HomeMy WebLinkAboutC15-434 Eagle County Disclosures Policy and ProceduresEAGLE COUNTY. COLORADO
DISCLOSURE POLICY AND PROCEDURES
Introduction
f'his Disclosure Policy and Procedures (the "Disclosure Policy") is adopted pursuant to a
Itesolution of the Board of County Comrnissioners (the "Board") of the Eagle County, to ensure
that the County carries out its continuing disclosure obligations in accordance with applicable
securities laws and its contractual oblisations.
Definitions
The definitions set forth herein shall apply to any capitalized term used in this Disclosure
Policy unless otherwise defined herein. In addition to such terms and the terms defined above, as
used in this Disclosure Policy, the following capitalized terms shall have the following
meanings:
"Audito,:'means the independent auditor or auditing firm engaged by County.
"Board" means the Board o1'County Commissioners.
"Communications Director" meims the County Communications Director or Acting
County Communications Director, if any.
"County Attorney" means the County Attorney or Acting County Attorney, if any. If
those positions are vacant, an Assistant County Attorney shall be responsible for performing the
duties of the County Attorney under this Disclosure Policy.
"Coungt Managef' means the County Manager or Acting County Manager. If those
positions are vacant, the Deputy County Manager shall be responsible for performing the duties
of the County Manager under this Disclosure Policy.
"Disclosure Documents" means the official statements, offering and reoffering circulars
and similar disclosure documents prepared by or on behalf of the County in connection with the
primary offering of its outstanding Obligations.
"Dissemination Agenf' means any entity acting as a Dissemination Agent under any of
Undertakings, or any successor Dissemination Agent appointed in accordance with such
Undertakings.
"Employee" means any person who, as part of his or her employment with the County,
has regular responsibility for the administration of matters related to Obligations, including
projects financed or refinanced with the proceeds of the Obligations.
"EMMA" means the Electronic Municipal Market Access system of the MSRB.
Infornr ation re garding subrnissions to EMMA is avail able at http: I I emma.msrb.org/.
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Eagle County AttorneY's Offlce
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Byl gagle Coun$ Commlssioners' Office
"Events" means any of the events listed in Schedule 1 of this Disclosure Policy.
"Financial Accounting Manager" means the County Financial Accounting Manager. If
this position is vacant, then Controller shall be responsible for performing the duties of the
Financial Accounting Manager.
"Finance Directof' means the County Finance Director or Acting County Finance
Director. If those positions are vacant, the Financial Accounting Manager shall be responsible
for performing the duties of the Finance Director under this Disclosure Policy.
"Financial Repoft" means the Comprehensive Annual Financial Report annually
prepared by the County's management and audited by the Auditor, which shall include the basic
financial statements, including government-wide financial statements, fund financial statements,
together with supporting notes and required supplementary information. All such financial
information shall be prepared using generally accepted accounting principles as in effect from
time to time and audited by a certified public accountant.
"Fiscal Yeaf' means the fiscal year of the County, being the period commencing on
January 1 and ending on the following December 31.
"MSRB" means the Municipal Securities Rulemaking Board or any other board or entity
which succeeds to the functions currently delegated to the Municipal Securities Rulemaking
Board by the Rule.
"Obligatio,ns" means any bonds, certificates or participation or other municipal securities,
issued, or whose payment is guaranteed by, the County. A list of currently outstanding
Obligations is set forth in lctredule2 of this Disclosure Policy.
"Operating Data" means County's financial and statistical information and operating
data which is required to be provided by the County pursuant to County's Undertakings and this
Disclosure Policy, and which shall consist of the information described in Schedule 3 of this
Disclosure Policy.
"Required Disclosure^i" means collectively, all current Financial Reports, Operating
Data, and Events required to be submitted under the Undertakings.
"Rule" means Rule 15c2-12, as amended, promulgated by the SEC under the Securities
Exchange Act of 1934, as amended
"SEC" means the U.S. Securities and Exchange Commission.
