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Wichita |
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Code of Ordinances |
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Title 2. ADMINISTRATION AND PERSONNEL |
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Chapter 2.05. ONGOING DISCLOSURE—BONDS AND TEMPORARY NOTES |
§ 2.05.020. Undertaking to provide ongoing disclosure in connection with City of Wichita General Temporary Notes issued for distribution through public offering.
(a)
This Section 2.05.020 establishes and constitutes a written undertaking which shall function as a master undertaking for the benefit of the holders as well as the beneficial owners of all general obligation temporary notes issued by the City of Wichita purchased for public distribution by one or more underwriters, on or after July 3, 1995 (the "Notes"), as might be required to establish legal preconditions for sale of some of the Notes through an underwriter or underwriters, under Section (b)(5)(i) of Securities and Exchange Commission ("SEC") Rule 1 5c2-12 (the "Rule") promulgated under the Securities Exchange Act of 1934, as amended.
(b)
This Subsection (b) of Section 2.05.020 shall apply to all Notes issued on or between July 3, 1995, and June 30, 2009.
(1)
The City of Wichita, as issuer of the Notes (the "Issuer") undertakes to provide the following information, at the times and to the recipients as provided in this Section 2.05.020(b):
(i)
Annual Financial Information;
(ii)
Audited Financial Statements; and,
(iii)
Material Event Notices.
(2)
So long as the Rule (or the policy of the Issuer with respect to sale of the Notes) continues to require an undertaking to make ongoing disclosure as established herein, or performance of prior such undertakings, then, with respect to all of the Notes issued subject to such requirements which remain Outstanding:
(i)
The Issuer shall provide the Annual Financial Information on or before December 31 of each year (the "Report Date"), beginning in December 1996, to each then existing NRMSIR and the SID, if any. The Issuer may adjust the Report Date if the Issuer changes its fiscal year by providing written notice of the change of fiscal year and the new Report Date to each then existing NRMSIR and the SID, if any; provided that the new Report Date shall be not more than 365 days after the end of the new fiscal year and provided further that the final Report Date relating to the former fiscal year and the initial Report Date relating to the new fiscal year shall not exceed one year in duration. It shall be sufficient if the Issuer provides to each then existing NRMSIR and the SID, if any, the Annual Financial Information by specific reference to documents previously provided to each NRMSIR and the SID, if any, or filed with the Securities and Exchange Commission and, if such a document is a final official statement within the meaning of the Rule, available from the Municipal Securities Rulemaking Board ("MSRB"). The Issuer shall also provide to each NRMSIR and the SID, if any, copies of each final official statement (within the meaning of the Rule) which is produced on or after July 3, 1995, in connection with the offering of any of the Notes, within 60 days after such official statement is finalized for distribution by the underwriter.
(ii)
The Issuer shall provide the Audited Financial Statements as part of the Annual Financial Information described in the preceding paragraph of this subsection.
(iii)
If a Material Event occurs, the Issuer shall provide a Material Event Notice in a timely manner to the MSRB and the SID, if any. Each "Material Event Notice" shall be so captioned, and shall prominently state the date, title and CUSIP numbers of the Notes to which the Material Event(s) covered by the Material Event Notice pertain(s).
(iv)
The Issuer shall provide, in a timely manner, to the MSRB and to the SID, if any, notice of any failure by the Issuer to provide Annual Financial Information on or before the Report Date to each then existing NRMSIR and the SID (if any) as required by the terms of this Section 2.05.010(b).
(3)
The following are the definitions of the capitalized terms used in this Section 2.05.020(b) and not otherwise defined elsewhere in this Section 2.05.020(b):
(i)
"Annual Financial Information" means the Issuer's Comprehensive Annual Financial Report ("CAFR"), presenting financial and statistical information for the previous fiscal year (prepared in accordance with the guidelines of the Government Finance Officers Association of the United States and Canada ("GFOA"), as the same may be from time to time amended), and operating data with respect to the Issuer, provided at least annually, of the type included in official statements relating to the Notes (including some unaudited data).
