HomeMy WebLinkAbout3050 Bond OrdinanceCITY OF PORT TOWNSEND, WASHINGTON
ORDINANCE NO. 3050
AN ORDINANCE of the City of Port Townsend, Washington, providing
for the issuance and sale of $3,740,000 par value of Limited Tax General
Obligation Bonds, 2010, of the City to provide the funds with which to pay
various capital improvements; and fixing the terms and covenants of the bonds.
Passed December 6, 2010
This document prepared by:
Foster Pepper PLLC
1111 Third Avenue, Suite 3400
Seattle, Washington 98101
(206) 447-4400
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TABLE OF CONTENTS
Page
Section 1. Definitions ............................................................................................................... 1
Section 2. Debt Capacity ......................................................................................................... . 2
Section 3. Authorization of Bonds .......................................................................................... . 2
Section 4. Description of Bonds ............................................................................................. . 3
Section 5. Registration and Transfer of Bonds ....................................................................... . 3
Section 6. Payment of Bonds .................................................................................................. . 5
Section 7. Redemption Provisions and Open Market Purchase of Bonds .............................. . 6
Section 8. Notice of Redemption ............................................................................................ . 7
Section 9. Failure To Redeem Bonds ..................................................................................... . 8
Section 10. Pledge of Taxes ...................................................................................................... . 9
Section 11. Form and Execution of Bonds ................................................................................ 9
Section 12. Duties of Bond Registrar ...................................................................................... 10
Section 13. Preservation of Tax Exemption for Interest on Bonds .......................................... 10
Section 14. Small Governmental Issuer Arbitrage Rebate Exception and Designation
of Bonds as "Qualified Tax-Exempt Obligations." .............................................. 11
Section 15. Refunding or Defeasance of the Bonds ................................................................ 12
Section 16. Bond Fund and Deposit of Bond Proceeds ........................................................... 13
Section 17. Approval of Bond Purchase Contract ................................................................... 13
Section 18. Preliminary Official Statement Deemed Final ...................................................... 14
Section 19. Undertaking to Provide Continuing Disclosure .................................................... 14
Section 20. Effective Date of Ordinance ................................................................................. 19
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CITY OF PORT TOWNSEND, WASHINGTON
ORDINANCE NO. 3050
AN ORDINANCE of the City of Port Townsend, Washington, providing
for the issuance and sale of $3,740,000 par value of Limited Tax General
Obligation Bonds, 2010, of the City to provide the funds with which to pay
various capital improvements; and fixing the terms and covenants of the bonds.
WHEREAS, the City of Port Townsend, Washington (the "City"), is in need of various
capital improvements, and the City does not have available sufficient funds to pay the cost;
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. Definitions.
"Bond Register" means the books or records maintained by the Bond Registrar
containing the name and mailing address of the owner of each Bond and the principal amount
and number of Bonds held by each owner.
"Bond Registrar" means the Fiscal Agent.
"Bonds" means the $3,740,000 par value Limited Tax General Obligation Bonds, 2010,
of the City issued pursuant to and for the purposes provided in this ordinance.
"City" means the City of Port Townsend, Washington, a municipal corporation duly
organized and existing under and by virtue of the laws of the State of Washington.
"Code" means the United States Internal Revenue Code of 1986, as amended, and
applicable rules and regulations promulgated thereunder.
"DTC" means The Depository Trust Company, New York, New York.
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"Fiscal Agent" means the fiscal agent of the State of Washington, as the same may be
designated by the State from time to time.
"Letter of Representations" means the Blanket Issuer Letter of Representations dated
January 22, 1998, between the City and DTC, as it maybe amended from time to time.
"MSRB" means the Municipal Securities Rulemaking Board.
"Projects" means improvements to sidewalks and utilities, the library expansion, Way
Finding Project, broadband and wireless improvements, refurbishing the Fort Worden building
2020, improvements to Howard Street, and other capital projects approved by the Council.
"SEC" means the United States Securities and Exchange Commission.
Section 2. Debt Capacity. The assessed valuation of the taxable property within the
City as ascertained by the last preceding assessment for City purposes for the calendar year 2010
is $1,455,136,315, and the City has outstanding general indebtedness evidenced by limited tax
general obligation bonds in the principal amount of $14,180,321 incurred within the limit of up
to 1-1/2% of the value of the taxable property within the City permitted for general municipal
purposes without a vote of the qualified voters therein, and no unlimited tax general obligation
bonds incurred within the limit of up to 2 1/2% of the value of the taxable property within the
City issued pursuant to a vote of the qualified voters of the City.
