Loading...
Ordinance 1988-04 ORDINANCE NO. 88-4 AN ORDINANCE approving and authorizing the execution and delivery of "CITY OF WYLIE, TEXAS, PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATIONS, SERIES 1988"; specifying the terms of such contractual obligations; making provisions for the payment thereof; and resolving other matters incident and related to the execution, performance and payment of such contractual . obligations, including the approval and execution of a Special Escrow Deposit Agreement for the acquisition of property and the approval of an Offering Memorandum; and providing an effective date. WHEREAS, pursuant to V.T.C.A., Local Government Code, Subchapter A of Chapter 271 (the Public Property Finance Act), the City Council is authorized and empowered to execute, perform and make payments under contracts wi th any person for the use, acquisition or purchase of personal property; and WHEREAS, in accordance with the provisions of the Public Property Finance Act, the City Council hereby finds and determines that the acquisi tion, use or purchase of certain items of personal property identified in Exhibit A attached hereto, or such other personal property, appliances, equipment, furnishings, or interests therein, considered by the City Council to be necessary, useful and/or appropriate for purposes of the City, should be financed under and pursuant to one or more contractual obligations to be executed and delivered on the terms and in the form hereinafter prescribed; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: Contract Authorization - Contract Amount - Property Identification. Contractual obligations, aggregating in amount $400,000 (the "Aggregate Contract Amount") and enti tIed "City of Wylie, Texas, Public Property Finance Contractual Obligations, Series 1988" (the "Contractual Obligations" or "Contracts") shall be and are hereby authorized to be executed and delivered with the Initial Contracting Party (hereinafter identified in Section 14 hereof), and the assigns thereof, to finance the use or the purchase or other acquisition of personal property identified in Exhibit A attached hereto and incorporated herein by reference as a part of this Ordinance for all purposes, or such other personal property, appliances, equipment, furnishings, or interests therein, considered by the City Council to be necessary, useful and/or appropriate for purposes of the Ci ty (the "Property"); all in accordance wi th and pursuant to authori ty conferred by the laws of the State of Texas, particularly the Public Property Finance Act. SECTION 2: Fully Registered Form Contract Date- Authorized Amounts-Installment Payments-Interest Rates. The Contracts shall be made, executed and delivered in fully registered form, bear a date of March 15, 1988 (the "Contract Date"), and, except for the Initial Contract authorized in Section 7 hereof, shall be in authorized amounts of $5,000 or any integral multiple thereof (not to exceed an Installment Amount), and the Aggregate Contract Amount shall be payable in annual installments (the "Installment Amounts") on February 15 in the amounts and interest shall accrue on such Installment Amounts at per annum rate(s) as follows: Payment Date Installment Amount Interest Rate(s) 1989 1990 1991 1992 1993 $ 60,000 75,000 80,000 90,000 95,000 6.25% 6.50% 6.75% 7.00% 7.25% Interest on the unpaid Installment Amounts shall accrue from the Contract Date (calculated on the basis of a 360-day year of twelve 30-day months) and such interest shall be payable on February 15 and August 15 in each year, commencing February 15, 1989. SECTION 3: Terms of Payment-Paying Agent/Registrar. The Installment Amounts on each Contract and the interest thereon shall be payable only to the registered contracting party or person (hereinafter called the "Contracting Party") appearing on the registration and transfer books (the "Contract Register") maintained by the Paying Agent/Registrar and such Installment Amounts and the interest payable thereon shall be payable in coin or currency of the Uni ted States of America, which at the time of payment is legal tender for the payment of public and private debts, and without exchange or collection charges to the Contracting Party. The selection and appointment of the MTrust Corp, National Association to serve as Paying Agent/Registrar for the Contracts is hereby approved and confirmed. The City covenants to maintain and provide a Paying Agent/Registrar at all times until the Contracts are paid and discharged, and any successor -2- .-,._""""".;".,1lt:~..._",__..!, Paying Agent/Registrar shall be a bank, trust company, financial institution or other entity qualified to perform the duties and services of Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Contracts, the City agrees to promptly cause a written notice thereof to be sent to each Contracting Party by United States Mail, first class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. The Installment Amounts shall be payable when due only upon the presentation and surrender of the Contracts to the Paying Agent/Registrar at its principal offices in Dallas, Texas (the "Designated Payment/Transfer Office"). Interest on the Installment Amounts shall be paid to the Contracting Parties which appear in the Contract Register at the close of business on the Record Date (the last business day of the month next preceding each interest payment date) and shall be paid by the Paying Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the address of the Contracting Party recorded in the Contract Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Contracting Party. If the date for the payment of an Installment Amount or interest thereon shall be a Saturday, Sunday, a legal holiday, or a day when banking institutions in the city where the Designated Payment/Transfer Office of the Paying Agent/Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day when banking insti tutions are authorized to close; and payment on such date shall have the same force and effect as if made on the original date payment was due. In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a "Special Record Date") will be established by the Paying Agent/ Registrar, if and when funds for the payment of such interest have been received. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Contracting Party appearing on the Contract Register at the close of business on the last business day next preceding the date of mailing of such notice. SECTION 4: Non-Optional. The Contracts subject to prepayment prior to their Payment option of the City. shall Dates not be at the -3- SECTION 5: Assignment - Registration-Transfer-Exchange of Contracts. A Contract Register relating to the registration, payment, and assignment and transfer or exchange of the Contracts shall at all times be kept and maintained on behalf of the City by the Paying Agent/Registrar at the Designated Paymenty'Transfer Office, as provided herein and in accordance with the provisions of an agreement with the Paying Agent/Registrar and such rules and regulations as the Paying Agent/Registrar and the Ci ty may prescribe. The Paying Agent/Registrar shall obtain, record, and maintain in the Contract Register the name and address of each and every Contracting Party to a Contract executed and delivered under and pursuant to the provisions of this Ordinance, or if appropriate, the nominee thereof. Any Contract may be assigned, transferred or exchanged for Contracts of other authorized amounts by the Contracting Party, in person or by his duly authorized agent, upon surrender of such Contract to the Paying Agent/Reg i st rar at the Designated Pa.yment/Transfer Office for cancellation, accompanied by a written instrument of assignment and transfer or request for exchange duly executed by the Contracting Party or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. Any Contract to be assigned and transferred shall be surrendered to the Paying Agent/Registrar at the Designated Payment/Transfer Office and, upon its receipt and cancellation, the Paying Agent/Registrar shall register and deliver, in the name of the designated assignee or transferee, one or more new Contracts of authorized amounts and, except for the assignment and transfer of the Initial Contract by the Initial Contracting Party, having the same Payment Date and of a like Installment Amount as the Contract or Contracts surrendered for assignment and transfer. Contracts may be exchanged for Contracts of other authorized amounts and, excluding the exchange of the Initial Contract governed by Section 7 hereof, having the same Payment Date, bearing the same rate of interest and of like aggregate Installment Amount as the Contracts surrendered for exchange, upon surrender of the Contracts to be exchanged to the Paying Agent/Registrar at the Designated Payment/Transfer Office. Whenever any Contracts are surrendered for exchange, the Paying Agent/Registrar shall register and deliver new Contracts to the Contracting Party requesting the exchange. When a Contract has been duly assigned and transferred or exchanged, the new Contract or Contracts registered in such assignment and transfer or exchange shall be delivered to the Contracting Party at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by United States Mail, first class, postage prepaid to the Contracting Party, and, upon the reQistration and delivery thereof, such Contracts shall be the valid obligations of the City, evidencing the same obligation -4- to pay, and entitled to the same benefits under this Ordinance, as the Contracts surrendered in such assignment and transfer or exchange. All transfers or exchanges of Contracts pursuant to this Section shall be made without expense or service charge to the Contracting Party, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by the Contracting Party requesting such transfer or exchange of any tax or other governmental charges required to be paid with respect to such transfer or exchange. Contracts cancelled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be "Predecessor Contracts, II evidencing all or a portion, as the case may be, of the same obligation to pay evidenced by the new Contract or Contracts registered and delivered in the exchange or transfer therefor. Additionally, the term "Predecessor Contracts" ~hall include any mutilated, lost, destroyed, or stolen Contract for which a replacement Contract has been registered and delivered in lieu thereof pursuant to the provisions of Section 10 hereof and such new replacement Contract shall be deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Contract. SECTION 6: Execution - Registration. The Contracts shall be executed on behalf of the City by the Mayor or Mayor Pro Tem, wi th the sea 1 of the Ci ty reproduced or impressed thereon and countersigned by the City Secretary. The signature of such officers on the Contracts may be manual or facsimile. Contracts bearing the manual or facsimile signatures of the persons holding such offices on the Contract Date shall be deemed to be duly executed on behalf of the City,' notwithstanding a change in persons holding such offices at the time of delivery of the Contracts to the Initial Contracting Party and wi th respect to Contracts del i vered in subsequent assignments and transfers or exchanges. No Contract shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless the registration certificate appearing on the Contracts to be signed by the Comptroller of Public Accounts of the State of Texas (substantially in the form provided in Section 8C) and/or the Paying Agent/Registrar (substantially in the form provided in Section 8D), either or both such certificates, as the case may be, are manually executed by an authorized officer, employee or representative of the Comptroller of Public Accounts and/or the Paying Agent/Registrar, and such registration certificate, either or both, upon any Contract when duly executed by the Comptroller -5- of Public case may evidence, registered Accounts and/or the Paying Agent/Registrar, as the be, shall be conclusive evidence, and the only that such Contract has been duly certified, and delivered. SECTION 7: Initial Contract. The Contracts herein