(ii)
"Audited Financial Statements" means the Issuer's general purpose financial statements for the previous fiscal year, prepared in accordance with generally accepted accounting principles ("GAAP") for governmental units as prescribed by the Governmental Accounting Standards Board ("GASB") (except as otherwise stated or disclosed in the notes thereto or as otherwise required by applicable law, as the same may be from time to time amended), which shall have been audited by such auditor(s) as shall be then required or permitted by applicable law.
(iii)
"Material Event" means any of the following events, if material, with respect to any of the Outstanding Notes:
(A)
Principal and interest payment delinquencies;
(B)
Non-payment related defaults;
(C)
Unscheduled draws on debt service reserves reflecting financial difficulties;
(D)
Unscheduled draws on credit enhancements reflecting financial difficulties;
(E)
Substitution of credit or liquidity providers or their failure to perform;
(F)
Adverse tax opinions or events affecting the tax-exempt status of the security;
(G)
Modifications to rights of security holders;
(H)
Note calls;
(I)
Defeasances;
(J)
Release, substitution, or sale of property securing repayment of the securities;
(K)
Rating changes.
(iv)
"Material Event Notice" means written or electronic notice of a Material Event.
(v)
"NRMSIR" means a nationally recognized municipal securities information repository, as recognized from time to time by the SEC for the purposes referred to in the Rule.
(vi)
"Outstanding" when used with reference to any of the Notes shall mean, as of a particular date, all Notes theretofore authenticated and delivered under one or more Ordinances of the City of Wichita, except: (i) Notes theretofore canceled by the Fiscal Agent (as defined in the Ordinance(s) authorizing the issuance of such Notes) or delivered to such Fiscal Agent for cancellation; (ii) Notes for which payment or redemption monies or Government Securities (as defined in the Ordinance(s) authorizing the issuance of such Notes), or both, in the necessary amounts have been deposited with the Fiscal Agent or other such depository as provided in the Ordinance(s) authorizing the issuance of such Notes, in trust for the Owners thereof (whether upon or prior to maturity or the Redemption Date(s) of such Notes); or (iii) Notes in exchange for or in lieu of which Refunding Notes have been authenticated and delivered pursuant to the terms of (and within the meaning of) the appropriate Ordinance(s).
(vii)
"Redemption Date(s)" shall mean, when used with respect to any Note(s), the date(s) established as such in the Ordinance(s) authorizing the issuance of such Note(s).
(viii)
"SID" means a state information depository as operated or designated as such by the State of Kansas for the purposes referred to in the Rule.
(4)
Unless otherwise required by law and subject to technical and economic feasibility, and to annual appropriations, the Issuer will exercise its best efforts to employ such methods of information transmission as shall be requested or recommended by the designated recipients of the Issuer's information.