Section 3. Authorization of Bonds. The City shall borrow money on the credit of the
City and issue negotiable limited tax general obligation bonds evidencing that indebtedness in
the amount of $3,740,000 to provide the funds to pay the cost of the Projects and to pay the costs
of issuance and sale of the bonds (the "costs of issuance"). The general indebtedness to be
incurred shall be within the limit of up to 1-1/2% of the value of the taxable property within the
City permitted for general municipal purposes without a vote of the qualified voters therein.
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Section 4. Description of Bonds. The bonds shall be called Limited Tax General
Obligation Bonds, 2010, of the City (the "Bonds"); shall be in the aggregate principal amount of
$3,740,000; shall be dated as of the date of their initial delivery; shall be in the denomination of
$5,000 or any integral multiple thereof within a single maturity; shall be numbered separately in
the manner and with any additional designation as the fiscal agent of the State of Washington (as
the same may be designated by the State of Washington from time to time) (the "Bond
Registrar") deems necessary for purposes of identification; shall bear interest (computed on the
basis of a 360-day year of twelve 30-day months) payable semiannually on each June 1 and
December 1, commencing June 1, 2011, to the maturity or earlier redemption of the Bonds; and
shall mature on December 1 in years and amounts and bear interest at the rates per annum as
follows:
Maturity Years
2016
2017
2018
2019
2020
2025
2030
Amounts
$ 190,000
195,000
200,000
205,000
210,000
1,205,000
1,535,000
Interest Rates
2.30%
2.70
3.00
3.25
3.50
5.00
5.00
Section 5. Registration and Transfer of Bonds. The Bonds shall be issued only in
registered form as to both principal and interest and shall be recorded on books or records
maintained by the Bond Registrar (the "Bond Register"). The Bond Register shall contain the
name and mailing address of the owner of each Bond and the principal amount and number of
each of the Bonds held by each owner.
Bonds surrendered to the Bond Registrar maybe exchanged for Bonds in any authorized
denomination of an equal aggregate principal amount and of the same interest rate and maturity.
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Bonds may be transferred only if endorsed in the manner provided thereon and surrendered to
the Bond Registrar. Any exchange or transfer shall be without cost to the owner or transferee.
The Bond Registrar shall not be obligated to exchange or transfer any Bond during the 15 days
preceding any principal payment or redemption date.
The Bonds initially shall be registered in the name of Cede & Co., as the nominee of The
Depository Trust Company, New York, New York ("DTC"). The Bonds so registered shall be
held in fully immobilized form by DTC as depository in accordance with the provisions of a
Blanket Issuer Letter of Representations dated January 22, 1998 between the City and DTC (as it
may be amended from time to time, the "Letter of Representations"). Neither the City nor the
Bond Registrar shall have any responsibility or obligation to DTC participants or the persons for
whom they act as nominees with respect to the Bonds regarding accuracy of any records
maintained by DTC or DTC participants of any amount in respect of principal of or interest on
the Bonds, or any notice which is permitted or required to be given to registered owners
hereunder (except such notice as is required to be given by the Bond Registrar to DTC).
For as long as any Bonds are held in fully immobilized form, DTC, its nominee or its
successor depository shall be deemed to be the registered owner for all purposes hereunder and
all references to registered owners, bondowners, bondholders or the like shall mean DTC or its
nominee and, except for the purpose of the City's undertaking herein to provide continuing
disclosure, shall not mean the owners of any beneficial interests in the Bonds. Registered
ownership of such Bonds, or any portions thereof, may not thereafter be transferred except: (i) to
any successor of DTC or its nominee, if that successor shall be qualified under any applicable
laws to provide the services proposed to be provided by it; (ii) to any substitute depository
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appointed by the City or such substitute depository's successor; or (iii) to any person if the
Bonds are no longer held in immobilized form.
Upon the resignation of DTC or its successor (or any substitute depository or its
successor) from its functions as depository, or a determination by the City that it no longer
wishes to continue the system of book entry transfers through DTC or its successor (or any
substitute depository or its successor), the City may appoint a substitute depository. Any such
substitute depository shall be qualified under any applicable laws to provide the services
proposed to be provided by it.
