
by on or
before that date depositing with the Registrar funds sufficient, or, if a City
officer is the
Registrar, mailing to the registered owner of such Bond a check or a draft in a
sum sufficient and
providing proceeds available, for the payment ofthe principal, interest and redemption
premium,
if any, which are then due; provided that notice of such redemption has been duly
given as
provided herein or irrevocably provided for.
7.04. Escrow. The City may also at any time discharge its liability in its entirety
with
reference to the Bonds, subject to the provisions of law now or hereafter authorizing
and
regulating such action, by depositing irrevocably in escrow, with a bank qualified
by law as an
escrow agent for this purpose, cash or securities which are authorized by law to
be so deposited,
bearing interest payable at such times and at such rates and maturing on such dates
as shall be
required, without reinvestment, to provide funds sufficient to pay all principal
and interest to
become due on all Bonds on or before maturity or, if any Bond has been duly called
for
redemption or notice of such redemption has been irrevocably provided for, on or
before the
designated redemption date.
7.05. Irrevocable Deposits. If an officer of the City is the Registrar, any deposit
made
under this Section 7 with the Registrar shall be irrevocable and held for the benefit
of the owners
of Bonds in respect of which such deposits have been made.
Section 8. Continuing Disclosure.
(a) Purpose and Beneficiaries. To provide for the public availability of certain
infonnation relating to the Bonds and the security therefor and to permit the original
purchaser
and other participating underwriters in the primary offering of the Bonds to comply
with
amendments to Rule 15c2-12 promulgated by the Securities and Exchange Commission
(the
"SEC") under the Securities Exchange Act of 1934 (17 C.F.R. 9 240.l5c2-l2), relating
to
continuing disclosure (as in effect and interpreted ITom time to time, the "Rule"),
which will
enhance the marketability of the Bonds, the City hereby makes the following covenants
and
agreements for the benefit ofthe Owners (as hereinafter defined) from time to time
of the
Outstanding Bonds. The City is the only "obligated person" in respect of the Bonds
within the
meaning of the Rule for purposes of identifying the entities in respect of which
continuing
disclosure must be made. The City has complied in all material respects with any
undertaking
previously entered into by it under the Rule.
If the City fails to comply with any provisions ofthis Section 8, any person aggrieved
thereby, including the Owners of any Outstanding Bonds, may take whatever action
at law or in
equity may appear necessary or appropriate to enforce performance and observance
of any
agreement or covenant contained in this Section 8, including an action for a writ
of mandamus or
specific performance. Direct, indirect, consequential and punitive damages shall
not be
recoverable for any default hereunder to the extent permitted by law. Notwithstanding
anything
14
to the contrary contained herein, in no event shall a default under this Section
8 constitute a
default under the Bonds or under any other provision of this resolution.
As used in this Section 8, "Owner" or "Bondowner" means, in respect of a Bond,
the
registered owner or owners thereof appearing in the bond register maintained by
the Registrar or
any "Beneficial Owner" (as hereinafter defined) thereof, if such Beneficial Owner
provides to
the Registrar evidence of such beneficial ownership in form and substance reasonably
satisfactory to the Registrar. As used herein, "Beneficial Owner" means, in respect
of a Bond,
any person or entity which (i) has the power, directly or indirectly, to vote or
consent with
respect to, or to dispose of ownership of: such Bond (including persons or entities
holding Bonds
through nominees, depositories or other intermediaries), or (b) is treated as the
owner of the
Bond for federal income tax purposes.
