H6. Reso 5817 - Water Bondssort " City of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997
Telephone (406) 758-7000 Fax - (406) 758-7758
R7ONTA NA
REPORT TO: Doug Russell, City Manager
FROM: Rick Wills, Finance Director
SUBJECT: Resolution 5817 — Authorizing Issuing Water Bonds with Montana
Department of Natural Resources and Conservation Water
Revolving Fund Program
MEETING DATE: June 5, 2017 — Regular Council Meeting
BACKGROUND: Council approved the FY2017 budget which included financing the 4`h
Avenue East Water Replacement Project by issuing bonds. The interest rate of the bonds is fixed
at 2.50% for the 20 year term. The bond agreement and closing documents require Council
action to adopt this Resolution authorizing participation in the Montana Department of Natural
Resources and Conservation Water Revolving Fund Program. Documents are provided.
RECOMMENDATION: It is recommended that the City Council, by means of Resolution
5817, authorize the City Manager to execute the necessary agreements included in this packet to
finalize this loan with the Montana Department of Natural Resources and Conservation Water
Revolving Fund Program.
FISCAL IMPACT: The debt service on the bond proceeds is fixed at 2.50%. Annual debt
service will be approximately $190,000.
ATTACHMENTS: Resolution 5817
Memorandum
To: Doug Russell, City Manager
Charlie Harball, City Attorney
City of Kalispell, Montana
From: Ben Johnson, Barnes & Thornburg LLP
Date: June 1, 2017
Re: Issuance of $2,984,000 City of Kalispell, Montana Water System Revenue Bond (DNRC
Drinking Water State Revolving Loan Program), Series 2017A
You have requested a memorandum describing and explaining the proposed issuance of the
above -referenced bond (the "Series 2017 Bond") by the City of Kalispell (the City") for the 4" Street
Water Main replacement project (the "Project"). This memorandum (the "Memo") will describe the
proposed issuance of the Series 2017 Bond (the "Transaction") and the City's role in the proposed
Transaction and certain legal considerations for the City with respect to the proposed Transaction. As
Bond Counsel to the City, we have drafted the 2017 Resolution and will work with the DNRC and City
staff in order to close the bond issue.
Background. The information under this section of the Memo is to provide background relating to the
issuance of the Series 2017 Bonds for the City Council and City staff.
The Series 2017 Bond will be issued in a single series and will be sold in a private placement
transaction to the Montana Department of Natural Resources and Conservation (the "DNRC"). The
DNRC is an agency of the State of Montana (the "State") operates a revolving loan program (the
"Program") along with the Montana Department of Environmental Quality (the "DEQ") in order to
provide capital for safe drinking water programs for municipalities in the State. The DNRC's Program is
very similar to programs run in each state to provide for cost-efficient loans to municipalities for safe
drinking water infrastructure. The DNRC's Program provides loans to various municipalities in Montana
for a 20 year term and will bear interest at a rate of 2.50% per annum. The Series 2017 Bond will be
issued as a drawdown bond which means that interest will only accrue on the portion of the Series 2017
Bond that has been advanced by the DNRC to pay costs of the Project.
Enclosed with this Memo is the form of a supplemental resolution (the "2017 Resolution") of the
City Council of the City that provides for final approval of the issuance of the Series 2017 Bond. The
2017 Resolution amends and supplements various previous resolutions of the City Council of the City
starting with Resolution No. 4273 of the City adopted on June 17,1996 (the "Original Resolution"). The
Series 2017 Bond is a special limited obligation of the City payable from the revenues of the City's water
enterprise (the "Water System"). The Series 2017 Bond is one of various water revenues bonds that the
City has issued over the years that are payable from the revenues of the City's Water System. There are
financial requirements that the City must meet that are set forth in the Original Resolution in order for the
City to issue the Series 2017 Bond in order to fund the Project and the City is able to meet such
requirements.
Leal Discussion.
The Series 2017 Bond is proposed to be issued in one series as a tax-exempt bond under both
federal and Montana law. The Series 2017 Bond is not a general or moral obligation of the City and the
full faith and credit and taxing power of the City are not pledged to the payment of the Series 2017 Bond.
The Series 2017 Bond is a special, limited _obligation -of the City payable _sole from.-the__revenues
derived, from the City's operation of its Water System.
Since the City will use the proceeds of the Series 2017 Bond to fund essential governmental
infrastructure (the Project) both Montana law and federal tax law do not require a public hearing with
respect to the issuance of the Series 2017 Bond. In addition, the Series 2017 Bond does not count against
the City's general obligation debt limit since the Series 2017 Bond is not a general obligation of the City
and no election is required because the Series 2017 Bond is payable solely from the revenues of the Water
System. We have drafted the 2017 Resolution to clearly indicate that the Series 2017 Bond is payable
solely from the revenues of the City's Water System and is not a general or moral obligation of the City.
Please note that the Original Resolution and the 2017 Resolution do contain covenants of the City that the
City will set rates and charges and operate the Water System in such a manner as to generate sufficient
funds to pay debt service on the Series 2017 Bond.
Conclusion.
As Bond Counsel to the City, we would advise the City Council to adopt the 2017 Resolution.
The proposed Transaction is an important infrastructure financing for the City and the Series 2017 Bond
is payable from the revenues of the Water System and the City has operated the Water System in such a
manner that it is able to clearly comply with the requirements under the Original Resolution for issuance
of the Series 2017 Bond.
Please do not hesitate to contact me at bjohnson@btlaw.com or (612) 367-8794 if you or any
members of the City Council have any questions regarding the proposed Transaction, this Memo, or the
Series 2017 Bond.
66139-5 (BWJ)
10370026v.1
2
CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting City Clerk of the City of Kalispell, Montana
(the "City"), hereby certify that the attached resolution is a true copy of a Resolution entitled:
"RESOLUTION RELATING TO $2,984,000 WATER SYSTEM REVENUE BONDS (DNRC
DRINKING WATER STATE REVOLVING LOAN PROGRAM), SERIES 2017A; AUTHORIZING
THE ISSUANCE AND FIXING THE TERMS AND CONDITIONS THEREOF" (the "Resolution"), on
file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City
Council of the City at a regular meeting on June 5, 2017 and that the meeting was duly held by the City
Council and was attended throughout by a quorum, pursuant to call and notice of such meeting given as
required by law; and that the Resolution has not as of the date hereof been amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the following City
Council members voted in favor thereof:
voted against the same:
abstained from voting thereon:
or were absent:
WITNESS my hand and seal officially this day of June, 2017.
City Clerk
(SEAL)
SUPPLEMENTAL RESOLUTION 5817
Relating to
$2,984,000
WATER SYSTEM REVENUE BONDS
(DNRC DRINKING WATER STATE REVOLVING LOAN PROGRAM)
SERIES 2017A
CITY OF KALISPELL, MONTANA
Adopted: June 5, 2017
TABLE OF CONTENTS
(For convenience only, not a part of this Supplemental Resolution)
Page
ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION AND APPENDICES ..........................2
SectionI.I. Definitions.............................................................................................................2
Section 1.2. Other Rules of Construction..................................................................................7
Section1.3. Appendices............................................................................................................7
ARTICLE II AUTHORIZATION, FINDINGS, REPRESENTATIONS AND COVENANTS ...........7
Section 2.1. Authorization and Findings...................................................................................7
Section2.1.1. Consent of DNRC.............................................................................................8
Section2.2. Representations.....................................................................................................8
Section2.3. Covenants............................................................................................................I I
Section 2.4. Covenants Relating to the Tax -Exempt Status of the State Bonds......................13
Section 2.5. Maintenance of System; Liens............................................................................14
Section 2.6. Maintenance of Existence; Merger, Consolidation, Etc.; Disposition of
Assets...................................................................................................................14
ARTICLE III USE OF PROCEEDS; THE 2017 PROJECT.................................................................15
Section3.1. Use of Proceeds...................................................................................................15
Section 3.2. The 2017 Project.................................................................................................15
Section 3.3. 2017 Project Representations and Covenants......................................................16
Section 3.4. Completion or Cancellation or Reduction of Costs of the 2017 Project .............16
ARTICLE IV THE LOAN.....................................................................................................................17
Section 4.1.
The Loan; Disbursement of Loan........................................................................17
Section 4.2.
Commencement of Loan Term............................................................................19
Section 4.3.
Termination of Loan Term..................................................................................19
Section 4.4.
Loan Closing Submissions..................................................................................19
ARTICLE V REPAYMENT OF 2017A LOAN..................................................................................19
Section 5.1. Repayment of 2017A Loan.................................................................................19
Section 5.1.1. Interest and Surcharges...................................................................................19
Section 5.1.2. Repayment of 2017A Loan.............................................................................20
Section 5.1.3. Details Regarding 2017A Loan Repayments
.................................................20
Section 5.2. Additional Payments...........................................................................................20
Section5.3. Prepayments........................................................................................................21
Section 5.4. Obligations of Borrower Unconditional..............................................................21
Section 5.5. Limited Liability..................................................................................................21
ARTICLE VI INDEMNIFICATION OF DNRC AND DEQ...............................................................21
1
ARTICLE VII ASSIGNMENT...............................................................................................................22
Section 7.1.
Assignment by Borrower
.....................................................................................22
Section 7.2.
Assignment by DNRC.........................................................................................22
Section 7.3.
State Refunding Bonds........................................................................................22
ARTICLE VIII THE SERIES 2017A BOND..........................................................................................22
Section 8.1.
Net Revenues Available......................................................................................22
Section 8.2.
Issuance and Sale of the Series 2017A Bond
......................................................22
Section8.3.
Terms...................................................................................................................22
Section 8.4.
Negotiability, Transfer and Registration.............................................................23
Section 8.5.
Execution and Delivery.......................................................................................23
Section8.6.
Form....................................................................................................................23
ARTICLE IX SECURITY FOR THE SERIES 2017A BOND AND DECREASE IN AMOUNTS
IN THE RESERVE ACCOUNT ALLOCABLE TO THE AMENDED BONDS...................................23
ARTICLE X TAX MATTERS.............................................................................................................24
Section 10.1.
Use of 2017 Project and System
..........................................................................24
Section10.2.
General Covenant................................................................................................24
Section 10.3.
Arbitrage Certification.........................................................................................24
Section10.4.
Arbitrage Rebate..................................................................................................24
Section 10.5.
Information Reporting.........................................................................................25
ARTICLE XI CONTINUING DISCLOSURE......................................................................................25
ARTICLE XII MISCELLANEOUS.......................................................................................................25
Section12.1.
Notices.................................................................................................................25
Section 12.2.
Binding Effect....................................................................................................26
Section12.3.
Severability..........................................................................................................26
Section12.4.
Amendments........................................................................................................26
Section12.5.
Applicable Law...................................................................................................26
Section 12.6.
Captions; References to Sections........................................................................26
Section 12.7.
No Liability of Individual Officers, Directors, Trustees or Council
Members..............................................................................................................26
Section 12.8.
Payments Due on Holidays.................................................................................26
Section 12.9.
Right of Others to Perform Borrower's Covenants.............................................26
Section 12.10.
Authentication of Transcript................................................................................27
Section 12.11.
Repeals and Effective Date.................................................................................27
APPENDIX A Description of the 2017 Project.............................................................................. A-1
APPENDIX B Form of Series 2017A Bond...................................................................................B-1
APPENDIX C Additional Agreements, Representations and Covenants ...................................... C-1
APPENDIX D Compliance Certificate and Request...................................................................... D-1
ii
RESOLUTION NO. 5817
RESOLUTION RELATING TO $2,984,000 WATER SYSTEM REVENUE BONDS
(DNRC DRINKING WATER STATE REVOLVING LOAN PROGRAM), SERIES
2017A; AUTHORIZING THE ISSUANCE AND FIXING THE TERMS AND
CONDITIONS THEREOF
RECITALS:
WHEREAS, pursuant to the Drinking Water State Revolving Fund Act, Montana Code Annotated,
Title 75, Chapter 5, Part 11, as amended (the "State Act"), the State of Montana (the "State") has established
a revolving loan program (the "Program") to be administered by the Department of Natural Resources and
Conservation of the State of Montana, an agency of the State (the "DNRC"), and by the Department of
Environmental Quality of the State of Montana, an agency of the State (the "DEQ"), and has provided that
a Drinking Water state revolving fund (the "Revolving Fund") be created within the state treasury and all
federal, state and other funds for use in the Program be deposited into the Revolving Fund, including, but
not limited to, all federal grants for capitalization of a state Drinking Water revolving fund under the Federal
Drinking Water Act (the "Safe Drinking Water Act"), all repayments of assistance awarded from the
Revolving Fund, interest on investments made on money in the Revolving Fund and payments of principal
of and interest on loans made from the Revolving Fund; and
WHEREAS, the Act provides that funds from the Program shall be disbursed and administered for
the purposes set forth in the Safe Drinking Water Act and according to rules adopted by the DEQ and the
DNRC; and
WHEREAS, the City of Kalispell, Montana (the `Borrower" or the "City"), has applied to the
DNRC for the 2017A Loan (as hereinafter defined) from the Revolving Fund to enable the Borrower to
finance, refinance or reimburse itself for a portion of the costs of the 2017 Project (as hereinafter defined)
which will carry out the purposes of the Safe Drinking Water Act and to pay costs of issuance of the Series
2017 Bonds (as hereinafter defined); and
WHEREAS, the DNRC offered to make a loan in the aggregate principal amount of $2,984,000
available to the Borrower; and
WHEREAS, the Borrower contemplates issuing its Water System Revenue Bonds (DNRC
Drinking Water State Revolving Loan Program), Series 2017A (the "Series 2017A Bond"), in the aggregate
principal amount of $2,984,000; and
WHEREAS, the Borrower is authorized under applicable laws, ordinances and regulations to adopt
this Supplemental Resolution and to issue the Series 2017A Bond to evidence the 2017 Loan for the
purposes set forth herein; and
WHEREAS, the DNRC will fund the 2017A Loan entirely from proceeds of the EPA Capitalization
Grant (hereinafter defined) and DNRC's 2016 BAN (hereinafter defined).
