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HomeMy WebLinkAboutGrays Crossing Tax Bonds TRUCKEE DONNER PUBLIC UTILITY DISTRICT COMMUNITY FACILITIES DISTRICT NO. 04-1 (GRAY'S CROSSING) SPECIAL TAX BONDS DISTRICT CONTINUING DISCLOSURE AGREEMENT This Continuing Disclosure Agreement, dated as of September 1, 2004 (the "Disclosure Agreement") is executed and delivered by the Truckee Donner Public Utility District Community Facilities District No. 04-1 (Gray's Crossing) (the "District") in connection with the issuance of its $12,445,000 aggregate principal amount of Truckee Donner Public Utility District Community Facilities District No. 04-1 (Gray's Crossing) Special Tax Bonds (the `Bonds"). The Bonds are being issued pursuant to a Trust Indenture (the "Indenture"), dated September 1, 2004, by and between the District and BNY Western Trust Company (the "Trustee"), relating to the Bonds. The District covenants and agrees as follows: Section 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is being executed and delivered by the District for the benefit of the holders and beneficial owners of the Bonds and in order to assist the Participating Underwriters in complying with S.E.C. Rule 15c2- 12(b)(5). 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 Section, the following capitalized terms shall have the following meanings: "Annual Report" means any Annual Report provided by the District pursuant to, and as described in, Sections 3 and 4 of this Disclosure Agreement. "Dissemination Agent" means MuniFinaneial, or any successor Dissemination Agent designated in writing by the District and which has filed with the District and the Trustee a written acceptance of such designation. "Listed Events" means any of the events listed in Section 5(a) of this Disclosure Agreement. "National Repository" means any Nationally Recognized Municipal Securities Information Repository for purposes of the Rule. The National Repositories currently recognized by the Securities and Exchange Commission are currently set forth in the SEC website located athttp://www. sec.gov/info/municipal/nrmsir.htm. "Participating Underwriter" means any of the original underwriters of the Bonds required to comply with the Rule in connection with offering of the Bonds. "Repository"means each National Repository and each State Repository. 1 "Rule" means 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 tune to time. "State Repository" means any public or private repository or entity designated by the State of California as a state repository for the purpose of the Rule and recognized as such by the Securities and Exchange Commission. As of the date of this Disclosure Agreement, there is no State Repository. Section 3. Provision of Annual Reports (a) The District shall provide, or shall cause the Dissemination Agent to provide, to each Repository an Annual Report which is consistent with the requirements of Section 4 of this Disclosure Agreement by not later than six months after the end of the District's fiscal year in each year, commencing not later than January 1, 2005. Not later than fifteen (15) Business Days prior to said date, the District shall provide the Annual Report to the Dissemination Agent (if other than the District). 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 financial information on the District called for in the Annual Report 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 not available by that date. If the District's fiscal year changes, the District, upon becoming aware of such change, shall give notice of such change in the same manner as for a Listed Event under Section 5(c). (b) If by fifteen (15) Business Days prior to the date specified in subsection (a) for providing the Annual Report to the Repositories, the Dissemination Agent has not received a copy of the Annual Report, the Dissemination Agent shall contact the District to determine if the District is in compliance with subsection (a). (c) If the Trustee is unable to verify that an Annual Report has been provided to the Repositories by the date required in subsection (a), the Dissemination Agent shall send a notice to each Repository in substantially the form attached as Exhibit A. (d) The Dissemination Agent shall, unless the District has done so pursuant to Section 3(a) above: (i) determine the name and address of each National Repository and each State Repository, if any, each year prior to the date for providing the Annual Report; and (ii) if the Dissemination Agent is other than the District or the Trustee, file a report with the District 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. 2 Section 4. Content of Annual Reports. The Amoral Report shall contain or incorporate by reference the following: s s (a) The audited financial statements of the District for the most recent fiscal year of the District then ended, which may be included in the audited financial statements of the Truckee Donner Public Utility District (the PUD"). If the audited financial statements are not available by the time the Annual Report is required to be filed, the Annual Report shall contain any unaudited financial statements of the District 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. Audited financial statements of the District shall be audited by such auditor as shall then be required or pennitted by State law or the Indenture. Audited financial statements shall be prepared in accordance with generally accepted accounting principles as prescribed for governmental units by the Governmental Accounting Standards Board; provided, however, that the District may from time to time, if required by federal or state legal requirements, modify the basis upon which its financial statements are prepared. In the event that the District shall modify the basis