HomeMy WebLinkAboutOrdinances (O-94-951)-06/21/1994
ORDINANCE NO. 0-94-951
AN ORDINANCE authorizing the issuance of 'CITY OF
COLLEYVILLE, TEXAS, WATERWORKS AND SEWER SYSTEM
REVENUE BONDS, SERIES 1994"; specifying the terms
and features of said bonds; pledging the net
revenues of the City's Waterworks and Sewer System
to the payment of the principal of and interest on
said Bonds ; resolving other matters incident and
relating to the issuance, payment, security, sale
and delivery of said bonds, including the approval
and execution of a Paying Agent/Registrar
Agreement; and providing an effective date.
WHEREAS, on March 17, 1994, the Texas Water Development Board
(the "Board") approved and authorized financial assistance in the
amount of $2,860,000 to the City of colleyville, Texas, to finance
improvements and extensions to the City's Sewer System, including
the design and construction of new sewer lines; and
WHEREAS, a "Notice of Intention To Issue City of Colleyville,
Texas, Revenue Bonds" in the principal amount not to exceed
$2,860,000, maturing not later than January 1, 2014 and bearing
interest at a rate not to exceed 5.15% per annum, for the purpose
of making improvements and extensions to the City's combined
Waterworks and Sewer System, including the design and construction
of new sewer lines, has been duly published in The Colleyville
Times & News, a newspaper hereby found and determined to be
published and of general circulation in the City of Colleyville,
Texas, in its issues dated July 14, 1994 and July 21, 1994, the
date of the first publication of such notice being at least
fourteen (14) days prior to August 2, 1994, the date stated therein
when this ordinance was scheduled to be considered for final
passage and adoption by the City Council; and
WHEREAS, the City Council met on July 19, 1994 and postponed
the final adoption of this Ordinance until the date hereof; and
WHEREAS, the City Council hereby finds and determines that no
petition requesting that an election be held on the issuance of
such revenue bonds has been filed with the City Secretary or any
other officer of the City; and
WHEREAS, the City Council hereby finds and determines that
revenue bonds in the principal amount of $2,860,000 should be
issued and sold at this time to the Board and such revenue bonds
can and should be issued on a parity with the outstanding and
unpaid revenue bonds of the City (hereinafter called and defined as
"Previously Issued Bonds") payable from and secured by a first lien
on and pledge of the Net Revenues of the System in that (i) the
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city is not now in default as to any covenant, condition or
obligation prescribed in the ordinances authorizing the issuance of
the Previously Issued. Bonds, (ii) each of the special Funds created
for the payment and security of the Previously Issued Bonds
contains the amount now required to be on deposit therein,
(iii) the City can secure from a certified Public Accountant a
report showing that the Net Earnings (hereinafter defined) of the
System in the completed Fiscal Year next preceding the adoption of
this ordinance are equal to at least one and twenty hundredths
(1.20) times the average annual principal and interest requirements
for all the revenue bonds to be secured by a first lien on and
pledge of the Net Revenues of the System which will be Outstanding
after the issuance of the revenue bonds herein authorized, (iv) the
revenue bonds herein authorized shall mature on January 1 and,
(v) this ordinance provides for additional deposits to be made to
(a) the Interest and Sinking Fund (hereinafter defined) established
for the payment of the Previously Issued Bonds in amounts adequate
to pay the principal and interest requirements of the bonds herein
authorized to be issued and (b) the Reserve Fund (hereinafter
defined) created for the benefit of the Previously Issued Bonds so
that the total amount to be accumulated therein will be equal to
not less than the average annual principal and interest
requirements for all the Outstanding Previously Issued Bonds and
the revenue bonds herein authorized and any additional amount
required to be deposited therein will be accumulated within ten
(10) calendar years of the date of the revenue bonds herein
authorized; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE,
TEXAS:
SECTION 1: Authorization-Desiqnation-Principal Amount
Purnose. Revenue bonds of the city shall be and are hereby
authorized to be issued in the aggregate principal amount of
$2,860,000, to be designated and bear the title "City of
Colleyville, Texas, Waterworks and Sewer System Revenue Bonds,
Series 1994" (hereinafter referred to as the "Bonds"), for the
purpose of making improvements and extensions to the City'S Sewer
System, including the design and construction of new sewer lines,
in conformity with the Constitution and laws of the State of
Texas, including Articles 1111 et seq. and 2368a, V.A.T.C.S., as
amended, Local Government Code, as amended.