(5)
This Section 2.05.020(b) or any provision hereof, shall be subject to nullification and repeal in the event that the Issuer first delivers to each then existing NRMSIR and the SID, if any, an opinion of nationally recognized bond counsel to the effect that those portions of the Rule (and those portions of any policy of the Issuer) that require this Section 2.05.020(b) as a condition for particular underwriter conduct, or any such provision, are invalid, have been repealed retroactively or otherwise do not apply to the Notes. This Section 2.05.020(b) may be amended without the consent of the holders or beneficial owners of any Note(s), following the delivery by the Issuer to each then existing NRMSIR and the SID, if any, of the proposed amendment and the opinion of nationally recognized bond counsel to the effect that such amendment, and giving effect thereto, will not adversely affect the adequacy of this Section 2.05.020(b) or the adequacy of the Issuer's subsequent conduct for purposes of compliance with the Rule, provided, however, that no such amendment will be made unless the following conditions are satisfied:
(i)
The amendment may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the Issuer, or type of business conducted;
(ii)
The undertaking, as amended, would have complied with the requirements of the Rule at the time of any primary offering to which the undertaking applies, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances;
(iii)
The amendment does not materially impair the interests of holders, as determined either by parties unaffiliated with the Issuer (such as the trustee or bond counsel) or by approving vote of holders of the Notes pursuant to the terms of the governing instrument(s) at the time of the amendment;
(iv)
If the amendment changes the type of operating data or financial information provided pursuant to the Issuer's undertaking, the Annual Financial Information containing the amended operating data or financial information will explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided; and,
(v)
If the amendment alters portions of the Issuer's undertaking specifying the accounting principles to be followed in preparing financial statements, the Annual Financial Information for the year in which the change is made will present a comparison between the financial statements or information prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles, which comparison should include a qualitative (and to the extent reasonably feasible, quantitative) discussion of the differences in the accounting principles and the impact of the change in principles on the presentation of the financial information. A notice of the change in accounting principles will be sent to the NRMSIRs or the MSRB, and the appropriate SID, if any.
(6)
Any failure by the Issuer to perform in accordance with this Section 2.05.020(b) shall not constitute an "Event of Default" or "Default" within the meaning of any Ordinance(s) authorizing the issuance of any of the Notes, and the rights and remedies provided to holders or beneficial owners of the Notes under such Ordinance(s) upon the occurrence of such a "Default" or such an "Event of Default" shall not apply to any such failure.
(7)
If any of the foregoing provisions or terms of this Section 2.05.020(b), or any application thereof, is held invalid, the invalidity shall not affect other applications of the provisions or terms of this Section 2.05.020(b) which reasonably can be given effect without the invalid provision or term or the application thereof, and to this end, the provisions of this Section 2.05.020(b) are declared to be severable.
(8)
None of the provisions of this Section 2.05.020(b) are in any way intended to impose upon, or result in an assumption by, the City of Wichita or any of its officers, agents or employees, of any special duty or any civil law duty of care as to which any breach or alleged breach thereof could give rise to any claim for damages in tort, and the City hereby expressly disclaims any such duty or responsibility for damages, including (but not limited to) any direct, indirect, special or consequential damages. The provisions of this Section 2.05.020(b) shall not, in any way, create liability or a basis for liability on the part of the City of Wichita, Kansas or any officer or employee thereof for any damages that result from failure of the Issuer to timely perform any portion, provision, term or condition of the written undertaking on its part established herein, or for any damages that result from reliance upon any provision of this Section 2.05.020(b) or any administrative decision lawfully made thereunder. However, nothing in this subsection shall operate or be construed to limit the rights of any holder or beneficial owner of any Note to seek enforcement of the undertakings herein expressed through proceedings for a decree of specific performance in equity.
(c)
This Subsection (c) of Section 2.05.020 shall apply to all Notes issued on or between July 17, 2009, and November 30, 2010.
(1)
The following are the definitions of the capitalized terms used in this Section 2.05.020(c) and not otherwise defined elsewhere in this Section 2.05.020(c):
(i)
"Annual Financial Information" means the City's Comprehensive Annual Financial Report ("CAFR"), presenting financial and statistical information for the previous fiscal year (prepared in accordance with the guidelines of the Government Finance Officers Association of the United States and Canada ("GFOA"), as the same may be from time to time amended), and operating data with respect to the City, provided at least annually, of the type included in official statements relating to the Notes (including some unaudited data).
(ii)
"Audited Financial Statements" means the City's general purpose financial statements for the previous fiscal year, prepared in accordance with GAAP for governmental units as prescribed by the GASB (except as otherwise stated or disclosed in the notes thereto or as otherwise required by applicable law, as the same may be from time to time amended), which shall have been audited by such auditor(s) as shall be then required or permitted by applicable law.
(iii)
"City" means the City of Wichita, Kansas.