authorized may be initially executed and delivered as a single fully registered Contract in the Aggregate Contract Amount with Installment Amounts to become due and payable as provided in Section 2 hereof and numbered T-l and registered in the name of the Initial Contracting Party or the designee thereof. Such single fully registered Contract shall be submitted to the Office of the Attorney General of the State of Texas for approval, certified and registered by the Office of the Comptroller of Public Accounts of the State of Texas and delivered to the Initial Contracting Party. Any time after the delivery of such single fully registered Contract, the Paying Agent/Registrar, pursuant to written instructions from the Initial Contracting Party, shall cancel such obligation and exchange therefor Contracts of authorized amounts and in Installment Amounts with Payment Dates and bearing applicable interest rates for transfer and delivery to the Contracting Parties named at the addresses identified therefor; all pursuant to and in accordance with such written instructions from the Initial Contracting Party and such other information and documentation as the Paying Agent/Registrar may reasonably require. SECTION 8: Forms. A. Forms Generally. The Contracts, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas, the Registration Certificate of Paying Agent/Registrar, and the form of Assignment to be printed on the Contracts, shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification and such legends and endorsements (including any reproduction of an opinion of counsel) thereon as may, consistently herewi th, be determined by the off icers executing and delivering such Contracts as evidenced by their execution. The Contracts shall be printed, lithographed, or engraved or produced in any other similar manner, all as determined by the officers executing such Contracts as evidenced by their execution, but the single fully registered obligation authorized in Section 7 hereof may be typewritten or photocopied or otherwise reproduced. -6- B. General Contract Form. REGISTERED NO. REGISTERED $ UNITED STATES OF AMERICA STATE OF TEXAS CITY OF WYLIE, TEXAS, PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATION SERIES 1988 Contract Date: March 15, 1988 Interest Rate: Payment Dat'e: CUSIP NO: Contracting Party: Installment Amount: DOLLARS The City of Wylie (hereinafter referred to as the "City"), a body corporate and political subdivision in the County of Collin, State of Texas, hereby agrees and promises to pay to the order of the Contracting Party named above, or the registered assigns thereof, the Installment Amount hereinabove stated on the Payment Date specified above (without right of prepayment) and to pay interest on such unpaid Installment Amount from the Contract Date at the per annum rate of interest specified above computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on February 15 and August 15 in each year, commencing February 15, 1989. The Installment Amount is payable on the Payment Date noted above to the Contracting Party upon presentation and surrender of this Contract to the Paying Agent/Registrar executing the registration certificate appearing hereon at the Designated Payment/Transfer Office, or its successor. Interest is payable to the Contracting Party of this obligation (or one or more Predecessor Contracts, as defined in the Ordinance hereinafter referenced) who appears on the "Contract Register" maintained by the Paying Agent/Registrar at the close of business on the "Record Date", which is the last business day of the month next preceding each interest payment date, and interest shall be paid by the Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the -7- address of such Contracting Party recorded in the Contract Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Contracting Party. The Installment Amount of this Contract and interest thereon shall be paid without exchange or collection charges to the Contracting Party and in any coin or currency of the Uni ted States of America which at the time of payment is legal tender for the payment of public and private debts. This Contract is one of a number of contracts aggregating in amount $400,000 (herein referred to as the "Contracts"), executed and delivered to finance the acquisition, use or purchase of personal property, under and in strict conformi ty with the Constitution and laws of the State of Texas, particularly the Public Property Finance Act (V.T.C.A., Local Government Code, Subchapter A of Chapter 271) and pursuant to an Ordinance adopted by the Ci ty Counci I of the Ci ty (herein referred to as the "Ordinance"). This Contract is an obligation of the City payable from the pledged proceeds of an ad valorem tax levied, wi thin the limitations prescribed by law, upon all taxable property in the City and, until disbursed for the acquisition of Property, amounts held in a special escrow account created and to be maintained under and pursuant to a Special Escrow Deposit Agreement, dated March 15, 1988 (the "Special Escrow Deposit Agreement") by and between the City and MTrust Corp, National Association. Reference is hereby made to the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the Paying Agent/Registrar, and to all of the provisions of which the Contracting Party by the acceptance hereof hereby agrees, for definitions of terms; the description of and the nature and extent of the taxes pledged for the payment of the Contracts; the provisions of the Special Escrow Deposit Agreement relating to the receipt, safekeeping and disbursement of funds for the acquisition of the Property; the terms and conditions relating to the assignment and transfer of this Contract; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Contracting Parties; the rights, duties, and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which this Contract may be discharged at or prior to its ----='Payment Date, and the obligation evidenced by the Cont.racts cease to exist as an obligation of the City; and for other terms and provisions contained therein. Capitalized terms