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Resolution 5561 - Authorizing Refinancing of Sewerage System Bonds-sti..w . i�,> • ; i, 1 i 1 •.; If 1 BE IT RESOLVED by the City Council (the "Council") of the City of Kalispell, Montana (the "City"), as follows: Section 1. Recitals and Determinations. 1.01 Authorization for Outstanding Bonds. The City is authorized pursuant to Title 7, Chapter 13, Part 43, Montana Code Annotated, to establish, operate and maintain a sewer system. The City is authorized pursuant to Title 7, Chapter 7, Parts 44 and 45, Montana Code Annotated, as amended (the "Act") to issue its revenue bonds to finance in whole or in part the cost of the acquisition, purchase, construction, reconstruction, improvement, betterment or extension of its sewerage system facilities and to refund its revenue bonds issued for such purpose. Pursuant to the Act, the City has issued and currently has outstanding the following bonds payable from its water system: Sewerage System Revenue Bond (DNRC Revolving Loan Program), Series 2004, issued in the maximum principal amount of $1,543,000 (the "Series 2004 Bond"), and Sewerage System Revenue Bond (DNRC Water Pollution Control State Revolving Fund Program), Series 2007, issued in the maximum principal amount of $14,470,000 (the "Series 2007 Bond"). The Series 2004 Bond and Series 2007 Bond are payable on a parity basis from the Net Revenues of the City's Sewerage System. 1.02 Outstanding. Bonds. The Series 2004 Bond and Series 2007 Bond were issued to and are held by the Department of Natural Resources and Conservation of the State of Montana (the "DNRC"). $1,475,800 of in principal amount of the Series 2004 Bond was advanced, $1,042,000 of which is currently outstanding. All of the maximum principal amount of the Series 2007 Bond has been advanced, $13,286,000 of which is currently outstanding. It is proposed that the Series 2004 Bond and the Series 2007 Bond outstanding in the aggregate principal amount of up to $14,328,000 (collectively the "Refunded Bonds") will be refunded in one series of bonds to be issued by the City. Section 2. Authorization for New Bonds. The Council has investigated the facts necessary and hereby finds, determines and declares it to be necessary and desirable for the City to pursue the sale of Sewerage System Revenue Improvement and Refunding Bonds, Series 2012 (the "Bonds") for the following purposes: (1) to pay the costs of engineering, designing, constructing, and installing certain improvements to the sewerage system and related improvements (the "Project") and for funding certain costs incidental to the sale of bonds and to fund all or a portion of the debt service reserve securing the Bonds; and (2) to refund the Refunded Bonds, to pay costs associated with the sale and the refunding, and, if and to the extent necessary, to fund all or a portion of the debt service reserve securing the Bonds, which refunding bonds will be issued in the aggregate principal amount necessary to provide funds, with other available funds of the City, to pay the interest on and principal of the Refunded Bonds, as determined by the officers of the City identified pursuant to Section 3 and within the limitations therein established so as to maximize debt service savings, assuming that the Refunded Bonds are called for redemption as soon as reasonably practicable at a redemption price equal to the principal amount thereof plus interest accrued to the date of redemption, without premium. The portion of the Bonds to refund the Refunded Bonds is to be issued for the purpose of reducing interest costs and reducing the amount of Net Revenues necessary to pay the principal of and interest on the Refunded Bonds to provide relief to users of the sewerage system of the City. Section 3. Sale of Bonds, Bond Purchase Agreement. The Council hereby determines that it is in the best interest of City to sell the Bonds at a private, negotiated sale to D.A. Davidson & Co., of Great Falls, Montana (the "Purchaser"). The Bonds shall be sold to the Purchaser on terms and at a purchase price within the following limitations: (1) the underwriter's discount shall not exceed 0.90% of the principal amount of the Bonds, exclusive of original issue premium or discount, and any net premium amount will be paid to the City to accomplish the financing and pay costs at closing; (2) the net interest cost rate on the Bonds shall not exceed 3.25% (for comparison the average coupon rate on the Refunded Bonds 3.75%); (3) the aggregate principal amount of the Bonds shall not exceed $16,000,000, which accounts for the required amount to refund the Refunded Bonds at closing, plus an amount to pay for all or a portion of the Project, plus costs; (4) the final maturity date on the Bonds for purposes of the refunding is not later than the final maturity date of the Refunded Bonds and the final maturity date on the Bonds for purposes of financing costs of the Project is not greater than 20 years; (5) as required by Montana Code Annotated, the average annual interest rate on the Bonds, computed to their stated maturity dates and excluding any premium from the computation, is at least 3/8 of 1% (0.375%) less than the average annual interest rate on the Refunded Bonds, computed to their respective stated maturity dates; (6) the debt service payable on the Bonds allocated to the refunding is such that the net present value of debt service savings to be achieved by the refunding is not less than 3.00% of the principal amount of the Refunded Bonds, using the yield of the Bonds as the discount factor; and (7) the prior written consent of the DNRC to the prepayment of the Series 2004 Bond and the Series 2007 is obtained. All costs of issuing the Bonds (including, without limitation, underwriter's compensation, the fees and expenses of bond counsel, the fees of the Paying Agent and Registrar, the rating agency fees, the Preliminary and final Official Statement costs, the costs of printing the Bonds and any miscellaneous costs) shall be paid by the City. Notwithstanding any provision herein to the contrary, the Council may elect to issue the Bonds as refunding bonds only and not proceed to finance the Project with the Bonds. 2 The Mayor, the City Attorney/Acting City Manager and the Finance Director are hereby authorized and directed to approve the principal amounts, purchase price, maturity dates, basic and additional interest rates, original issue discount or original issue premium, and redemption provisions of or relating to the Bonds, subject to the limitations contained in the preceding paragraph. Upon approving such terms, the Mayor, the City Attorney/Acting City Manager and the Finance Director are hereby authorized and directed to approve, execute and deliver to the Purchaser a bond purchase agreement (the "Bond Purchase Agreement"), containing the agreement of the City to sell, and the agreement of the Purchaser to purchase, the Bonds on the terms so approved, and containing such other provisions as such officers shall deem necessary and appropriate. In the event of the absence or disability of any of the Mayor, the City Attorney/Acting City Manager or the Finance Director, another member of this Council shall make such approvals and execute and deliver the Bond Purchase Agreement. The execution and delivery by two appropriate officers of the City of the Bond Purchase Agreement shall be conclusive as to the approval of such officers of the terms of the Bonds and the agreement of the City to sell the Bonds on such terms in accordance with the provisions thereof. The form of the Bonds and the security therefor shall be prescribed by a subsequent resolution to be adopted by this Council. Section 4. Preliminary Official Statement. The City Attorney/Acting City Manager, the Finance Director and other officers of the City, in cooperation with the Purchaser, are hereby authorized and directed to prepare a Preliminary Official Statement to be distributed by the Purchaser to potential purchasers of the Bonds. The City Attorney/Acting City Manager and the Finance Director (or in the event of the absence or disability of either of them, a member of this Council) are hereby authorized and directed on behalf of the City to approve the Preliminary Official Statement, and to deem it a near "final" official statement as of its date in accordance with Rule 15c2-12(b)(1) promulgated by the Securities and Exchange Commssion under the Securities and Exchange Act of 1934. Section 5. Continuing Disclosure. To permit the Purchaser to comply with paragraph (b)(5) of Rule 15c2-12 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934 (the "Rule"), the Council will covenant and agree, for the benefit of the registered holders and beneficial owners from time to time of the outstanding Bonds, to provide annual reports of specified information and notice of the occurrence of certain events. A description of the undertaking will be set forth in the Preliminary Official Statement. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, THIS 7TH DAY OF MAY, 2012. Tammi Fisher ATTEST: Mayor Judi Funk Deputy City Clerk 3