(iv)
"EMMA" means the Electronic Municipal Market Access facility for municipal securities disclosure of the MSRB, or any other market access method approved under the Rule.
(v)
"GAAP" means generally accepted accounting principles.
(vi)
"GASB" means the Governmental Accounting Standards Board or its successors or assigns.
(vii)
"Material Event" means any of the following events, if material, with respect to any of the Outstanding Notes:
(A)
Principal and interest payment delinquencies;
(B)
Non-payment related defaults;
(C)
Unscheduled draws on debt service reserves reflecting financial difficulties;
(D)
Unscheduled draws on credit enhancements reflecting financial difficulties;
(E)
Substitution of credit or liquidity providers or their failure to perform;
(F)
Adverse tax opinions or events affecting the tax-exempt status of the security;
(G)
Modifications to rights of security holders;
(H)
Note calls (other than mandatory sinking fund redemptions);
(I)
Defeasances;
(J)
Release, substitution, or sale of property securing repayment of the securities;
(K)
Rating changes.
(viii)
"Material Event Notice" means notice in Prescribed Form in accordance with EMMA of a Material Event.
(ix)
"MSRB" means the Municipal Securities Rulemaking Board and any successors or assigns, or any other entities or agencies approved under the Rule.
(x)
"Outstanding" when used with reference to any of the Notes shall mean, as of a particular date, all Notes theretofore authenticated and delivered under one or more ordinances of the City, except: (i) theretofore canceled by the fiscal agent or paying agent (as defined in the ordinance(s) authorizing the issuance of such Notes) or delivered to such fiscal agent or paying agent for cancellation; (ii) Notes for which payment or redemption monies or government securities (as defined in the ordinance(s) authorizing the issuance of such Notes), or both, in the necessary amounts have been deposited with the fiscal agent or paying agent or other such depository as provided in the ordinance(s) authorizing the issuance of such Notes, in trust for the owners thereof (whether upon or prior to maturity or the Redemption Date(s) of such Notes); or (iii) Notes in exchange for or in lieu of which refunding notes have been authenticated and delivered pursuant to the terms of (and within the meaning of) the appropriate ordinance(s).
(xi)
"Prescribed Form" means such electronic format accompanied by such identifying information as shall have been prescribed by the MSRB and which shall be in effect on the date of filing of the applicable information.
(xii)
"Redemption Date(s)" shall mean, when used with respect to any Note(s), the date(s) established as such in the ordinance(s) authorizing the issuance of such Note(s).
(xiii)
"Report Date" means December 31st of each year, beginning December 31, 2009.
(2)
The City of Wichita, as an "obligated person" within the meaning of the Rule, undertakes to provide the following information, at the times and to the recipients as provided in this Section 2.05.020(c):
(i)
Annual Financial Information;
(ii)
Audited Financial Statements; and,
(iii)
Material Event Notices.
(3)
So long as the Rule (or the policy of the Issuer with respect to sale of the Notes) continues to require an undertaking to make ongoing disclosure as established herein, or performance of prior such undertakings, then, with respect to all of the Notes issued subject to such requirements which remain Outstanding:
(i)
The City shall provide the Annual Financial Information in Prescribed Form in accordance with EMMA to the MSRB, on or before the Report Date. The City may adjust the Report Date if the City changes its fiscal year by providing written notice of the change of fiscal year and the new Report Date to the MSRB; provided that the new Report Date shall be six months after the end of the new fiscal year and provided further that the period between the final Report Date relating to the former fiscal year and the initial Report Date relating to the new fiscal year shall not exceed one year in duration. It shall be sufficient if the City provides to the MSRB the Annual Financial Information by specific reference to documents available to the public on the MSRB's Internet Web site, or filed with the SEC.
(ii)
If not provided as part of the Annual Financial Information, the City shall provide the Audited Financial Statements when and if available to the MSRB in Prescribed Form in accordance with EMMA.
