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HomeMy WebLinkAbout99-24RESOLUTION NO. 99-24 APPROVING THE EXECUTION AND DELIVERY OF ONE OR MORE AGREEMENTS TO PROVIDE CERTAIN INFORMATION AS REQUIRED UNDER RULE 15c2-12 OF TIlE SECURITIES AND EXCHANGE COMMISSION; AND CERTAIN OTHER MATTERS RELATING THERETO, AND AUTIIORIZING THE MAYOR TO EXECUTE SUCH AGREEMENTS ON BEItALF OF THE CITY OF UKIAH WHERAS, the City of Ukiah (the "CITY") is a municipal corporation duly organized and existing under the Constitution and the laws of the State of California; and WHEREAS, the CITY is a member of and a participant in one or more projects of the Northern California Power Agency ("NCPA"); and WHEREAS, NCPA is a public entity duly organized and existing pursuant to the Northern California Agency Joint Powers Agreement, dated as of July 19, 1968, as amended and supplemented (the "Agreement") and the provisions relating to the joint exercise of powers found in Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California; and WHEREAS, NCPA's projects have been financed and refinanced through the issuance of bonds by NCPA which are payable primarily from payments made by the project participants under the respective Third Phase Agreements for such projects; and WHEREAS, the Securities and Exchange Commission adopted amendments to Rule 15c2-12 under the Securities Exchange Act of 1934 (Rule 15c2-12, together with such amendments, and as the same may be amended from time to time, shall be referred to herein as "Rule 15c2-12") which has the effect of imposing upon the CITY the obligation to provide annually certain financial information and operating data relating to the electric system of the CITY in connection with outstanding bonds issued by NCPA; and WHEREAS, the CITY desires to comply with Rule 15c2-12 by entering into a written agreement or agreements to provide certain financial information and operating data relating to the electric system of the CITY; NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Ukiah as follows: SECTION 1. The City Council hereby authorizes and approves the execution and delivery by the CITY of one or more written agreements to provide continuing disclosure relating to the electric system of the CITY in connection with bonds issued or to be issued by NCPA to finance and refinance NCPA's projects in which the CITY is a participant, as required under the Rule 15c2-12, and hereby authorizes and directs the Mayor of the CITY to execute such written agreements for and on behalf of the CITY. -1- DOCSLA 1:278960.1 SECTION 2. The Mayor, the City Clerk, the City Manager and the Director of Public Utilities of the CITY, each acting singly, are hereby authorized to execute and deliver or cause to be delivered, upon receipt and approval of thc City Attorney, any and all documents and instruments and to do and cause to be done any and all acts and things necessary or convenient in carrying out the purposes contemplated by this Resolution. SECTION 3. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED by the Council of the City of Ukiah this 18th day of November, 1998, by thc following vote on roll call: AYES COUNCILMEMBERS: Chavez, Ashiku, Kelly, Mastin, Malone. NOES ABSENT ATTEST: City Clerk COUNCILMEMBERS: None. COUNCILMEMBERS: ~ DOCSLA t :278960.1 -2- CONTINUING DISCLOSURE AGREEMENT BY AND BETWEEN THE CITY OF UKIAH AND STATE STREET BANK AND TRUST COMPANY, N.A. This Continuing Disclosure Agreement (the "Disclosure Agreement") is executed and delivered by the City of Ukiah (the "Project Participant") and State Street Bank and Trust Company, N.A., as trustee (the "Trustee") in connection with the issuance by Northern California Power Agency ("NCPA") of $ aggregate principal amount of Northern California Power Agency Transmission Project Number One Revenue Bonds, 1998 Refunding Series A (the "1998 Bonds"). The 1998 Bonds are being issued pursuant to an Indenture of Trust, dated as of December 1, 1998 (the "lnde,m~re"), by and between NCPA and the Trustee. The Project Participant and the Trustee covenant and agree as follows: SECTION 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is being executed and delivered by the Project Participant and the Trustee for the benefit of thc Bondholders and Beneficial Owners of the 1998 Bonds and in order to assist the Participating Underwriters in complying with the Rule. The Project Participant and the Trustee acknowledge that NCPA has not undertaken any responsibility with respect to any reports, notices or disclosures provided or required under this Disclosure Agreement, and has no liability to any person, including without limitation any Bondholder or Beneficial Owner of the 1998 Bonds, with respect to the Project Participant's performance of its obligations hereunder. SECTION 2. Definitions. In addition to the definitions set forth in the Indenture, which apply to any capitalized term used in this Disclosure Agreement unless otherwise defined in this Section2, the following capitalized terms shall have the following meanings: "Annual