"Undertakings" means those written undertakings of the County to file certain annual
operating and financial information and notice of the occurrence of certain material events
executed in connection with the primary offering of certain Obligations. A list of currently
applicable Undertakings is set forth in Schedule 4 of this Disclosure Policy.
"Voluntary Disclosure" is defined in Part II, Section D of this Disclosure Policy.
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PART I
ISSUANCE AND PRIMARY DISCLOSURE
Issuance and Primary Disclosure Obligations
Whenever County issues its Obligations, preliminary and/or final Disclosure Documents
are prepared by or on behalf of County. Each of these Disclosure Documents contains
infbrmation relating to County's operations and finances. The Finance Director and the County
Attorney shall share primary responsibility for ensuring that all such information is accurate,
does not omit any material information, and is not misleading in any material aspect. The
Finance Director shall provide the County Manager and the Board with copies of each
Disclosure Document, and the County Manager and the Board shall confirm to the Finance
Director and the County Attorney that the information about the County contained in such
Disclosure Document is accurate, does not omit any material information, and is not misleading
in any material aspect.
Each Disclosure Document shall be accompanied by a certification executed by the
Finance Director and the County Attorney that the information contained in the Disclosure
Document regarding the County, as of the date of such Disclosure Document and as of the date
of the certification, does not contain any untrue statement of material fact or omit to state any
material fact necessary to make the information contained in the Disclosure Document, in light
of the circumstances under which it was provided, not misleading. Any such certifications may
include appropriate disclaimers with respect to such information as is obtained frorn and sourced
to independent third parties.
PART II
SECONDARY DISCLOSURE
A. Annual Submission of Financial Report
1. Upon acceptance of a Financial Report by the Board and not later than 2L0 days after
the end of each Fiscal Year, while any Obligations remain outstanding, the Financial Accounting
Manager shall submit or cause County's Financial Report to be submitted to the MSRB through
EMMA. If County's audited Financial Report is not available at the time the Financial Report is
required to be filed pursuant to County's Undertakings and this Disclosure Policy, the Financial
Accounting Manager shall submit or cause County's unaudited Financial Report to be submitted
to EMMA, and then when and if available, the Financial Accounting Manager shall submit or
cause County's audited Financial Report to be submitted to the MSRB through EMMA. If the
County designated a Dissemination Agent pursuant to any of its Undertakings, the Financial
Accounting Manager shall provide such audited or unaudited Financial Reports to the applicable
Dissemination Agent in sufficient time and pursuant to the applicable Undertaking for
submission by the Dissemination Agent of such Financial Report to the MSRB through EMMA.
2. Within ten (10) days after the submission of the Financial Report to the MSRB, the
Financial Accounting Manager shall provide to the Finance Director and the County Attorney
written confirmation that the Financial Report has been submitted and filed properly with the
MSRB throush EMMA.
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3. In the event that the Financial Report is not completed in time to submit the Financial
Report to the MSRB through EMMA within the time specified in paragraph 1 above, the
Financial Accounting Manager, in consultation with the Finance Director and the County
Attorney, will file or caused to be filed an appropriate EMMA notice in accordance with the
policy and procedures set forth below under "Reporting of Events," and in accordance with the
Rule, and County's Financial Report shall be submitted as soon as it is available.
4. The Financial Report may be provided to the MSRB through EMMA in one document
or a set of documents submitted to the MSRB, or may be included by specific reference to
documents available to the public on the MSRB's Internet website or filed with the SEC. The
Financial Accounting Manager shall clearly identify each such other document provided by
cross-reference.
5. The Financial Report may be incorporated by reference to other documents, including
Disclosure Documents of debt issues with respect to which County is an "obligated person" (as
defined by the Rule), which have been filed with the MSRB through EMMA or the SEC. The
Financial Accounting Manager, in consultation with the Finance Director, shall clearly identify
each such other document so incorporated by reference. In the event that the Financial
Accounting Manager, in consultation with the Finance Director, determines to so incorporate by
reference the Financial Report, the Financial Accounting Manager shall also file a notice through
EMMA indicating that County's Financial Report for that year is contained in documents filed
with the SEC or with the MSRB through EMMA.
