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HomeMy WebLinkAboutResolution 2137~~ :~ /~ ~ RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A CONTINUING DISCLOSURE AGREEMENT THE STATE OF TEXAS CITY OF FORT WORTH WHEREAS, the City of Fort Worth (the 'Disclosure Party") and the Tnnnty River Authority of Texas (the "Issuer") have heretofore entered into, and may in the future enter unto, contracts relating to the provision of facilities and/or services by the Issuer for the benefit of the Disclosure Party and WHEREAS, nn connection with the financing of the facilities and/or services provided by the Issuer for the benefit of the Disclosure Party the Issuer has, and/or will, from time to time authorize, issue and deliver bonds (the 'Bonds") of the Issuer supported by payments to be made by the Disclosure Party pursuant to such contracts; and WHEREAS, the United States Securities and Exchange Commission has adopted Rule 15c2 12, as amended from time to time (the 'Rule'), and WHEREAS, the Rule provides that a broker dealer or municipal securities dealer of Bonds nssued after the effective dates set forth nn the Rule, may not purchase or sell Bonds in connection wrath an offering thereof unless, prior to the purchase or sale thereof, obligated persons" or entnties actnng on behalf of obligated persons have undertaken to provnde certain updated financnal information and operating data annually and timely notice of specified material events, to certain information vendors, and WHEREAS, in order to comply wrath the Rule and facilitate the future issuance of Bonds, the Disclosure Party and the Issuer have agreed that rat is deemed appropriate and necessary to enter into the Continuing Disclosure Agreement (the Agreement") hereinafter authorized to be executed and delivered. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH. Section 1 That the recitals set forth iri the preamble hereof are incoiporated herein and shall have the same force and effect as if set forth in thus Section. Section 2. That the Mayor the Mayor Pro Tem or the City Manager of the Disclosure Party are hereby authorized and directed to execute and deliver and the City Secretary is authorized and directed to attest, the Agreement substantially in the form and substance attached hereto ~s[~~ $y2 Section 3 That the Agreement shall become effective and enforceable in accordance with rts terms immediately upon execution and delivery thereof for all intents and purposes • • Section 4 That each of the officers and members of the City Council was duly and sufficiently notified officially and personally in advance, of the tune, place and purpose of the meeting at which this Resolution was introduced, and that said Resolution would be introduced and considered for passage at said meeting, and each of said officers and members consented, in advance, to the holding of said meeting for such purpose, and that said meeting was open to the public and public notice of the time, place and purpose of said meeting was given, all as required by the Texas Government Code, Chapter 551 PASSED THISI~ DAY OF~~~ 1996 ~~~~~~~ CITY SECRETARY (SEAL) APPPOVED CITY ~~~;~!~{L F~ ~ ~ t~~~ ~ ~~,~ • CONTINUING DISCLOSURE AGREEMENT This Continuing Disclosure Agreement (the "Agreement"), dated as of , 19_ is executed and delivered by the Trinity River Authority of Texas (the "Issuer") and (the 'Disclosure Party") in connection with the issuance, from time to time, of the Issuer's "municipal securities, with respect to which the Disclosure Party is an obligated person, as such terms are applied within the meaning of the Rule (the 'Bonds") For good and valuable consideration, the Issuer and the Disclosure Party covenant and agree as follows SECTION 1 Definitions. As used in thus Agreement, the following terms have the meanings ascribed to such terms below "MSRB" means the Municipal Securities Rulemaking Board and any successor to its duties. NRMSIR" means each person whom the SEC or its staff has determined to be.a nationally recognized municipal securities information repository within the meaning of the Rule from tame to time. Rule" means SEC Rule 15c2 12, as amended from time to time. • SEC" means the United States Securities and Exchange Commission and any successor to its duties. SID" means any entity designated by the State of Texas or an authorized department, officer or agency thereof as, and determined by the SEC or its staff to be, a state information depository within the meaning of the Rule from time to time. SECTION 2 Annual Reports, Obligations of Disclosure Party The Disclosure Panty undertakes to and shall provide annually to each NRMSIR and any SID within six months after the end of each of its fiscal year ending on or after January 1 1996 financial information and operating data with respect to the Disclosure Party as specified and included m Appendix B of any final official statement