Ordinance No. 9,989 I r
ORDINANCE NO. 9989
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, APPROVING A RESOLUTION AUTHORIZING THE ISSUANCE OF
BAYTOWN AREA WATER AUTHORITY WATER SUPPLY CONTRACT
REVENUE BONDS, SERIES 2005 (CITY OF BAYTOWN PROJECT);
ACCEPTING THE TERMS AND CONDITIONS OF SUCH RESOLUTION;
PROVIDING FOR CONTINUING DISCLOSURE WITH RESPECT TO SUCH
BONDS; AND PROVIDING FOR AN EFFECTIVE DATE.
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WHEREAS, the City Council (the "Council") of the City of Baytown, Texas (the "City")
has entered into an Amended and Restated Water Supply Contract--Treated Water, originally
dated January 31, 1977, and amended and restated as of October 23, 1997 (the "Contract"), with
the Baytown Area Water Authority (the "Authority"); and
WHEREAS, pursuant to Chapter 600, Acts of the 63rd Legislature of the State of Texas,
Regular Session, 1973, as amended (the "Act"), and the Contract, the Authority now proposes to
issue its bonds styled "Baytown Area Water Authority Water Supply Contract Revenue Bonds,
Series 2005 (City of Baytown Project) (the "Bonds"); and
WHEREAS, the Act and the Contract require that the Council approve the Authority's
resolution authorizing issuance of the Bonds (the "Bond Resolution") prior to issuance and
delivery of the Bonds.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF BAYTOWN,TEXAS:
Section 1: A copy of the Bond Resolution has been submitted to the Council. The
Bond Resolution, including all of the terms and conditions thereof, is hereby approved, and the
Bonds are hereby approved and authorized to be issued pursuant to the Bond Resolution.
Section 2: In consideration of the issuance of the Bonds by the Authority, the City
hereby makes the following agreement for the benefit of the Authority and the holders and
beneficial owners of the Bonds. The City is required to observe the agreement for so long as it is
an "obligated person" with respect to the Bonds within the meaning of SEC Rule 15c2-12 (the
"Rule").
(a) The City shall provide annually to the SID, within six months after the end of
each fiscal year, financial information and operating data with respect to the Authority of the
general type included in the City's audit report. The information to be provided shall include the
financial statements of the City prepared in accordance with the accounting principles the City
may be required to employ from time to time pursuant to State law or regulation and shall be
audited, if the audit is completed within the period during which they must be provided. If the
audit of such financial statements is not complete within such period, then the City shall provide
unaudited financial statements for the applicable fiscal year to the SID within such six month
® period, and audited financial statements when the audit report on such statements becomes
available.
If the City changes its fiscal year, it will notify each NRMSIR and the SID of the change
(and of the date of the new fiscal year end) prior to the next date by which the City otherwise
would be required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is available from the
Municipal Securities Rulemaking Board ( "MSRB ") ) that theretofore has been provided to each
NRMSIR and the SID or filed with the United States Securities and Exchange Commission ( the
"SEC ").
The City shall notify the SID and either each NRMSIR or the MSRB, in a timely manner,
of any failure by the City to provide financial information or operating data in accordance with
this agreement.
(b) The City shall be obligated to observe and perform the covenants specified in this
Section for so long as, but only for so long as, the City remains an "obligated person" with
respect to the Bonds within the meaning of the Rule.
The provisions of this Section are for the sole benefit of the Authority and the holders and
beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any
benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER
OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR
TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY
THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY
COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF
ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH
BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC
PERFORMANCE.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
2
The provisions of this Section may be amended by the City from time to time to adopt to
changed circumstances that arise from a change in legal requirements, change in law, or change
in the identity, nature, status or type of operations of the City, but only if(1) the agreement, as
amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering
of the Bonds in compliance with the Rule, taking into account any amendments or interpretations
of the Rule to the date of such amendment, as well as such changed circumstances, and (2) either
(a) the holders of a majority in aggregate principal amount of the outstanding Bonds consent to
such amendment, or (b) a person unaffiliated with the City (such as nationally recognized bond
counsel), determines that the amendment will not materially impair the interests of the holders
and beneficial owners of the Bonds. The City may also amend or repeal the provisions of this
continuing disclosure agreement if the SEC amends or repeals the applicable provisions of the
Rule or a court of final jurisdiction enters judgment that such provisions of the Rule are invalid,
but only if and to the extent that the provisions of this sentence would not prevent an underwriter
form lawfully purchasing or selling Bonds in the primary offering of the Bonds. If any such
amendment is made, the City will include in its next annual update an explanation in narrative
form of the reasons for the change and its impact on the type of operating data or financial
information being provided.
Section 3: This Ordinance shall become effective immediately upon passage by the
Council and signature of the Mayor.
INTRODUCED,READ and PASSED, by the affirmative vote of the City Council
of the City of Baytown this the 27th day of January, 2005.
•
CALVIN MUNDINGER,Mayor
•
ATTEST:
GAR W. SMITH,City Clerk
APPROVED AS TO FORM:
ACID RAMIREZ, SR. ity Attorney
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