used herein have the meanings assigned in the Ordinance. -8- This Contract, subject to certain limitations contained in the Ordinance, may be assigned and transferred on the Contract Register only upon its presentation and surrender at the Designated Payment/Transfer Office of the Paying Agent/Registrar, wi th the Assignment hereon duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by, the registered party hereof, or his duly authorized agent. When a transfer on the Contract Register occurs, one or more new fully registered Contracts with the same Payment Date, in authorized amounts, bearing the same rate of interest, and of the same Installment Amount will be delivered by the Paying Agent/Registrar to the designated assignee or assignees. The City and the Paying Agent/Registrar, and any agent of either, shall treat the registered party whose name appears on the Contract Register (i) on the Record Date as the Contracting Party entitled to payment of interest hereon, (ii) on the date of surrender of this Contract as the Contracting Party entitled to payment of the Installment Amounts on the Payment Date, and (iii) on any other date as the Contracting Party to notify for all other purposes, and neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. In the event of nonpayment of interest on a scheduled payment date and for thirty (30) days thereafter, a new record date for such interest payment (a "Special Record Date") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Contracting Party appearing on the Contract Register at the close of business on the last business day next preceding the date of mailing of such notice. It is hereby certified, recited, represented and declared that the City is a body corporate and political subdivision duly organized and legally existing under and by virtue of the Constitution and laws of the State of Texas; that the execution and delivery of the Contracts is duly authorized by law; that all acts, conditions and things required to exist and be done precedent to and in the execution and delivery of the Contracts to render the same lawful and valid obligations of the City have been proper ly done, have happened and have been perfo rmed in regular and due time, form and manner as required by the Constitution and laws of the State of Texas, and the Ordinance; and that due provision has been made for the payment of the Contracts and interest thereon as aforestated. In case any provision in this Contract shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of -9- ATTEST: the remaining prOV1Slons shall not in any way be affected or impaired thereby. The terms and provisions of this Contract and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the City Council of the City has caused this Contract to be duly executed under the official seal of the City as of the Contract Date. CITY OF~; TEXAS / ~~ ~\\\\\\"",li"~~ ~~ OF:Wy~ ~~ <~\ I~ . ( ~ SEAL ~ . C J .~ ~ ,/ .\~ ~ ""/ ~?:": , tp.1~ '~;'>';;"".~.: ~ r[ I 1~ ~..\,:~;~ *Form of Re il/~ltli -'-' ,nS~"Certificate of Com troller of Public Accounts to appear on Single Fully Registered Contract delivered to Initial Contractor. C (SEAL) C. REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER OF PUBLIC ACCOUNTS ( ( ( ( REGISTER NO. THE STATE OF TEXAS I HEREBY CERTIFY that this Contract has been examined, certified as to validi ty and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this Comptroller of Public Accounts of the State of Texas (SEAL) *NOTE TO PRINTER: Omit on Printed Contracts -lO- ~ . D. Form of Certificate of Paying Agent/Registrar to appear on Contracts. REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR This Contract has been duly delivered and registered under the provisions of the within-mentioned Ordinance; the contract or contracts initially executed and delivered by the City having been approved by the Attorney Genera 1 of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar. The principal offices located in Dallas, Texas is Office" for this Contract. of the the Paying "Designated Agent/Registrar Payment/Transfer MTRUST CORP, NATIONAL ASSOCIATION as Paying Agent/Registrar Registration Date: By Authorized Signature E. Form of Assignment. ASSIGNMENT FOR assigns, address, VALUE RECEIVED and transfers and zip code of the undersigned hereby sells, unto (Print or typewrite name, transferee:) ..................... ..... ........... .......... ............ ............ .......... ... ...... ....... ................. ..... ....... ..... .......... (Social Security or other identifying number: ............. . .............. .........) the within Contract and all rights thereunder, and hereby irrevocably constitutes and appoints ...... ....... ................ ........... .......... .......... attorney to transfer the wi thin Contract on the books kept for registration thereof, with full power of substitution in the premises. DATED: . ...... ................... NOTICE: The signature on this assignment must correspond with the name of the registered party as it appears on the f ace of the within Contract in every particular. Signature guaranteed: -ll- F. The Initial Contract shall be in the form set forth in paragraph B of this Section, except that the form of the single fully registered Initial Contract shall be modified as follows: (i) immediately under the headings "Interest Rate " and "Payment Date " shall both be completed "as shown below"; (ii) Paragraph one shall read as follows: Contracting Party: Contract Amount: Dollars The City of Wylie (hereinafter referred to as the "City"), a body corporate and municipal corporation in the County of Collin, State of Texas, hereby agrees and promises to pay to the order of the Contracting Party named above, or the registered assigns thereof, the Contract Amount hereinabove stated on the Payment Dates and in Installment Amounts in accordance with the following schedule: PAYMENT DATES INSTALLMENT AMOUNTS INTEREST RATE (Information to be inserted from schedule in Section 2 hereof). (without right of prepayment) and to pay interest on such unpaid Installment Amounts from the Contract Date