Tab 19 Officers' CertificateOFFICERS' CERTIFICATE
We, Douglas R. Rauthe, Bruce Williams, Amy H. Robertson and
Debbie Gifford, hereby certify that we are on the date hereof the duly qualified and
acting Mayor, City Manager, Finance Director and City Clerk of Council, respectively,
of the City of Kalispell, Montana (the "City"), and that:
1. True and correct facsimiles of the signatures of the Mayor,, the City
Manager and the Finance Director have been affixed to $100,000 Special
Improvement District No. 341 Bonds of the City, dated, as originally issued, as of
September 1, 1995 (the "Bonds"). The Bonds mature on the dates, bear 'interest at the
rates and are substantially in the form prescribed by a resolution duly adopted by the
City Council on September 18, 1995, entitled "Resolution Relating to $100,000 Special
Improvement District No. 341 Bonds; Fixing the Form and Details and Providing for
the Execution and Delivery Thereof and Security Therefor" (the "Resolution") - The
Resolution is in full force and effect in the form it was adopted. We have delivered
the Bonds to First Trust Company of Montana National Association, as Registrar,
for authentication and delivery to D. A. Davidson & Co., in Great Falls, Montana
(the "Purchaser").
2. The Bonds have been in all respects duly executed for delivery
pursuant to authority conferred upon such officers; that no obligations other than
those described above have been issued pursuant to such authority; that none of the
proceedings or records which have been certified to the Purchaser or to the attorneys
approving the legality of the issuance of the Bonds has been in any manner
repealed, amended or changed except as shown by additional proceedings or records
furnished each of them; and that there has been no material adverse change in the
financial condition of the City or the circumstances affecting the Bonds, except as
shown by the materials so furnished.
3. No litigation or other judicial or administrative proceeding is now
pending, or, to the best of our knowledge,- threatened, (i) restraining or enjoining
the sale, issuance or delivery of the Bonds, (h) questioning the organization of the
City or the right of any officers of the City to their respective offices, (iii) questioning
the right and power of officers of the City to deliver the Bonds, GO questioning the
validity of the creation or extension of Special Improvement District No. 341 (the
"District") or the work to be undertaken therein or for the special benefit thereof or
any contract relating thereto, M. challenging the validity of the levy of any special
assessments to pay the principal of or 'interest on the Bonds, or (vi) questioning the
levy of any taxes or the making of any loans to fund the City's Special Improvement
District Revolving Fund (the "Revolving Fund") or the pledge thereof to the Bonds.
No sufficient petition requesting a referendum has been filed with respect to the
Resolution or any of the resolutions of the City Council authorizing the issuance
and sale of the Bonds or any proceedings preliminary thereto, including the
resolution creating the District.
4. We have reviewed the Offering Circular, relating to the Bonds (the
"Offering Circular"). The Offering Circular did not, as of the date thereof, and does
not, as of the date hereof, contain any misstatement of a material fact or omit to state
any material fact necessary to make the statements contained therein not misleading
in light of the circumstances under which they are made; provided that we make no
comment regarding information provided by the Purchaser for inclusion in the
Offering Circular relating to the Purchaser and the reoffering prices of the Bonds.
5. Pursuant to Section 148 of the Internal Revenue Code of 1986., as
amended (the "Code"), and the Treasury Regulations applicable thereunder (the
"Regulations"), we, as the officers of the City responsible for issuing the Bonds,
hereby certify the present expectations of the City on the date hereof with respect to
the Bonds are as follows:
(a) The Bonds are being issued to finance the cost of constructing
certain local improvements (the "Improvements") in or for the benefit of the
District. The Improvements are intended for use by members of the general
public.
M Based upon the most recent estimate of cost by the City Engineer
and the Finance Director, the City expects to expend the following sums in
connection with the Improvements:
Construction $107r317
Engineering & Inspection Fees 16,098
Revolving Fund Contribution 5,000
Reserve Fund Contribution 51000
Underwriter-'s Discount 3,000
Costs of Issuance 31250
Total: $139,665
Costs of the Improvements in excess of the proceeds of the Bonds will be paid
from available funds of the City.
(c) The City has heretofore entered into a construction contract for the
Improvements, in the sum of at least $107,317 which sum is not less than five
percent of the net sale proceeds of the proceeds of the Bonds (i.e. $5,000-00).
(d) Work on the Improvements has commenced, will proceed with
due diligence to completion, and the Improvements are expected to be
completed by December 15,1995.
-2-
(e) The City will receive $97,383-33 from the Purchaser. This amount
0
represents payment of $97,000 for the principal of the Bonds (giving effect to
the underwriter's discount of $3,000), plus $383-33, representing accrued
interest on the Bonds from September 1, 1995, to the date hereof.