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF KALISPELL,
MONTANA, AS FOLLOWS:
ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION AND APPENDICES
Section 1.1. Definitions. In this Resolution, unless a different meaning clearly appears from the
context, the following terms shall have the following meanings:
"Accountant" or "Accountants" means an independent certified public accountant or a firm of
independent certified public accountants satisfactory to the DNRC.
"Act" means (i) with respect to the Borrower, the Enabling Act, and (ii) with respect to the DNRC,
the State Act, as amended from time to time.
"Additional Bonds" means any bonds issued as parity bonds pursuant to Section 6.01 of the
Original Resolution.
"Administrative Expense Surcharge" means a surcharge equal to seventy-five hundredths of one
percent (0.75%) per annum on the outstanding principal amount of the 2017A Loan from the date of each
advance thereof, payable by the Borrower on a Payment Date.
"Amended Bonds" means the Amended Series 2001 Bond, the Amended Series 2007A Bond, and
the Amended Series 2007B Bond.
"Amended Series 2001 Bond" means the City's First Amended and Restated Water System
Revenue Refunding Bond (DNRC Drinking Water State Revolving Loan Program), Series 2001, amended
pursuant to Resolution No. 5576, adopted by the City Council of the Borrower on August 20, 2012, in the
principal amount of $404,000 and delivered to DNRC.
"Amended Series 2007A Bond" means the City's First Amended and Restated Water System
Revenue Refunding Bond (DNRC Drinking Water State Revolving Loan Program), Series 2007A,
amended pursuant to Resolution No. 5576, adopted by the City Council of the Borrower on August 20,
2012, in the principal amount of $526,000 and delivered to DNRC.
"Amended Series 2007B Bond" means the City's First Amended and Restated Water System
Revenue Bond (DNRC Drinking Water State Revolving Loan Program), Series 2007B, amended pursuant
to Resolution No. 5576, adopted by the City Council of the Borrower on August 20, 2012, in the principal
amount of $1,340,000 and delivered to DNRC.
"Amended Resolutions" means Resolution Nos. 4603, 5202, and 5238 adopted by the City Council
on March 5, 2001, June 4, 2007, and September 4, 2007, respectively.
"Authorized DNRC Officer' means the Director or Deputy Director of the DNRC, and, when used
with reference to an act or document, also means any other individual authorized by resolution of the DNRC
to perform such act or sign such document. If authorized by the DNRC, an Authorized DNRC Officer may
delegate all or a portion of his authority as an Authorized DNRC Officer to another individual, and such
individual shall be deemed an Authorized DNRC Officer for purposes of exercising such authority.
"Bond Counsel" means any Counsel nationally recognized as experienced in matters relating to the
issuance by states or political subdivisions of tax-exempt obligations selected by the Borrower and
acceptable to the DNRC.
"Bonds" means the Amended Bonds and the Series 2017A Bond and any additional bonds to be
issued on a parity therewith pursuant to the Original Resolution.
"Borrower" or "City" means the City of Kalispell, Montana, or any permitted successor or assign.
"Business Day" means any day which is not a Saturday or Sunday, a legal holiday in the State or a
day on which banks in the State are authorized or required by law to close.
"Closing" means the date of delivery of the Series 2017A Bond to the DNRC.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Documents" means any security agreement, guaranty or other document or agreement
delivered to the DNRC securing the obligations of the Borrower under this Supplemental Resolution and
the Series 2017A Bond. If no Collateral Documents secure such obligations, any reference to Collateral
Documents in this Supplemental Resolution shall be without effect.
"Committed Amount" means the aggregate amount of the 2017A Loan committed to be lent by the
DNRC to the Borrower pursuant to Section 4.1 of this Supplemental Resolution, as such amount may be
reduced pursuant to Sections 3.2 and 3.4 of this Supplemental Resolution.
"Compliance Certificate and Request" means the certificate and request substantially in the form
of the attached Appendix D delivered by the DNRC to the Borrower following the final advance of principal
of the 2017A Loan, to be completed, executed and delivered by the Borrower to the DNRC pursuant to
Section 5.1.2 of this Supplemental Resolution.
"Construction Account" means the account created in the Water System Fund pursuant to Section
7.02 of the Original Resolution.
"Consultant" means a nationally recognized consultant or firm of consultants, or an independent
engineer or firm of independent engineers, or an Accountant, which in any case is qualified and has skill
and experience in the preparation of financial feasibility studies or projections for facilities similar to the
System or the 2017 Project, selected by the Borrower and satisfactory to the DNRC.
"Council" means the City Council of the Borrower.
"Counsel" means an attorney duly admitted to practice law before the highest court of any state
and satisfactory to the DNRC.
"Debt" means, without duplication, in respect of the System, (1) indebtedness of the Borrower for
borrowed money or for the deferred purchase price of property or services; (2) the obligation of the
Borrower as lessee under leases which should be recorded as capital leases under generally accepted
accounting principles; and (3) obligations of the Borrower under direct or indirect guarantees in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (1) or (2)
above.
"Debt Service Account" means the account created in the Water System Fund pursuant to Section
7.04 of the Original Resolution.
"DEQ" means the Department of Environmental Quality of the State of Montana, an agency of the
State, or any successor to its powers, duties and obligations under the Act or the EPA Agreements.
"DNRC" means the Department of Natural Resources and Conservation of the State of Montana,
an agency of the State, and any successor to its powers, duties and obligations under the State Act.
"Enabling Act" means Montana Code Annotated, Title 7, Chapter 7, Parts 44 and 45, as amended
form time to time, which authorizes the Borrower to own and operate the System, to undertake the 2017
Project and to issue the Series 2017A Bond to finance costs of the 2017 Project.
"EPA" means the Environmental Protection Agency, an agency of the United States of America,
and any successor to its functions under the Safe Drinking Water Act.
"EPA Agreements" means all capitalization grant agreements and other written agreements
between the DEQ, the DNRC and the EPA concerning the Program.
"EPA Capitalization Grant" means the grant of funds to the State by the EPA under Section 1452
of the Safe Drinking Water Act.
"Fund" or "Water System Fund" means the Water System Fund established pursuant to Section
7.01 of the Original Resolution.
"Government Obligations" means direct obligations of, or obligations the principal of and the
interest on which are fully and unconditionally guaranteed as to payment by, the United States of America.
"Governmental Unit" means governmental unit as such term is used in Section 145(a) of the Code.
"Indenture" means the Indenture of Trust, dated as of May 1, 1998, between the Board of
Examiners of the State and the Trustee, as such may be supplemented or amended from time to time in
accordance with the provisions thereof, pursuant to which, among other things, the State Bonds are to be
or have been issued.
"Loan Loss Reserve Surcharge" means a surcharge equal to one percent (1.00%) per annum on the
outstanding principal amount of the 2017A Loan from the date of each advance thereof, payable by the
Borrower on a Payment Date.
"Loan Term" means that period of time commencing and ending as set in Sections 4.2 and 4.3 of
this Supplemental Resolution.
"Net Revenues" means the gross revenues of the System remaining after the payment of operating
expenses of the System as more fully described in the Original Resolution and this Supplemental
Resolution.
"Operating Account" means the account created in the Water System Fund pursuant to Section 7.03
of the Original Resolution.
"Opinion of Bond Counsel" means a written opinion of Bond Counsel.
"Original Resolution" means Resolution No. 4273, adopted by the Council on June 17, 1996, as
amended and supplemented by Resolution Nos. 4603, 4892, 5205, 5238, and 5576 adopted by the Council
on March 5, 2001, May 17, 2004, June 4, 2007, September 4, 2007, and August 20, 2012, respectively.
4
"Payment Date" means, with respect the 2017A Loan, each January 1 and July 1 during the term
of the Series 2017A Bond on which a payment of interest or principal and interest is due, as determined
under this Supplemental Resolution.
"Person" means any Private Person or Public Entity.
"Private Person" means an individual, corporation, partnership, association, joint venture, limited
liability company, limited liability partnership, association, joint stock company, trust, or unincorporated
organization, except a Public Entity.
"Program" means the Drinking Water State Revolving Fund Program established by the State Act.
"Public Entity" means a State agency, municipality, city, town, county, irrigation district, county
water and sewer district, a soil conservation district, or other public body established by State law or an
Indian tribe that has a federally recognized governing body carrying out substantial governmental duties
and powers over any area.
"Rebate Account" means the account created in the Water System Fund pursuant to Section 7.09
of the Original Resolution.
"Recycled Money" means payments and prepayments of principal of loans made under the
Program, and any other amounts transferred to the Principal Subaccount in the Revenue Subaccount in the
State Allocation Account (as such terms are defined in the Indenture).
"Registrar" means, with respect to the Series 2017A Bond, the Finance Director or any successor
appointed pursuant to this Supplemental Resolution, and, with respect to any other series of Bonds, the
Person or Persons designated by or pursuant to this Supplemental Resolution or a future supplemental
resolution to receive and disburse the principal of, premium, if any, and interest on the Bonds on behalf of
the Borrower and to hold and maintain the Bond Register.
"Regulations" means the Treasury Department, Income Tax Regulations, as amended or any
successor regulation thereto, promulgated under the Code or otherwise applicable to the Series 2017A
Bond.
"Repair and Replacement Account" means the account created in the Water System Fund pursuant
to Section 7.07 of the Original Resolution.
"Reserve Account" means the account created in the Water System Fund pursuant to Section 7.05
of the Original Resolution.
"Reserve Requirement" means, as of the date of calculation, an amount equal to one-half the sum
of the highest amount of principal and interest payable on all outstanding Bonds in any one future fiscal
year (giving effect to mandatory sinking fund redemption, if any).
"Resolution" means the Original Resolution, as amended and supplemented by this Supplemental
Resolution and any other future supplemental resolutions.
"Revolving Fund" shall have the meaning set forth in the recitals hereof.
"Safe Drinking Water Act" means Title XIV of the Public Health Service Act, commonly known
as the Safe Drinking Water Act, 42 U.S.C. §§300f et seq., as amended, and all regulations, rules and
interpretations issued by the EPA thereunder.
"Series 2004 Bonds" means the $1,840,000 Water System Revenue and Refunding Bonds, Series
2004, issued by the Borrower.
"Series 2017A Bond" means the $2,984,000 Water System Revenue Bond (DNRC Drinking Water
State Revolving Loan Program), Series 2017A, issued to the DNRC to evidence the 2017A Loan.
"State" means the State of Montana.
"State Act" means Montana Code Annotated, Title 75, Chapter 5, Part 11, as amended from time
to time.
"State Bonds" means the State's General Obligation Bonds (Drinking Water State Revolving Fund
Program), issued or to be issued pursuant to the Indenture.
"Supplemental Resolution" means this resolution of the Borrower adopted on June 5, 2017.
"Surplus Account" means the account created in the Water System Fund pursuant to Section 7.08
of the Original Resolution.
"Surplus Net Revenues" means that portion of the Net Revenues in excess of the current
requirements of the Operating Account, the Debt Service Account and the Reserve Account.
"System" means the existing water system of the Borrower and all extensions, improvements and
betterments thereof hereafter constructed and acquired, including the 2017 Project.
"Trustee" means U.S. Bank National Association, in Seattle, Washington or any successor trustee
under the Indenture.
"2016 BAN" means the Bond Anticipation Notes, Series 2016, issued by the Montana Board of
Investments for the benefit of DNRC.
"2017 Project" means the costs of the facilities, improvements and activities financed, refinanced
or the cost of which is being reimbursed to the Borrower with proceeds of the 2017A Loan as described in
Appendix A hereto.
"2017A First Advance" means the first advance of funds of the 2017A Loan by the DNRC to the
Borrower in an amount of at least $50,001.
"2017A Loan" or "Loan" means the 2017A Loan made to the Borrower by the DNRC pursuant to
the Program in the maximum amount of the Committed Amount to provide funds to pay costs of the 2017
Project and to pay costs of issuance of the Series 2017A Bond.
"Undisbursed Committed Amount" means any undisbursed Committed Amount which is not
required to pay costs of the 2017 Project as provided in Section 3.4 in this Supplemental Resolution.
Section 1.2. Other Rules of Construction. For all purposes of this Supplemental Resolution,
except where the context clearly indicates otherwise:
(a) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted government accounting standards.
(b) Terms in the singular include the plural and vice versa.
(c) All references to time shall refer to Kalispell, Montana time, unless otherwise
provided herein.
(d) All references to mail shall refer to first-class mail postage prepaid.
(e) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders.
(f) "Or" is not exclusive, but is intended to permit or encompass one, more or all of
the alternatives conjoined.
Section 1.3. Appendices. Attached to this Supplemental Resolution and hereby made a part
hereof are the following Appendices:
Appendix A: a description of and estimated budget for the 2017 Project;
Appendix B: the form of the Series 2017A Bond;
Appendix C: additional agreements and representations of the Borrower; and
Appendix D: Compliance Certificate and Request.
ARTICLE II
AUTHORIZATION, FINDINGS, REPRESENTATIONS AND COVENANTS
Section 2.1. Authorization and Findings.