at the per annum rates of interest specified above computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on February 15 and August 15 in each year, commencing February 15, 1989. The Installment Amounts are payable on the Payment Dates noted above to the Contracting Party named above or the assigns thereof, by MTrust Corp, National Associtaion (the "Paying Agent/Registrar"), upon presentation and surrender of this obligation, at its principal offices in Dallas, Texas (the "Designated Payment/Transfer Office" of the Paying Agent/Registrar). Interest is payable to the Contracting Party whose name appears on the "Contract Register" maintained by the Paying Agent/Registrar at the close of business on the "Record Date", which is the last business day of the month next preceding each interest payment date, and interest shall be paid by the Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the address of the Contracting Party recorded in the Contract -12- Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Contracting Party. The Installment Amounts of this Contract and interest thereon shall be paid without exchange or collection charges to the Contracting Party and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. SECTION 9: Levy of Taxes. To provide for the payment of the Installment Amounts to become due and payable and the payment of the interest thereon, there is hereby levied, and there shall be annually assessed and collected in due time, form, and manner, a tax on all taxable property in the Ci ty, wi thin the limi tat ions prescribed by law, and such tax hereby levied on each one hundred dollars' valuation of taxable property in the City shall be at a rate from year to year as will be ample and sufficient to provide funds each year to pay (i) the Installment Amounts to become due and payable or an amount equal to 2% of the Aggregate Contract Amount (whichever is the greater) and (ii) the accrued interest on the Installment Amounts to become due and payable; full allowance being made for delinquencies and costs of collection. Full, complete and accurate books and records relating to the receipt and disbursement of taxes levied, assessed and collected for and on account of the Contracts shall be kept and maintained by the Ci ty at a II times whi Ie the Cont r acts a re Outs tandi ng, and the taxes collected annually for the payment of the Contracts shall be deposited to the credit of a "Special 1988 Contracts Fund" (the "Sinking Fund") maintained on the records of the City and at an official depository of the City's funds; and such tax hereby levied, and to be assessed and collected annually, is hereby pledged to the payment of the Contracts. Proper officers of the City are hereby authorized and directed to cause to be transferred to the Paying Agent/ Registrar, from funds on deposi t in the Sinking Fund, amounts sufficient to fully pay and discharge promptly each Installment Amount .and interest on the Contracts as the same accrues or becomes due and payable; such transfer of funds to be made in such manner as will cause collected funds to be deposited with the Paying Agent/Registrar on or before each Payment Date and each interest payment date for the Contracts. SECTION lO: Mutilated - Destroyed - Lost and Stolen Contracts. In case a Contract shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a replacement Contract of like form and tenor, and in the same authorized amount and bearing a number not contemporaneously outstanding, in exchange and substitution -13- for such mutilated Contract, or in lieu of and in substitution for such destroyed, lost or stolen Contract, only after (i) the filing by the Contracting Party with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such Contract, and of the authentici ty of the ownership thereof and (i i) the furnishing to the Paying Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying Agent/Registrar harmless. All expenses and charges associated with such indemnity and with the preparation, execution and delivery of a replacement Contract shall be borne by the Contracting Party of the Contract mutilated, or destroyed, lost or stolen. Every replacement Contract issued pursuant to this Section shall be a valid and binding obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Cont racts; notwi thstanding the enforceability of payment by anyone of the destroyed, lost, or stolen Contracts. SECTION II: Satisfaction of Obligation of City. If the City shall payor cause to be paid, or there shall otherwise be paid to the Contracting Parties, the Installment Amounts, together with the accrued interest thereon, at the times and in the manner stipulated in this Ordinance, then the pledge of taxes levied under this Ordinance and all covenants, agreements, and other obl igations of the Ci ty to the Cont ract ing Part ies sha II thereupon cease, terminate, and be discharged and satisfied. The Contracts shall be deemed to have been paid within the meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full the Installment Amounts as the same shall become due and payable on the Payment Dates, together wi th a II interest due thereon, sha II have been irrevocably deposited with and held in trust by the Paying Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government Securities have been certified by an independent accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any moneys deposited therewith, if any, to pay when due the Installment Amounts and accrued interest on and prior to each Payment Date. The City covenants that no deposit of moneys or Government Securities will be made under this Section and no use made of any such deposit which would cause the Contracts to be treated as "arbitrage obligations" within the meaning of Section l48 of the Internal Revenue Code of 1986, as amended, or regulations adopted pursuant thereto. -14- Any moneys so deposited with the Paying Agent/ Registrar, or an authorized escrow agent, and a 11 income f rom Government Securities held in trust by the Paying Agent/Registrar, or an authorized escrow agent, pursuant to this Section which is in