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Ordinance 1987-35 ORDINANCE NO. 81 ~ 3j/ ORDINANCE AUTHORIZING AND DIRECTING THE EXECUTION OF THE NORTH TEXAS MUNICIPAL WATER DISTRICT - CITY OF WYLIE SEWER SYSTEM FACILITIES INSTALLMENT SALE CONTRACT, PLEDGING AND APPROPRIATING WATERWORKS AND SEWER SYSTEM REVENUES AND LEVYING A CITY AD VALOREM TAX IN CONNECTION THEREWITH, AND PROVIDING FOR THE EFFECT OF SAID ORDINANCE AND CONTRACT BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1 That, for and on behalf of the City of Wylie, the Mayor of the City of Wylie is hereby authorized and directed to sign, deliver, and otherwise execute, and the City Secretary of the City of Wylie is hereby authorized and directed to sign, attest, and seal, the North Texas Municipal Water District - City of Wylie Sewer System Facilities Installment Sale Contract (the "Contract") in substantially the form and substance attached to this Ordinance and made a part hereof for all purposes. SECTION 2 That, upon its execution by the parties thereto, the Contract shall be binding upon the City of Wylie in accordance with its terms and provisions; and the revenues of the City's combined waterworks and sewer system are hereby pledged and appropriated to making payments under the Contract as provided therein. SECTION 3 That during each year during the term of said Contract the City Council of the City of Wylie shall compute and ascertain a rate and amount of ad valorem tax which will be sufficient to raise and produce annually the money necessary to make any payments, including indemnities, required to be made by the City under the Contract, and to create a sinking fund of at least 2% as required by Article 11, Section 5 of the Texas Constitution; and said tax shall be based on the latest ap- proved tax rolls of the City, with full allowance being made for tax delinquencies and costs of tax collection. Said rate and amount of ad valorem tax is hereby levied, and is hereby ordered to be levied, against all taxable property in the City for each year during the term of the Contract; and said tax shall be assessed and collected for each year and used for making the aforesaid payments to the extent required by the Contract. Said ad valorem taxes sufficient to provide for making the aforesaid payments are hereby pledged irrevocably for such payment, within the limit prescribed by law. SECTION 4 That this Ordinance shall take effect and be in full force and effect from and after the date of its passage, and it is so ordained; and all ordinances and resolutions of the City of Wylie in conflict herewith are hereby amended or repealed to the extent of such conflict. NORTH TEXAS MUNICIPAL WATER DISTRICT - CITY OF WYLIE SEWAGE TREATMENT SERVICES CONTRACT THE STATE OF TEXAS KNOW ALL MEN EY THESE PRESENTS: NORTH TEXAS MUNICIPAL WATER DISTRICT WHEREAS, the North Texas Municipal Water District (herein- after sometimes called the "District") is a conservation and reclamation district created by and functioning under Chapter 62, Acts of 1951, 52nd Legislature, Regular Session, as amended, originally compiled as Vernon's Article 8280-141 (hereinafter sometimes called the "Act"), pursuant to Article 16, Section 59 of the Texas Constitution; and WHEREAS, the City of Wylie (hereinafter sometimes called the "City") in Collin County, is a city duly organized and existing pursuant to the Constitution and laws of the State of Texas; and WHEREAS, the City owns its existing wastewater treatment plant consi sting of facilities with a present capaci ty for disposing of approximately 800,000 gallons of the City's sewage per day (the "Exi sting Fac i 1 i ties"), located in the south- western section of City, south of State Highway 78 and west of Eirmingham Street; and WHEREAS, the City has requested the District to expand the Existing Facilities by increasing the present capacity thereof to a total of approximately 2,000,000 gallons of sewage per el7 .J:; , " /- day, and to operate and maintain the entire expanded wastewater disposal system (the "Plant") as hereinafter provided; and WHEREAS, a description of said proposed expansion is contained in an engineering report dated May 27, 1987, by CH2M Hill, Consulting Engineers, Dallas, Texas; and WHEREAS, said expansion of the Existing Facilities to have a capacity for disposing of a total of approximately 2,000,000 gallons of sewage per day is hereafter called the Project; and WHEREAS, the District and the City are authorized to make and enter into this Contract under the Act, Chapter 30 of the Texas Water Code, Vernon's Ann. Tex. Civ. St. Art. 4413 (32c), and other applicable laws; and ~~EREAS, the parties hereto recognize and agree to these facts: (a) that the District is preparing to issue, sell, and deliver its Bonds for the purpose of acquiring and constructing the Project; and (b) that the District will pledge part of the City's payments to the District under this Contract to the payment of principal of and the interest on its Bonds issued in connection with the Project. IT IS THEREFORE CONTRACTED AND AGREED BETWEEN THE DISTRICT AND THE CITY AS FOLLOWS: 30 Section 1. DEFINITIONS. The terms and expressions used in this Contract, unless the context shows clearly otherwise, shall have meanings as follows: (a) "Engineering Report" means the engineering report described in the preamble to this Contract, together with any amendments and supplements thereto. (b) "Existing Facilities" means the presently existing waste treatment facilities owned by the City and described in the preamble to this Contract. (c) "Project" means the Project consisting of the expansion of the Existing Facilities to a total designed treatment capacity of approximately 2,000,000 gallons of sewage per day, in accordance with the Engineering Report. (d) "Plant" means the entire expanded wastewater disposal system, including the Existing Facilities and the Project. (e) "Board" and "Board of Directors" means the Board of Directors of the District. (f) "Bonds" means any bonds to be issued by the District for the acquisition, construction, or completion of the Project, whether in one or more series or issues, or any bonds issued to refund same or to refund any refunding bonds. (g) "Bond Resolution" means any resolution of the Board of Directors authorizing the issuance of Bonds and providing for their security and payment, as such resolution(s) may be amended from time to time as therein permitted. (h) "Fiscal Year" means the District's fiscal year, currently the year beginning October 1 of each calendar year and ending on September 30 of the following calendar year. (i) "Operation and Maintenance Expenses" means all costs and expenses of operation and maintenance of the Plant, including (for greater certainty but without limiting the generality of the foregoing) repairs and replacements for which no special fund is created in any Bond Resolution, operating personnel, the cost of J! utilities, the costs of supervision, engineering, accounting, auditing, legal services, supplies, services, administration of the Plant, including the District's general overhead expenses attribut- able to the Plant, insurance premiums, equipment necessary for proper operation and maintenance of the Plant, and payments due by the District in satisfaction of judgments, penalties, and claims not paid by the District's insurance and arising in connection with the operation and maintenance of the Plant. The term does not include deprecia- tion. Section 2. OBLIGATION OF DISTRICT TO CONSTRUCT. The District agrees to pay and will pay all of the actual costs of acquiring and constructing the Project through the issuance of its Bonds pursuant to the Act, Chapter 30 of the Texas Water Code, and other applicable laws, to provide the money suffi- cient for such payment; and the District shall own and have title to the Project. Section 3. DISTRICT'S BONO RESOLUTION. The proceeds from the sale of the Bonds will be used for the payment of all of the District's costs and expenses in connection with the Project and the Bonds, including, without limitation, all financing, legal, printing, and other expenses and costs incurred in issuing its Bonds, and to fund a debt service reserve and other funds as required by any Bond Resolution. It is now estimated that such such Bonds will be issued by the District in the amount of approximately $2,100,000 (whether actually more or less), which amount is now estimated to be sufficient to cover all the aforesaid costs and expenses and other amounts required. Each Bond Resolution of the District 3,2 shall specify the exact principal amount of the Bonds issued, which shall mature not more than 25 years from the date of such Bonds, and shall bear interest at not to exceed the maximum legal rates, and the Bond Resolution shall create and provide for the maintenance of a revenue fund, an interest and sinking fund, and a debt service reserve fund, and other funds, all in the manner and amounts as provided in each Bond Resolution. The City agrees that if such Bonds are actually issued and de- livered to the purchaser thereof, the Bond Resolution authoriz- ing the Bonds shall for all purposes be deemed to be in com- pliance