(b) Information To Be Disclosed. The City will provide, in the manner set forth
in
subsection (c) hereof, either directly or indirectly through an agent designated
by the City, the
following information at the following times:
(1) on or before 270 days after the end of each fiscal year of the City, commencing
with
the fiscal year ending June 30, 2001, the following financial information and operating
data in
respect of the City (the" Disclosure Information"):
(A) the comprehensive annual financial report of the City for such
fiscal year, containing the audit report and opinion ofthe 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
of the City, noting the discrepancies therefrom and the effect thereof, and
certified as to accuracy and completeness in all material respects by the
Director of Administrative Services; and
(B) To the extent not included in the financial report referred to in
paragraph (A) hereof: the information ofthe type set forth below
contained in the official statement dated August 9,2001 (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 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):
15
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(1)
updated infonnation for the then most recent completed fIscal year in
fonnat similar to the table in the section entitled "Revolving Fund" of the
Official Statement concerning the Revolving Fund Cash Balance and
outstanding bonds secured thereby; and
(2)
updated infonnation relating to properties in the District as found in the
Official Statement to include: (i) the number of properties with
assessments outstanding, (ii) the total market valuation of properties in the
District with assessments outstanding and (iii) the amount of delinquent
assessments in the District;
(3)
updated infonnation for the then most recent completed fiscal year in
fonnat similar to the table in the section entitled "Summary of
Outstanding Special Improvement Districts" in the Official Statement
concerning other outstanding special improvement district bonds of the
City including the Bonds and any special improvement district bonds
issued after the date of the Official Statement;
(4)
updated infonnation for the then most recent completed fIscal year in
fonnat similar to the table in the section entitled "Special Assessment
Billings and Collections" of the Official Statement;
(5)
updated infonnation for the then most recent completed fiscal year in
fonnat similar to the table in the section entitled "Statement of Changes in
Fund Balance of the Revolving Fund", including the amount ofloans to
the District, if any;
(6)
the market and taxable valuations of the City for the then current fiscal
year; and
(7)
tax collection infonnation for the then most recent completed fiscal year in
format similar to the table in the section entitled "Tax Collections" in
Appendix A ofthe 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 fonnat required for the audited financial statements as part
of the Disclosure
Infonnation and, within 10 days after the receipt thereof, the City shall provide
the audited
financial statements.
Any or all of the Disclosure lnfonnation may be incorporated by reference, if it
is
updated as required hereby from other documents, including official statements,
which have been
submitted to each of the repositories hereinafter referred to under subsection
(c) or the SEC. If
the document incorporated by reference is a final Official Statement, it must be
available from
the Municipal Securities Rulemaking Board. The City shall clearly identify in the
Disclosure
Infonnation each document so incorporated by reference.
16
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If any part of the Disclosure Information can no longer be generated because the
operations of the City have materially changed or been discontinued, such Disclosure
Information need no longer be provided if the City includes in the Disclosure Information
a
statement to such effect; provided, however, if such operations have been replaced
by other City
operations in respect of which data is not included in the Disclosure Information
and the City
determines that certain specified data regarding such replacement operations would
be a Material
Fact (as defined in paragraph (3) hereof), then, from and after such determination,
the Disclosure
Information shall include such additional specified data regarding the replacement
operations.
If the Disclosure Information is changed or this Section 8 is amended as permitted
by this paragraph (b)( 1) or subsection (d), then the City shall include in the
next Disclosure
Information to be delivered hereunder, to the extent necessary, an explanation
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;
(1) Release, substitution, or sale of property securing repayment ofthe 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:
(A) the failure of the City to provide the Disclosure Information
required under paragraph (b)( 1) at the time specified thereunder;
17
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.-."., --.-..-."........
(B) the amendment or supplementing of this Section 8 pursuant to
subsection (d), together with a copy of such amendment or supplement and
any explanation provided by the City under subsection (d)(2);
(C) the termination of the obligations of the City under this Section 8
pursuant to subsection (d);
(D) any change in the accounting principles pursuant to which the financial
statements constituting a portion of the Disclosure Information are prepared; and
(E) any change in the fiscal year of the City.
(c) Manner of Disclosure. The City agrees to make available the information
described in subsection (b) to the following entities by telecopy, overnight delivery,
mail or other
means, as appropriate:
(1) the information described in paragraph (1) of subsection (b), to each then
nationally recognized municipal securities information repository under the Rule
and to any state
information depository then designated or operated by the State of Montana as contemplated
by
the Rule (the "State Depository"), if any;
(2) the information described in paragraphs (2) and (3) of subsection (b), to the
Municipal Securities Rulemaking Board and to the State Depository, if any; and
(3) the information described in subsection (b), to any rating agency then
maintaining a rating ofthe Bonds and, at the expense of such Bondowner, to any
Bondowner
who requests in writing such information, at the time of transmission under paragraphs
(1) or (2)
of this subsection (c), as the case may be, or, if such information is transmitted
with a subsequent
time of release, at the time such information is to be released.