excess of the amounts required for the payment of the Contracts in accordance with the defeasance provisions shall be remitted to the City or deposited as directed by the City. Notwithstanding the above and foregoing, any remittance of funds from the Paying Agent/Registrar to the City shall be subject to any applicable unclaimed property laws of the State of Texas. The term "Government Securities", as used herein, means direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America, which are non-callable prior to the respective Payment Dates, as the case may be, for the Contracts and may be United States Treasury Obligations such as the State and Local Government Series and may be in book-entry form. SECTION 12: Ordinance a Contract -Amendments - Outstanding Contracts. This Ordinance shall constitute an agreement with the Contracting Parties from time to time, be binding on the City, and shall not be amended or repealed by the City so long as any of the Contracts remain Outstanding except as permitted in this Section. The City may, without the consent of or notice to any Contracting Parties, from ti~e to time and at any time, amend this Ordinance in any manner not detrimental to the interests of the Cont r act ing Pa rt ies, inc 1 uding the curing of any ambiguity, inconsistency, or formal defect or omission herein. In addition, the City may, with the consent of Contracting Parties to Contracts which are Outstanding and represent 51\ or more of the aggregate Installment Amounts affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of Contracting Parties of all Contracts which are Outstanding, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the Installment Amounts and interest on the Contracts, reduce the Installment Amounts, or the rate of interest thereon, or in any other way modify the terms of payment of the Contracts, (2) give any preference to any Contract over any other Contract, or (3) reduce the aggregate Installment Amount of Contracts required to be held for consent to any such amendment, addition, or rescission. The term "Outstanding" when used in this Ordinance with respect to Contracts means, as of the date of determination, all Contracts theretofore delivered and registered under this Ordinance, except: -l5- (1) those Contracts cancelled or delivered to the Paying Agent/Registrar for cancellation; (2) those Contracts for which the Installment Amounts and all interest payable thereon has been paid or is deemed to be fully paid in accordance with the provisions of Section II hereof; and (3) those mutilated, destroyed, lost, or stolen Contracts for which replacement obligations have been registered and delivered in lieu thereof as provided in Section 10 hereof. SECTION 13: Covenants to Maintain Tax-Exempt Status. The Ci ty sha II not use, permi t the use of, or omi t to use Gross Proceeds or any other amounts (or any personal property the acquisition or purchase of which is to be financed directly or indi rect ly wi th Gross Proceeds) in a manner which, if made 0 r omitted, respectively, would cause the interest payable on the Installment Amount of the Contracts to become includable in the gross income, as defined in section 6l of the Code, of the owners thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the Ci ty sha II have received a wr i t ten opi nion of counse 1 nationally recognized in the field of municipal bond law to the effect that failure to comply with such covenant will not adversely affect the exemption from federal income tax of the interest pursuant to Section 103 of the Code, the City agrees, covenants and represents that: (a) Definitions. When used in this following terms have the following meanings: Section, the "Code" means the Internal Revenue Code of 1986, as amended by all legislation, if any, enacted on or before the Issue Date. "Gross Proceeds" when used with respect to the Contracts or any other type of obligations of the City, means original proceeds, amounts received (inCluding repayments of principal) as a result of investing the original proceeds, transferred proceeds, sinking fund proceeds, amounts invested in a reasonably required reserve or replacement fund, securities or obligations pledged by the City as security for payment of the Contracts or such other type of obligations, and any other amounts used to pay the Contracts or such other type of obligations, together with earnings from the investment of the foregoing. -16- "Investment" means (1) right to share, a share of stock in a corporation or a subscribe for or to receive such a (2) any obligation, including United States Treasury bonds, notes, and bills and bank deposits, whether or not certified or interest bearing, but excluding obligations the interest on which is, in the opinion of counsel na t iona lly recognized in the fie Id of municipa I bond law, excludable from the gross income of any owner thereof under the Code or the Internal Revenue Code of 1954, as amended to the date of issuance of such obligations, (3) any annuity contract, or any other deferred payment contract acquired to fund an obligation of the City, or (4) any other property held for investment. "Issue Date" means first authenticated and Contracting Party. the da te the Cont r acts are delivered to the Initial "Issue Price" for the Contracts is the price paid by the first buyer of the Contracts (exclusive of underwriters, dealers, bondhouses, brokers, and similar persons or organizations acting in the capacity of underwriters or wholesalers). "Nonpurpose Investment" means any Investment in which Gross Proceeds of the Contracts are invested and which is not acquired to carry out the governmental purpose of the Contracts. "Purchase Price" of any Investment means (1) if a United States Treasury obligation acquired directly from the United States Treasury, the amount paid therefor, (2) if a certificate of deposit issued by a commercial bank, the bona fide bid price quoted by a dealer who maintains an active secondary market in such certificates of deposit, and -17- j " (3) otherwise, generally the mean of the bid price and the offered price therefor