Report" shall mean any Annual Report provided by the Project Participant pursuant to, and as described in, Sections 3 and 4 of this Disclosure Agreement. "Beneficial Owner" shall mean any person who has or shares the power, directly or indirectly, to make investment decisions regarding ownership of any Bonds (including without limitation persons holding Bonds through nonfinees, depositories or other intermediaries). "Disclosure Representative" shall mean the Director of Public Utilities of the Project Participant or his or her designee, or such other officer or employee as the Project Participant shall designate in writing to the Trustee from time to time. "Dissemination Agent" shall mean the Trustee, acting in its capacity as Dissemination Agent hereunder, or any successor Dissemination Agent designated in DOCSI,A 1:27900 I. 1 writing by the Project Participant and which has filed with the Trustee a written acceptance of such designation. "National Repository" shall mean any Nationally Recognized Municipal Securities Information Repository for purposes of the Rule. The National Repositories currently approved by the Securities and Exchange Commission are listed in Exhibit B attached hereto and incorporated herein by this reference. "Participating Underwriter" shall mean the original underwriter[s] of the 1998 Bonds required to comply with the Rule in connection with the offering of the 1998 Bonds. "Repository" shall mean each National Repository and the State Repository. "Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as the same may be amended from time to time. "State" shall mean the State of California. "State Repository" shall mean any public or private repository or entity designated by the State as a state repository for the purpose of the Rule and recognized as such by the Securities and Exchange Comnfission. As of the date of this Agreement, there is no State Repository. SECTION 3. Provision of Annual Reports. (a) The Project Participant shall, or shall cause the Dissemination Agent to, not later than 210 days after the end of each fiscal year of the Project Participant (which presently ends on June 30), commencing ~vith the report for the Fiscal Year ending June 30, 1999, provide to each Repository an Annual Report which is consistent with the requirements of Section 4 of this Disclosure Agreement. The Annual Report may be submitted as a single document or as separate documents comprising a package, and may include by reference other information as provided in Section 4 of this Disclosure Agreement; provided, that the audited financial statements of the Project Participant may be submitted separately from the balance of the Annual Report and later than the date required above for the filing of the Annual Report if they are not available by that date. If the fiscal year changes for the Project Participant, the Project Participant shall give notice of such change in the manner provided under Section 5 hereof. (b) Not later than fifteen (15) Business Days prior to the date specified in subsection (a) for providing the Annual Report to the Repositories, the Project Participant shall provide its Annual Report to the Dissemination Agent and the Trustee (if the Trustee is not the Dissemination Agent). If by such date, the Trustee has not received a copy of the Annual Report from the Project Participant, the DOCS!.A 1:27900 I. 1 2 Trustee shall contact the Project Participant and the Dissemination Agent to determine if the Project Participant is in compliance with this subsection (b). (c) If the Trustee is unable to verify that an Annual Report has been provided to Repositories by the date required in subsection (a), the Trustee shall send a notice to each Repository and the Municipal Securities Rulemaking Board in substantially the form attached hereto as Exhibit A. (d) The Dissemination Agent shall: (i) determine each year prior to the date for providing the Annual Report the name and address of each National Repository and the State Repository, if any; and (ii) file a report with the Project Participant and the Trustee (if the Dissemination Agent is not the Trustee) certifying that the Annual Report has been provided pursuant to this Disclosure Agreement, stating the date it was provided and listing all the Repositories to which it was provided. SECTION 4. Content of Annual Reports. The Project Participant's Annual Report shall contain or include by reference the following: (i) A summary of the results of operations and balance sheet lbr the Project Participant's electric system in tabular form for the most recently completed fiscal year; (ii) A summary of power supply resources of the Project Participant's electric system in tabular form for the most recently completed fiscal year; (iii) A summary of customers, energy sales, revenues and peak demand of the Project Participant's electric system in tabular form for the most recently completed fiscal year; and (iv) The audited financial statements of the Project Participant's electric system for the most recently completed