If (i) DTC or its successor (or substitute depository or its successor) resigns from its
functions as depository, and no substitute depository can be obtained, or (ii) the City determines
that the Bonds are to be in certificated form, the ownership of Bonds may be transferred to any
person as provided herein and the Bonds no longer shall be held in fully immobilized form.
Section 6. Payment of Bonds. Both principal of and interest on the Bonds shall be
payable in lawful money of the United States of America. Interest on the Bonds shall be paid by
checks or drafts of the Bond Registrar mailed on the interest payment date to the registered
owners at the addresses appearing on the Bond Register on the 15`h day of the month preceding
the interest payment date (the "record date") or, if requested in writing by a registered owner of
$100,000 or more in principal amount of Bonds prior to the applicable record date, by wire
transfer on the interest payment date. Principal of the Bonds shall be payable upon presentation
and surrender of the Bonds by the registered owners to the Bond Registrar. Notwithstanding the
foregoing, for as long as the Bonds are registered in the name of DTC or its nominee, payment of
principal of and interest on the Bonds shall be made in the manner set forth in the Letter of
Representations.
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Section 7. Redemption Provisions and Open Market Purchase of Bonds. The City
reserves the right and option to redeem the Bonds maturing on or after December 1, 2025, prior
to their stated maturity dates at any time on or after December 1, 2020, as a whole or in part
(within one or more maturities selected by the City and randomly within a maturity in such
manner as the Bond Registrar shall determine), at par plus accrued interest to the date fixed for
redemption.
The Bonds are Term Bonds and, if not redeemed under the optional redemption
provisions set forth above or purchased in the open market under the provisions set forth below,
shall be called for redemption randomly (in such manner as the Bond Registrar shall determine)
at par plus accrued interest on December 1 in years and amounts as follows:
2025 Term Bonds
Year Amount
2021 $ 220,000
2022 230,000
2023 240,000
2024 250,000
2025* 265,000
* Maturity
2030 Term Bonds
Year Amount
2026 $ 280,000
2027 290,000
2028 305,000
2029 320,000
2030* 340,000
* Final Maturity
If the City redeems under the optional redemption provisions, purchases in the open
market or defeases Term Bonds, the par amount of the Term Bonds so redeemed, purchased or
defeased (irrespective of their actual redemption or purchase prices) shall be credited against one
or more scheduled mandatory redemption amounts for those Term Bonds. The City shall
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determine the manner in which the credit is to be allocated and shall notify the Bond Registrar in
writing of its allocation at least 60 days prior to the earliest mandatory redemption date for that
maturity of Term Bonds for which notice of redemption has not already been given.
(c) Partial Redemption. Portions of the principal amount of any Bond, in
installments of $5,000 or any integral multiple thereof, may be redeemed. If less than all of the
principal amount of any Bond is redeemed, upon surrender of that Bond to the Bond Registrar,
there shall be issued to the registered owner, without charge therefor, a new Bond (or Bonds, at
the option of the registered owner) of the same maturity and interest rate in any of the
denominations authorized by this ordinance in the aggregate principal amount remaining
unredeemed.
Notwithstanding the foregoing, for as long as the Bonds are registered in the name of
DTC or its nominee, selection of Bonds for redemption shall be in accordance with the Letter of
Representations.
The City further reserves the right and option to purchase any or all of the Bonds in the
open market at any time at any price acceptable to the City plus accrued interest to the date of
purchase.
All Bonds purchased or redeemed under this section shall be canceled.
Section 8. Notice of Redemption. While the Bonds are held by DTC in book-entry
only form, any notice of redemption shall be given at the time, to the entity and in the manner
required by DTC in accordance with the Letter of Representations, and the Bond Registrar shall
not be required to give any other notice of redemption. If the Bonds cease to be in book-entry
only form, the City shall cause notice of any intended redemption of Bonds to be given by the
Bond Registrar not less than 30 nor more than 60 days prior to the date fixed for redemption by
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first-class mail, postage prepaid, to the registered owner of any Bond to be redeemed at the
address appearing on the Bond Register at the time the Bond Registrar prepares the notice, and
the requirements of this sentence shall be deemed to have been fulfilled when notice has been
mailed as so provided, whether or not it is actually received by the owner of any Bond.