B. Annual Submission of Operating Data
1. Upon acceptance of a Financial Report by the Board and not later than 210 days after
the end of each Fiscal Year, while any Obligations remain outstanding, the Financial Accounting
Manager, in consultation with the Finance Director, shall submit or cause the Operating Data to
be submitted to the MSRB through EMMA.
2. The Financial Accounting Manager, in consultation with the Finance Director, shall
coordinate preparation of the annual updates to the Operating Data not less than twenty (20) days
prior to the deadline referred to in Section 8.1 above for the submission of the Operating Data to
the MSRB through EMMA.
3, Within ten (10) days after the submission of the Operating Data to the MSRB, the
Financial Accounting Manager shall provide to the Finance Director and the County Attorney
written confirmation that the Operating Data has been submitted and filed properly with the
MSRB through EMMA.
4. The Operating Data may be provided to the MSRB through EMMA in one document
or a set of documents submitted to the MSRB, or may be included by specific reference to
documents available to the public on the MSRB's Internet website or filed with the SEC. The
Financial Accounting Manager, in consultation with the Finance Director, shall clearly identify
each such other document provided by cross-reference.
5. The Operating Data may be incorporated by reference to other documents, including
Disclosure Documents of debt issues with respect to which County is an "obligated person" (as
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defined by the Rule), which have been filed with the MSRB through EMMA or the SEC. The
Financial Accounting Manager, in consultation with the Finance Director, shall clearly identify
each such other document so incorporated by reference. In the event that the Financial
Accounting Manager, after consultation with the Finance Director, determines to so incorporate
by reference the Operating Data, the Financial Accounting Manager shall also file a notice
through EMMA indicating that all or part of the Operating Data for that year is contained in
documents filed with the SEC or with the MSRB throueh EMMA.
C. Periodic Reporting of Events
1. After consultation with, and with the prior approval of, the County Attorney and the
Finance Director, the Financial Accounting Manager shall file a notice of the occurrence of any
Event or Events with the MSRB through EMMA with respect to any Obligations to which the
Event or Events are applicable, in a timely manner not in excess of ten (10) business days after
the occurrence of the Event, as required by the Rule. The Events to be disclosed are listed on
Schedule t hereof, which Schedule the Finance Director, in consultation with the County
Attorney, is responsible for updating in a timely manner in the event that there are future changes
to the Rule that result in additions, changes or deletions to the list of Events. Pursuant to the
Rule, the Events listed in sections (7), (8) (with respect to bond calls only), (13) and (14) of
Schedule 1 shall be reported only if material to the holders of the Obligations. The
determination of materiality shall be made by the County Attorney after consultation with such
Employees of the County and other consultants as the County Attorney deems appropriate in his
discretion.
2. Not less than three (3) business days after providing notice of an Event to the MSRB,
the Financial Accounting Manager shall provide a copy of the notice submission filed with the
MSRB to the County Attorney and the Finance Director, along with written confirmation that
such Event notice submission was properly filed with the MSRB through EMMA, as required by
the Rule.
3. Whenever any Employee obtains actual knowledge of the occurrence of an Event, that
Employee must inform the Finance Director and the County Attorney in writing as soon as
possible so that notice of such Event may be filed in accordance with Section C.1.
D. Voluntary Disclosure
In addition, County also may, from time to time, voluntarily submit information to
EMMA and/or post voluntary information such as bank lending agreements, rating agency
reports and submissions, adopted budgets, and other information submitted by the Finance
Director or County Manager from time to time on County website (each, a "Voluntary
Disclosure").