with this Contract in all respects, and the Bonds issued thereunder will constitute Bonds as defined in this Contract. Section 4. CONSULTING ENGINEERS. The District and the City agree that CH2M Hill, Consulting Engineers, Dallas, Texas, shall constitute and be defined as the "Consulting Engineers" for the Project; that the Project will be acquired and con- structed in accordance with plans and specifications prepared under the supervision of the Consulting Engineers. It is further agreed that the Consulting Engineers may be changed, but only with the agreement of both the District and the City. Section 5. ACQUISITION AND CONSTRUCTION CONTRACTS. The District will enter into such contracts as are necessary to provide for acquiring and constructing the entire Project, and 33 said contracts shall be executed as required by the laws applicable to the District. The District shall pay the amounts due under said contracts from the proceeds from the sale of its Bonds. Section 6. OPERATION AND MAINTENANCE. As permitted and authorized by th€ Act and Section 30.04, Texas Water Code, and other provisions of law, the District and the City agree that this Contract shall constitute an operating agreement with respect to the Existing Facilities, which heretofore have con- sti tuted a part of the City's local wastewater treatment facilities, and with respect to the entire Plant. The District agrees to manage, administer, operate, maintain, and use the entire Plant, including the Existing Facilities as part of the entire Plant, subject to the provisions and during the term of this Contract. The District will provide and make available to the City the sewage disposal facilities and services of the entire Plant. It is agreed that the City shall have the exclus- ive use of the entire Plant throughout its useful life. In consideration for the District's undertakings pursuant to this Contract and making available the entire Plant to the City, the City agrees to make the payments hereinafter specified. As further consideration it is agreed that the District will have the responsibility for operating and maintaining the entire Plant throughout its useful life, and that the District will 07 ... ~'I" " operate and maintain the entire Plant throughout its useful life. Section 7. PAYMENTS BY CITY. (a) The City agrees to indemnify and to save and hold harmless the District from any and all claims, damages, losses, costs, and expenses, including reasonable attorneys fees, arising at any time from the acqui- sition, construction, existence, ownership, operation and/or maintenance of the entire Plant. It is further agreed that the City's obligation to make any and all paYments with respect to the Bonds under Section 7 (b) (1) and (2) and 7 (c) of this Contract will terminate when all of the District's Bonds have been paid and retired and are no longer outstanding; and it is agreed that the cessation of such payments or charges is and will be a reasonable arrangement after such Bonds have been retired. However, the City shall make the payments to cover Operation and Maintenance expenses of the entire Plant as provided in Section 7 (b) (3) throughout the useful Ii fe of the entire Plant. It is further understood and agreed that the District's only source of funds to pay the principal of and interest on its Bonds and to pay its expenses in connection with its Bonds and the Plant, is from the payments to be made by the City to the District under this Contract. (b) That the City agrees to make the following payments to the District during the term of this Contract: 1. Such amounts, payable monthly on or before the 20th day of each month, in approximately equal monthly 35 installments for each applicable period, as are necessary to pay the principal and/or interest coming due on the District's Bonds on the next succeeding interest payment date, plus the fees and charges of the Paying Agent for paying or redeeming the Bonds and/or interest thereon coming due on such date, and the fees and charges of the Registrar for transferr- ing and registering the Bonds. 2. Such amounts as are necessary to make all payments into any debt service reserve fund or other special fund or funds required to be established and/or maintained by the provisions of any Bond Resolution. 