(a) Authorization. Under the provisions of the Enabling Act, the Borrower is authorized to
issue and sell its revenue bonds payable during a term not exceeding forty years from their date of issue, to
provide funds for the reconstruction, improvement, betterment and extension of the System or to refund its
revenue bonds issued for such purpose; provided that the bonds and the interest thereon are to be payable
solely out of the net income and revenues to be derived from rates, fees and charges for the services,
facilities and commodities furnished by the undertaking, and are not to create any general obligation for the
payment of which taxes may be levied except to pay for services provided by the undertaking to the
Borrower.
(b) The System. The Borrower, pursuant to the Enabling Act and other laws of the State, has
established and presently owns and operates the System.
(c) The 2017 Project. After investigation of the facts and as authorized by the Enabling Act,
this Council has determined it to be necessary and desirable and in the best interests of the Borrower to
acquire and construct the 2017 Project.
(d) Outstanding Bonds. Pursuant to the Enabling Act and the Original Resolution, the
Borrower has previously issued, and has outstanding, the Amended Bonds. The Amended Bonds are
payable from Net Revenues of the System. No other bonds or indebtedness are outstanding that are payable
from or secured by revenues of the System.
(e) Additional Parity Bonds and Amendment to Section 6.01 of the Original Resolution. The
Borrower reserved the right under Section 6.01 of the Original Resolution to issue Additional Bonds
payable from the Debt Service Account of the Fund on a parity as to both principal and interest with the
outstanding Bonds if certain conditions are complied with by the Borrower. In no event shall any additional
Bonds be issued and made payable from the Debt Service Account if the Borrower is then in default in any
payment of principal of or interest on any outstanding Bonds payable therefrom, or if there then exists any
deficiency in the balances required by the Original Resolution to be maintained in any of the accounts of
the Fund, which will not be cured or restored upon the issuance of the additional Bonds. Based on a
certificate executed or to be executed by the Mayor, City Clerk and City Manager, or either of them, it is
hereby determined that the Borrower is authorized to issue $2,984,000 in aggregate principal amount of
additional Bonds pursuant to Section 6.01 of the Original Resolution payable from and secured by the Net
Revenues on a parity with the outstanding Amended Bonds.
From and after such time as the Series 2004 Bonds are no longer outstanding, the provisions of this
Section 2.1(e) hereby amend all of the Resolutions for the Bonds such that the provisions of this Section
2.1(e) apply to the issuance of Additional Bonds going forward for the Borrower and the required debt
service coverage ratio is reduced from 125% to 110% for all Additional Bonds to be issued by the Borrower
in the future. In addition, Section 6.01(D) is amended such that a report of an Independent Consultant shall
now be a certificate signed by the City Finance Officer or City Manager.
For purposes of the foregoing certificate, principal of and interest on the 2017A Loan are
disregarded. The Borrower acknowledges and agrees that if it fails to deliver timely an acceptable
Compliance Certificate and Request as provided in Section 5.1 of this Supplemental Resolution as
determined in the sole and complete discretion of the DNRC, then principal and interest and surcharges
will become due and owing on the Series 2017A Bond as provided in Section 5.1 of this Supplemental
Resolution, and the Borrower shall thereupon, and in any event no later than three (3) months after delivery
of a Noncompliance Statement, to the extent required by the Original Resolution adjust its schedule of fees,
rates, and charges applicable to the System to cause Net Revenues and Surplus Net Revenues to be produced
in an amount at least equal to that required by the Resolution.
Section 2.1.1. Consent of DNRC. The DNRC has agreed to the amendment of certain provisions
of the Original Resolution in connection with the amendment to 6.01 of the Original Resolution relating to
Additional Bonds and Subordinate Obligations.
Section 2.2. Representations. The Borrower represents as follows:
(a) Organization and Authority. The Borrower:
(i) is duly organized and validly existing as a municipal corporation and political
subdivision of the State;
(ii) has all requisite power and authority and all necessary licenses and permits
required as of the date hereof to own and operate the System and to carry on its current activities
with respect to the System, to adopt this Supplemental Resolution and to enter into the Collateral
Documents and to issue the Series 2017A Bond and to carry out and consummate all transactions
contemplated by this Supplemental Resolution, the Series 2017A Bond and the Collateral
Documents;
(iii) is a Governmental Unit and a Public Entity; and
(iv) has taken all proper action to authorize the execution, delivery and performance of
its obligations under this Supplemental Resolution, the Series 2017A Bond and the Collateral
Documents and the incurrence of the Debt evidenced by the Series 2017A Bond in the maximum
amount of the Committed Amount.
(b) Pending Litigation. There is no litigation or proceeding pending or, to the knowledge of
the Borrower, threatened against or affecting the Borrower in any court or before or by any governmental
authority or arbitration board or tribunal that, if adversely determined, would materially and adversely affect
the existence, corporate or otherwise, of the Borrower, or the ability of the Borrower to make all payments
and otherwise perform its obligations under this Supplemental Resolution, the Series 2017A Bond and the
Collateral Documents, or the financial condition of the Borrower, or the transactions contemplated by this
Supplemental Resolution, the Series 2017A Bond and the Collateral Documents or the validity and
enforceability of this Supplemental Resolution, the Series 2017A Bond and the Collateral Documents. If
any such litigation should be initiated or threatened, the Borrower will forthwith notify in writing the
DNRC, and will furnish the DNRC a copy of all documents, including pleadings, in connection with such
litigation. No referendum petition has been filed with respect to any resolution or other action of the
Borrower relating to the 2017 Project, the Series 2017A Bond or any Collateral Documents.
(c) Borrowing Legal and Authorized. The adoption of this Supplemental Resolution, the
execution and delivery of the Series 2017A Bond and the Collateral Documents and the consummation of
the transactions provided for in this Supplemental Resolution, the Series 2017A Bond and the Collateral
Documents and compliance by the Borrower with the provisions of this Supplemental Resolution, the Series
2017A Bond and the Collateral Documents, to the knowledge of the Borrower:
(i) are within the powers of the Borrower and have been duly authorized by all
necessary action on the part of the Borrower; and
(ii) do not and will not result in any breach of any of the terms, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Borrower pursuant to any ordinance, resolution,
indenture, loan agreement or other agreement or instrument (other than this Supplemental
Resolution and any Collateral Documents) to which the Borrower is a party or by which the
Borrower or its property may be bound, nor will such action result in any violation of the provisions
of any charter or similar document, if applicable, any laws, ordinances, governmental rules or
regulations or court or other governmental orders to which the Borrower, its properties or
operations are subject.
(d) No Defaults. To the knowledge of the Borrower, no event has occurred and no condition
exists that, upon execution and delivery of the Series 2017A Bond and the Collateral Documents, would
constitute a default under this Supplemental Resolution or the Collateral Documents. To the knowledge of
the Borrower, the Borrower is not in material violation of any term of any agreement, bond resolution, trust
indenture, charter or other instrument to which it is a party or by which it or its property may be bound
which violation would materially and adversely affect the transactions contemplated hereby or the
compliance by the Borrower with the terms hereof or of the Series 2017A Bond and the Collateral
Documents.
(e) Governmental Consent. To the knowledge of the Borrower, the Borrower has obtained or
made all permits, findings and approvals required to the date of adoption of this Supplemental Resolution
by any governmental body or officer for the making and performance by the Borrower of its obligations
under this Supplemental Resolution, the Series 2017A Bond and the Collateral Documents (including any
necessary water rate increase) or for the 2017 Project, the financing or refinancing thereof or the
reimbursement of the Borrower for costs thereof. To the knowledge of the Borrower, no consent, approval
or authorization of, or filing, registration or qualification with, any governmental authority (other than
those, if any, already obtained) is required on the part of the Borrower as a condition to adopting this
Supplemental Resolution, issuing the Series 2017A Bond or entering into the Collateral Documents and the
performance of the Borrower's obligations hereunder and thereunder. If a utility board or commission
manages or controls the System, such board or commission has agreed with the DNRC to abide by the
terms of this Supplemental Resolution and the Collateral Documents, including approving any necessary
water rate increases.
(f) Binding Obligation. This Supplemental Resolution, the Series 2017A Bond and any
Collateral Documents to which the Borrower is a party are the valid and binding special, limited obligations
and agreements of the Borrower, enforceable against the Borrower in accordance with their terms except
to the extent that the enforceability thereof may be limited by laws relating to bankruptcy, moratorium,
reorganization, insolvency or similar laws affecting creditors' rights and general principles of equity.
(g) The 2017 Project. The 2017 Project consists and will consist of the facilities,
improvements and activities described in Appendix A, as such Appendix A may be amended from time to
time in accordance with Article III of this Supplemental Resolution. The 2017 Project comprises facilities
of a type that, as determined by the EPA, will facilitate compliance with the national primary Drinking
Water regulations applicable to the System or will otherwise significantly further the health protection
objectives of the Safe Drinking Water Act.
(h) The System. The System is a "community water system" within the meaning of the Act
and the Safe Drinking Water Act in that it is a public water system, comprising collection, treatment, storage
and distribution facilities for the provision to the public of water for human consumption, that serves not
less than 15 service connections used by year-round residents of the area served by the System or regularly
serves not less than 25 year-round residents.
(i) Full Disclosure. There is no fact that the Borrower has not specifically disclosed in writing
to the DNRC that materially and adversely affects or (so far as the Borrower can now foresee), except for
pending or proposed legislation or regulations that are a matter of general public information, that will
materially and adversely affect the properties, operations and finances of the System, the Borrower's status
as a Public Entity and Governmental Unit, its ability to own and operate the System in the manner currently
operated or the Borrower's ability to perform its obligations under this Supplemental Resolution, the Series
2017A Bond and the Collateral Documents and to pledge any revenues or other property pledged to the
payment of the Series 2017A Bond.
0) Compliance With Law. To the knowledge of the Borrower, it:
(i) is in compliance with all laws, ordinances, governmental rules and regulations and
court or other governmental orders, judgments and decrees to which it is subject and which are
material to the properties, operations and finances of the System or its status as a Public Entity and
Governmental Unit; and
(ii) has obtained all licenses, permits, franchises or other governmental authorizations
necessary to the ownership of the System and the operation thereof and agrees to obtain all such
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licenses, permits, franchises or other governmental authorizations as may be required in the future
for the System and the operation thereof, which failure to obtain might materially and adversely
affect the ability of the Borrower to conduct the operation of the System as presently conducted or
the condition (financial or otherwise) of the System or the Borrower's ability to perform its
obligations under this Supplemental Resolution, the Series 2017A Bond and the Collateral
Documents.
Section 2.3. Covenants.
(a) Insurance. In addition to the requirements of the Original Resolution, the Borrower at all
times shall keep and maintain with respect to the System property and casualty insurance and liability
insurance with financially sound and reputable insurers, or self- insurance as authorized by State law,
against such risks and in such amounts, and with such deductible provisions, as are customary in the State
in the case of entities of the same size and type as the Borrower and similarly situated and shall carry and
maintain, or cause to be carried and maintained, and pay or cause to be paid timely the premiums for all
such insurance. All such insurance policies shall name the DNRC as an additional insured to the extent
permitted under the policy or program of insurance or risk coverage of the Borrower. Each policy must
provide that it cannot be cancelled by the insurer without giving the Borrower and the DNRC 30 days prior
written notice. The Borrower shall give the DNRC prompt notice of each insurance policy it obtains or
maintains to comply with this section and of each renewal, replacement, change in coverage or deductible
under or amount of or cancellation of each such insurance policy and the amount and coverage and
deductibles and carrier of each new or replacement policy. Such notice shall specifically note any adverse
change as being an adverse change. The Borrower shall deliver to the DNRC at Closing a certificate
providing the information required by this section. To the extent that the Borrower has risk coverage from
the Montana Municipal Interlocal Authority ("MMIA") and includes the System on the Borrower's
schedule of property to be coverage by MMIA, then such risk coverage shall be deemed to be acceptable
insurance for the DNRC.
(b) Right of Inspection and Notice of Change of Location. The DNRC, the DEQ and the EPA
and their designated agents shall have the right at all reasonable times during normal business hours and
upon reasonable notice to enter into and upon the property of the Borrower for the purpose of inspecting
the System or any or all books and records of the Borrower relating to the System.
(c) Further Assurance. The Borrower shall execute and deliver to the DNRC all such
documents and instruments and do all such other acts and things as may be necessary or required by the
DNRC to enable the DNRC to exercise and enforce its rights under this Supplemental Resolution, the Series
2017A Bond and the Collateral Documents and to realize thereon, and record and file and re-record and
refile all such documents and instruments, at such time or times, in such manner and at such place or places,
all as may be necessary or required by the DNRC to validate, preserve and protect the position of the DNRC
under this Supplemental Resolution, the Series 2017A Bond and the Collateral Documents.
(d) Maintenance of Security; Recordation of Interest.
(i) The Borrower shall, at its expense, take all necessary action to maintain and
preserve the lien and security interest of this Supplemental Resolution and the Collateral
Documents so long as any amount is owing under this Supplemental Resolution or the Series 2017A
Bond;
(ii) The Borrower shall forthwith, after the execution and delivery of the Series 2017A
Bond and thereafter from time to time, cause this Supplemental Resolution and any Collateral
Documents granting a security interest in revenues or real or personal property and any financing
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statements or other notices or documents relating thereto to be filed, registered and recorded in such
manner and in such places as may be required by law in order to perfect and protect fully the lien
and security interest hereof and thereof and the security interest in them granted by this
Supplemental Resolution and, from time to time, shall perform or cause to be performed any other
act required by law, including executing or causing to be executed any and all required continuation
statements and shall execute or cause to be executed any further instruments that may be requested
by the DNRC for such perfection and protection; and
(iii) Except to the extent it is exempt therefrom, the Borrower shall pay or cause to be
paid all filing, registration and recording fees incident to such filing, registration and recording, and
all expenses incident to the preparation, execution and acknowledgment of the documents described
in subparagraph (ii), and all federal or state fees and other similar fees, duties, imposts, assessments
and charges arising out of or in connection with the execution and delivery of the Series 2017A
Bond and the Collateral Documents and the documents described in subparagraph (ii).