on an established market on the day on which such Investment is purchased or contracted for or, if there are no bid prices and offered prices on such date, on the first day preceding such date for which there are bid prices and offered prices. "Yield" of (1) any Investment means the discount factor which, when used in computing the present value of all scheduled payments of principal of and interest on such Investment on the date such Investment is purchased wi th Gross Proceeds or otherwi se a llocated to Gross Proceeds, results in an amount equal to the Purchase Price thereof (but excluding any commissions), compounding semiannually, and (2) the Contracts means the discount factor which, when used in computing the present value on the Issue Date of all scheduled payments of Installment Amounts and interest thereon, results in an amount equal to aggregate Issue Prices of the Contracts with the same Payment Date, compounding semiannually. (b) No Private Use or Private Payments. Except as permitted by section 141 of the Code and the regulations and rulings thereunder, the City shall, at all times prior to the last Installment Amount payable on the Contracts, (1) exclusively own, operate, and possess all the personal property acquired or purchased directly or indirectly with Gross Proceeds of the Contracts and not. use or permi t the use of such Gross Proceeds or any property acquired with such Gross Proceeds in any activity carried on by any person or entity other than a state or local government, unless such use is solely as a member of the general public, or (2) not directly or indirectly impose or accept any charge or other payment for use of Gross Proceeds of the Contracts or any property acquired or purchased directly or indirectly with such Gross Proceeds, other than taxes of general application within the City or interest earned on investments acquired with such Gross Proceeds pending application for their intended purposes. -18- (c) No Private Loan. Except to the extent permitted by section 141 of the Code and the regulations and rulings thereunder, the City shall not use Gross Proceeds of the Contracts to make or finance loans to any person or enti ty other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a person or entity if (1) property acquired or purchased wi th such Gross Proceeds is sold or leased to such person or enti ty in a transaction which creates a debt for federal income tax purposes, (2) capacity in or service from such property is commi tted to such person or enti ty under a take-or-pay, output, or similar contract or arrangement, or (3) indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property acquired or purchased with such Gross Proceeds are otherwise transferred in a transaction which is the economic equivalent of a loan. (d) Not to Invest at Higher Yield. Except to the extent permitted by section l48 of the Code and the regulations and rulings thereunder, the City shall not, at any time prior to the final payment of Installment Amounts of the Contracts, directly or indirectly invest Gross Proceeds of the Contracts in any Investment (or use such Gross Proceeds to replace money so invested), if as a result of such investment the Yield from the Issue Date of all Investments acquired with such Gross Proceeds (or with money replaced thereby) whether then held or previously disposed of, exceeds the Yield of the Contracts. (e) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code and the regulations and rulings thereunder, the City shall not take or omit to take any action which would cause the Contracts to be federally guaranteed within the meaning of section 149(b) of the Code and the regulations and rulings thereunder. (f) Information Report. The City shall timely file with the Secretary of the Treasury the information required by section 149 (e) of the Code wi th respect to the Contracts on such form and in such place as such Secretary may prescribe. (g) No Rebate Required. The City warrants and represents that it satisf ies the requi rements of parag r aph (2) and (3) of section 148(f) of the Code with respect to the Contracts wi thout making the payments for the Uni ted States described in such section. Specifically, the City warrants and represents that (1) the City is a governmental unit with general taxing powers; -l9- (2) at least 95% of the Gross Proceeds of the Contracts will be used for the governmental activities of the City; (3) the aggregate face amount of all tax-exempt obligations issued or expected to be issued by the City (and all subordinate entities thereof) in the calendar year 1988 is not reasonably expected to exceed $5,000,000. SECTION 14: Contracting Party - Special Escrow Deposit Agreement. The Contracts herein authorized shall be initially executed and delivered to American Bank of Commerce, Las Vegas, Nevada (herein referred to as the "Initial Contracting Party") against payment of the Aggregate Contract Amount plus accrued interest thereon from the Contract Date to the date of payment of such Aggregate Contract Amount. Immediately following the delivery of the Contracts to the Initial Contracting Party and in consideration of the advancement of the Aggregate Contract Amount for the acquisition or purchase of the Property by the Initial Contracting Party, the Aggregate Contract Amount shall be deposited in an escrow fund for safekeeping and disbursement in accordance with the provisions of the "Special Escrow Deposit Agreement" (the "Agreement") by and between the City and MTrust Corp, National Association (the "Escrow Agent"), attached hereto as Exhibi t B and incorporated herein by reference as a part of this Ordinance for all purposes, and such Agreement in substantially the form and substance attached hereto, together wi th such changes or revisions as may be necessary to provide for the safekeeping of such funds and the disposition thereof for the purchase or acquisition of the Property identified in Exhibi t A, is hereby approved and authorized to be executed by the Mayor and City Secretary for and on behalf of the City and as the act and deed of this City