relating to Bonds. Any financial statements so to be provided shall be (1) prepared in accordance with the accounting principles described in the notes to the financial statements as specified and included in Appendix B of any final official statement relating to Bonds, or such other accounting principles as the Disclosure Party maybe required to employ from time to time pursuant to state law or regulation, and (2) audited, if the Disclosure Party commissions an audit of such statements and the audit is completed within the period durng which it must be provided. If the audit of such financial statements is not complete within such period, then the Disclosure Party shall provide unaudited financial statements for the applicable fiscal year to each NRMSIR and any SID within the period during which it must be provided and the audited financial • statements, when. and if the audit report on such statements become available If the Disclosure Party changes its fiscal year it will notify the Issuer each NRMSIR and any SID in writing of the change (and of the date of the new fiscal year end) prior to the next date by • which the Disclosure Party otherwise would 6e required to provide financial information and operating, data pursuant to this Section. The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be incorporated by specific reference to any document or specific part thereby (including an ofl7cial statement or other offenng document, if it is available from the MSRB) that theretofore has been provided to each NRMSIR and any SID or filed with the SEC The Disclosure Party shall, within ten (10) business days of the filings 6f the annual reports, notify the Issuer in writing that the filings have been made. Further the Disclosure Party shall provide (1), in a tunely manner notice of any failure by the Disclosure Party to provide annual financial statements and operating data in accordance with Section 2 hereof to each NRMSIR and each SID and (2) within ten (10) business days of the Disclosure Party's obtauing actual knowledge of the occurrence of any of the events enumerated in 3(a) below notice to the Issuer of such event. SECTION 3 Material Event Notices. (a) The following are the events with respect to Bonds that the Issuer agrees to disclose in a finely manner pursuant to the terms hereof, if the Issuer determines, pursuant to subsection (b) • below that such events are "matenal" under applicable federal secunties laws and regulations promulgated thereunder (1) Principal and interest payment delinquencies, (2) Non-payment related defaults; (3) Unscheduled draws on debt service reserves reflecting financial difficulties; (4) Unscheduled draws on credit enhancements reflecting financial difficulties; (5) Substitution of credit or liquidity providers, or their failure to perform, (6) Adverse tax opinions or events affecting the tax-exempt status of the secunty~ (7) Modifications to nghts of secunties holders; (8) Bond calls; (9) Defeasances; • 2 (10) Release, substitution, or sale of property securing repayment of the securities, and (11) Rating changes. (b) Whenever the Issuer obtains knowledge of the occurrence of one of the above events, whether because of a notice from the Disclosure Party pursuant to subsection (d} or otherwise, the Issuer shall, in a timely manner determine if such event would constitute matenal information for bondholders and beneficial owners of Bonds. (c) If the Issuer determines that the occurrence of one of the above events is material within the meaning of applicable federal securities laws and regulations promulgated thereunder the Issuer shall promptly file a notice of such occurrence with each NRMSIR or the MSRB and each SID SECTION 4 Limitations, Disclaimers, and Amendments. The Issuer and the Disclosure Party shall be obligated to observe and perform the covenants specified in this Agreement for so long as, but only for so long as, the Disclosure Party remains an obligated person" with respect to Bonds within the meaning of the Rule, except that the Disclosure Party in any event will give notice of any deposit made that causes Bonds no longer to be outstanding. • ~ The provisions of this Agreement are for the sole benefit of (and may be enforced by) the bondholders and beneficial owners of Bonds and the parties to this Agreement, and nothing in this Agreement, express or implied, shall give any benefit or any legal or equitable right, remedy or claim hereunder to any other person. The Issuer and the Disclosure Party undertake to provide only the financial information, operating data, financial statements, and notices which each has expressly agreed to provide pursuant to this Agreement and do not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the Issuer's or the Disclosure Party's financial results, condition, or prospects or hereby undertake to update any uiformation provided in accordance with this Agreement or otherwise, except as expressly provided herein. Neither the Issuer nor the Disclosure Party make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date UNDER NO CIRCUMSTANCES SHALL THE ISSUER OR THE DISCLOSURE PARTY BE LIABLE TO THE BONDHOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE ISSUER OR THE DISCLOSURE PARTY RESPECTIVELY WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART OF ANY COVENANT SPECIFIED IN THIS AGREEMENT BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC . PERFORMANCE. 