(e) Additional Agreements. The Borrower covenants to comply with all representations,
covenants, conditions and agreements, if any, set forth in Appendix C hereto.
(f) Financial Information. This Section 2.3(f) supplements, and is not intended to limit, the
requirements in the Original Resolution. The Borrower agrees that for each fiscal year it shall furnish to
the DNRC and the DEQ, promptly when:
(i) the preliminary budget for the System, with items for the 2017 Project shown
separately; and
(ii) when adopted, the final budget for the System, with items for the 2017 Project
shown separately.
(g) Project Accounts. The Borrower shall maintain Project accounts in accordance with
generally accepted government accounting standards.
(h) Records. After reasonable notice from the EPA or the DNRC, the Borrower shall make
available to the EPA or the DNRC such records as the EPA or the DNRC reasonably requires to review and
determine compliance with the Safe Drinking Water Act, as provided in Section 75-5-1113(1)(d) of the
State Act.
(i) Compliance with Safe Drinking Water Act. The Borrower has complied and shall comply
with all conditions and requirements of the Safe Drinking Water Act pertaining to the 2017A Loan and the
2017 Project and shall maintain sufficient financial, managerial and technical capability to continue to effect
such compliance.
0) Compliance with DEQ Requirements. The Borrower shall comply with plan, specification
and other requirements for public water systems established by the DEQ, as required by Section 75-5-
1113(1)(g) of the Act.
Section 2.4. Covenants Relating to the Tax -Exempt Status of the State Bonds.
(a) The Borrower covenants and agrees that it will not use or permit to be used any of the
proceeds of the Series 2017A Bond or any other funds of the Borrower in respect of the 2017 Project or the
Series 2017A Bond, directly or indirectly, in a manner that would cause, or take any other action that would
cause, any State Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code or would
12
otherwise cause the interest on the State Bonds to be included in gross income for purposes of federal
income taxation.
(b) The Borrower agrees that it will not enter into, or allow any "related person" (as defined in
Section 147(a)(2) of the Code) to enter into, any arrangement, formal or informal, for the purchase of the
State Bonds or any other obligations of the DNRC in an amount related to the amount of the 2017A Loan
or the portion of the 2017A Loan derived directly or indirectly from proceeds of the State Bonds or that
would otherwise cause any State Bond to be an "arbitrage bond" within the meaning of Section 148 of the
Code.
(c) The Borrower shall not use or permit the use of the 2017 Project directly or indirectly in
any trade or business carried on by any Person who is not a Governmental Unit. For the purpose of this
subparagraph, use as a member of the general public (within the meaning of the Regulations) shall not be
taken into account and any activity carried on by a Person other than a natural person shall be treated as a
trade or business.
(d) Any portion of the 2017 Project being refinanced or the cost of which is being reimbursed
was acquired by and is now and shall, during the term of the 2017A Loan, be owned by the Borrower and
not by any other Person. Any portion of the 2017 Project being financed shall be acquired by and shall,
during the term of the 2017A Loan, be owned by the Borrower and not by any other Person.
Notwithstanding the previous two sentences, the Borrower may transfer the 2017 Project or a portion
thereof to another Governmental Unit which is also a Public Entity if such transfer is otherwise permitted
under the Resolution and if such organization agrees with the DNRC to comply with Section 2.3(h), Section
2.3(i) and Section 2.4 of this Supplemental Resolution and if the DNRC receives an Opinion of Bond
Counsel that such transfer will not violate the State Act or the Safe Drinking Water Act or adversely affect
the exclusion of interest on the State Bonds from gross income or purposes of federal income taxation. hi
addition, except as otherwise provided in the Resolution or in any Collateral Documents, the Borrower may
sell or otherwise dispose of any portion of the 2017 Project which has become obsolete or outmoded or is
being replaced or for other reasons is not needed by the Borrower or beneficial to the general public or
necessary to carry out the purposes of the Safe Drinking Water Act.
(e) At the Closing of the 2017A Loan, the DNRC will, if necessary to obtain the Opinion of
Bond Counsel described in Section 7.05(a) of the Indenture, deliver to the Borrower instructions concerning
compliance by the Borrower with the arbitrage rebate requirements of Section 148 of the Code (the
"Arbitrage Rebate Instructions"). The Borrower shall comply with the Arbitrage Rebate Instructions, if
any, delivered to it by the DNRC at Closing, as such Instructions may be amended or replaced by the DNRC
from time to time. The Arbitrage Rebate Instructions may be amended or replaced by new Arbitrage Rebate
Instructions delivered by the DNRC and accompanied by an Opinion of Bond Counsel to the effect that the
use of said amended or new Arbitrage Rebate Instructions will not adversely affect the excludability of
interest on the State Bonds or any Additional State Bonds (except State Bonds the interest on which the
State did not intend to be excluded from gross income for federal income tax purposes) from gross income
of the recipients thereof for federal income tax purposes.
(f) The Borrower agrees that during the term of the 2017A Loan it will not contract with or
permit any Private Person to manage the 2017 Project or any portion thereof except according to a written
management contract and upon delivery to the DNRC of an Opinion of Bond Counsel to the effect that the
execution and delivery of such management contract will not violate the State Act or the Safe Drinking
Water Act or adversely affect the exclusion of interest on State Bonds from gross income or purposes of
federal income taxation.
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(g) The Borrower may not lease the 2017 Project or any portion thereof to any Person other
than a Nonexempt Person which agrees in writing with the Borrower and the State not to cause any default
to occur under the Resolution; provided the Borrower may lease all or any portion of the 2017 Project to a
Nonexempt Person pursuant to a lease which in the Opinion of Bond Counsel delivered to the DNRC will
not cause the interest on the State Bonds to be included in gross income for purposes of federal income
taxation.
(h) The Borrower shall not change the use or nature of the 2017 Project if (i) such change will
violate the Safe Drinking Water Act, or (ii) so long as the State Bonds are outstanding unless, in the Opinion
of Bond Counsel delivered to the DNRC, such change will not result in the inclusion in gross income of
interest on the State Bonds for federal income tax purposes.
Section 2.5. Maintenance of System; Liens. The Borrower shall maintain the System, including
the 2017 Project, in good condition and make all necessary renewals, replacements, additions, betterments
and improvements thereto. The Borrower shall not grant or permit to exist any lien on the 2017 Project or
any other property making up part of the System, other than liens securing Debt where a parity or senior
lien secures the Series 2017A Bond; provided that this Section 2.5. shall not be deemed to be violated if a
mechanic's or contractor's lien is filed against any such property so long as the Borrower uses its best
efforts to obtain the discharge of such lien and promptly reports to the DNRC the filing of such lien and the
steps it plans to take and does take to discharge of such lien.
Section 2.6. Maintenance of Existence; Merger. Consolidation. Etc.; Disposition of Assets.
The Borrower shall maintain its corporate existence, except that it may consolidate with or merge into
another Governmental Unit or permit one or more Governmental Units to consolidate with or merge into it
or may transfer all or substantially all of its assets to another Governmental Unit and then dissolve if the
surviving, resulting or transferee entity (if other than the Borrower) (i) is a Public Entity and (ii) assumes
in writing all of the obligations of the Borrower under the Resolution, the Series 2017A Bond and the
Collateral Documents, and (a) such action does not result in any default in the performance or observance
of any of the terms, covenants or agreements of the Borrower under the Resolution, the Series 2017A Bond
and the Collateral Documents, (b) such action does not violate the State Act or the Safe Drinking Water
Act and does not adversely affect the exclusion of interest on the Series 2017A Bond or the State Bonds
from gross income for federal income tax purposes, and (c) the Borrower delivers to the DNRC on the date
of such action an Opinion of Bond Counsel that such action complies with this Section 2.6. .
Other than pursuant to the preceding paragraph, the Borrower shall not transfer the System or any
portion thereof to any other Person, except for property which is obsolete, outmoded, worn out, is being
replaced or otherwise is not needed for the operation of the System, unless the provisions of (a) and (b) of
the preceding paragraph are satisfied and the Borrower delivers to the DNRC an Opinion of Bond Counsel
to that effect and, in addition, the DNRC consents to such transfer
ARTICLE III
USE OF PROCEEDS; THE 2017 PROJECT
Section 3.1. Use of Proceeds. The Borrower shall apply the proceeds of the 2017A Loan solely
as follows:
(a) The Borrower shall apply the proceeds of the 2017A Loan solely to the financing,
refinancing or reimbursement of costs of the 2017 Project as set forth in Appendix A hereto and this Section
3.1 and to pay costs of issuance of the Series 2017A Bond. The 2017A Loan will be disbursed in accordance
14
with Article IV hereof and Article VII of the Indenture. If the 2017 Project has not been completed prior
to Closing, the Borrower shall, as quickly as reasonably possible, complete the 2017 Project and expend
proceeds of the 2017A Loan to pay costs of completing the 2017 Project.
(b) No portion of the proceeds of the 2017A Loan shall be used to reimburse the Borrower for
costs paid prior to the date of adoption of this Supplemental Resolution or a Project the construction or
acquisition of which occurred or began earlier than June 1, 1993. In addition, if any proceeds of the 2017A
Loan are to be used to reimburse the Borrower for 2017 Project costs paid prior to the date of adoption of
this Supplemental Resolution, the Borrower shall have complied with Section 1.150-2 of the Regulations
in respect of such costs.
(c) Any Debt to be refinanced with proceeds of the 2017A Loan was incurred after June 1,
1993, or with respect to a Project the construction or acquisition of which began after June 1, 1993. No
proceeds of the 2017A Loan shall be used for the purpose of refinancing an obligation the interest on which
is exempt from federal income tax or excludable from gross income for purposes of federal income taxation
unless the DNRC has received an Opinion of Bond Counsel, satisfactory to it, to the effect that such
refinancing will not adversely affect the exclusion of interest on the State Bonds from gross income for
purposes of federal income taxation.
Section 3.2. The 2017 Project. Set forth in Appendix A to this Supplemental Resolution is a
description of the 2017 Project, which describes the property which has been or is to be acquired, installed,
constructed or improved and the other activities, if any, to be funded from the 2017A Loan (the 2017 Project
may consist of more than one facility or activity), and an estimated budget relating to the 2017 Project. The
2017 Project may be changed and the description thereof in Appendix A may be amended from time to
time by the Borrower but only after delivery to the DNRC of the following:
(a) a certificate of the Borrower setting forth the amendment to Appendix A and
stating the reason therefor, including statements as to whether the amendment would cause an
increase or decrease in the cost of the 2017 Project or an increase or decrease in the amount of
proceeds of the 2017A Loan which will be required to complete the 2017 Project and whether the
change will materially accelerate or delay the construction schedule for the 2017 Project;
(b) a written consent to such change in the 2017 Project by an Authorized DNRC
Officer; and
(c) an Opinion of Bond Counsel stating that the 2017 Project, as constituted after such
amendment, is, and was at the time the State Bonds were issued, eligible for financing under the
Act and is, and was at the time the Series 2017A Bond was issued, eligible for financing under the
Enabling Act, such amendment will not violate the Act or the Enabling Act and such amendment
will not adversely affect the exclusion of interest on the State Bonds or the Series 2017A Bond
from gross income for purposes of federal income taxation. Such an Opinion of Bond Counsel
shall not be required for amendments which do not affect the type of facility to be constructed or
activity to be financed.
The Borrower acknowledges and agrees that an increase in the principal amount of the 2017A Loan
may be made only upon an application to the DEQ, the DNRC and the Trustee, in such form as the DEQ
shall specify, which is approved by the DEQ and the DNRC, in their sole and absolute discretion, and
adoption by the governing body of the Borrower of a supplemental resolution authorizing the additional
loan and delivery of written certifications by officers of the Borrower to the DEQ, the DNRC and the
Trustee to the effect that all representations and covenants contained in this Supplemental Resolution as it
may be so amended or supplemented are true as of the date of closing of the additional loan and compliance
15
with applicable tests for the incurrence of such debt. No assurance can be given that any additional loan
funds will be available under the Program at the time of any such application. The Borrower acknowledges
and agrees that neither the DEQ, the DNRC, the Trustee nor any of their agents, employees or
representatives shall have any liability to the Borrower and have made no representations to the Borrower
as to the sufficiency of the 2017A Loan to pay costs of the 2017 Project or as to the availability of additional
funds under the Program to increase the principal amount of the 2017A Loan.
Section 3.3. 2017 Project Representations and Covenants. The Borrower hereby represents to
and covenants with the DNRC that:
(a) all construction of the 2017 Project has complied and will comply with all federal
and state standards, including, without limitation, EPA regulations;
(b) all future construction of the 2017 Project, if any, will be done only pursuant to
fixed price construction contracts. The Borrower shall obtain a performance and payment bond
from the contractor for each construction contract in the amount of 100% of the construction price
and ensure that such bond is maintained until construction is completed to the Borrower's, the
DNRC's and the DEQ's satisfaction;
(c) all future construction of the 2017 Project will be done in accordance with plans
and specifications on file with the DNRC and the DEQ, provided that changes may be made in such
plans and specifications with the written consent of an Authorized DNRC Officer and the DEQ;
(d) all laborers and mechanics employed by contractors and subcontractors on the
2017 Project have been and will be paid wages at rates not less than those prevailing on projects of
a character similar in the locality as determined by the United States Secretary of Labor in
accordance with subchapter IV of chapter 31 of title 40, United States Code;
(e) the iron and steel products used in the 2017 Project comply with the "American
Iron and Steel" requirements of Section 436 of the Consolidated Appropriations Act of 2016 (P.L.