E. Manner of Submission
The Financial Accounting Manager shall submit, or cause to be submitted through the
Dissemination Agent, the Required Disclosures required to be submitted to the MSRB pursuant
to the Disclosure Policy in an electronic format, searchable pdf, if applicable, and such Required
Disclosures shall be accompanied by identifying information, including all relevant CUSIP
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identification numbers of outstanding Obligations, in the manner prescribed by the MSRB, or in
such other manner as is consistent with the Rule. A description of such format and information
as presently prescribed by the MSRB is included in ExhibtlA hereto.
County shall submit its Required Disclosures to EMMA through its Dissemination Agent.
County reserves the right to post Voluntary Disclosure to EMMA without using a Dissemination
Agent.
PART III
PUBLIC STATEMENTS
Public Statements Regarding Financial Information
Whenever Employees make statements or release information relating to County's
finances and operations to the public that is reasonably expected to reach investors and the
trading markets (including, without limitation, all Event notices, statements in the Financial
Report, Operating l)ata, and other reports and statements of the County), the Communications
Director, in coordination with the Financial Accounting Manager and the Finance Director, shall
ensure that such statements and information are complete, true, and accurate in all material
aspects, The Finance Director shall have primary responsibility for ensuring that such statements
and information are accurate and not misleading in any material aspect. The Communications
Director, the County Manager, the Finance Director, and the County Attorney shall work
together to ensure that all public statements and information released by County are accurate and
not misleading in all material aspects and that County complies with all applicable requirements
of the Rule regarding continuing disclosure.
PART IV
MISCELI.ANEOUS
A. Disclosure Training for Employees
1. The Finance Director is responsible for conducting annual training of Employees
regarding this Disclosure Policy. Such training shall include a complete review of this
Disclosure Policy, the Rule, the Undertakings and the Events listed on Schedule I hereto, and
shall include a complete overview of County's obligations under the federal securities laws.
Upon completion of the annual training, all Employees will provide written certification that they
have completed the annual disclosure training and that they have reviewed and understand the
Disclosure Policy, the Rule, the Undertakings and the Events listed on Schedule t hereto, and
that they will comply with the Disclosure Policy.
2. Not later than forty-five (45) days after the end of each Fiscal Year, the Finance
Director shall provide annual written certification to the County Manager that the annual
disclosure training has been completed.
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B. Additional Irrformation
Nothing in this Disclosure Policy shall be deemed to prevent County from disseminating
any other accurate information using the means of dissemination set forth in this Disclosure
Policy or any other means of communication.
C. Periodic Review
The Finance Director, in consultation with the County Attorney, shall conduct an annual
evaluation of the efficacy of this Disclosure Policy in satisfying the objectives described above
under "Introduction," and make such revisions and/or updates as are determined to be
appropriate, including any updates to the Schedules and Exhibits attached hereto. In addition,
the Finance Director shall update the Schedules attached to this Disclosure Policy upon issuance
of any Obligations.
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Schedule 1 to the Disclosure Policy
List of Events
The SEC requires notification of the occurrence of any of the Events listed as (1) through
(14) below with respect to any applicable Obligation. Notification must be provided in a timely
manner> but not more than ten (10) business days after its occurrence. Notifications of certain
Events listed as (7), (8) (with respect to bond calls only), (13) and (1a) shall be made if such
Events are determined to be material. which determination shall be made in accordance with
Section II.C of the Disclosure Policy.
i. Principal and interest payment delinquencies;
2. Nonpayment related defaults, if material;
:1. 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, the issuance by the Internal Revenue Service of proposed
or final delerminations of taxability, or a Notice of Proposed Issue (IRS Form 5701-TEB) or
other material notices of determinations with respect to tax status of the Certificates, or other
events affecting the tax status of the Certificates;
7 . Modifications to rights of registered owners of the Certificates, if material;
8. Bond calls (excluding mandatory sinking fund redemptions), if material, and
tender offers;
9. Defeasances;
10. Release, substitution or sale of property securing repayment of the Certificates;
11. Rating changes;
12. Bankruptcy, insolvency, receivership, or a similar proceeding by an obligated
'13. Consummation of a merger, consolidation, acquisition involving an obligated
person, or sale of all or substantially all of the assets of an obligated person, other than in the
ordinary course of business, the entry into a definitive agreement to undertake such an action or
determination of a definitive agreement relating to any such actions, other than pursuant to its
terms, if material; and
74. Appointment of an additional or a successor trustee, or the change in name of a
trustee, if material.