3. Such amounts, payable monthly on or before the 20th day of each month, equal to the amount of estimated Operation and Maintenance Expenses of the District for the Plant for the next ensuing calendar month, as shown in the Annual Budget or amended Annual Budget as provided in Section (d) hereof. (c) If, in addition to the amount initially issued, the District finds it necessary to issue Bonds for the purpose of completing the Project to the extent contemplated by this Con- tract, Bonds in addition to those described in Section 3 hereof may be issued in the amount required to provide for the comple- tion of the Project and to pay the expenses of issuance of such Bonds, as well as to fund, if and to the extent necessary, additional amounts in the interest and sinking fund and the debt service reserve fund. If such completion Bonds are issued the amounts to be paid to or retained by the District under all Sections of this Contract shall be increased proportionately, and such amounts shall at all times be sufficient to pay the principal of and interest on all such Bonds and all other requirements in connection therewith. It is understood and agreed that the only source of funds for the District to 3t acquire, issuance construct, and complete the proj ect is from the and sale of its Bonds (including addi tional Bonds) pursuant to this Contract. (d) District covenants that it will operate and maintain the entire Plant in accordance with accepted good business and engineering practices and in accordance with requirements of all applicable Federal and State laws, and any rules and regulations issued and to be issued by appropriate agencies in the administration of said laws. The City and the District agree that their obligations hereunder shall include compliance with the requirements made under said laws, and any rules and regulations issued pursuant thereto. Not less than sixty (60) days before the commencement of each Fiscal Year while this Contract is in effect, District shall cause its tentative budget for Operation and Maintenance Expenses of the Plant for the ensuing Fiscal Year to be prepared and a copy thereof filed with the City Manager of the City. A reasonable amount to cover and reimburse the District for its administrative and overhead expenses directly attributable to the Plant and the Bonds, including the cost of routine annual accounting reports, shall be included as an i tern of Operation and Maintenance Expenses. If no protest or request for a hearing on such tentative budget is presented to District within thirty (30) days after such filing of the tentative budget with the City Manager, the tentative budget for the Plant, when adopted by 37 District I S Board of Directors, shall be considered for all purposes as the "Annual Budget" for the ensuing Fiscal Year. But if a protest or request for a hearing is duly filed, it shall be the duty of the District to fix the date and time for a hearing on the tentative budget before its Board of Directors and shall so advise the City in writing. The Board of Direc- tors shall consider the testimony and showings made in such hearing, and the Board of Directors of District may adopt the budget or make such amendments thereof as to it may seem proper. The budget thus approved by the Board of Directors of the District shall be the Annual Budget for the next ensuing Fiscal Year. The Annual Budget may be amended to provide for trans fers of budgeted funds between expenditure accounts, provided however that said transfers do not resul t in an overall increase in budgeted funds as approved in the Annual Budget. The Annual Budget may be amended and increased through formal action by the Board of Directors of District, if re- quired. Certified copies of any amended Annual Budget and the resolution authorizing same shall be filed immediately by the District with the City. (e) The City now has outstanding combined waterworks and sewer system revenue bonds, and represents and covenants that the use of the facilities and services to be obtained pursuant to this Contract are essential and necessary to the operation of the City and its combined waterworks and sewer system, and 3JY that all payments to be made hereunder by it will constitute reasonable and necessary "operating expenses" of the City's combined waterworks and sewer system, within the meaning of Vernon's Article 1113, and Section 30.030(a), Texas Water Code, as amended, and the provisions of the ordinances, respectively, which heretofore have authorized, and hereafter may authorize, the issuance of all combined waterworks and sewer system revenue bond issues of the City, with the effect that the City's obligation to make payments from the revenues of its combined waterworks and sewer system revenues under this Contract shall have priority over its obligations to make payments of the principal of and interest on any and all of its combined waterworks and sewer