In the case of an optional redemption, the notice may state that the City retains the right
to rescind the redemption notice and the related optional redemption of Bonds by giving a notice
of rescission to the affected registered owners at any time prior to the scheduled optional
redemption date. Any notice of optional redemption that is so rescinded shall be of no effect,
and the Bonds for which the notice of optional redemption has been rescinded shall remain
outstanding.
Interest on Bonds called for redemption shall cease to accrue on the date fixed for
redemption unless the Bond or Bonds called are not redeemed when presented pursuant to the
call. In addition, the redemption notice shall be mailed within the same period, postage prepaid,
to the MSRB, to any nationally recognized rating agency which at the time maintains a rating on
the Bonds at the request of the City, and to such other persons and with such additional
information as the City shall determine, but these additional mailings shall not be a condition
precedent to the redemption of Bonds.
Section 9. Failure To Redeem Bonds. If any Bond is not redeemed when properly
presented at its maturity or call date, the City shall be obligated to pay interest on that Bond at
the same rate provided in the Bond from and after its maturity or call date until that Bond, both
principal and interest, is paid in full or until sufficient money for its payment in full is on deposit
in the bond redemption fund hereinafter created and the Bond has been called for payment by
giving notice of that call to the registered owner thereof.
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Section 10. Pledge of Taxes. For as long as any of the Bonds are outstanding, the City
irrevocably pledges to include in its budget and levy taxes annually within the constitutional and
statutory tax limitations provided by law without a vote of the electors of the City on all of the
taxable property within the City in an amount sufficient, together with other money legally
available and to be used therefor, to pay when due the principal of and interest on the Bonds, and
the full faith, credit and resources of the City are pledged irrevocably for the annual levy and
collection of those taxes and the prompt payment of that principal and interest.
Section 11. Form and Execution of Bonds. The Bonds shall be prepared in a form
consistent with the provisions of this ordinance and state law and shall be signed by the Mayor
and City Clerk, either or both of whose signatures maybe manual or in facsimile, and the seal of
the City or a facsimile reproduction thereof shall be impressed or printed thereon.
Only Bonds bearing a Certificate of Authentication in the following form, manually
signed by the Bond Registrar, shall be valid or obligatory for any purpose or entitled to the
benefits of this ordinance:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the fully registered City of Port Townsend,
Washington, Limited Tax General Obligation Bonds, 2010, described in the Bond
Ordinance.
WASHINGTON STATE FISCAL AGENT
Bond Registrar
By
Authorized Signer
The authorized signing of a Certificate of Authentication shall be conclusive evidence that the
Bond so authenticated has been duly executed, authenticated and delivered and is entitled to the
benefits of this ordinance.
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If any officer whose facsimile signature appears on the Bonds ceases to be an officer of
the City authorized to sign bonds before the Bonds bearing his or her facsimile signature are
authenticated or delivered by the Bond Registrar or issued by the City, those Bonds nevertheless
may be authenticated, issued and delivered and, when authenticated, issued and delivered, shall
be as binding on the City as though that person had continued to be an officer of the City
authorized to sign bonds. Any Bond also may be signed on behalf of the City by any person
who, on the actual date of signing of the Bond, is an officer of the City authorized to sign bonds,
although he or she did not hold the required office on the date of issuance of the Bonds.
Section 12. Duties of Bond Re ig strar. The Bond Registrar shall keep, or cause to be
kept, sufficient books for the registration and transfer of the Bonds, which shall be open to
inspection by the City at all times. The Bond Registrar is authorized, on behalf of the City, to
authenticate and deliver Bonds transferred or exchanged in accordance with the provisions of the
Bonds and this ordinance, to serve as the City's paying agent for the Bonds and to carry out all of
the Bond Registrar's powers and duties under this ordinance.
The Bond Registrar shall be responsible for its representations contained in the Bond
Registrar's Certificate of Authentication on the Bonds. The Bond Registrar may become the
owner of Bonds with the same rights it would have if it were not the Bond Registrar and, to the
extent permitted by law, may act as depository for and permit any of its officers or directors to
act as members of, or in any other capacity with respect to, any committee formed to protect the
rights of Bond owners.