W Of the amount the City will receive from the Purchaser, $87,000.00
will be used to pay the costs of the Improvements set forth in (b), including
$3,200 to pay costs of 'issuance of the Bonds (representing costs of financial
advisors, legal services, bond registration, advertising and printing and
similar terms), $5,000-00 will be deposited in the Revolving Fund, $5,000-00
will be deposited in the District Reserve Account and $383.33 will be deposited
in the Interest Account in the District Fund created by the Resolution and
used to pay interest on the Bonds on January 1, 1997.
(g) The amount to be received by the City from the Purchaser, less the
costs of issuance of the Bonds and the amounts deposited in the Revolving
Fund and the District Reserve Account, does not exceed the amount to be
spent by the City with respect to the Improvements.
W The City expects to spend on costs of the Improvements or costs of.
issuance of the Bonds by January 15, 1996, all of the proceeds to be derived by
the City from the sale of the Bonds, except the amounts deposited in the
Revolving Fund and the District Reserve Account.
G) The Bonds are not "hedge bonds" within the meaning of Section
149(g) of the Code. The City expects to spend not less than 85% of the
spendable proceeds of the Bonds within three years after the date hereof and
less than 50 percent of the proceeds of the Bonds are invested in nonpurpose
investments having a substantially guaranteed yield for four years or more.
(j) Proceeds of the Bonds and investment income thereon to be used to
finance the costs of the Improvements and pay costs of issuance of the Bonds
will be invested for a temporary period pursuant to Section 1.148-2(e)(2) of the
Regulations ending on the earlier of: G) three years from the date hereof
(September 26, 1998), or (ii) the date that the Improvements would be
completed i*n the exercise of due diligence and all costs thereof promptly paid.
If, at the conclusion of such temporary period, proceeds of the Bonds and
investment income thereon have not been allocated to the governmental
purposes of the Bonds, such amounts will not be 'invested at a yield greater
than the yield of the Bonds (5.69807%), if and to the extent such restriction is
necessary to prevent the Bonds from being arbitrage bonds within the
meaning of Section 148 of the Code and Regulations.
-3-
W The Improvements have not been and are not expected to be sold
or otherwise disposed of by the City during the term of the Bonds. The City
expects that the Improvements will remain owned and operated by the City
substantially in the manner in which they are now owned and operated for
the indefinite future, at least during the term of the Bonds.
(1) No other obligations of the City (a) are being 'issued at substantially
the same time as the Bonds, M are being sold pursuant to the same plan of
financing as the Bonds, and (c) are reasonably expected to be paid from
substantially the same source of funds (determined without regard to
guarantees from unrelated parties) as will be used to pay the Bonds, within
the meaning of Section 1.150-1(c) of the Regulations.
(m) The yield of the Bonds, computed in accordance with Section 148
of the Code and applicable Regulations, is 5.69807% per annum.
(n) The principal of and interest on the Bonds are payable from the
Special Improvement District No. 341 Fund (the "District Fund") of the City.
The City expects to use only the District Fund to pay the principal of and
interest on the Bonds. The special assessments appropriated to the District
Fund are expected to produce amounts suff icient to pay all principal of and
interest on the Bonds when due.
Whenever there will be money in the Principal and Interest Accounts
in the District Fund on any 'interest payment date, after paying interest on all
Bonds then due, either from the prepayment of special assessments levied on
the benefitted property or from the transfer of surplus money from the
Construction Account to the Principal Account, the Finance Director is
required by law to call for redemption outstanding Bonds or principal
installments thereof which, together with the interest thereon to the date of
redemption, will equal the amount on hand in the Principal and Interest
Accounts on that date. The Principal and Interest Accounts will be used
primarily to achieve a proper matching of revenues and debt service within
each bond year and will be fully depleted at least once a year on July 1 in each
bond year (the 12-month period ending on July 1), except for a reasonable
carryover amount which is not expected to exceed the greater of M the
earnings on money in the Principal and Interest Accounts allocable to the
Bonds for the preceding bond year or (ii) one -twelfth of the annual debt
service on the Bonds in the preceding bond year. Consequently, the amounts
on deposit in the Principal and Interest Accounts constitute a "bona fide debt
service fund'" for the Bonds within the meaning of Section 1.148-1(b) of the
Regulations.
5.9
OW-11
(o) On the first day of each month, the Finance Director will determine
the amount on hand in the Principal and Interest Accounts in the District
Fund. If the amounts on deposit therein exceed the amount described in
paragraph 5(n) hereof,, the amountin excess thereof, except as provided in
paragraph 5(t) hereof, will be applied to redeem Bonds or will not be invested
at a yield greater than the yield of the Bonds (5.69807%), if and to the extent
such use or restriction is necessary to prevent the Bonds from being arbitrage
bonds within the meaning of Section 148 of the Code and the Regulations.