113-76), as those requirements are further interpreted by applicable EPA guidance; and
(f) to the Borrower's knowledge, the 2017 Project is a project of the type permitted to
be financed under the State Act, the Enabling Act and the Program and Section 1452 of the Safe
Drinking Water Act.
Section 3.4. Completion or Cancellation or Reduction of Costs of the 2017 Project.
(a) Upon completion of the Series 2017 Project, the Borrower shall deliver to the DNRC a
certificate stating that the 2017 Project is complete and stating the amount, if any, of the Undisbursed
Committed Amount. If Appendix A describes two or more separate projects as making up the 2017 Project,
a separate completion certificate shall be delivered for each.
(b) If all or any portion of the 2017 Project is cancelled or cut back or its costs are reduced or
for any other reason the Borrower will not require the full Committed Amounts, the Borrower shall
promptly notify the DNRC in writing of such fact and the amount of the Undisbursed Committed Amount.
ARTICLE IV
THE LOAN
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Section 4.1. The Loan, Disbursement of Loan.
(a) The DNRC has agreed to lend to the Borrower, from time to time as the requirements of
this Section 4.1 are met, an amount up to $2,984,000 (the "Committed Amount") for the purposes of
financing, refinancing or reimbursing the Borrower for costs of the 2017 Project and paying costs of
issuance of the Series 2017A Bond; provided the DNRC shall not be required to disburse any proceeds of
the 2017A Loan after December 31, 2018. The Committed Amount may be reduced as provided in Sections
3.2 and 3.4 of this Supplemental Resolution.
(b) The DNRC intends to disburse the 2017A Loan through the Trustee. In consideration of
the issuance of the Series 2017A Bond by the Borrower, the DNRC shall make, or cause the Trustee to
make, a disbursement of all or a portion of the 2017A Loan upon receipt of the following documents:
(i) an Opinion of Bond Counsel as to the validity and enforceability of the Series
2017A Bond and the security therefor and stating in effect that interest on the Series 2017A Bond
is not includable in gross income of the owner thereof for purposes of federal income taxation, in
form and substance satisfactory to the DNRC;
(ii) the Series 2017A Bond, fully executed and authenticated;
(iii) a certified copy of the Original Resolution and this Supplemental Resolution;
(iv) any other security instruments or documents required by the DNRC or DEQ as a
condition to their approval of the 2017A Loan;
(v) if all or part of a loan is being made to refinance a Project or reimburse the
Borrower for costs of a Project paid prior to the Closing, evidence, satisfactory to the DNRC and
the Bond Counsel referred to in subparagraph (1) above, (A) that the acquisition or construction of
the Project was begun no earlier than June 1, 1993 or the debt was incurred no earlier than June 1,
1993, (B) of the Borrower's title to the Project, (C) of costs of such Project and that such costs have
been paid by the Borrower, and (D) if such costs were paid before adoption of this Supplemental
Resolution that the Borrower has complied with Section 1.150-2 of the Regulations;
(vi) the items required by the Indenture for the portion of the 2017A Loan to be
disbursed at Closing; and
(vii) such other certificates, documents and other information as the DNRC, the DEQ
or the Opinion of Bond Counsel referred to in subparagraph (1) may require (including any
necessary arbitrage rebate instructions).
(c) hi order to obtain a disbursement of a portion of the 2017A Loan to pay costs of the 2017
Project, the Borrower shall submit to the DNRC and the Trustee a signed request for disbursement on the
form prescribed by the DNRC, with all attachments required by such form. The Borrower may obtain
disbursements only for costs which have been legally incurred and are due and payable. All Loan
disbursements will be made to the Borrower only upon proof that cost was incurred.
(d) Provided that the EPA Capitalization Grant is available to the Program, from and after the
2017A First Advance, the 2017A Loan shall be disbursed by the Trustee, subject to the other terms and
conditions of this Supplemental Resolution.
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(e) The Borrower shall not be entitled to, and the DNRC shall have no obligation to make, the
2017A First Advance or any subsequent advance of any amounts under the 2017A Loan until such time as
the Borrower shall have funded the Reserve Account in an amount then required to satisfy the Reserve
Requirement.
(f) The Borrower shall submit the request for the 2017A First Advance in the form required
by the DNRC so that it is received in sufficient time for the DNRC to process the information by the date
desired by the Borrower for the making of the 2017A First Advance.
(g) For refinancings, a disbursement schedule complying with the requirements of the Safe
Drinking Water Act shall be established by the DNRC and the Borrower at Closing. The Trustee shall
disburse 2017A Loan amounts directly to the holder of the debt being refinanced according to such
schedule. If the Borrower should repay all or a portion of the debt to be refinanced from other sources or
should otherwise not need any portion of the 2017A Loan which was to have been used to refinance such
debt, it shall inform the DNRC and the Trustee of such fact pursuant to Section 3.4(b) and a new
disbursement schedule shall be drawn up by the DNRC. The DNRC shall obtain a receipt from the holder
of the debt being refinanced for each disbursement made to pay or prepay a portion of such debt.
(h) If all or a portion of the 2017A Loan is made to reimburse a Borrower for 2017 Project
costs paid by it prior to Closing, the Borrower shall present at Closing the items required by Section 4.1(b)
relating to such costs. The Trustee shall disburse such amounts to the Borrower pursuant to a disbursement
schedule complying with the requirements of the Safe Drinking Water Act established by the DNRC and
the Borrower at the Closing.
(i) Notwithstanding anything herein to the contrary, the Trustee shall not be obligated to
disburse the 2017A Loan any faster or to any greater extent than it has available EPA Capitalization Grants,
Bond proceeds, proceeds of the 2016 BAN and other amounts available therefor in the Revolving Fund.
The DNRC shall not be required to do "overmatching" pursuant to Section 5.04(b) of the Indenture, but
may do so in its discretion. The Borrower acknowledges that if 2017 Project costs are incurred faster than
the Borrower projected at Closing, there may be delays in making Loan disbursements for such costs
because of the schedule under which EPA makes EPA Capitalization Grant money available to the DNRC.
The DNRC will use its reasonable best efforts to obtain an acceleration of such schedule if necessary.
0) Upon making each 2017A Loan disbursement, the Trustee shall note such disbursement on
Schedule A to the Series 2017A Bond. At Closing, Schedule A to the Series 2017A Bond shall note the
2017A First Advance.
(k) The Borrower agrees that it will deposit in the Reserve Account upon receipt thereof, on
the date of the 2017A First Advance and any subsequent disbursement dates, any proceeds of the 2017A
Loan borrowed for the purpose of increasing the balance in the Reserve Account to the Reserve
Requirement. The Borrower further acknowledges and agrees that any portion of the 2017A Loan
representing capitalized interest shall be advanced only on Payment Dates and shall be transferred by the
Trustee on the Payment Date directly to the Debt Service Account. The amount of any such transfer shall
be a credit against the interest payments due on the Series 2017A Bond and interest thereon shall accrue
only from the date of transfer.
(1) Compliance by the Borrower with its representations, covenants and agreements contained
in this Supplemental Resolution and the Collateral Documents shall be a further condition precedent to the
disbursement of the 2017A Loan in whole or in part. The DNRC and the Trustee, in their sole and absolute
discretion, may make one or more disbursements, in whole or in part, notwithstanding such noncompliance,
and without liability to make any subsequent disbursement of the 2017A Loan.
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Section 4.2. Commencement of Loan Term. The Borrower's obligations under this
Supplemental Resolution and the Collateral Documents shall commence on the date hereof unless otherwise
provided in this Supplemental Resolution. However, the obligation to make payments under Article V
hereof shall commence only upon the first disbursement by the Trustee of the 2017A First Advance.
Section 4.3. Termination of Loan Term. The Borrower's obligations under this Supplemental
Resolution and the Collateral Documents in respect of the Series 2017A Bond shall terminate upon payment
in full of all amounts due under the Series 2017A Bond and this Supplemental Resolution; provided,
however, that the covenants and obligations provided in Article VI and Section 10.3 of this Supplemental
Resolution shall survive the termination of the Resolution.
Section 4.4. Loan Closing Submissions. On or prior to the Closing, the Borrower will have
delivered to the DNRC and the Trustee the closing submissions required by Section 7.05 of the Indenture.
ARTICLE V
REPAYMENT OF 2017A LOAN
Section 5.1. Repayment of 2017A Loan. The Borrower shall repay the amounts borrowed by
it pursuant to Section 4.1 in accordance with this Section 5.1.
5.1.1. Interest and Surcharges. The 2017A Loan shall bear interest at the rate of two
percent (2.00%) per annum and the Borrower shall pay the Administrative Expense Surcharge and
Loan Loss Reserve Surcharge on the outstanding principal amounts of the 2017A Loan, each at the
rate of twenty-five hundredths of one percent (0.25%) per annum. For purposes of this
Supplemental Resolution and the Program, the term "interest on the 2017A Loan" when not used
in conjunction with a reference to any surcharges, shall include the Administrative Expense
Surcharge and the Loan Loss Reserve Surcharge, if applicable. The Borrower shall pay all Loan
Repayments and surcharges in lawful money of the United States of America to the DNRC.
Interest, Administrative Expense Surcharge, and Loan Loss Reserve Surcharge shall be calculated
on the basis of a year of 360 days comprising 12 months of 30 days each.
5.1.2. Repayment of 2017A Loan. The Loan Repayments and surcharges on the 2017A
Loan required by this Section 5.1 shall be due on each Payment Date, as follows:
(i) interest and Administrative Expense Surcharge and Loan Loss Reserve
Surcharge on the outstanding principal balance of the 2017A Loan shall be payable on each
January 1 and July 1, beginning on January 1, 2018, and concluding on July 1, 2037; and
(ii) the principal of the 2017A Loan shall be repayable on each Payment Date,
beginning on January 1, 2018, and concluding July 1, 2037, and the amount of each
principal payment shall be calculated on the basis of a substantially level debt service at a
rate of 2.50% per annum; provided that principal of the 2017A Loan is payable only in
amounts that are multiples of $1,000.
5.1.3. Details Regarding 2017A Loan Repayments. Upon each disbursement of the
2017A Loan to the Borrower pursuant to Section 4.1 hereof, the Trustee shall enter or cause to be
entered the amount advanced on Schedule A to the Series 2017A Bond under "Advances" and the
total amount advanced under Section 4.1 hereof, including such disbursement, under "Total
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Amount Advanced." Loan Repayments and the Administrative Expense Surcharge and the Loan
Loss Reserve Surcharge on the 2017A Loan accrue on each such advance from the date of
disbursement and shall be due and payable on the dates and in the amounts shown in Schedule B
to the Series 2017A Bond, as such Schedule B shall be modified from time to time as provided in
Sections 5.1.2, 5.1.3, and below. The portion of each such Loan Repayment consisting of principal,
of interest, of Administrative Expense Surcharge and of Loan Loss Reserve Surcharge shall be set
forth in Schedule B to the Series 2017A Bond.
Past -due Loan Repayments and the Administrative Expense Surcharge and the Loan Loss
Reserve Surcharge shall bear interest at the rate of ten percent (10.00%) per annum, until paid.
Any payment of principal and interest as to the Series 2017A Bond and the Administrative
Expense Surcharge and the Loan Loss Reserve Surcharge as to the Series 2017A Bond and shall
be credited against the same payment obligation under the Series 2017A Bond.
Section 5.2. Additional Pa, mom. The Borrower shall also pay, within 30 days after receipt of
a bill therefor, from any legally available funds therefor, including proceeds of the 2017A Loan, all
reasonable expenses of the DNRC and the Trustee in connection with the 2017A Loan, the Collateral
Documents and the Series 2017A Bond, including, but not limited to:
(a) the cost of reproducing this Supplemental Resolution, the Collateral Documents
and the Series 2017A Bond;
(b) the fees and disbursements of Bond Counsel and other Counsel utilized by the
DNRC and the Trustee in connection with the 2017A Loan, this Supplemental Resolution, the
Collateral Documents and the Series 2017A Bond and the enforcement thereof, and
(c) all taxes and other governmental charges in connection with the execution and
delivery of the Collateral Documents or the Series 2017A Bond, whether or not the Series 2017A
Bond are then outstanding, including all recording and filing fees relating to the Collateral
Documents and the pledge of the State's right, title and interest in and to the Series 2017A Bond,
the Collateral Documents and this Supplemental Resolution (and with the exceptions noted therein)
and all expenses, including attorneys' fees, relating to any amendments, waivers, consents or
collection or enforcement proceedings pursuant to the provisions hereof or thereof.
Section 5.3. Prepayments. The Borrower may not prepay all or any part of the outstanding
principal amount of the Series 2017A Bond unless (i) it obtains the prior written consent of the DNRC
thereto, and (ii) no Loan Repayment or Administrative Expense Surcharge or Loan Loss Reserve Surcharge
is then delinquent. Any prepayment permitted by the DNRC must be accompanied by payment of accrued
interest, Administrative Expense Surcharge and Loan Loss Reserve Surcharge to the date of prepayment
on the amount of principal prepaid. If the Series 2017A Bond is prepaid in part pursuant to this Section
5.3, such prepayments shall be applied to principal payments in inverse order of maturity.