fiscal year, prepared in accordance with generally accepted accounting principles for governmental enterprises as prescribed from time to time by any regulatory body with jurisdiction over the Project Participant and by the Governmental Accounting Stm~dards Board. If the Project Participant's electric system audited financial statements are not available by the time the Annual Report is required to be filed pursuant to Section 3(a), the Annual Report shall contain unaudited financial statements in a format similar to the audited financial statements, and the audited financial statements shall be filed in the same manner as the Annual Report when they become available. Any or all of the items listed above may be included by specific reference to other documents, including official statements of debt issues of the Project Participant or public entities related thereto, which have been submitted to each of the Repositories or the Securities and Exchange Commission. If the document included by rcfcrence is a final official statement, it must be available from the Municipal Securities Rulemaking Board. DOCSI .A 1:27900 I. 1 3 The Project Participant shall clearly identify each such other document so included by reference. SECTION 5. Reporting. Notices required by Section 3(a) or Section 8 of this Disclosure Agreement shall be filed with the Municipal Securities Rulemaking Board and the Repositories. SECTION 6. Termination of Reporting Obligation. The obligations of the Project Participant under this Disclosure Agreement shall terminate upon the legal defeasance, prior redemption or payment in full of all of the 1998 Bonds. SECTION 7. Dissemination Agent. The Project Participant may, from time to time, appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure Agreement, and may discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent. The Dissemination Agent shall not be responsible in any manner for the content of any notice or report prepared by the Project Participant pursuant to this Disclosure Agreement. The initial Dissemination Agent shall be State Street Bank and Trust Company, N.A. SECTION 8. Amendment; Waiver. Notwithstanding any other provision of this Disclosure Agreement, the Project Participant and the Trustee may amend this Disclosure Agreement (and the Trustee shall agree to any amendment so requested by the Project Participant which does not impose any materially greater duties or risk of liability on the Trustee), and any provision of this Disclosure Agreement may be waived; provided, that, in the opinion of nationally recognized bond counsel satisfactory to the Trustee and the Project Participant, such amendment or waiver is permitted by the Rule. In the event of any amendment or waiver of a provision of this Disclosure Agreement, the Project Participant shall describe such amendment in its next Annual Report, and shall include, as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type (or in the case of a change of accounting principles, on the presentation) of financial information or operating data being presented by the Project Participant. In addition, if the amendment relates to the accounting principles to be followed in preparing financial statements, (i) notice of such change shall be given in the manner as provided under Section 5, and (ii) the Annual Report for the year in which the change is made should present a comparison (in narrative form and also, if feasible, in quantitative form) between the financial statements as prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles. SECTION 9. Additional Information. Nothing in this Disclosure Agreement shall be deemed to prevent the Project Participant from disseminating any other information, using the means of dissemination set forth in this Disclosure Agreement or any other means of communication, or including any other information in any Annual Report, in addition to that which is required by this Disclosure Agreement. If the Project Participant chooses to include any intbrmation in any Annual Report in addition to that which is specifically required by this Disclosure Agreement, the Project Participant shall DOCSI,A ~:279001. I 4 have no obligation under this Agreement to. update such information or include it in any future Annual Report. SECTION 10. Default. In the event of a failure of the Project Participant or the Trustee to comply with any provision of this Disclosure Agreement, the Trustee may (and, at the request of the Bondholders of at least 25% aggregate principal amount of Outstanding 1998 Bonds, shall), or any Bondholder or Beneficial Owner of the 1998 Bonds may, take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the Project Participant or the Trustee, as the case may be, to comply with its obligations under this Disclosure Agreement. A default under this Disclosure Agreement shall not be deemed an Event of Default under the Indenture, and the sole remedy under this Disclosure Agreement in the event of any failure of the Project Participant or the Trustee to comply with this Disclosure