(iii)
If a Material Event occurs, the City shall file a Material Event Notice in a timely manner in Prescribed Form in accordance with EMMA with the MSRB. Each "Material Event Notice" shall be so captioned, and shall prominently state the date, title and CUSIP numbers of the Notes to which the Material Event(s) covered by the Material Event Notice pertain(s).
(iv)
The City shall provide in Prescribed Form in accordance with EMMA in a timely manner to the MSRB notice of any failure by the City to provide Annual Financial Information on or before the Report Date to the MSRB as required by the terms of this Section 2.05.010(c).
(4)
The information listed in Subsection (c)(2) shall be provided by the City to the MSRB, at www.emma.msrb.org, in the Prescribed Form or by such other method of transmitting information that is approved by the SEC.
(5)
This Section 2.05.020(c) or any provision hereof, shall be subject to nullification and repeal in the event that the City first delivers to the MSRB, an opinion of nationally recognized bond counsel to the effect that those portions of the Rule that require this Section 2.05.020(c) as a condition for particular underwriter conduct, or any such provision, are invalid, have been repealed retroactively or otherwise do not apply to the Notes. This Section 2.05.020(c) may be amended without the consent of the holders or beneficial owners of any Note(s), following the delivery by the City to the MSRB, of the proposed amendment and the opinion of nationally recognized bond counsel to the effect that such amendment, and giving effect thereto, will not adversely affect the adequacy of this Section 2.05.020(c) or the adequacy of the City's subsequent conduct for purposes of compliance with the Rule, provided, however, that no such amendment will be made unless the following conditions are satisfied:
(i)
The amendment may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the City, or type of business conducted;
(ii)
The undertaking, as amended, would have complied with the requirements of the Rule at the time of any primary offering to which the undertaking applies, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances;
(iii)
The amendment does not materially impair the interests of holders, as determined either by parties unaffiliated with the City (such as the trustee or bond counsel) or by approving vote of holders of the Notes pursuant to the terms of the governing instrument(s) at the time of the amendment;
(iv)
If the amendment changes the type of operating data or financial information provided pursuant to the City's undertaking, the Annual Financial Information containing the amended operating data or financial information will explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided; and,
(v)
If the amendment alters portions of the City's undertaking specifying the accounting principles to be followed in preparing financial statements, the Annual Financial Information for the year in which the change is made will present a comparison between the financial statements or information prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles, which comparison should include a qualitative (and to the extent reasonably feasible, quantitative) discussion of the differences in the accounting principles and the impact of the change in principles on the presentation of the financial information. A notice of the change in accounting principles will be sent to the MSRB.
(6)
Any failure by the City to perform in accordance with this Section 2.05.020(c) shall not constitute an "Event of Default" or "Default" within the meaning of any ordinance(s) authorizing the issuance of any of the Notes, and the rights and remedies provided to holders or beneficial owners of the Notes under such ordinance(s) upon the occurrence of such a "Default" or such an "Event of Default" shall not apply to any such failure.
(7)
If any of the foregoing provisions or terms of this Section 2.05.020(c), or any application thereof, is held invalid, the invalidity shall not affect other applications of the provisions or terms of this Section 2.05.020(c) which reasonably can be given effect without the invalid provision or term or the application thereof, and to this end, the provisions of this Section 2.05.020(c) are declared to be severable.
(8)
None of the provisions of this Section 2.05.020(c) are in any way intended to impose upon, or result in an assumption by, the City or any of its officers, agents or employees, of any special duty or any civil law duty of care as to which any breach or alleged breach thereof could give rise to any claim for damages in tort, and the City hereby expressly disclaims any such duty or responsibility for damages, including (but not limited to) any direct, indirect, special or consequential damages. The provisions of this Section 2.05.020(c) shall not, in any way, create liability or a basis for liability on the part of the City or any officer or employee thereof for any damages that result from failure of the City to timely perform any portion, provision, term or condition of the written undertaking on its part established herein, or for any damages that result from reliance upon any provision of this Section 2.05.020(c) or any administrative decision lawfully made thereunder. However, nothing in this subsection shall operate or be construed to limit the rights of any holder or beneficial owner of any Note to seek enforcement of the undertakings herein expressed through proceedings for a decree of specific performance in equity.