Section 5.4. Obligations of Borrower Unconditional. The obligations of the Borrower to make
the payments required by this Supplemental Resolution and the Series 2017A Bond and to perform its other
agreements contained in this Supplemental Resolution, the Series 2017A Bond and Collateral Documents
shall be absolute and unconditional, except as otherwise provided herein or in such documents. The
Borrower (a) shall not suspend or discontinue any payments provided for in this Supplemental Resolution
and the Series 2017A Bond, (b) shall perform all its other agreements in this Supplemental Resolution, the
Series 2017A Bond and the Collateral Documents, and (c) shall not terminate this Supplemental Resolution,
the Series 2017A Bond or the Collateral Documents for any cause, including any acts or circumstances that
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may constitute failure of consideration, destruction of or damage to the 2017 Project or the System,
commercial frustration of purpose, any dispute with the DNRC or the EPA, any change in the laws of the
United States or of the State or any political subdivision thereof or any failure of the DNRC to perform any
of its agreements, whether express or implied, or any duty, liability or obligation arising from or connected
with this Supplemental Resolution.
Section 5.5. Limited Liability. All payments of principal of and interest on the 2017A Loan
and other payment obligations of the Borrower hereunder and under the Series 2017A Bond shall be special,
limited obligations of the Borrower payable with respect to the Series 2017A Bond solely out of the Net
Revenues and shall not, except at the option of the Borrower and as permitted by law, be payable out of
any other revenues of the Borrower. The obligations of the Borrower under this Supplemental Resolution
and the Series 2017A Bond shall never constitute an indebtedness of the Borrower within the meaning of
any State constitutional provision or statutory or charter limitation and shall never constitute or give rise to
a pecuniary liability of the Borrower or a charge against its general credit or taxing power. The taxing
powers of the Borrower may not be used to pay principal of or interest on the Series 2017A Bond, no funds
or property of the Borrower other than the Net Revenues may be required to be used to pay principal of or
interest on the Series 2017A Bond, and no funds or property of the Borrower other than the Surplus Net
Revenues may be required to be used to pay principal of or interest, if any, on the Series 2017A Bond.
ARTICLE VI
INDEMNIFICATION OF DNRC AND DEQ
The Borrower shall, to the extent permitted by law, indemnify and save harmless the DNRC and
the DEQ and their officers, employees and agents (each an "Indemnified Party" or, collectively, the
"Indemnified Parties") against and from any and all claims, damages, demands, expenses, liabilities and
losses of every kind asserted by or on behalf of any Person arising out of the acts or omissions of the
Borrower or its employees, officers, agents, contractors, subcontractors, or consultants in connection with
or with regard or in any way relating to the condition, use, possession, conduct, management, planning,
design, acquisition, construction, installation or financing of the 2017 Project. The Borrower shall, to the
extent permitted by law, also indemnify and save harmless the Indemnified Parties against and from all
costs, reasonable attorneys' fees, expenses and liabilities incurred in any action or proceeding brought by
reason of any such claim or demand. If any proceeding is brought against an Indemnified Party by reason
of such claim or demand, the Borrower shall, upon notice from an Indemnified Party, defend such
proceeding on behalf of the Indemnified Party.
ARTICLE VII
ASSIGNMENT
Section 7.1. Assignment by Borrower. The Borrower may not assign its rights and obligations
under this Supplemental Resolution or the Series 2017A Bond.
Section 7.2. Assignment by DNRC. The DNRC will pledge its rights under and interest in this
Supplemental Resolution, the Series 2017A Bond and the Collateral Documents (except to the extent
otherwise provided in the Indenture) as security for the payment of the State Bonds and may further assign
such interests to the extent permitted by the Indenture, without the consent of the Borrower.
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Section 7.3. State RefundingBonds. hi the event the State Bonds are refunded by bonds which
are not State Bonds, all references in this Supplemental Resolution to State Bonds shall be deemed to refer
to such refunding bonds (together, the "Refunding Bonds") or, in the case of a crossover refunding, to the
State Bonds and the Refunding Bonds. In the event the State Bonds are refunded by an issue of Additional
State Bonds, all references in the Resolution to the State Bonds shall be deemed to refer to such Additional
State Bonds or, in the case of a crossover refunding, both the State Bonds and such Additional State Bonds.
ARTICLE VIII
THE SERIES 2017A BOND
Section 8.1. Net Revenues Available. The Borrower is authorized to charge just and equitable
rates, charges and rentals for all services directly or indirectly furnished by the System, and to pledge and
appropriate to the Series 2017A Bond the Net Revenues to be derived from the operation of the System,
including improvements, betterments or extensions thereof hereafter constructed or acquired. The Net
Revenues to be produced by such rates, charges and rentals during the term of the Series 2017A Bond are
expected to be more than sufficient to pay the principal and interest when due on the Series 2017A Bond,
and to create and maintain reasonable reserves therefor and to provide an adequate allowance for
replacement and depreciation, as prescribed herein.
Section 8.2. Issuance and Sale of the Series 2017A Bond. The Council has investigated the
facts necessary and hereby finds, determines and declares it to be necessary and desirable for the Borrower
to issue the Series 2017A Bond to evidence the 2017A Loan. The Series 2017A Bond is issued to the
DNRC without public sale pursuant to Montana Code Annotated, Section 7-7-4433.
Section 8.3. Terms. The Series 2017A Bond shall be in the maximum principal amount equal
to the original Committed Amount, shall be issued as a single, fully registered bond numbered R-1, shall be
dated as of the date of delivery to the DNRC, and shall bear interest at the rate charged by the DNRC on
the 2017A Loan. The principal of and interest on the Series 2017A Bond and any Administrative Expense
Surcharge and Loan Loss Reserve Surcharge shall be payable on the same dates and in the same amounts
as Loan Repayments are payable. Advances of principal of the Series 2017A Bond shall be deemed made
when advances of the 2017A Loan are made under Section 4.1 hereof, and such advances shall be payable
in accordance with Schedule B to the Series 2017A Bond as it may be revised by the DNRC from time to
time in accordance with Section 5.1 hereof. The Borrower may prepay the Series 2017A Bond, in whole
or in part, only upon the terms and conditions under which it can prepay the 2017A Loan under Section 5.3
hereof.
Section 8.4. Negotiability. Transfer and Registration. The Series 2017A Bond shall be fully
registered as to both principal and interest, and shall be initially registered in the name of and payable to
the DNRC, shall be dated the date of delivery. While so registered, principal of and interest on the Series
2017A Bond shall be payable to the DNRC at the Office of the Department of Natural Resources and
Conservation, 1625 Eleventh Avenue, Helena, Montana 59620 or such other place as may be designated
by the DNRC in writing and delivered to the Borrower. The Series 2017A Bond shall be negotiable, subject
to the provisions for registration and transfer contained in this Section 8.4. No transfer of the Series 2017A
Bond shall be valid unless and until (1) the holder, or his duly authorized attorney or legal representative,
has executed the form of assignment appearing on the Series 2017A Bond, and (2) the Finance Director of
the Borrower or his successor, as bond registrar (the "Registrar"), has duly noted the transfer on the Series
2017A Bond and recorded the transfer on the registration books of the Registrar. The Registrar may, prior
to noting and recording the transfer, require appropriate proof of the transferor's authority and the
genuineness of the transferor's signature. The Borrower shall be entitled to deem and treat the Person in
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whose name the Series 2017A Bond is registered as the absolute owner of the Series 2017A Bond for all
purposes, notwithstanding any notice to the contrary, and all payments to the registered holder shall be valid
and effectual to satisfy and discharge the Borrower's liability upon such Series 2017A Bond to the extent
of the sum or sums so paid.
Section 8.5. Execution and Delivery. The Series 2017A Bond shall be executed on behalf of
the Borrower by the manual signatures of the Mayor, City Manager, and the City Clerk. Any or all of such
signatures may be affixed at or prior to the date of delivery of the Series 2017A Bond. In the event that any
of the officers who shall have signed the Series 2017A Bond shall cease to be officers of the Borrower
before the Series 2017A Bond is issued or delivered, their signatures shall remain binding upon the
Borrower. Conversely, the Series 2017A Bond may be signed by an authorized official who did not hold
such office on the date of adoption of this Supplemental Resolution. The Series 2017A Bond shall be
delivered to the DNRC, or its attorney or legal representative.
Section 8.6. Form. The Series 2017A Bond shall be prepared in substantially the form attached
as Appendix B.
ARTICLE IX
SECURITY FOR THE SERIES 2017A BOND AND DECREASE IN AMOUNTS IN THE BOND
RESERVE ACCOUNT ALLOCABLE TO THE AMENDED BONDS
The Series 2017A Bond is issued as an Additional Bond under the Original Resolution and shall,
with the Amended Bonds and any other Additional Bonds issued under the provisions of the Original
Resolution be equally and ratably secured by the provisions of the Resolution and payable out of the Net
Revenues appropriated to the Debt Service Account of the Fund, without preference or priority, all as
provided in the Resolution, and secured by the Reserve Account, as further provided in the Original
Resolution and in the following sentence. On the date of Closing, the Borrower shall deposit in the Reserve
Account, from other available funds of the Borrower an amount equal to the initial Reserve Requirement
assuming the entire 2017A Committed Amount is advanced on the date of Closing. If less than the entire
2017A Committed Amount is advanced, then on the date of the final disbursement of proceeds of the Series
2017A Bond, the Borrower shall be entitled, in its discretion, to transfer any amount in excess of the Reserve
Requirement to the Debt Service Account or the Replacement and Replacement Account, so long as the
amount remaining in the Reserve Account equals the Reserve Requirement. No payment of principal or
interest shall be made on any Subordinate Obligation if the Borrower is then in default in the payment of
principal of or interest on any Bond or if there is a deficiency in the Operating Account or the Debt Service
Account or the balance in the Reserve Account is less than the Reserve Requirement.
Upon issuance of the Series 2017A Bond, the Borrower shall be authorized to reduce the amounts
in the Reserve Account so that such amounts are equal to the new lower Reserve Requirement set forth in
this Supplemental Resolution. The reductions in the Reserve Account for the allocable Amended Bonds
shall be a permanent reduction for the Amended Bonds. In addition, this Supplemental Resolution amends
the prior Supplemental Resolutions that provided for the issuance of each series of the Amended Bonds to
permanently reduce the Reserve Requirement for the allocable Amended Bonds.
ARTICLE X
TAX MATTERS
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Section 10.1. Use of 2017 Project and System. The 2017 Project and the System will be owned
and operated by the Borrower and available for use by members of the general public on a substantially
equal basis. The Borrower shall not enter into any lease, use or other agreement with any non -governmental
person relating to the use of the 2017 Project or the System or security for the payment of the Series 2017A
Bond which might cause the Series 2017A Bond to be considered a "private activity bond" or "private loan
bond" within the meaning of Section 141 of the Code.
Section 10.2. General Covenant. The Borrower covenants and agrees with the owners from time
to time of the Series 2017A Bond that it will not take or permit to be taken by any of its officers, employees
or agents any action which would cause the interest on the Series 2017A Bond to become includable in
gross income for federal income tax purposes under the Code and the Regulations, and covenants to take
any and all actions within its powers to ensure that the interest on the Series 2017A Bond will not become
includable in gross income for federal income tax purposes under the Code and the Regulations.
Section 10.3. Arbitrage Certification. The Mayor, City Manager, and the City Clerk, being the
officers of the Borrower charged with the responsibility for issuing the Series 2017A Bond pursuant to this
Supplemental Resolution, are authorized and directed to execute and deliver to the DNRC 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 2017A Bond, it is reasonably expected that the proceeds of the Series 2017A Bond will be
used in a manner that would not cause the Series 2017A Bond to be an "arbitrage bond" within the meaning
of Section 148 of the Code and the Regulations.
Section 10.4. Arbitrage Rebate. The Borrower acknowledges that the Series 2017A Bond is
subject to the rebate requirements of Section 148(f) of the Code. The Borrower 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 2017A Bond from gross income for federal income tax purposes, unless
the Series 2017A Bond qualifies for the exception from the rebate requirement under Section 148(f)(4)(B)
of the Code and no "gross proceeds" of the Series 2017A Bond (other than amounts constituting a "bona
fide debt service fund") arise during or after the expenditure of the original proceeds thereof. hi furtherance
of the foregoing, the City Clerk is hereby authorized and directed to execute a rebate or tax certificate with
respect to the Series 2017A Bond, substantially in the form to be prepared by Bond Counsel, and the
Borrower hereby covenants and agrees to observe and perform the covenants and agreements contained
therein, unless amended or terminated in accordance with the provisions thereof.
Section 10.5 Information Reporting. The Borrower shall file with the Secretary of the Treasury,
not later than August 15, 2017, a statement concerning the Series 2017A Bond containing the information
required by Section 149(e) of the Code.