system revenue bonds and other obligations heretofore and hereafter issued. The City agrees to fix and collect such rates and charges for waterworks and sewer services to be supplied by its combined waterworks and sewer system as will make possible the prompt payment of all expenses of operating and maintaining the entire Plant and operating and maintaining the City's entire combined waterworks and sewer system, including all payments, obligations, and indemnities contracted hereunder, and the prompt payment of the principal of and interest on all City bonds or other obliga- tions heretofore and hereafter issued or incurred to be payable from the net revenues of its combined waterworks and sewer system. 0J ... ,,~. , (f) Recognizing the fact that the City urgently requires the facilities and services of the Project and the Plant covered by this Contract, and that such facilities and services are necessary for actual use and for standby purposes; and further recognizing that the District will use the payments received from the City hereunder to pay, secure, and finance the issuance of the Bonds, it is hereby agreed that if and when any Bonds are delivered, the City shall be obligated to make the payments required by this Contract, regardless of whether or not the District actually provides such facilities and services, or whether or not the City actually receives or uses such facilities and services, and the holders of the Bonds shall be entitled to rely on the foregoing agreement and representation. Section 8. ACQUISITION AND CONSTRUCTION. The District agrees to proceed promptly with the acquisition and construc- tion of the Project. The District covenants that it will make a diligent effort to commence construction as soon as practi- cable. The District does not anticipate any delays in comrnenc- ing or completing the Project, but the District shall not be liable for any damages occasioned by the construction or completion of the Project, or any delays in completion of the Project. ?{J Section 9. CONDITIONS PRECEDENT. The obligation on the part of the District to acquire and construct the Project shall be conditioned upon the following: (a) sale of Ponds in an amount sufficient to assure the acquisition and construction of the Project; and (b) the District's ability, or the ability of the contractors, to obtain all permits, material, labor, and equipment necessary for the acquisition and construction of the Project. Section 10. USE OF CITY'S PUBLIC PROPERTY. Py these presents, the City authorizes use by the District of any and all real property, streets, alleys, public ways and places, and general utility or sewer easements of the City for acquiring and constructing the Project and operating and maintaining the Plant, as provided in this Contract. Section 11. FORCE MAJEURE. If, by reason for Force Majeure, any party hereto shall be rendered unable wholly or in part to carry out its obligations under this agreement, with the exception as hereinafter provided, then such party shall give notice and full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the ob1iga- tion of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continu- ance of the inability then claimed, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term Force Majeure '# as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explo- sions, breakage or accidents to machinery, pipelines or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied within all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. It is specifically excepted and provided, however, that in no event shall any Force Majeure relieve the City of its obliga- tion to make payments to the District as required under Section 7 of this Contract. Section 12. INSURANCE. The District shall carry fire, casualty, public liability, and other insurance (including self insurance to the extent deemed advisable by the District) on the Plant for purposes and in amounts which would ordinarily be ~ carried by a privately owned utility company owning and operat- ing such facilities, except that it shall not be necessary to carry liability insurance except to insure against risk of loss due to claims for which such party can, in the opinion of its legal counsel, be liable under the Texas Tort Claims Act or any similar law or judicial decision. Such insurance will provide, to the extent feasible and practicable, for the restoration of damaged or destroyed properties and equipment, to minimize the interruption of the services of such facilities. All premiums for such insurance shall constitute an Operation and Mainte- nance