Agrceinent shall be an action to compel peribrmance. No Bondholder or Beneficial Owner may institute any such action, suit or proceeding to compel performance unless they shall have first filed with the Trustee and the Project Participant satisfactory written evidence of their status as such, and a written notice of and request to cure such failure, and the Project Participant shall have refused to comply therewith within a reasonable time. Any such action, suit or proceeding shall be brought in Federal or State Courts located in Mendocino County, California for the benefit of all Bondholders and Beneficial Owners of the 1998 Bonds. SECTION 11. Duties, Immunities and Liabilities of Trustee and Dissemination Agent. Article X of the Indenture is hereby made applicable to this Disclosure Agreement as if this Disclosure Agreement were (solely for this purpose) contained in thc Indenture, and the Dissemination Agent were a Fiduciary thereunder. The Dissemination Agent (if other than the Trustee or the Trustee in its capacity as Dissemination Agent) shall have only such duties as are specifically set forth in this Disclosure Agreement, and the Project Participant agrees to indemnify and save the Dissemination Agent, its officers, directors, employees and agents, harmless against any loss, expense and liabilities which it may incur arising out of or in the exercise or performance of its powers and duties hereunder, including the costs and expenses (including attorneys fees) of defending against any claim of liability, but excluding liabilities due to the Dissemination Agent's negligence or willful misconduct. The obligations of the Project Participant under this Section shall survive resignation or removal of the Dissemination Agent and payment of the 1998 Bonds. SECTION 12. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of NCPA, the Project Participant, the Trustee, the Dissemination Agent and the Bondholders and Beneficial Owners from time to time of the 1998 Bonds, and shall create no rights in any other person or entity. SECTION 13. California Law. This Disclosure Agreement shall be construed and governed in accordance with the laws of the State of California. DOCSI .A 1:279001.1 5 SECTION 14. Notices. All written notices to be given hereunder shall be given in person or by mail to the party entitled thereto at its address set forth beloxv, or at such other address as such party may provide to the other parties in writing from time to time, namely: To the Project Participant: City of Ukiah 300 Seminary Avenue Attention: Director of Public Utilities Ukiah, California 95484 Telephone: (707) 463-6295 Fax: (707) 463-6220 To the Trustee: State Street Bank and Trust Company, N.A. 61 Broadway, 15th Floor New York, New York 10006 Attention: Corporate Trust Department Telephone: (212) 612-3447 Fax: (212) 612-3202 The Project Participant and the Trustee may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. DOCSI,A 1:279001. I 6 SECTION 15. Counterparts. This Disclosure Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Date: ,199 CITY OF UKIAH By. Sheridon Malone Mayor STATE STREET BANK AND TRUST COMPANY, N.A., as Trustee By. Authorized Signatory DOCSI.A 1:279001. I 7 EXHIBIT A NOTICE TO REPOSITORIES OF FAILURE TO FILE ANNUAL REPORT Name of Issuer: Northern California Power Agency ("NCPA") Name of Bond Issue: $ aggregate principal amount of Northern California Power Agency Transmission Project Number One Revenue Bonds, 1998 Refunding Series A (the "1998 Bonds") Name of Obligated Party: City of Ukiah (the "Project Participant") Date of Issuance: ,1998 NOTICE IS HEREBY GIVEN that the Project Participant has not provided an Annual Report with respect to the 1998 Bonds as required by Section 3 of the Continuing Disclosure Agreement with respect to the 1998 Bonds, dated as of 1998, by and between the Project Participant and State Street Bank and Trust Company, N.A., as trustee. [The Project Participant anticipates that the Annual Report will be filed by . ] Dated: STATE STREET BANK AND TRUST COMPANY, N.A., as Trustee on behalf of the Northern California Power Agency cc: Project Participant A-1 I)OCSI.A 1:27900 I. 1 EXHIBIT B Nationally Recognized Municipal Securities Information Repositories approved by the Securities and Exchange Commission as of the date of this Disclosure Agreement: Bioomberg Municipal Repository P.O. Box 840 Princeton, NJ 08542-0840 Internet address: MUNIS~bloomberg.doc (609) 279-3200 FAX (609) 279-3235 (609) 279-5963 Contact: Dave Campbell JJ Kenny Information Services The Repository 65 Broadway, 16th Floor New York, NY 10006 (212) 770-4595 FAX (212) 797-7994 Contact: Joan Horai, Repository Thomson NRMSIR Secondary Market Disclosure 395 Hudson Street, 3rd Floor New York, New York 10014 Internet Address: Disclosure~muller.com (212) 807-5001 or (800) 689-8466 FAX (212) 989-2078 Contact: Carolyn Chin DPC Data, Inc. One Executive Drive Fort Lee, N.J. 07024 Internet address: nrmsir~dpcdata.com (201) 346-0701 FAX (201) 346-0107 Contact: Dick Stout nOCSI.A 1:27900 I. 1 B- 1