(p) From the proceeds of the Bonds, $5,000 have been deposited in the
District Reserve Account in the District Fund. Funds in the District Reserve
Account are to be applied on any interest payment date to payment of
principal of and interest on the Bonds at the stated maturity thereof if funds
on hand in the Principal Account and the Interest Account are insufficient
therefor. Funds in the District Reserve Account must be used for such
purpose before a loan is made by the Revolving Fund therefor. There is no
requirement under the Resolution to replenish any money withdrawn from
the District Reserve Account. If money 'is on hand in the District Reserve
Account and all Bonds have been paid or discharged, such money is to be
transferred to the Revolving Fund, as required by Section 7-12-4169(3).
(q) The City has established the Revolving Fund pursuant to Montana
Code Annotated, Sections 7-12-4221 to 7-12-4229, to secure certain special
improvement district bonds and warrants of the City, including the Bonds.
The amount on deposit therein, including the deposit from the proceeds of
the Bonds is $12,211-74. This amount secures special improvement district
bonds and warrants of the City, 'including the Bonds, issued in the original
aggregate principal amount of $366,402.74.
Unless the Regulations otherwise require, the City will allocate
amounts on hand in the Revolving Fund, as a commingled reserve fund as
provided in Section 1.148-6(e)(6)(i) of the Regulations, to outstanding issues of
special improvement district bonds or warrants secured thereby 'in proportion
to their respective original principal amounts. The City shall reallocate funds
on deposit in the Revolving Fund to outstanding issues of bonds or warrants
secured thereby upon the issuance or retirement of a series of bonds or
warrants secured thereby and, if not done otherwise, at least every three years.
(r) The District Reserve Account and the Revolving Fund are required
for the marketability of the Bonds and together constitutes a fireasonably
required reserve" for the Bonds within the meaning of Section 148(d) of the
Code and Section 1.148-2(f) of the Regulations to the extent that the sum of
the amount on deposit in the District Reserve Account and the amount on
deposit in the Revolving Fund allocable to the Bonds (together, the �'Reserve
-5-
Amount,") does not exceed the Reserve Limitation (as hereinafter defined).
For purposes of this paragraph W, the "'Reserve Limitation'" is equal, as of the
date of calculation, to the least of: W ten percent (10%) of the proceeds of the
Bonds ($10,000-00); (ii) the maximum amount of principal and interest
payable on the Bonds in the current or any future calendar year of the City
($15,120.00), and (iii) 125% of the average debt service on the Bonds payable in
any calendar year of the City during the term of the Bonds ($13,172-50).
Any portion of the Reserve Amount that is 'in excess of the Reserve
Limitation shall not be invested at a yield in excess of the yield of the Bonds
(5-69807%), except as permitted by paragraph 5(t) hereof. As of the date hereof,
the Reserve Amount is $8,333-80. All of the Reserve Amount, determined as
of the date hereof, is a reasonably required reserve for the Bonds and may be
invested at an unrestricted Yield pursuant to this paragraph 5(r).
(s) Except as set forth in this Section 5, the City has not created or
established, and does not expect to create or establish, any sinking or similar
fund which is reasonably expected to be used to pay debt service on the Bonds
or which is pledged as collateral to secure the Bonds. No amounts in any
other funds or accounts of the City are reserved for or pledged to the payment
of debt service on the Bonds or will be used to replace funds that will be used
to pay debt service on the Bonds.
W An aggregate amount not to exceed the "'minor portion"' amount
for the Bonds ($5,000.00) may be invested pursuant to Section 148(e) of the
Code without restriction as to yield. To the extent (10 the proceeds of the
Bonds and investment income thereon in the Construction Account in the
District Fund are invested beyond the date described in paragraph 5(j) hereof,
(ii) the amount on hand in the Principal and Interest Accounts exceeds the
amount described in paragraph 5(n) hereof relating thereto and (iii) the
Reserve Amount exceeds the Reserve Limitation described 'in paragraph 5(r)
hereof, such amounts in the aggregate may be invested up to the minor
portion amount at a yield greater than the yield of the Bonds (5.69807%).
M The Bonds will not be outstanding longer than necessary, within
the meaning of Section 1-148-1(c)(4) of the Regulations. The weighted average
maturity of the Bonds (8.148591 years) does not exceed 120 percent of the
average reasonably expected economic life of the Improvements. Such
average reasonably expected economic life is not less than 20 years.