(d) Term; Amendments; Interpretation.
(1) The covenants of the City in this Section 8 shall remain in effect so long
as
any Bonds are Outstanding. Notwithstanding the preceding sentence, however, the
obligations
of the City under this Section 8 shall terminate and be without further effect
as of any date on
which the City delivers to the Registrar an opinion of Bond Counsel to the effect
that, because of
legislative action or final judicial or administrative actions or proceedings,
the failure of the City
to comply with the requirements of this Section 8 will not cause participating
underwriters in the
primary offering of the Bonds to be in violation of the Rule or other applicable
requirements of
the Securities Exchange Act of 1934, as amended, or any statutes or laws successory
thereto or
amendatory thereof.
(2) This Section 8 and the form and requirements of the Disclosure Information
may be amended or supplemented by the City from time to time, without notice to
(except as
provided in paragraph (c)(3) hereof) or the consent ofthe Owners of any Bonds,
by a resolution
of the City Commission filed in the office of the Clerk of the Commission of the
City
accompanied by an opinion of Bond Counsel, who may rely on certificates of the
City and others
and the opinion may be subject to customary qualifications, to the effect that:
(i) such
18
amendment or supplement (a) is made in connection with a change in circumstances
that arises
trom a change in law or regulation or a change in the identity, nature or status
of the City or the
type of operations conducted by the City, or (b) is required by, or better complies
with, the
provisions of paragraph (b)(5) of the Rule; (ii) this Section 8 as so amended or
supplemented
would have complied with the requirements of paragraph (b)(5) of the Rule at the
time ofthe
primary offering of the Bonds, giving effect to any change in circumstances applicable
under
clause (i)(a) and assuming that the Rule as in effect and interpreted at the time
of the amendment
or supplement was in effect at the time of the primary offering; and (iii) such
amendment or
supplement does not materially impair the interests of the Bondowners under the
Rule.
If the Disclosure Information is so amended, the City agrees to provide,
contemporaneously with the effectiveness of such amendment, an explanation, in
narrative form,
of the reasons for the amendment and the effect, if any, of the change in the type
of financial
information or operating data being provided hereunder.
(3) This Section 8 is entered into to comply with the continuing disclosure
provisions of the Rule and should be construed so as to satisfy the requirements
of paragraph
(b)(5) of the Rule.
(e) Further Limitation of Liabilitv of City. In and to the extent the limitations
of liability
contained in subsection (a) are not effective, anything contained in this Section
8 to the contrary
notwithstanding, in making the agreements, provisions and covenants set forth in
this Section 8,
the City has not obligated itself except with respect to the assessments pledged
to pay the Bonds
and the covenant to utilize the Revolving Fund as permitted by law and described
herein. None
of the agreements or obligations of the City contained herein shall be construed
to constitute an
indebtedness of the City within the meaning of any constitutional or statutory
provisions
whatsoever or constitute a pledge ofthe general credit or taxing powers ofthe City.
Section 9. Repeals and Effective Date.
9.01. Repeal. All provisions of other resolutions and other actions and
proceedings of the City and this Commission that are in any way inconsistent with
the terms and
provisions of this resolution are repealed, amended and rescinded to the full extent
necessary to
give full force and effect to the provisions of this resolution.
19
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9.02. Effective Date. This resolution shall take effect immediately upon its
passage and adoption by this Commission.
PASSED AND ADOPTED by the City Commission of the City of Bozeman,
Montana, this 13th day of August, 2001.
~t)~
r21.:-; ~ Mayor
Attest:
Clerk of the Commission
(SEAL)
APPROVED AS TO FORM:
20
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--.." ..-."...-.-
EXHIBIT A
[Face of the Bond]
UNITED STATES OF AMERICA
ST A TE OF MONT ANA
COUNTY OF GALLATIN
CITY OF BOZEMAN
SPECIAL IMPROVEMENT
DISTRICT NO. 669 BOND
Interest at the rate per annum specified below
payable January I, 2002 and
semiannuall y thereafter
on the 1st day of January and the 1st day of July in each year.