Expense of the Plant. Section 13. REGULATORY BODIES. This Contract and the Plant shall be subject to all valid rules, regulations, and laws applicable thereto passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction or any authorized repre- sentative or agency of any of them. Section 14. USE OF THE PROJECT. It is agreed and under- stood that the City shall not, under any circumstances, dis- charge or permit its inhabitants to discharge, any sewage or waste into the Project which would cause the design capacity of the Project to be exceeded or cause any governmental permit granted for the Project to be violated. Section 15. TERM OF CONTRACT. That the term of this Contract shall be for the useful life of the Plant, and in any v event for the period during which any of the District's Bonds, or any interest payable thereon, are outstanding and unpaid. IN WITNESS WHEREOF, the District and the City, acting under authority of their respective governing bodies have caused this contract to be duly executed in several counter- parts, each of which shall constitute an original, all as of the 25th day of JUNE, 1987, which is the date of this Contract. NORTH TEXAS MUNICIPAL WATER DISTRICT BY President, Board of Directors ATTEST: Secretary, Board of Directors (SEAL) CITY OF WYLIE, TEXAS BY Mayor ATTEST: City Secretary ( SEAL) # CERTIFICATE FOR ORDINANCE AUTHORIZING AND DIRECTING THE EXECUTION OF THE NORTH TEXAS MUNICIPAL WATER DISTRICT - CITY OF WYLIE SEWER SYSTEM FACILITIES INSTALLMENT SALE CONTRACT, PLEDGING AND APPROPRIATING WATERWORKS AND SEWER SYSTEM REVENUES AND LEVYING A CITY AD VALOREM TAX IN CONNECTION THEREWITH, AND PROVIDING FOR THE EFFECT OF SAID ORDINANCE AND CONTRACT THE STATE OF TEXAS COUNTY OF COLLIN CITY OF WYLIE We, the undersigned officers of the City of wylie, Texas, hereby certify as follows: 1. The City Council of said City convened in REGULAR MEETING ON THE 14TH DAY OF JULY, 1987, at the City Hall, and the roll was called of the duly consti- tuted officers and members of said City Council, to-wit: Carolyn Jones, City Secretary John Akin Marvin Blakey Calvin Westerhof Charles Trimble, Mayor Sandra Donavan, Mayor Pro Tem Christopher Di Tota Kent Crane and all of said absentees: constituting a quorum. Whereupon, among other business, following was transacted at said Meeting: a written persons were present, except the following , thus the ORDINANCE AUTHORIZING AND DIRECTING THE EXECUTION OF THE NORTH TEXAS MUNICIPAL WATER DISTRICT - CITY OF WYLIE SEWER SYSTEM FACILITIES INSTALLMENT SALE CONTRACT, PLEDGING AND APPROPIATING WATERWORKS AND SEWER SYSTEM REVENUES AND LEVYING A CITY AD VALOREM TAX IN CONNECTION THEREWITH, AND PROVIDING FOR THE EFFECT OF SAID RESOLUTION AND CONTRACT was duly introduced for the consideration of said City Council and duly read. It was then duly moved and seconded that said Ordinance be passed; and, after due discussion, said motion, carrying with it the passage of said Ordinance, prevailed and carried by the following vote: AYES: All members of said City Council shown present above voted "Aye". NOES: None. 2. That a true, full, and correct copy of the aforesaid Ordinance passed at the Meeting described in the above and foregoing paragraph is attached to and follows this Certifi- cate; that said Ordinance has been duly recorded in said City Council's minutes of said Meeting; that the above and foregoing paragraph is a true, full, and correct excerpt from said City Council's minutes of said Meeting pertaining the passage of said Ordinance; that the persons named in the above and forego- ing paragraph are the duly chosen, qualified, and acting officers and members of said City Council as indicated therein; and that each of the officers and members of said City Council was duly and sufficiently notified officially and personally, in advance, of the time, place, and purpose of the aforesaid Meeting, and that said Ordinance would be introduced and considered for passage at said Meeting; and that said Meeting was open to the public, and public notice of the time, place, and purpose of said meeting was given, all as required by Vernon's Ann. Tex. Civ. St. Article 6252-17. 3. That the Mayor of said City has approved, and hereby approves, the aforesaid Ordinance; that the Mayor and the City Secretary of said City have duly signed said Ordinance; and that the Mayor and the City Secretary of said City hereby declare that their signing of this Certificate shall constitute the signing of the attached and following copy of said Ordi- nance for all purposes. (SEAL) ...--- .--, SIGNED AND SEALED the ,~cl~87. Z~~. Mayor