M The sale proceeds of the Bonds do not exceed the amount necessary
to achieve the governmental purposes of the Bonds. No portion of the Bonds
is issued solely for the purpose of investing such portion at a materially
higher yield as less than a major portion. None of the proceeds of the Bonds
Fes
will be used directly or indirectly to replace funds which were used directly or
indirectly to acquire obligations with a yield that is materially higher than the
Yield of the Bonds.
(w) We have investigated the facts, estimates and circumstances
surrounding the issuance of the Bonds, which are described summarily in
this Certificate. To the best of our knowledge and belief, such facts, estimates
and circumstances are correct and complete and the City's expectations as to
future events, which are based thereon, are in all respects reasonable and
made in good faith. To the extent that the expectations of the City are based
upon estimates and representations made by others, including the Purchaser,
we have examined such estimates and representations and consider them to
be reasonable and correct. Any statements in this Certificate involving future
events, whether or not expressly so stated, are intended as expectations of the
State and not as representations of fact. On the basis of such facts, estimates
and circumstances, it is expected that the proceeds of the Bonds will be used in
a manner that would not cause the Bonds to be considered "'arbitrage bonds//
w ithin the meaning of Section 148 of the Code, and there are no present facts,,
estimates or circumstances which would change the foregoing conclusion.
(x) As determined in Section 5.04 of the Resolution, the Bonds are
excepted from the rebate provisions of Section 148(f) of the Code.
6. The provisions of this Section 6 are intended to establish and
provide for compliance by the City with Treasury Regulations, Section 1.150-2 (the
"Reimbursement Regulations") applicable to the "'reimbursement proceeds" of the
Bonds, being those proceeds which will be used by the City to reimburse itself for
any expenditure with respect to the Improvements which the City paid or will have
paid prior to the 'issuance of the Bonds (a "'Reimbursement Expend iture").
The City hereby certifies and covenants as follows:
(a) Except as hereinafter provided, on or before the date of payment of
any Reimbursement Expenditure, the City made or will have made a written
declaration of the City's official intent (the "Declaration") which complies
with the provisions of Section 1.150-2(d) and (e) of the Reimbursement
Regulations. The Declaration need not cover, however, Reimbursement
Expenditures: W to be paid or reimbursed from sources other than the Bonds,
(ii) made by the City prior to July 1, 1993, if the City complied with the
requirements of Section 1.103-18 of the then effective Treasury Regulations
with respect to such Reimbursement Expenditures, WHO constituting
"'preliminary expenditures" (within the meaning of Section 1.150-2(f)(2) of the
Regulations) for the Improvements, including engineering or architectural
expenses and similar preparatory expenses, which in the aggregate do not
-7-
exceed 20% of the ""issue price of the Bonds, Ov) in a "de minimus" amount
(as defined in Section 1.150-2(f)(1) of the Regulations), i.e., $5,000; or W
Reimbursement Expenditures paid not more than 60 days before the date of
the Declaration.
M As of the date of the Declaration, no funds from sources other than
the Bonds were, or were reasonably expected to be, reserved, allocated on a
long-term basis, or otherwise set aside by the City to provide financing for the
Reimbursement Expenditure to be reimbursed from proceeds of the Bonds.
W Each Reimbursement Expenditure to be reimbursed from proceeds
of the Bonds, other than costs of 'issuing the Bonds, is a capital expenditure
(i.e., a cost that is properly chargeable to capital account (or would be with a
proper election) under general federal income tax principles).
(d) The 1're imbursement allocation"" described in the Reimbursement
Regulations for each Reimbursement Expenditure to be reimbursed from
proceeds of the Bonds shall be made forthwith following (but not prior to) the
issuance of the Bonds and in all events within the period ending on the date
which is 18 months after the later of: (i) the date of payment of the
Reimbursement Expenditure or GO the Improvements are first placed in
service or abandoned, but in no event more than three years after the
Reimbursement Expenditure is paid.
(e) Each such reimbursement allocation will be evidenced by an entry
on the official books or records of the City maintained for and 'in connection
w ith the Bonds and will specifically identify the actual prior Reimbursement
1 1
Expenditure to be reimbursed from proceeds of the Bonds.
(f) The City is unaware of any facts or circumstances which would
cause it to question the reasonableness or accuracy of this Section 6 or of the
Declaration, or its compliance with any of the covenants herein contained.
"60
7. The seal impressed below and imprinted on the Bonds is the true
and official seal of the City.
Dated: September 26,1995.
(SEAL)
in
CITY OF KALISPELL, MONTANA
And
Finadce Director
I a
J CVMC-
And
City Cler0d cil
,./ (youn