upon which its financial statements are prepared, the District shall provide a notice of such modification to each Repository, including a reference to the specific federal or state law or regulation specifically describing the legal requirements for the change in accounting basis. (b) The Annual report shall also contain the following information: (i) the principal amount of the Bonds outstanding as of the June 30 preceding the filing of the Annual Report; (ii) the balance in each fund under the Indenture as of the June 30 preceding the filing of the Annual Report; (iii) The Special Tax delinquency rate for all parcels within the on which the Special Tax is levied, as shown on the assessment roll of the Nevada County Assessor last equalized prior to the September 30 immediately preceding the date of the Annual Report, the number of parcels within the District on which the Special Tax is levied that are delinquent in payment of the Special Tax, as shown on the assessment roll of the Nevada County Assessor last equalized prior to the September 30 immediately preceding the date of the Annual Report, the amount of each delinquency and the length of time delinquent, or similar information pertaining to delinquencies deemed appropriate by the District; provided, however, that parcels with delinquencies of $2,500 or less may be grouped together and such information may be provided by category. (iv) an update of [Table 4] in the Official Statement for the Bonds, based on the assessed values Gather than appraised values) within the District and the Special Tax levy for the fiscal year in which the Annual Report is being filed; (v) any changes to the Rates and Method of Apportionment of the Special Tax approved or submitted to the qualified electors for approval prior to the filing of the Annual Report; 3 (vi) the status of any foreclosure actions being pursued by the District with respect to delinquent Special Taxes; (vii) any information not already included under (i) through (vi) above that the Board of Directors of the PUD is required to file in its annual report to the California Debt and Investment Advisory Commission pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982, as amended; and (viii) such further information, if any, as may be necessary to make the statements specifically required pursuant to this Section 4(b), in the light of the circumstances under which they are made, not misleading. Any or all of the items above may be included by specific reference to other documents, including official statements of debt issues of the District or related public entities, which have been submitted to each of the Repositories or the Securities and Exchange Commission. If the document included by reference is a final official statement, it must be available from the Municipal Securities Rulemaking Board, The District shall clearly identify each such other document so included by reference. Neither the Trustee nor the Dissemination Agent shall have any responsibility for the content of the Annual Report, or any part thereof. Section 5. Re orting of Significant Events (a) Pursuant to the provisions of this Section 5, the District shall give, or cause to be given, notice of the occurrence of any of the following events with respect to the Bonds, if material: 1. Principal and interest payment delinquencies. 2. Non-payment related defaults. 3. Unscheduled draws on debt service reserves reflecting financial difficulties. 4. Unscheduled draws on credit enhancements reflecting financial difficulties. 5. Substitution of credit or liquidity providers, or their failure to perform. 6. Adverse tax opinions or events affecting the tax-exempt status of the security. 7. Modifications to rights of security holders. 8. Bond calls. 9. Defeasances. 10. Release, substitution or sale of property securing repayment of the Bonds. 11. Rating changes. s (b) The Dissemination Agent shall, within three (3) business days of obtaining actual knowledge of the occurrence of any of the Listed Events, contact the District, inform such person of the event, and request that the District promptly notify the Dissemination Agent in writing 4 whether or not to report the event pursuant to subsection (f); provided, however, that the Dissemination Agent shall have no liability to Bond owners for any failure to provide such notice. (c) Whenever the District obtains knowledge of the occurrence of a Listed Event, the District shall determine as soon as possible if such event would constitute material information for Holders of Bonds within the meaning of the federal securities laws. (d) If the District has determined that knowledge of the occurrence of a Listed Event would be material, the District shall notify the Dissemination Agent promptly in writing. Such notice shall instruct the Dissemination Agent to report the occurrence pursuant to subsection(f). (e) If in response to a request under subsection(b), the District determines that the Listed Event would not be material, the District shall so notify the Dissemination Agent in writing and instruct the Dissemination Agent not to report the occurrence pursuant to subsection (f). (f) If the Dissemination Agent has been instructed by the District to report the occurrence of a Listed Event, the Dissemination Agent shall file a notice of such occurrence with the Repository. Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(8) and (9) need not be given under this subsection any earlier than the notice (if any) of the underlying event is given to the Holders of affected Bonds pursuant to the Indenture and notice of any other Listed Event is only required following the actual occurrence of the Listed Event; and (g) The Dissemination Agent may conclusively rely on an opinion of counsel that the District's instructions to the Dissemination Agent under this Section 5 comply with the requirements of this Rule. Section 6. Termination of Reporting Obligation. The District's and Dissemination Agent's obligations under this Disclosure Agreement shall terminate upon the legal defeasance, prior redemption or payment in full of all of the Bonds. If such termination occurs prior to the final maturity of the Bonds, the District shall give notice of such termination in the same manner as for a Listed Event under Section 5(c). Section 7. Dissemination Agent. From time to time, the District may appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure Agreement, and may discharge any such Agent, with or without appointing a successor Dissemination Agent. If at any time there is not any other designated Dissemination Agent, the District shall be the Dissemination Agent. Section 8. Amendment Waiver. Notwithstanding any other provision of this Disclosure Agreement, the District may amend this Disclosure Agreement, and any provision of this Disclosure Agreement may be waived,provided that the following conditions are satisfied: 5 (a) if the amendment or waiver relates to the provisions of Section 3(a), 4 or 5(a), it may be made only 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 an obligated person with respect to the Bonds, or type of business conducted; (b) the undertakings herein, as proposed to be amended or waived, in the opinion of nationally recognized bond counsel, would have complied with the requirements of the Rule at the time of the primary offering of the Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (c) the proposed amendment or waiver either (i) is approved by holders of the Bonds in the manner provided in the Indenture for amendments to the Indenture with the consent of holders, or (ii) in the opinion of nationally recognized bond counsel, does not materially impair the interests of the holders or beneficial owners of the Bonds. Section 9. Additional Information. Nothing in this Disclosure Agreement shall be deemed to prevent the District 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 or notice of occurrence of a Listed Event, in addition to that which is required by this Disclosure Agreement. If the District chooses to include any information in any Annual Report or notice of occurrence of a Listed Event in addition to that which is specifically required by this Disclosure Agreement, the District shall have no obligation under this Disclosure Agreement to update such information or include it in any future Annual Report or notice of occurrence of a Listed Event. Section 10. Default. In the event of a failure of the District to comply with any provision of this Disclosure Agreement, the Trustee may (and, at the request of any Participating Underwriter or the holders of at least 25% aggregate principal amount of Outstanding Bonds, shall), or any holder or beneficial owner of the Bonds may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the District 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 District to comply with this Disclosure Agreement shall be an action to compel performance. Section 11. of Dissemination Agent. The Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure Agreement, and the District agrees to indemnify and hold harmless (but only to the extent of Special taxes available for such purpose) the Dissemination Agent, its officers, directors, employees and agents, against any loss, expense and liabilities which the Dissemination Agent 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 District under this Section shall survive resignation or removal of the Dissemination Agent and payment of the Bonds. Neither the Trustee nor the 6 Dissemination Agent shall be required to consent to any amendment which would impose any greater duties or risk of liability on the Trustee or the Dissemination Agent. No person shall have any right to commence any action against the Dissemination Agent seeking any remedy other than to compel specific perfomrance of this Agreement. The Dissemination Agent shall not be liable under any circumstances for monetary damages to any person for any breach of this Agreement. The Dissemination Agent shall have no responsibility whatsoever for the content of any report or notice required of the District hereunder. Section 12. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the District, the Trustee, the Dissemination Agent, the Participating Underwriters and holders and beneficial owners from time to time of the Bonds, and shall cause no rights in any other person or entity. TRUCKEE DONNER PUBLIC UTILITY DISTRICT COMMUNITY FACILITIES DISTRICT NO. 04-1 (GRAY'S CROSSING) SPECIAL TAX BONDS By: General Manager, Truckee Donner Public Utility District The undersigned hereby agrees to act as Dissemination Agent pursuant to the foregoing Continuing Disclosure Agreement MUNIFINANCIAL, as Dissemination Agent By: Authorized Signatory 7 EXHIBIT A NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD OF FAILURE TO FILE ANNUAL REPORT Name of Issuer: Truckee Donner Public Utility District Community Facilities District No. 04-1 (Gray's Crossing) Name of Bond Issue: Truckee Donner Public Utility District Community Facilities District No. 04-1 (Gray's Crossing) Special Tax Bonds Date of Issuance: , 2004 NOTICE IS HEREBY GIVEN that the Truckee Donner Public Utility District (the "District") has not provided an Annual Report with respect to the above-named Bonds as required by Section 3 of the Continuing Disclosure Agreement dated September 1, 2004 executed by the District for the benefit of the holders and beneficial owners of the above- referenced Bonds. The District anticipates that the Annual Report will be filed by Dated: MUNIFINANCIAL By: Title: cc: Issuer 8