(9)
This Section 2.05.020(c) shall inure solely to the benefit of the holders of the Notes as required by Section (b)(5)(i) of the Rule, and shall create no rights in any other person or entity.
(10)
The City shall maintain records of all disclosure made pursuant to this Section 2.05.020(c), including the content of such disclosure, the names of the entities with whom such disclosure was filed and the date of filing such disclosure.
(d)
This Subsection (d) of Section 2.05.010 shall apply to all Notes issued on or after December 1, 2010.
(1)
The following are the definitions of the capitalized terms used in this Section 2.05.010(d) and not otherwise defined elsewhere in this Section 2.05.010(d):
(i)
"Annual Financial Information" means the City's Comprehensive Annual Financial Report ("CAFR"), presenting financial and statistical information for the previous fiscal year (prepared in accordance with the guidelines of the Government Finance Officers Association of the United States and Canada ("GFOA"), as the same may be from time to time amended), and operating data with respect to the City, provided at least annually, of the type included in official statements relating to the Notes.
(ii)
"Audited Financial Statements" means the City's general purpose financial statements for the previous fiscal year, prepared in accordance with GAAP for governmental units as prescribed by the GASB (except as otherwise stated or disclosed in the notes thereto or as otherwise required by applicable law, as the same may be from time to time amended), which shall have been audited by such auditor(s) as shall be then required or permitted by applicable law.
(iii)
"City" means the City of Wichita, Kansas.
(iv)
"EMMA" means the Electronic Municipal Market Access facility for municipal securities disclosure of the MSRB, or any other market access method approved under the Rule.
(v)
"GAAP" means generally accepted accounting principles.
(vi)
"GASB" means the Governmental Accounting Standards Board or its successors or assigns.
(vii)
"MSRB" means the Municipal Securities Rulemaking Board and any successors or assigns, or any other entities or agencies approved under the Rule.
(viii)
"Outstanding" when used with reference to any of the Notes shall mean, as of a particular date, all Notes theretofore authenticated and delivered under one or more ordinances or resolution(s) of the City, except: (i) Notes theretofore canceled by the fiscal agent or paying agent (as defined in the ordinance(s) or resolution(s) authorizing the issuance of such Notes) or delivered to such fiscal agent or paying agent for cancellation; (ii) Notes for which payment or redemption monies or government securities (as defined in the ordinance(s) or resolution(s) authorizing the issuance of such Notes), or both, in the necessary amounts have been deposited with the fiscal agent or paying agent or other such depository as provided in the ordinance(s) or resolution(s) authorizing the issuance of such Notes, in trust for the owners thereof (whether upon or prior to maturity or the Redemption Date(s) of such Notes); or (iii) Notes in exchange for or in lieu of which refunding notes have been authenticated and delivered pursuant to the terms of (and within the meaning of) the appropriate ordinance(s) or resolution(s).
(ix)
"Prescribed Form" means such electronic format accompanied by such identifying information as shall have been prescribed by the MSRB and which shall be in effect on the date of filing of the applicable information.
(x)
"Redemption Date(s)" shall mean, when used with respect to any Note(s), the date(s) established as such in the ordinance(s) or resolution(s) authorizing the issuance of such Note(s).
(xi)
"Report Date" means December 31st of each year, beginning December 31, 2011.