Section 13. Preservation of Tax Exemption for Interest on Bonds. The City covenants
that it will take all actions necessary to prevent interest on the Bonds from being included in
gross income for federal income tax purposes, and it will neither take any action nor make or
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permit any use of proceeds of the Bonds or other funds of the City treated as proceeds of the
Bonds at any time during the term of the Bonds which will cause interest on the Bonds to be
included in Boss income for federal income tax purposes. The City also covenants that it will, to
the extent the arbitrage rebate requirement of Section 148 of the Internal Revenue Code of 1986,
as amended (the "Code"), is applicable to the Bonds, take all actions necessary to comply (or to
be treated as having complied) with that requirement in connection with the Bonds, including the
calculation and payment of any penalties that the City has elected to pay as an alternative to
calculating rebatable arbitrage, and the payment of any other penalties if required under
Section 148 of the Code to prevent interest on the Bonds from being included in gross income
for federal income tax purposes.
Section 14. Small Governmental Issuer Arbitrage Rebate Exception and Designation
of Bonds as "Qualified Tax-Exempt Obligations." The City finds and declares that (a) it is a
duly organized and existing governmental unit of the State of Washington and has general taxing
power; (b) no Bond which is part of this issue of Bonds is a "private activity bond" within the
meaning of Section 141 of the United States Internal Revenue Code of 1986, as amended (the
"Code"); (c) at least 95% of the net proceeds of the Bonds will be used for local governmental
activities of the City (or of a governmental unit the jurisdiction of which is entirely within the
jurisdiction of the City); (d) the aggregate face amount of all tax-exempt obligations (other than
private activity bonds and other obligations not required to be included in such calculation)
issued by the City and all entities subordinate to the City (including any entity that the City
controls, that derives its authority to issue tax-exempt obligations from the City, or that issues
tax-exempt obligations on behalf of the City) during the calendar year in which the Bonds are
issued is not reasonably expected to exceed $5,000,000; and (e) the amount of tax-exempt
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obligations, including the Bonds, designated by the City as "qualified tax-exempt obligations"
for the purposes of Section 265(b)(3) of the Code during the calendar year in which the Bonds
are issued does not exceed $30,000,000. The City therefore certifies that the Bonds are eligible
for the arbitrage rebate exception under Section 148(f)(4)(D) of the Code and designates the
Bonds as "qualified tax-exempt obligations" for the purposes of Section 265(b)(3) of the Code.
Section 15. Refunding or Defeasance of the Bonds. The City may issue refunding
bonds pursuant to the laws of the State of Washington or use money available from any other
lawful source to pay when due the principal of and interest on the Bonds, or any portion thereof
included in a refunding or defeasance plan, and to redeem and retire, refund or defease all such
then-outstanding Bonds (hereinafter collectively called the "defeased Bonds") and to pay the
costs of the refunding or defeasance. If money and/or "government obligations" (as defined in
chapter 39.53 RCW, as now or hereafter amended) maturing at a time or times and bearing
interest in amounts (together with money, if necessary) sufficient to redeem and retire, refund or
defease the defeased Bonds in accordance with their terms are set aside in a special trust fund or
escrow account irrevocably pledged to that redemption, retirement or defeasance of defeased
Bonds (hereinafter called the "trust account"), then all right and interest of the owners of the
defeased Bonds in the covenants of this ordinance and in the funds and accounts obligated to the
payment of the defeased Bonds shall cease and become void. The owners of defeased Bonds
shall have the right to receive payment of the principal of and interest on the defeased Bonds
from the trust account. The City shall include in the refunding or defeasance plan such
provisions as the City deems necessary for the random selection of any defeased Bonds that
constitute less than all of a particular maturity of the Bonds, for notice of the defeasance to be
given to the owners of the defeased Bonds and to such other persons as the City shall determine,
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and for any required replacement of Bond certificates for defeased Bonds. The defeased Bonds
shall be deemed no longer outstanding, and the City may apply any money in any other fund or
account established for the payment or redemption of the defeased Bonds to any lawful purposes
as it shall determine.
If the Bonds are registered in the name of DTC or its nominee, notice of any defeasance
of Bonds shall be given to DTC in the manner prescribed in the Letter of Representations for
notices of redemption of Bonds.
Section 16. Bond Fund and Deposit of Bond Proceeds. There is created and
established in the office of the Finance Director a special fund designated as the Limited Tax
General Obligation Bond Fund, 2010 (the "Bond Fund"), for the purpose of paying principal of
and interest on the Bonds. All taxes collected for and allocated to the payment of the principal of
and interest on the Bonds shall be deposited in the Bond Fund.