Council; and such Agreement as executed by said officials shall be deemed approved by the City Council and constitute the Agreement herein approved. The accrued interest received from the Initial Contractin9._._party shall be deposited to the credit of the' Sinking Fund) and expended to pay the initial interest payment on the Contracts. ' SECTION 15: Qualified Tax Exempt Obligations. That in accordance with the provisions of paragraph 3 of subsection b of Section 265 of the Code, the City hereby designates the Contracts to be "qualified tax exempt obligations" in that the Contracts are not "private activity bonds" as defined in the Code and the reasonably anticipated amount of "qualified tax exempt obligations" to be issued by the City (including all subordinate entities of the City) for the calendar year 1988 will not exceed $10,000,000. -20- JO ~ SECTION 16: Offering Memorandum. The Offering Memorandum prepared in the private placement of the Contracts by the City, together with all addendas, supplements and amendments thereto issued on behalf of the City, is hereby approved as to form and content, and the Ci ty Counci 1 hereby finds that the information and data contained in said Offering Memorandum pertaining to the City and its financial affairs is true and correct in all material respects and no material facts have been omitted therefrom which are necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. SECTION 17: Control and Custody of Records and Contract Documents. The Mayor of the City shall be and is hereby authorized to take and have charge and control of all necessary orders, records, proceedings, including the Contracts, pending the investigation and approval of such documents by the Attorney General of the State of Texas, the registration of the Contracts by the Comptroller of Public Accounts and their delivery to the Initial Contracting Party. Furthermore, the Mayor and Ci ty Secreta ry of the Ci ty and the City Manager and Director of Finance, anyone or more of said officials, are hereby authorized and directed to furnish and execute such documents and certifications relating to the City and the execution and delivery of the Contracts, including _--_certifications as to facts, estimates, circumstances and reasonable expectat ions pertaining to the use, expendi ture and investment of the proceeds thereof, as may be necessary for the approval of the Attorney General, the registration by the Comptroller of Public Accounts and the delivery of the Contracts to the Initial Contracting Party, and, together with the City's financial advisor, bond counsel and the Paying Agent/Registrar, make the necessary arrangements for the delivery of such obligations to the Initial Contracting Party. SECTION 18: Notices to Contracting Parties-Waiver. Wherever this Ordinance provides for notice to Contracting Parties' of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) 'if in writing and sent by United States Mail, first class postage prepaid, to the address of each Contracting Party appearing in the Contract Register at the close of business on the business day next preceding the mailing of such notice. In any case where notice to Contracting Parties is given by mail, neither the failure to mail such notice to any particular Contracting Party, nor any defect in any notice so mailed, shall affect the sufficiency of such notice with respect to all other Contracts. Where this Ordinance provides -21- for notice in any manner, such notice may be waived in writing by the Contracting Party entitled to receive such notice, ei ther before or after the event wi th respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by a Contracting Party shall be filed with the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 19: Benefi ts of Ordinance. Nothing in this Ordinance, expressed or implied, is intended or shall be construed to confer upon any person other than the Ci ty, the Paying Agent/Registrar and the Contracting Parties, any right, remedy, or claim, legal or equitable, under or by reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being intended to be and being for the sole and exclusive benefit of the City, the Paying Agent/Registrar and the Contracting Parties. SECTION 20: Inconsistent Provisions. All ordinances, orders or resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters contained herein. SECTION 21: Governing Law. This Ordinance and the Contracts authorized to be executed and delivered hereunder shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 22: Effect of Headings. herein are for convenience only and construction hereof. The shall Section headings not affect the SECTION 23: Construction of Terms. If appropriate in the context of this Ordinance, words of the singular number shall be considered to include the plural, words of the plural number shall be considered to include the singular, and words of the masculine, feminine or neuter gender shall be considered to include the other genders. SECTION 24: Severability. If any provision of this Ordinance or the application thereof to any circumstance shall be held to be invalid, the remainder of this Ordinance and the application thereof to other ci rcumstances shall nevertheless be valid, and the City Council hereby declares that this Ordinance would have been enacted wi thout such inva I id provision. -22- SECTION 25: Public Meeting. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Article 6252-17, Vernon's Texas Civil Statutes, as amended. SECTION 26: Effective Date. This Ordinance shall be in full force and effect from and after its passage on the date shown below and it is so ordained. PASSED AND ADOPTED, this March 8, 1988. CITY OF o TEXAS ATTEST: 1.\\\\\\ \\\l1111I1I''''1111/, ~~I OF WI'~ ~~ " r(.~ ~...., -'~ 8r-:- '~ ~ '-' " ~ ;:: ~ iI ~ ; ! % ~ ~ ~ ~ ~ ~ .~ ~ tp. ~C:J *' '/'1 "LIE \~i-"",~ 'WI . .' \'!.'"'' III/!Ii III I i H\\ \\\\\\. -23- Number of Items to be Purchased or Acquired 1 1 1 I EXHIBIT "A" LIST OF PROPERTY Description of Property Bomag Street Reconditioner Backhoe Motor Grader Sewer Pump Truck Estimated Cost $275,000 40,000 40,000 38,000