(xii)
"Reporting Event" means any of the following events, with respect to any of the Outstanding Notes:
(A)
Principal and interest payment delinquencies;
(B)
Non-payment related defaults, if material;
(C)
Unscheduled draws on debt service reserves reflecting financial difficulties;
(D)
Unscheduled draws on credit enhancements reflecting financial difficulties;
(E)
Substitution of credit or liquidity providers or their failure to perform;
(F)
Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notice of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the security, or other material events affecting the tax status of the security;
(G)
Modifications to rights of security holders, if material;
(H)
Note calls, if material, and tender offers;
(I)
Defeasances;
(J)
Release, substitution, or sale of property securing repayment of the securities, if material;
(K)
Rating changes;
(L)
Bankruptcy, insolvency, receivership or similar event of the obligated person;
(M)
The consummation of a merger, consolidation, or acquisition involving an obligated person or the sale of all or substantially all of the assets of the obligated person, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material;
(N)
Appointment of a successor or additional trustee or the change of name of a trustee, if material.
(xiii)
"Reporting Event Notice" means notice in Prescribed Form in accordance with EMMA of a Reporting Event.
(2)
The City, as an "obligated person" within the meaning of the Rule, undertakes to provide the following information, at the times and to the recipients as provided in this Section 2.05.010(d):
(i)
Annual Financial Information;
(ii)
Audited Financial Statements; and,
(iii)
Reporting Event Notices.
(3)
So long as the Rule continues to require an undertaking to make ongoing disclosure as established herein, or performance of prior such undertakings, then, with respect to all of the Notes issued subject to such requirements which remain Outstanding:
(i)
The City shall provide the Annual Financial Information in Prescribed Form in accordance with EMMA to the MSRB, on or before the Report Date. The City may adjust the Report Date if the City changes its fiscal year by providing written notice of the change of fiscal year and the new Report Date to the MSRB; provided that the new Report Date shall not exceed one year from the end of the new fiscal year and provided further that the period between the final Report Date relating to the former fiscal year and the initial Report Date relating to the new fiscal year shall not exceed one year in duration. It shall be sufficient if the City provides to the MSRB the Annual Financial Information by specific reference to documents available to the public on the MSRB's Internet Web site, or filed with the SEC.
(ii)
If not provided as part of the Annual Financial Information, the City shall provide the Audited Financial Statements when and if available to the MSRB in Prescribed Form in accordance with EMMA.
(iii)
If a Reporting Event occurs, the City shall file a Reporting Event Notice in a timely manner not in excess of ten business days after the occurrence of the event in Prescribed Form in accordance with EMMA with the MSRB. Each "Reporting Event Notice" shall be so captioned, and shall prominently state the date, title and CUSIP numbers of the Notes to which the Reporting Event(s) covered by the Reporting Event Notice pertain(s).
(iv)
The City shall provide in Prescribed Form in accordance with EMMA in a timely manner to the MSRB notice of any failure by the City to provide Annual Financial Information on or before the Report Date to the MSRB as required by the terms of this Section 2.05.010(d).
(4)
The information listed in Subsection (d)(2) shall be provided by the City to the MSRB, at www.emma.msrb.org, in the Prescribed Form or to such other location and by such other method of transmitting information that is approved by the SEC.