No.
- $
Date of Original
Rate
Maturitv Issue
CUSIP
August 15,2001
REGISTERED OWNER:
PRINCIP AL AMOUNT:
DOLLARS
FOR VALUE RECEIVED, the City of Bozeman, Gallatin County, Montana, will pay to
the registered owner identified above, or registered assigns, on the maturity date
specified above
the principal amount specified above, solely ttom the revenues hereinafter specified,
as
authorized by Resolution No. 3469, adopted August 13,2001 (the "Resolution"), all
subject to
the provisions hereinafter described relating to the redemption of this Bond before
maturity.
This Bond bears interest at the rate per annum specified above ttom the date of
registration of
this Bond, as expressed herein, or from such later date to which interest hereon
has been paid or
duly provided for, until the maturity date specified above or an earlier date on
which this Bond
shall have been duly caned for redemption by the Director of Administrative Services.
Interest
on this Bond is payable semiannual1y, commencing January 1, 2002, on the first
day of January
and the first day of July in each year, to the owner of record of this Bond appearing
as such in the
bond register as of the close of business on the 15th day (whether or not such
is a business day)
of the immediately preceding month. Interest on and, upon presentation and surrender
hereof at
the principal office of the bond registrar and paying agent hereinafter named,
the principal of this
Bond are payable by check or draft of the 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 (the "Registrar"). The principal of and interest
on this Bond are
payable in lawful money of the United States of America.
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Notwithstanding any other provisions of this Bond, so long as this Bond is registered
in
the name of Cede & Co., as nominee of The Depository Trust Company, or in the name
of any
other nominee of The Depository Trust Company or other securities depository, the
Registrar
shall pay all principal of and interest on this Bond, and shall give all notices
with respect to this
Bond, only to Cede & Co. or other nominee in accordance with the operational arrangements
of
The Depository Trust Company or other securities depository as agreed to by the
City.
This Bond is one of an issue in the aggregate principal amount of $1,160,000 (the
"Bonds"), all of like date of original issue and tenor, except as to serial number,
denomination,
date, interest rate and maturity date. The Bonds are issued pursuant to and in
full conformity
with the Constitution and laws of the State of Montana thereunto enabling, including
Montana
Code Annotated, Title 7, Chapter 12, Parts 41 and 42, as amended (the "Act"), to
finance the
costs of certain local improvements (the "Improvements") for the special benefit
of property
located in Special Improvement District No. 669 of the City (the "District"). The
Bonds are
issuable only as fully registered bonds of single maturities in denominations of
$5,000 or any
integral multiple thereof.
This Bond is payable from the collection of a special tax or assessment levied
upon all
assessable real property within the boundaries of the District, in an aggregate
principal amount of
not less than $1,160,000, except as such amount may be reduced or increased in
accordance with
provisions of Montana law. Such assessments constitute a lien against the assessable
real estate
within the District and are to be deposited into the Special Improvement District
No. 669 Fund of
the City (the "District Fund"). The Bonds are not general obligations of the City.
The City has also validly established a Special Improvement District Revolving
Fund
(the "Revolving Fund") to secure the payment of certain of its special improvement
district
bonds, including the Bonds. The City has also agreed, to the extent permitted by
the Act, to
issue orders annually authorizing loans or advances from the Revolving Fund to
the District
Fund, in amounts sufficient to make good any deficiency in the District Fund to
pay principal of
or interest on the Bonds, to the extent that funds are available in the Revolving
Fund, and to
provide funds for the Revolving Fund by annually making a tax levy or loan from
its general
fund in an amount sufficient for that purpose, subject to the limitation that no
such tax levy or
loan may in any year cause the balance in the Revolving Fund to exceed five percent
of the
principal amount of the City's then outstanding special improvement district bonds
secured
thereby and the durationallimitations specified in the Act.
Any property tax levy to be made by the City to provide funds for the Revolving
Fund is subject to levy limits under current law. The City has agreed in the Bond
Resolution to
levy property taxes to provide funds for the Revolving Fund to the extent described
in the
immediately preceding paragraph and, if necessary, to reduce other property tax
levies
correspondingly to meet applicable levy limits.