ARTICLE XI
CONTINUING DISCLOSURE
The Borrower understands and acknowledges that the DNRC is acquiring the Series 2017A Bond
under the Program pursuant to which the State issues from time to time State Bonds to provide funds
therefor. The Borrower covenants and agrees that, upon written request of the DNRC from time to time,
the Borrower will promptly provide to the DNRC all information that the DNRC reasonably determines to
be necessary or appropriate to offer and sell State Bonds or to provide continuing disclosure in respect of
State Bonds, whether under Rule 15c2-12 (17 C.F.R. § 240.15c2-12) promulgated by the Securities and
24
Exchange Commission under the Securities Exchange Act of 1934, as amended, or otherwise. Such
information shall include, among other things and if so requested, financial statements of the Borrower
prepared in accordance with governmental accounting standards promulgated by the Governmental
Accounting Standards Board or as otherwise provided under Montana law, as in effect from time to time
(such financial statements to relate to a fiscal year or any period therein for which they are customarily
prepared by the Borrower, and, if for a fiscal year and so requested by the DNRC, subject to an audit report
and opinion of an accountant or government auditor, as permitted or required by the laws of the State). The
Borrower will also provide, with any information so furnished to the DNRC, a certificate of the Mayor, the
City Manager and the City Clerk of the Borrower to the effect that, to the best of their knowledge, such
information does not include any untrue statement of a material fact or omit to state any material fact
required to be stated therein to make the statements made, in light of the circumstances under which they
are made, not misleading.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Notices. All notices or other communications hereunder shall be sufficiently sent
or given and shall be deemed sent or given when delivered or mailed by certified mail, postage prepaid, to
the parties at the following addresses:
DNRC: Department of Natural Resources and Conservation
1539 Eleventh Avenue
P. O. Box 201601
Helena, Montana 59620-1601
Attn: Conservation and Resource Development Division
Trustee: U.S. Bank National Association
c/o Corporate Trust Services
1420 Fifth Avenue, 7th Floor
Seattle, Washington 98101
Borrower: City of Kalispell
201 1st Avenue East
Kalispell, Montana 59903
Attn: Finance Director
Any of the above parties may, by notice in writing given to the others, designate any further or different
addresses to which subsequent notices or other communications shall be sent.
Section 12.2. Binding Effect. This Supplemental Resolution shall inure to the benefit of and
shall be binding upon the DNRC, the Borrower and their respective permitted successors and assigns.
Section 12.3. Severability. If any provision of this Supplemental Resolution shall be determined
to be unenforceable at any time, it shall not affect any other provision of this Supplemental Resolution or
the enforceability of that provision at any other time.
Section 12.4. Amendments. This Supplemental Resolution may not be effectively amended
without the written consent of the DNRC.
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Section 12.5. Applicable Law. This Supplemental Resolution shall be governed by and
construed in accordance with the laws of the State.
Section 12.6. Captions: References to Sections. The captions in this Supplemental Resolution
are for convenience only and do not define or limit the scope or intent of any provisions or Sections of this
Supplemental Resolution. References to Articles and Sections are to the Articles and Sections of this
Supplemental Resolution, unless the context otherwise requires.
Section 12.7. No Liability of Individual Officers, Directors, Trustees or Council Members. No
recourse under or upon any obligation, covenant or agreement contained in this Supplemental Resolution
shall be had against any director, officer or employee, as such, past, present or future, of the DNRC, the
DEQ or the Trustee, either directly or through the DNRC, the DEQ or the Trustee, or against any officer,
or member of the governing body or employee of the Borrower, past, present or future, as an individual so
long as such individual was acting in good faith. Any and all personal liability of every nature, whether at
common law or in equity, or by statute or by constitution or otherwise, of any such officer or member of
the governing body or employee of the DNRC, the Trustee or the Borrower is hereby expressly waived and
released by the Borrower and by the DNRC as a condition of and in consideration for the adoption of this
Supplemental Resolution and the making of the 2017A Loan.
Section 12.8. Payments Due on Holidays. If the date for making any payment or the last date
for performance of any act or the exercise of any right, as provided in this Supplemental Resolution or the
Series 2017A Bond, shall not be a Business Day, such payments may be made or act performed or right
exercised on the next succeeding Business Day with the same force and effect as if done on the nominal
date provided in this Supplemental Resolution or the Series 2017A Bond.
Section 12.9. Right of Others to Perform Borrower's Covenants. hi the event the Borrower shall
fail to make any payment or perform any act required to be performed hereunder, then and in each such
case the DNRC or the provider of any Collateral Document may (but shall not be obligated to) remedy such
default for the account of the Borrower and make advances for that purpose. No such performance or
advance shall operate to release the Borrower from any such default and any sums so advanced by the
DNRC or the provider of any Collateral Document shall be paid immediately to the party making such
advance and shall bear interest at the rate of ten percent (10%) per annum from the date of the advance until
repaid. The DNRC and the provider of any Collateral Document shall have the right to enter the 2017
Project or the facility or facilities of which the 2017 Project is a part or any other facility which is a part of
the System in order to effectuate the purposes of this Section.
Section 12.10. Authentication of Transcript. The officers of the Borrower are hereby authorized
and directed to furnish to the DNRC and to Bond Counsel certified copies of all proceedings relating to the
issuance of the Series 2017A Bond and such other certificates and affidavits as may be required to show
the right, power and authority of the Borrower to issue the Series 2017A Bond, and all statements contained
in and shown by such instruments, including any heretofore furnished, shall constitute representations of
the Borrower as to the truth of the statements of fact purported to be shown thereby.
Section 12.11. Repeals and Effective Date.
(a) Repeal. All provisions of other resolutions and other actions and proceedings of the
Borrower and this Council that are in any way inconsistent with the terms and provisions of this
Supplemental Resolution are repealed, amended and rescinded to the full extent necessary to give full force
and effect to the provisions of this Supplemental Resolution.
(b) Effective Date. This Supplemental Resolution shall take effect immediately.
L►O
PASSED AND ADOPTED by the City Council of the City of Kalispell, Montana, this 5th day of
June,2017.
Attest:
Its: City Clerk
Its: Mayor
(SEAL)
27
APPENDIX A
DESCRIPTION OF THE 2017 PROJECT
The 2017 Project consists of the construction and equipping of the rehabilitation and replacement
of the water system infrastructure along a portion of 4' Avenue East in the City of Kalispell.
Estimated 2017 Project Budget
Anna Miller/DNRC City of Kalispell 5/17/2017
Administrative/
Finance Costs
Source:
SRF Loan
Source:
City
Total
Personnel Costs
-
_
Office Costs
Admin Costs
_
Legal Costs
Audit Fees
Travel & Training
_
Loan Reserves
191,388
191,388
Bond Counsel & Related costs
10,000
10,000
TOTAL ADMIN COSTS:
201,388
-
201,388
ACTIVITY COSTS:
Miscellaneous
-
_
Preliminary Engineering/Design
-
-
-
Construction Engr. Services
-
-
-
Construction
2,420,269
-
2,420,269
Contingency
362,343
-
362,343
TOTAL ACTIVITY COSTS
2,782,612
-
2,782,612
TOTAL COSTS
2,984,000
-
2,984,000
A-1
APPENDIX B
[Form of the Series 2017A Bond]
UNITED STATES OF AMERICA
STATE OF MONTANA
COUNTY OF FLATHEAD
CITY OF KALISPELL
CITY OF KALISPELL
WATER SYSTEM REVENUE BOND
(DNRC DRINKING WATER STATE REVOLVING LOAN PROGRAM),
SERIES 2017A
No. R-1
$2,984,000
FOR VALUE RECEIVED, the City of Kalispell, Montana (the `Borrower"), a duly organized and
existing municipal corporation in Flathead County, Montana, acknowledges itself to be specially indebted
and hereby promises to pay to the Department of Natural Resources and Conservation of the State of
Montana (the "DNRC"), or its registered assigns, solely from the Debt Service Account of its Water System
Fund, the principal sum equal to the sum of the amounts entered on Schedule A attached hereto under "Total
Amount Advanced," with interest on each such amount from the date such amount is advanced hereunder
at the rate of two percent (2.00%) per annum on the unpaid balance until paid. In addition, the Borrower
shall pay an Administrative Expense Surcharge and a Loan Loss Reserve Surcharge on the outstanding
principal amount of this Series 2017A Bond, each at the rate of twenty-five hundredths of one percent
(0.25%) per annum. Interest and Administrative Expense Surcharge and Loan Loss Reserve Surcharge
shall be payable in semiannual installments payable on each January 1 and July 1 (each a "Loan Repayment
Date") commencing on January 1, 2018 and concluding on July 1, 2037. Principal shall be payable on the
dates set forth in Schedule B hereto. Each installment shall be in the amount set forth opposite its due date
in Schedule B attached hereto under "Total Amount of Payment." The portion of each such payment
consisting of principal, the portion consisting of interest, the portion consisting of Administrative Expense
Surcharge, and the portion consisting of Loan Loss Reserve Surcharge shall be as set forth in Schedule B
hereto. Upon each disbursement of 2017A Loan amounts to the Borrower pursuant to the Resolution (as
hereinafter defined), the DNRC shall enter (or cause to be entered) the amount advanced on Schedule A
under "Advances" and the total amount advanced under the Resolution, including such disbursement, under
"Total Amount Advanced." The DNRC shall prepare Schedule B and any revised Schedule B, or cause
Schedule B and any revised Schedule B to be prepared, as provided in Section 5.1 of the Resolution, and
the final Schedule B will reflect repayments under Section 5.1.3 of the Resolution. Schedule B shall be
calculated and recalculated on a level debt service basis assuming an interest rate of 2.50% per annum.
Past- due payments of principal and interest and Administrative Expense Surcharge and Loan Loss Reserve
Surcharge shall bear interest at the rate of ten percent (10.00%) per annum, until paid. Interest and
Administrative Expense Surcharge and Loan Loss Reserve Surcharge shall be calculated on the basis of a
360-day year comprising 12 months of 30 days each. All payments under this Series 2017A Bond shall be
made to the registered holder of this Series 2017A Bond, at its address as it appears on the Bond register,
in lawful money of the United States of America.
This Series 2017A Bond constitutes a series in the maximum authorized principal amount of
$2,984,000 (the "Series 2017A Bond"). The Series 2017A Bond is issued to finance a portion of costs of
the construction and equipping of the rehabilitation and replacement to the Water System of the Borrower
(the "System") along a portion of 4' Avenue East in the City of Kalispell and to pay costs of issuance of
the Series 2017A Bond. The Series 2017A Bond is issued pursuant to and in full conformity with the
B-2-1
Constitution and laws of the State of Montana thereunto enabling, including Montana Code Annotated,
Title 7, Chapter 7, Part 44, as amended, and ordinances and resolutions duly adopted by the governing body
of the Borrower, including Resolution No. 4273 of the City adopted on June 17, 1996 (the "Original
Resolution"), as amended and supplemented by a Supplemental Resolution adopted on June 5, 2017 (the
Original Resolution, as so amended and supplemented, the "Resolution"). Terms used with initial capital
letters but not defined herein have the meanings given to them in the Resolution. The Series 2017A Bond
is issuable only as a single, fully registered bond. The Series 2017A Bond is issued on a parity with the
Borrower's outstanding Amended Bonds (as defined in the Resolution). The 2017A First Advance has
been advanced at Closing.
Reference is made to the Resolution for a more complete statement of the terms and conditions
upon which the Series 2017A Bond has been issued, the Net Revenues of the System pledged and
appropriated for the payment and security thereof, the conditions upon which additional Bonds may be
issued under the Resolution and made payable from such Net Revenues on a parity with the Amended
Bonds, this Series 2017A Bond, and any other parity Bond (collectively, the "Bonds") or otherwise, the
conditions upon which the Resolution may be amended, the rights, duties and obligations of the Borrower,
and the rights of the owners of the Series 2017A Bond.
The Borrower may prepay the principal of the Series 2017A Bond only if (i) it obtains the prior
written consent of the DNRC thereto, and (ii) no Loan Repayment or Administrative Expense Surcharge or
Loan Loss Reserve Surcharge is then delinquent. Any prepayment permitted by the DNRC must be
accompanied by payment of accrued interest and Administrative Expense Surcharge and Loan Loss Reserve
Surcharge to the date of prepayment on the amount of principal prepaid. If the Series 2017A Bond is
prepaid in part, such prepayments shall be applied to principal payments in inverse order of maturity.
The Series 2017A Bond, including interest and any premium, are payable solely from the Net
Revenues pledged for the payment hereof and do not constitute a debt of the Borrower within the meaning
of any constitutional or statutory limitation or provision.
The Borrower may deem and treat the person in whose name this Series 2017A Bond is registered
as the absolute owner hereof, whether this Series 2017A Bond is overdue or not, for the purpose of receiving
payment and for all other purposes, and the Borrower shall not be affected by any notice to the contrary.
The Series 2017A Bond may be transferred as hereinafter provided.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that the Borrower has
duly authorized and will forthwith construct and complete the improvements to the System hereinabove
described, that it will prescribe and collect reasonable rates and charges for all services and facilities
afforded by the System, including all additions thereto and replacements and improvements thereof, and
has created a special Water System Fund into which the Revenues (as defined in the Resolution) of the
System will be paid, and a separate and special Debt Service Account in that Water System Fund, into
which will be paid each month, from and as a first and prior lien on the Net Revenues then on hand, an
amount equal to not less than the sum of one- sixth of principal and the interest to become due within the
next six months with respect to all Bonds payable semi-annually from the Debt Service Account; that the
Borrower has created a Reserve Account in the Water System Fund into which shall be paid additional Net
Revenues, after required credits to the Debt Service Account, sufficient to establish and maintain a reserve
therein equal to, as of the date of calculation, the Reserve Requirement; that the Debt Service Account will
be used only to pay the principal of, premium, if any, and interest on the Amended Bonds, the Series 2017A
Bond and any other additional Bonds issued pursuant to the Resolution on a parity therewith; that the rates
and charges for the System will from time to time be made and kept sufficient, to provide gross income and
revenues adequate to pay promptly the reasonable and current expenses of operating and maintaining the
System and to produce in each fiscal year Net Revenues in excess of such current expenses, equal to at least
B-2-2
110% of the maximum amount of principal and interest payable from the Debt Service Account in any
subsequent fiscal year; that additional Bonds and refunding Bonds may be issued and made payable from
the Debt Service Account on a parity with the Amended Bonds, the Series 2017A Bond and other parity
Bonds upon certain conditions set forth in the Resolution, but no obligation will be otherwise incurred and
made payable from the Net Revenues of the System, unless the lien thereof shall be expressly made
subordinate to the lien of the Amended Bonds, the Series 2017A Bond and additional parity Bonds on such
Net Revenues; that all provisions for the security of the holder of this Series 2017A Bond set forth in the
Resolution will be punctually and faithfully performed as therein stipulated; that all acts, conditions and
things required by the Constitution and laws of the State of Montana and the ordinances and resolutions of
the Borrower to be done, to exist, to happen and to be performed in order to make this Series 2017A Bond
a valid and binding special obligation of the Borrower according to its terms have been done, do exist, have
happened and have been performed as so required; and that this Series 2017A Bond and the premium, if
any, and interest hereon are payable solely from the Net Revenues of the System pledged and appropriated
to the Debt Service Account and do not constitute a debt of the Borrower within the meaning of any
constitutional or statutory limitation or provision and the issuance of the Series 2017A Bond does not cause
either the general or the special indebtedness of the Borrower to exceed any constitutional or statutory
limitation.