SECTION 2: Full v Reqistered Obliqations - Bond Date -
Authorized Denominations - Stated Maturities - Interest Rates.
The Bonds shall be issued as fully registered obligations only,
shall be dated June 1, 1994 (the "Issue Date"), shall be in
denominations of $5,000 or any integral multiple (within a Stated
Maturity) thereof, and shall become due and payable on January 1
in each of the years and in principal amounts (the "Stated
Maturities") and bear interest at the rate(s) per annum in
accordance with the following schedule:
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Year of principal Interest
Stated Maturitv Amount Rate(s)
1995 $145,000 3.15%
1996 100,000 3.55%
1997 105,000 3.80%
1998 110,000 4.00%
1999 110,000 4.15%
2000 115,000 4.30%
2001 120,000 4.40%
2002 125,000 4.50%
2003 130,000 4.60%
2004 130,000 4.70%
2005 140,000 4.80%
2006 145,000 4.90%
2007 150,000 5.00%
2008 155,000 5.10%
2009 160,000 5.20%
2010 170,000 5.25%
2011 175,000 5.30%
2012 185,000 5.35%
2013 190,000 5.40%
2014 200,000 5.40%
The Bonds shall bear interest on the unpaid principal amounts
from the date of delivery to the initial purchasers (which date
shall be the registration date noted on the Initial Bonds in the
"Registration certificate of Paying Agent/Registrar" to appear
thereon) at the rate(s) per annum shown in the above schedule
(calculated on the basis of a 360-day year of twelve 30-day
months). Interest on the Bonds shall be payable on January 1 and
July 1 in each year, commencing January 1, 1995.
SECTION 3: Terms of Payment - pavinq Aqent/Reqistrar.
The principal of, premium, if any, and the interest on the Bonds,
due and payable by reason of maturity, redemption or otherwise,
shall be payable only to the registered owners or holders of the
Bonds (hereinafter called the "Holders") appearing on the
registration and transfer books maintained by the Paying
Agent/Registrar and the payment thereof shall be 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, and shall be without exchange or collection charges to the
Holders.
Interest on each Bond issued and delivered to a Holder shall
accrue from the latest interest payment date that interest on such
Bond (or its Predecessor Bond) has been paid that precedes the
registration date appearing on such Bond in the "Registration
certificate of Paying Agent/Registrar" (Section 8C hereof), unless
the registration date appearing thereon is an interest payment
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date for which interest is being paid, in which case interest on
such Bond shall accrue from the registration date appearing
thereon and provided further that with respect to the initial
payment of interest on a Bond, such interest shall accrue from the
date of delivery of the Bonds (or its Predecessor Bond) to the
initial purchasers thereof.