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Schedule 2 to the Disclosure Policy
List of Outstanding Obligations
Issue
Series Date
QuarterlyFinal Filings
Maturitv ff/f\r)
Deadline
for
Annual
Filings Other
(inDays) Reoortine/Filinss
Dissemination
Agent
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Schedule 3 to the Disclosure Policy
Operating Data
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Schedule 4 to the Disclosure Policy
List of Current Undertakings
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EXHIBIT A
MSRB PROCEDURES FOR SUBMISSION OF CONTINUING DISCLOSURB
DOCUMENTS AND RELATED INFORMATION
Securities and Exchange Commission Release No. 34-59061 (the "Release") approves an
MSRB rule change establishing a continuing disclosure service of the MSRB's Electronic
Municipal Market Access system ("EMMA"). The rule change establishes, as a component of
EMMA, the continuing disclosure service for the receipt of, and for making available to the
public, continuing disclosure documents and related information to be submitted by issuers,
obligated persons and their agents pursuant to continuing disclosure undertakings entered into
consistent with Rule I5c2-I2 ("Rule I5c2-I2") under the Securities Exchange Act of 1934. The
following discussion summarizes procedures for filing continuing disclosure documents and
related information with the MSRB as described in the Release.
All continuing disclosure documents and related information is to be submitted to the
MSRB, free of charge, through an Internet-based electronic submitter interface or electronic
computer-to-computer data connection, at the election of the submitter. The submitter is to
provide, at the time of submission, information necessary to accurately identify: (i) the category
of information being provided; (ii) the period covered by any annual financial information,
financial statements or other financial information or operating data; (iii) the issues or specific
securities to which such document is related or otherwise material (including CUSIP number,
issuer name, state, issue description/securities name, date, maturity date and/or coupon rate); (iv)
the name of any obligated person other than the issuer; (v) the name and date of the document;
and (vi) contact information for the submitter. Submissions to the MSRB are to be made as
portable document format (PDF) files configured to permit documents to be saved, viewed,
printed and retransmitted by electronic means. If the submitted file is a reproduction of the
original document, the submitted file must maintain the graphical and textual integrity of the
original document. In addition, as of January I, 2070, such PDF files must be word-searchable
(that is, allowing the user to search for specific terms used within the document through a search
or find function), provided that diagrams, images and other non-textual elements will not be
required to be word-searchable.
All submissions to the MSRB's continuing disclosure service are to be made through
password protected accounts on EMMA by: (i) issuers, which may submit any documents with
respect to their municipal securities; (ii) obligated persons, which may submit any documents
with respect to any municipal securities for which they are obligated; and (iii) agents, designated
by issuers and obligated persons to submit documents and information on their behalf. Such
designated agents are required to register to obtain password-protected accounts on EMMA in
order to make submissions on behalf of the designating issuers or obligated persons. Any party
identified in a continuing disclosure undertaking as a dissemination agent or other party
responsible for disseminating continuing disclosure documents on behalf of an issuer or
obligated person will be permitted to act as a designated agent for such issuer or obligated
person, without a designation being made by the issuer or obligated person as described above, if
such party certifies through the EMMA on-line account management utility that it is authorized
to disseminate continuing disclosure documents on behalf of the issuer or obligated person under
the continuing disclosure undertaking. The issuer or obligated person, through the EMMA on-
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line account management utility, is
designated agent.
The MSRB's Internet-based
www.emma.msrb.org.
able to revoke the
electronic submitter
of such party to act
(EMMA Dataport)
authority
interface
asa
is at
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