B-2-3
IN WITNESS WHEREOF, the City of Kalispell, Flathead County, Montana, by its City Council,
has caused this Series 2017A Bond to be executed on its behalf by the facsimile or manual signatures of
the Mayor, City Manager and City Clerk and has caused this Series 2017A Bond to be dated as of the date
set forth below.
Dated: June 21, 2017
CITY OF KALISPELL, MONTANA
Mayor
City Manager
City Clerk
B-2-4
REGISTRATION AND TRANSFER
The Series 2017A Bond shall be fully registered as to both principal and interest. No transfer of
the Bond shall be valid unless and until (1) the registered holder of the Series 2017A Bond, or his duly
authorized attorney or legal representative, executes the form of assignment appearing on the Series 2017A
Bond, and (2) the Finance Director as bond registrar (the "Registrar"), has duly noted the transfer on the
Series 2017A Bond and recorded the transfer on the Registrar's registration books. The Borrower shall be
entitled to deem and treat the person in whose name the Series 2017A Bond is registered as absolute owner
thereof for all purposes, notwithstanding any notice to the contrary. Payments on account of the Series
2017A Bond shall be made only to the order of the registered holder thereof, and all such payments shall
be valid and effectual to satisfy and discharge the Borrower's liability upon the Series 2017A Bond to the
extent of the sum or sums so paid.
REGISTER
The ownership of the outstanding principal balance of the Series 2017A Bond and the interest
accruing thereon is registered on the books of City of Kalispell, Montana in the name of the registered
holder appearing on the first page hereof or as last noted below:
Date of
Registration
June 21, 2017
Name and Address
of Registered Holder
Department of Natural
Resources and Conservation
1625 Eleventh Avenue
Helena. MT 59620
Signature of
Finance Director
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Finance Director of the City of Kalispell, Montana, acting as Bond Registrar, has transferred,
on the books of the Borrower, on the date last noted below, ownership of the principal amount of and the
accrued interest on the Series 2017A Bond to the new registered holder noted next to such date, except for
amounts of principal and interest theretofore paid.
Date of Transfer
Name of New
Registered Holder
Signature of
Bond Registrar
B-2-5
FORM OF ASSIGNMENT
For value received, the Series 2017A Bond is hereby transferred and assigned by the undersigned
holder, without recourse,
to
of
on this day
By:
(Authorized Signature)
For:
(Holder)
SCHEDULE A
SCHEDULE OF AMOUNTS ADVANCED
Total Amount
Date Advances Advanced Notation Made B
B-2-7
SCHEDULE B
GENERAL OBLIGATION BONDS
DRINKING WATER
(REVOLVING FUND PROGRAM)
BORROWER: Kalispell
PROJECT NAME: 41h Ave
LOAN COMMITMENT: $2,984,000
LOAN AMOUNT: 2,984,000
INTEREST RATE: 2.50%
FINAL LOAN PAYMENT: 7/l/2037
# OF LOAN PAYMENTS: 40
PROJECT NUMBER:
DATE OF FUNDING. 612112077
PAYMENT
LOAN LOSS
ADM EXPENSE
INTEREST
PRINCIPAL
O/S LOAN
TOTAL AMOUNT
DUE
RESERVE
SURCHARGE
PAYMENT
PAYMENT
BALANCE
OFPAYMENT
1 1/1/2018
3,937.22
3,937.22
31,497.78
59,000.00
2,925,000.00
$98,372.22
$98,372.22
2 7/1/2018
3,656.25
3,656.25
29,2X00
59,000,00
2,866,000.00
$95,562.50
3 1/l/2019
3,582,50
3,582.50
28,660.00
60,000.00
2,806,OD0.00
$95,825.00
$191,387.50
4 7/1/2019
3,507.50
3,507.50
28,060.00
60,000.00
2,746,000,00
$95,075,00
5 1/M2020
3,432.50
3,432.50
27,460,00
61,000,00
2,685,000.00
$95,325.00
$190,400.0D
6 7/l/2020
3,356.25
3,356.25
26,850.00
62,000.00
2,623,000.00
$95,562.50
7 I/l/2021
3,278.75
3,278.75
26,230.00
62,000.00
2,561,000.00
$94,787.50
$190,350.00
8 711/2021
3,201,25
3,201.25
25,610,00
63,000.00
2,498,000.00
$95,012.50
9 I/l/2022
3,122.50
3,122.50
24,980.00
64,000.00
2,434,000.00
$95,225.00
$190,237.50
1D 7/1/2022
3,042.50
3,042.50
24,340.00
65,000.00
2,369,000.00
$95,425.00
II 1/1/2023
2,961.25
2,961.25
23,690.00
66,000,00
2,303,000.00
$95,612.50
$191,037.50
12 7/1/2023
2,878.75
2,878.75
23,030.00
66,000,00
2,237,000.00
$94,787.50
13 111/2024
2,796.25
2,796.25
22,370.00
67,000.00
2,170,000.00
$94,962.50
$189,750.00
14 7/l/2024
2,712.50
2,712.50
21,700.00
68,000.00
2,102,000.00
$95,125,00
15 1/1/2025
2,627.50
2,627.50
21,020.00
69,000.00
2,033,000.00
$95,275.00
$190,400.00
16 7/l/2025
2,541.25
2,541.25
20,330.00
70,000.00
1,963,000.00
$95,412.50
17 1/1/2026
2,453.75
2,453.75
19,630.00
71,000.00
1,892,000.00
$95,537,50
$190,950.00
18 7/I/2026
2,365.00
2,365.00
18,920.00
72,000.00
1,820,000.00
$95,650.00
19 1/1/2027
2,275.00
2,275.00
18,200.00
72,000.00
1,748,000.00
$94,750.00
$190,400,00
20 7/l/2027
2,185.00
2,185.00
17,480,00
73,000.00
1,675,000.00
$94,850.00
21 1/1/2028
2,093.75
2,093.75
16,750.00
74,000.00
I,601,000.00
$94,937.50
$189,787.50
22 711/2028
2,001.25
2,001.25
16,010.00
75,000.00
1,526,000,00
$95,012.50
23 I/l/2029
1,907.50
1,907.50
15,260.00
76,000.00
1,450,000.00
$95,075.00
$190,087.50
24 7/l/2029
1,812.50
1,812.50
14,500.00
77,000.00
1,373,000.00
$95,125.00
25 I/112030
1,716.25
1,716.25
13,730.00
79,000.00
1,295,000.60
$95,162.50
$190,287.50
26 7/1/2030
1,618.75
1,618.75
12,950.00
79,000.00
1,216,000.00
$95,187.50
27 111/2031
1,520.00
1,520.00
12,160.00
80,000.00
1,136,000.00
$95,200.00
$190,387.50
28 7/l/2031
1,420.00
1,420.00
11,360.00
81,000,00
1,055,000.00
$95,200.00
29 1/1/2032
1,318.75
1,318.75
10,550,00
82,000.00
973,000.00
$95,197.50
$190,387.50
30 7/l/2032
1,216.25
1,216.25
9,730.00
83,000.00
890,000.00
$95,162.50
31 I/l/2033
1,112.50
1,112.50
8,900.00
84,000,00
906,000.00
$95,125.00
$190,287.50
32 7/l/2033
1,007.50
1,007.50
9,060.00
85,000.00
721,000.00
$95,075.00
33 1/1/2034
901.25
901.25
7,210.00
86,000.00
635,000,00
$95,012,50
$190,087.50
34 7/1/2034
793.75
793.75
6,350.00
97,000,00
548,000.00
$94,937.50
35 l/l/2035
685.00
685.00
5,480.00
88,000.00
460,000.00
$94,850.00
$189,787,50
36 7/1/2035
575A0
575.00
4,600.00
90,000.00
370,000.00
$95,750.00
37 1/1/2036
462.50
462,50
3,700.00
91,000.00
279,000.00
$95,625.00
$191,375.00
38 7/1/2036
348.75
348.75
2,790.00
92,000.00
187,000.00
$95,487.50
39 1/1/2037
233.75
233.75
1,870.00
93,000.00
94,000.00
$95,33T50
$190,825.00
40 7/1/2037
117.50
117.50
940.00
94,000.00
0.00
$95,175.00
$95,175.00
82,775.97
82,775.97
662,207.78
2,984,000.00
3,811,759.72
3811759.722
none
APPENDIX C
ADDITIONAL AGREEMENTS, REPRESENTATIONS AND COVENANTS
C-1
APPENDIX D
$2,984,000
City of Kalispell, Montana
Water System Revenue Bonds
(DNRC Drinking Water State Revolving Loan Program),
Series 2017A
COMPLIANCE CERTIFICATE AND REQUEST
We, City Manager and City Clerk, hereby certify that we are on the date hereof the duly qualified
and acting City Manager and City Clerk, respectively, of the City of Kalispell, Montana (the `Borrower"),
and that:
1. Pursuant to Resolution No. 4273 of the City adopted on June 17, 1996 (the "Original
Resolution"), as amended and supplemented by a Supplemental Resolution adopted on June 5, 2017 (the
"Supplemental Resolution," and together with the Original Resolution, the "Resolution"), the Borrower
issued its Water System Revenue Bond (DNRC Drinking Water State Revolving Loan Program), Series
2017A, dated, as originally issued, as of June 21, 2017, in the maximum aggregate principal amount of
$2,984,000 (the "Series 2017A Bond"). The Borrower has reviewed the Supplemental Resolution,
including, without limitation, Articles II and III thereof, and the definitions relating thereto. The Borrower
acknowledges and agrees that the Series 2017A Bond evidences a loan made to the Borrower from the
DNRC from the EPA Capitalization Grant, and that this Certificate is being relied upon by the DNRC for
ensuring compliance with requirements applicable to the Borrower, the DNRC, and the 2017 Project (as
hereinafter defined). Capitalized terms used herein without definition shall have the meanings given them
in the Resolution.
2. The Series 2017A Bond is issued to finance costs of construction, equipping, rehabilitation
and replacement of the System along a portion of 4' Avenue East, generally described as the 2017 Project
(the "2017 Project") in the Supplemental Resolution and to pay costs of issuing the Series 2017A Bond.
Construction of the 2017 Project has complied with all federal and state standards, including, without
limitation, EPA regulations and standards. The 2017 Project has been completed.
3. Costs of the 2017 Project in the amount of $ have been paid as of the date of
delivery of this Certificate. The Borrower hereby waives its right to any remaining Committed Amount not
advanced or to be advanced upon delivery hereof.
4. As of the date hereof, the Borrower has spent the following amounts in connection with
the 2017 Project and costs related thereto:
Professional Services
Debt Service Reserve $
Bond Counsel & Related costs
Construction Engr. Services
Construction
TOTAL PROJECT COSTS $
5. The Trustee has delivered to the Borrower a copy of Schedule B to be attached to the Series
2017A Bond, which reflects the amortization of all advances made or to be made on the date hereof of
proceeds of the Series 2017A Bond. The Borrower hereby acknowledges and agrees that Schedule B has
been calculated in accordance with the provisions of the Resolution and the Indenture, and that the Series
D-1
2017A Bond, with said Schedule B attached thereto, has been duly issued pursuant to the Resolution and is
a valid and binding obligation of the Borrower in accordance with its terms and the terms of the Resolution.
6. The representations of the Borrower contained in Articles II and III of the Resolution are
true and complete as of the date hereof as if made on this date, except to the extent that the Borrower has
specifically advised the DEQ and the DNRC otherwise in writing.
7. No default in any covenant or agreement on the part of the Borrower contained in the
Resolution has occurred and is continuing.
8. The Borrower is delivering this Certificate to the DNRC, in part, to ensure compliance with
EPA regulations and standards. The Borrower certifies that all laborers and mechanics employed by
contractors and subcontractors on the 2017 Project have been and will be paid wages at rates not less than
those prevailing on projects of a character similar in the locality as determined by the United States
Secretary of Labor in accordance with Subchapter IV of Chapter 31 of Title 40, United States Code, and
that the iron and steel products used in the 2017 Project comply with the "American Iron and Steel'
requirements of Section 436 of the Consolidated Appropriations Act of 2016 (P.L. 113-76), as those
requirements are further interpreted by applicable EPA guidance.
WITNESS our hands on behalf of the Borrower as of this day of ,
20
66139-5 (BWJ)
4896448v3
CITY OF KALISPELL, MONTANA
By
Its City Manager
By
Its City Clerk
"-J