The Bonds are subject to mandatory redemption in order of stated maturities and
within a stated maturity in $5,000 principal amounts selected by lot or other manner
deemed fair
by the Registrar on any interest payment date if, after paying all principal and
interest then due
on the Bonds, there are funds to the credit of the District Fund, from the prepayment
of
assessments levied in the District or from surplus proceeds of the Bonds not required
to pay costs
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of the Improvements, for the redemption thereof, and in the manner provided for
the redemption
of the same. The Bonds are subject to redemption at the option of the City from
other sources of
funds available therefor on any interest payment date; provided, however, that
the City hereby
agrees that the Bonds are not to be called for redemption before July 1, 2006,
from the proceeds
of refunding special improvement district bonds or warrants. The redemption price
is equal to
the principal amount of the Bonds or portions thereof to be redeemed plus interest
accrued
thereon to the date of redemption. The date of redemption shall be fixed by the
Director of
Administrative Services, who shall give notice by first class mail, postage prepaid,
to the owner
or owners of such Bonds at their addresses shown on the bond register, of the Bonds
or portions
thereof to be redeemed and the date on which payment will be made, which date shall
not be less
than thirty (30) days aftcr the date of mailing of notice, on which date so fixed
intercst shall
cease. On the date so fixed interest on the Bonds or portions thereof so redeemed
shall cease to
accrue. Upon partial redemption of any Bond, a new Bond or Bonds will be delivered
to the
registered owner without charge, representing the remaining principal amount outstanding.
The Bonds have been designated by the City as "qualified tax-exempt obligations"
pursuant to Section 265 of the Internal Revenue Code of 1986, as amended.
As provided in the Resolution and subject to certain limitations set forth thcrein,
this
Bond is transferable upon the books of the City at the principal office of the
Registrar, by the
registered owner hereof in person or by his attorney duly authorized in writing
upon surrender
hereof together with a written instrument of transfer satisfactory to the Registrar,
duly executed
by the registered owner or his attorney; and may also be surrendered in exchange
for Bonds of
other authorized denominations. Upon such transfer or exchange, the City will cause
a new
Bond or Bonds to be issued in the name of the transferee or registered owner, of
the same
aggregate principal amount, bcaring interest at the same rate and maturing on the
same date,
subject to reimbursement for any tax, fee or governmental charge required to be
paid with
respect to such transfer or exchange.
The City and the Registrar may deem and treat the person in whose name this Bond
is registered as the absolute owner hereof, whether this Bond is overdue or not,
for the purpose
of receiving payment and for all other purposes, and neither the City nor the Registrar
shall be
affected by any notice to the contrary.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all
things required to be done precedent to the issuance of this Bond have been properly
done,
happened and been performed in the manner prescribed by the laws of the State of
Montana and
the resolutions and ordinances of the City of Bozeman, Montana, relating to the
issuance thereof;
and that the opinion attached hereto is a true copy of the legal opinion given
by Bond Counsel
with reference to the Bonds, dated the date of original issuance and delivery of
the Bonds.
This Bond shall not be valid or become obligatory for any purpose or be entitled
to
any security or benefit under the Resolution until the Certificate of Authentication
and
Registration herein shall have been executed by the Registrar by the manual signature
of one of
its authorized representatives.
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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
ofthc Mayor,
the City Manager and the Clerk of the Commission, and by a facsimile of the official
seal of the
City.
(Facsimile Signature)
Mayor
(Facsimile Signature)
City Manager
(Facsimile Seal)
(Facsimile Signature)
Clerk of the Commission
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds delivered pursuant to the Resolution mentioned within.
ADMINISTRATIVE SERVICES DIRECTOR
OF THE CITY OF BOZEMAN,
as Bond Registrar, Transfer Agent,
and Paying Agent
By
Authorized Signature
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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. . . . . .
10 common
(Cust) (Minor)
TEN ENT --
as tenants
by the entireties
under Uniform Transfers
lT TEN --
as joint tenants
to Minors 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 Act of 1934, as amended.
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