The principal proceeds and premium, if any, received from the sale and delivery of the
Bonds shall be paid into a project fund to be designated or created by the Finance Director and
used for the Projects or other capital projects approved by the Council. Until needed to pay the
costs of the Project and costs of issuance of the Bonds, the City may invest principal proceeds
temporarily in any legal investment, and the investment earnings may be retained in the project
fund and be spent for the purposes of that fund except that earnings subject to a federal tax or
rebate requirement may be withdrawn from the project fund and used for those tax or rebate
purposes.
Section 17. Approval of Bond Purchase Contract. Martin Nelson & Company of
Seattle, Washington, has presented a purchase contract (the "Bond Purchase Contract") to the
City offering to purchase the Bonds under the terms and conditions provided in the Bond
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Purchase Contract. The City Council finds that entering into the Bond Purchase Contract is in
the City's best interest and therefore accepts the offer contained therein and authorizes its
execution by City officials.
The Bonds will be printed at City expense and will be delivered to the purchaser in
accordance with the Bond Purchase Contract, with the approving legal opinion of Foster Pepper
PLLC, municipal bond counsel of Seattle, Washington, regarding the Bonds.
The proper City officials are authorized and directed to do everything necessary for the
prompt delivery of the Bonds to the purchaser and for the proper application and use of the
proceeds of the sale thereof.
Section 18. Preliminary Official Statement Deemed Final. The City Council has been
provided with copies of a preliminary official statement (the "Preliminary Official Statement"),
prepared in connection with the sale of the Bonds. For the sole purpose of the Bond purchaser's
compliance with Securities and Exchange Commission Rule 15c2-12(b)(1), the City "deems
final" that Preliminary Official Statement as of its date, except for the omission of information as
to offering prices, interest rates, selling compensation, aggregate principal amount, principal
amount per maturity, maturity dates, options of redemption, delivery dates, ratings and other
terms of the Bonds dependent on such matters.
Section 19. Undertaking to Provide Continuing Disclosure. To meet the requirements
of United States Securities and Exchange Commission ("SEC") Rule 15c2-12(b)(5) (the "Rule"),
as applicable to a participating underwriter for the Bonds, the City makes the following written
undertaking (the "Undertaking") for the benefit of holders of the Bonds:
(a) Undertaking to Provide Annual Financial Information and Notice of
Material Events. The City undertakes to provide or cause to be provided, either directly or
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through a designated agent, to the Municipal Securities Rulemaking Board (the "MSRB"), in an
electronic format as prescribed by the MSRB, accompanied by identifying information as
prescribed by the MSRB:
(i) Annual financial information and operating data of the type
included in the final official statement for the Bonds and described in subsection (b) of this
section ("annual financial information");
(ii) Timely notice (not in excess of ten business days after the
occurrence of the event) of the occurrence of any of the following events with respect to the
Bonds:
• principal and interest payment delinquencies;
• non-payment related defaults, if material;
• unscheduled draws on debt service reserves reflecting
financial difficulties;
• unscheduled draws on credit enhancements reflecting
financial difficulties;
• substitution of credit or liquidity providers, or their failure
to perform;
• 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
Bonds;
• modifications to rights of holders of the Bonds, if material;
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• Bond calls (other than scheduled mandatory redemptions of
Term Bonds), if material, and tender offers;
• defeasances;
• release, substitution, or sale of property securing repayment
of the Bonds, if material;
• rating changes;
• Bankruptcy, insolvency, receivership or similar event of the
City (a "Bankruptcy Event");
• The consummation of a merger, consolidation, or
acquisition involving the City or the sale of all or substantially all of the assets of the City, 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; and
• Appointment of a successor or additional trustee or the
change of name of a trustee, if material.
A Bankruptcy Event is considered to occur when any of the following occur: the
appointment of a receiver, fiscal agent or similar officer for the City in a proceeding under the
U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court or
governmental authority has assumed jurisdiction over substantially all of the assets or business of
the City, or if such jurisdiction has been assumed by leaving the existing governing body and
officials or officers in possession but subject to the supervision and orders of a court or
governmental authority, or the entry of an order confirming a plan of reorganization,
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arrangement or liquidation by a court or governmental authority having supervision or
jurisdiction over substantially all of the assets or business of the obligated person.