The selection and appointment of The Frost National Bank,
Austin, Texas to serve as Paying Agent/Registrar for the Bonds is
hereby approved and confirmed. Books and records relating to the
registration, payment, exchange and transfer of the Bonds (the
"Security Register") shall at all times be kept and maintained on
behalf of the City by the Paying Agent/Registrar, all as provided
herein, in accordance with the terms and provisions of a "Paying
Agent/Registrar Agreement", substantially in the form attached
hereto as Exhibit A, and such reasonable rules and regulations as
the Paying Agent/Registrar and the City may prescribe. The Mayor
and City Secretary of the city are hereby authorized to execute
and deliver such Agreement in connection with the delivery of the
Bonds. The City covenants to maintain and provide a Paying
Agent/Registrar at all times until the Bonds are paid and
discharged, and any successor Paying Agent/Registrar shall be a
bank, trust company, financial institution or other entity
qualified and authorized to serve in such capacity and perform the
duties and services of Paying Agent/Registrar. Upon any change in
the Paying Agent/Registrar for the Bonds, the City agrees to
promptly cause a written notice thereof to be sent to each Holder
by united States Mail, first class postage prepaid, which notice
shall also give the address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be
payable at the Stated Maturities or the redemption thereof, only
upon presentation and surrender of the Bonds to the Paying
Agent/Registrar at its principal office. Interest on the Bonds
shall be paid to the Holders whose name appears in the Security
Register at the close of business on the Record Date (the 15th 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
Holder recorded in the Security Register or (ii) by such other
method, acceptable to the Paying Agent/ Registrar, requested by,
and at the risk and expense of, the Holder. If the date for the
payment of the principal of or interest on the Bonds shall be a
Saturday, Sunday, a legal holiday, or a day when banking
insti tutions in the City where 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
institutions 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.
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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 from the city.
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 Holder appearing on
the Security Register at the close of business on the last
business day next preceding the date of mailing of such notice.
SECTION 4: Redemption. (a) optional Redemption. The
Bonds having Stated Maturities on and after January 1, 2005, shall
be subject to redemption prior to maturity, at the option of the
City, in whole or in part (in inverse order of Stated Maturities
if less than all) in principal amounts of $5,000 or any integral
multiple thereof (and if within a Stated Maturity by lot by the
Paying Agent/Registrar), on January 1, 2004 or on any date
thereafter at the redemption price of par plus accrued interest to
the date of redemption.
(b) Exercise of Redemption option. At least forty-five (45)
days prior to a redemption date for the Bonds (unless a shorter
notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar
of the decision to redeem Bonds, the principal amount of each
Stated Maturity to be redeemed, and the date of redemption
therefor. The decision of the City to exercise the right to
redeem Bonds shall be entered in the minutes of the governing body
of the city.
(c) Selection of Bonds for Redemption. If less than all
outstanding Bonds of the same Stated Maturity are to be redeemed
on a redemption date, the Paying Agent/Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the principal amount of such Bonds by $5,000
and shall select the Bonds to be redeemed within such Stated
Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days
prior to a redemption date for the Bonds, a notice of redemption
shall be sent by United States Mail, first class postage prepaid,
in the name of the city and at the City's expense, to each Holder
of a Bond to be redeemed in whole or in part at the address of the
Holder appearing on the Security Register at the close of business
on the business day next preceding the date of mailing such
notice, and any notice of redemption so mailed shall be
conclusively presumed to have been duly given irrespective of
whether received by the Holder.
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All notices of redemption shall (i) specify the date of
redemption for the Bonds, (ii) identify the Bonds to be redeemed
and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state
the redemption price, (iv) state that the Bonds, or the portion of
the principal amount thereof to be redeemed, shall become due and
payable on the redemption date specified, and the interest
thereon, or on the portion of the principal amount thereof to be
redeemed, shall cease to accrue from and after the redemption
date, and (v) specify that payment of the redemption price for the
Bonds, or the principal amount thereof to be redeemed, shall 'be
made at the principal office of the Paying Agent/Registrar only
upon presentation and surrender thereof by the Holder. If a Bond
is subject by its terms to prior redemption and has been called
for redemption and notice of redemption thereof has been duly
given as hereinabove provided, such Bond (or the principal amount
thereof to be redeemed) shall become due and payable and interest
thereon shall cease to accrue from and after the redemption date
therefor; provided moneys sufficient for the payment of such Bond
(or of the principal amount thereof to be redeemed) at the then
applicable redemption price are held for the purpose of such
payment by the Paying Agent/Registrar.