3 • No default by the Issuer or the Disclosure Party in observing or performing their respective obligations under this Agreement shall comprise a breach of or default under any resolution of the Issuer authonzing the issuance of Bonds, or any contract relating thereto for purposes of any other provision of this Agreement. Nothing in this Agreement is intended or shall act to disclaim, waive, or otherwise lima the duties of the Issuer or the Disclosure Party under federal and state secunties laws. The provisions of this Agreement may be amended by the Issuer or the Disclosure Party from time to time to adapt to changed circumstances that anse from a change in legal requirements, a change in law or a change in the identity nature, status, or type of operations of the Issuer or the Disclosure Party but only if (1) the provisions of this Agreement, as so amended, would have permitted an underwnter to purchase or sell Bonds in the primary offenng of Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule since such offenng as well as such changed circumstances and (2) either (a) the bondholders or beneficial owners of a majonry in aggregate principal amount (or any greater amount required by any other provision of this Agreement that authorizes such an amendment) of outstanding Bonds consent to suchamendment or (b) an entity that is unaffiliated with the Issuer or the Disclosure Party (such as nationally recognized bond counsel) deternines that such amendment will not materally impair the interest of the bondholders and beneficial owners of Bonds and is permitted by the terms of the Agreement. If the Issuer or the Disclosure Parry so amend the provisions of this Agreement in connection with the financial or operating data which it is required to disclose~under Section 2 hereof, the Disclosure • Party shall provide a notice of such amendment to be filed in accordance with Section 3(b) hereof, together with an explanation, m narrative form, of the reason for the amendment and the impact of any change in the type of financial information or operating data to be so provided. The Issuer or the. Disclosure Party may also amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the applicable provision of the Rule or a court of final ~unsdiction enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the provisions of this sentence would not prevent an underwnter from lawfully purchasing or selling Bonds in the primary offenng of Bonds SECTIONS Miscellaneous A. Representations. Each of the parties hereto represents and warrants to each other party that it has (i) duly authorized the execution and delivery of this Agreement by the officers of such party whose signatures appear on the execution pages hereto (ii) that it has all requisite power and authonty to execute, deliver and perform this Agreement under applicable law and any resolutions or other actions of such party now in effect, (iii) that the execution and delivery of this Agreement, and performance of the terms hereof, does not and will. not violate any law regulation, ruling, decision, order indenture, decree, agreement or instrument by which such party is bound, and (iv) such party is not awaze of any litigation or proceeding pending, or to the best of such party's knowledge, threatened, • 4 • contesting or questioning rts existence, or its power and authority to enter into this Agreement, or its due authonzatnon, executnon and delivery of this Agreement, or otherwnse contesting or questioning the issuance of Bonds. B Govenun Law This Agreement shall be governed by and interpreted m accordance wrath the laws of the State of Texas and applicable federal law C Severability If any provision hereof shall be held invalid or unenforceable by a court of competent ~unsdiction, the remainung provisions hereof shall survive and Continue in full force and effect. D Counterparts. This Agreement may be executed in one or more counterparts, each and all of which shall constitute one and the same instrument. • IN WITNESS WHEREOF the Issuer and the Disclosure Party have each caused thee- duly authonzed officers to execute this Agreement as of the day and year first above wntten. ATTEST Secretary Board of Directors ATTEST ~~~ Title City Secretary TRINITY RIVER AUTHORITY OF TEXAS President, Board of Directors CITY OF FORT WORTH TEXAS By~ C~~ ~ S~~~Q Title. Ci tv Manager ~AsS+s+ct~.+) 6