(iii) Timely notice of a failure by the City to provide required annual
financial information on or before the date specified in subsection (b) of this section.
(b) Type of Annual Financial Information Undertaken to be Provided. The
annual financial information that the City undertakes to provide in subsection (a) of this section:
(i) Shall consist of (1) annual financial statements prepared (except as
noted in the financial statements) in accordance with "Other Comprehensive Basis" as prescribed
by the Washington State Auditor's Office, as such principles may be changed from time to time,
which statements shall not be audited, except, however, that if and when audited financial
statements are otherwise prepared and available to the City they will be provided; (2) authorized,
issued and outstanding balance of general obligation bonds; (3) assessed valuation for the fiscal
year; and (4) regular property tax levy rate and regular property tax levy rate limit for the fiscal
year;
(ii) Shall be provided not later than the last day of the ninth month
after the end of each fiscal year of the City (currently, a fiscal year ending December 31), as
such fiscal year may be changed as required or permitted by State law, commencing with the
City's fiscal year ending December 31, 2010; and
(iii) May be provided in a single or multiple documents, and may be
incorporated by specific reference to documents available to the public on the Internet website of
the MSRB or filed with the SEC.
(c) Amendment of Undertaking. The Undertaking is subject to amendment
after the primary offering of the Bonds without the consent of any holder of any Bond, or of any
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broker, dealer, municipal securities dealer, participating underwriter, rating agency or the MSRB,
under the circumstances and in the manner permitted by the Rule.
The City will give notice to the MSRB of the substance (or provide a copy) of any
amendment to the Undertaking and a brief statement of the reasons for the amendment. If the
amendment changes the type of annual financial information to be provided, the annual financial
information containing the amended financial information will include a narrative explanation of
the effect of that change on the type of information to be provided.
(d) Beneficiaries. The Undertaking evidenced by this section shall inure to
the benefit of the City and any holder of Bonds, and shall not inure to the benefit of or create any
rights in any other person.
(e) Termination of Undertaking. The City's obligations under this
Undertaking shall terminate upon the legal defeasance of all of the Bonds. In addition, the City's
obligations under this Undertaking shall terminate if those provisions of the Rule which require
the City to comply with this Undertaking become legally inapplicable in respect of the Bonds for
any reason, as confirmed by an opinion of nationally recognized bond counsel or other counsel
familiar with federal securities laws delivered to the City, and the City provides timely notice of
such termination to the MSRB.
(f) Remedy for Failure to Comply with Undertaking. As soon as practicable
after the City learns of any failure to comply with the Undertaking, the City will proceed with
due diligence to cause such noncompliance to be corrected. No failure by the City or other
obligated person to comply with the Undertaking shall constitute a default in respect of the
Bonds. The sole remedy of any holder of a Bond shall be to take such actions as that holder
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deems necessary, including seeking an order of specific performance from an appropriate court,
to compel the City or other obligated person to comply with the Undertaking.
(g) Designation of Official Responsible to Administer Undertaking. The
Finance Director of the City (or such other officer of the City who may in the future perform the
duties of that office) or his or her designee is authorized and directed in his or her discretion to
take such further actions as may be necessary, appropriate or convenient to carry out the
Undertaking of the City in respect of the Bonds set forth in this section and in accordance with
the Rule, including, without limitation, the following actions:
(i) Preparing and filing the annual financial information undertaken to
be provided;
(ii) Determining whether any event specified in subsection (a) has
occurred, assessing its materiality, where necessary, with respect to the Bonds, and preparing and
disseminating any required notice of its occurrence;
(iii) Determining whether any person other than the City is an
"obligated person" within the meaning of the Rule with respect to the Bonds, and obtaining from
such person an undertaking to provide any annual financial information and notice of listed
events for that person in accordance with the Rule;
(iv) Selecting, engaging and compensating designated agents and
consultants, including but not limited to financial advisors and legal counsel, to assist and advise
the City in carrying out the Undertaking; and
(v) Effecting any necessary amendment of the Undertaking.
Section 20. Effective Date of Ordinance. This ordinance shall take effect and be in
force from and after its passage and five days following its publication as required by law.
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5l099718.4
PASSED by the City Council of the City of Port Townsend, Washington, at an open
public meeting thereof, this 6th day of December 2010.
ATTEST:
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City Clerk
APPROVED AS TO FORM:
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City Attorney
Mayor
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51099718.4