(5)
This Section 2.05.010(d) or any provision hereof, shall be subject to nullification and repeal in the event that the City first delivers to the MSRB, an opinion of nationally recognized bond counsel to the effect that those portions of the Rule that require this Section 2.05.010(d) as a condition for particular underwriter conduct, or any such provision, are invalid, have been repealed retroactively or otherwise do not apply to the Notes. This Section 2.05.010(d) may be amended without the consent of the holders or beneficial owners of any Note(s), following the delivery by the City to the MSRB, of the proposed amendment and the opinion of nationally recognized bond counsel to the effect that such amendment, and giving effect thereto, will not adversely affect the adequacy of this Section 2.05.010(d) or the adequacy of the City's subsequent conduct for purposes of compliance with the Rule, provided, however, that no such amendment will be made unless the following conditions are satisfied:
(i)
The amendment may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the City, or type of business conducted;
(ii)
The undertaking, as amended, would have complied with the requirements of the Rule at the time of any primary offering to which the undertaking applies, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances;
(iii)
The amendment does not materially impair the interests of holders, as determined either by parties unaffiliated with the City (such as the trustee or bond counsel) or by approving vote of holders of the Notes pursuant to the terms of the governing instrument(s) at the time of the amendment;
(iv)
If the amendment changes the type of operating data or financial information provided pursuant to the City's undertaking, the Annual Financial Information containing the amended operating data or financial information will explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided; and,
(v)
If the amendment alters portions of the City's undertaking specifying the accounting principles to be followed in preparing financial statements, the Annual Financial Information for the year in which the change is made will present a comparison between the financial statements or information prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles, which comparison should include a qualitative (and to the extent reasonably feasible, quantitative) discussion of the differences in the accounting principles and the impact of the change in principles on the presentation of the financial information. A notice of the change in accounting principles will be sent to the MSRB.
(6)
Any failure by the City to perform in accordance with this Section 2.05.010(d) shall not constitute an "Event of Default" or "Default" within the meaning of any ordinance(s) or resolution(s) authorizing the issuance of any of the Notes, and the rights and remedies provided to holders or beneficial owners of the Notes under such ordinance(s) or resolution(s) upon the occurrence of such a "Default" or such an "Event of Default" shall not apply to any such failure.
(7)
If any of the foregoing provisions or terms of this Section 2.05.010(d), or any application thereof, is held invalid, the invalidity shall not affect other applications of the provisions or terms of this Section 2.05.010(d) which reasonably can be given effect without the invalid provision or term or the application thereof, and to this end, the provisions of this Section 2.05.010(d) are declared to be severable.
(8)
None of the provisions of this Section 2.05.010(d) are in any way intended to impose upon, or result in an assumption by, the City or any of its officers, agents or employees, of any special duty or any civil law duty of care as to which any breach or alleged breach thereof could give rise to any claim for damages in tort, and the City hereby expressly disclaims any such duty or responsibility for damages, including (but not limited to) any direct, indirect, special or consequential damages. The provisions of this Section 2.05.010(d) shall not, in any way, create liability or a basis for liability on the part of the City or any officer or employee thereof for any damages that result from failure of the City to timely perform any portion, provision, term or condition of the written undertaking on its part established herein, or for any damages that result from reliance upon any provision of this Section 2.05.010(d) or any administrative decision lawfully made thereunder. However, nothing in this subsection shall operate or be construed to limit the rights of any holder or beneficial owner of any Note to seek enforcement of the undertakings herein expressed through proceedings for a decree of specific performance in equity.
(9)
This Section 2.05.010(d) shall inure solely to the benefit of the holders of the Notes as required by Section (b)(5)(i) of the Rule, and shall create no rights in any other person or entity.
(10)
The City shall maintain records of all disclosure made pursuant to this Section 2.05.010(d), including the content of such disclosure, the names of the entities with whom such disclosure was filed and the date of filing such disclosure.
(11)
The City may, from time to time, appoint or engage an agent to assist it in carrying out its obligations under this Section 2.05.010(d) and may discharge any such agent with or without appointing a successor agent.
(12)
Nothing in this Section 2.05.010(d) shall be deemed to prevent the City from disseminating any other information, using the means of dissemination set forth in this subsection or any other means of communication, or including any other information in any Annual Financial Information or notice of occurrence of a Reporting Event in addition to that which is required by this Section 2.05.010(d). If the City chooses to include any information from any document or notice of occurrence of a Reporting Event in addition to that which is specifically required by this Section 2.05.010(d), the City shall not have any obligation under this Section 2.05.010(d) to update such information or include it in any future disclosure or notice of the occurrence of a Reporting Event.
(Ord. No. 42-997, § 1; Ord. No. 48-367, § 1, 7-14-09; Ord. No. 49-078, § 1, 9-13-2011)