SECTION 5: Reqistration - Transfer - Exchange of Bonds-
Predecessor Bonds. The Paying Agent/Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each and every owner of the Bonds issued under and pursuant to
the provisions of this Ordinance, or if appropriate, the nominee
thereof. Any Bond may be transferred or exchanged for Bonds of
other authorized denominations by the Holder, in person or by his
duly authorized agent, upon surrender of such Bond to the
principal office of the Paying Agent/Registrar for cancellation,
accompanied by a written instrument of transfer or request for
exchange duly executed by the Holder or by his duly authorized
agent, in form satisfactory to the Paying Agent/Registrar.
Upon surrender of any Bond for transfer at the principal
office of the Paying Agent/ Registrar, one or more new Bonds shall
be registered and issued to the assignee or transferee of the
previous Holder; such Bonds to be in authorized denominations, of
like Stated Maturity and of a like aggregate principal amount as
the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds may be exchanged for other
Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the principal office of
the paying Agent/ Registrar. Whenever any Bonds are surrendered
for exchange, the Paying Agent/Registrar shall register and
deliver new Bonds to the Holder requesting the exchange.
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All Bonds issued in any transfer or exchange of Bonds shall
be delivered to the Holders at the principal office of the Paying
Agent/Registrar or sent by United states Mail, first class,
postage prepaid to the Holders, and, upon the registration and
delivery thereof, the same shall be the valid obligations of the
City, evidencing the same obligation to pay, and entitled to the
same benefits under this Ordinance, as the Bonds surrendered in
such transfer or exchange.
All transfers or exchanges of Bonds pursuant to this Section
shall be made without expense or service charge to the Holder,
except as otherwise herein provided, and except that the Paying
Agent/Registrar shall require payment by the Holder requesting
such transfer or exchange of any tax or other governmental charges
required to be paid with respect to such transfer or exchange.
Bonds cancelled by reason of an exchange or transfer pursuant
to the provisions hereof are hereby defined to be "Predecessor
Bonds," evidencing all or a portion, as the case may be, of the
same obligation to pay evidenced by the new Bond or Bonds
registered and delivered in the exchange or transfer therefor.
Additionally, the term "Predecessor Bonds" shall include any
mutilated, lost, destroyed, or stolen Bond for which a replacement
Bond has been issued, registered and delivered in lieu thereof
pursuant to the provisions of this Ordinance and such new
replacement Bond shall be deemed to evidence the same obligation
as the mutilated, lost, destroyed, or stolen Bond.
Neither the City nor the Paying Agent/ Registrar shall be
required to issue or transfer to an assignee of a Holder any Bond
called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Bond; provided, however,
such limitation on transferability shall not be applicable to an
exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Execution - Registration. The Bonds shall be
executed on behalf of the City by the Mayor under its seal
reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be
manual or facsimile. Bonds bearing the manual or facsimile
signatures of individuals who are or were the proper officers of
the City on the Issue Date shall be deemed to be duly executed on
behalf of the City, notwi thstanding that such indi viduals or
either of them shall cease to hold such offices at the time of
delivery of the Bonds to the initial purchaser(s) and with respect
to Bonds delivered in subsequent exchanges and transfers, all as
authorized and provided in the Bond Procedures Act of 1981, as
amended.
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No Bond shall be entitled to any right or benefit under this
Ordinance, or be valid or obligatory for any purpose, unless there
appears on such Bond either a certificate of registration
substantially in the form provided in section 8C, manually
executed by the Comptroller of Public Accounts of the state of
Texas, or his duly authorized agent, or a certificate of
registration substantially in the form provided in section 80,
manually executed by an authorized officer, employee or
represe:ptative of the Paying Agent/Registrar, and either such
certificate duly signed upon any Bond shall be conclusive
evidence, and the only evidence, that such Bond has been duly
certified, registered and delivered.
Notwithstanding the above and foregoing paragraph, the
Initial Bonds authorized for delivery to the initial purchasers in
section 7 hereof shall have printed thereon both certificates of
Registration appearing in Section 8C and 80 hereof, and both such
certifications shall be required to be manually executed in
connection with the initial delivery of the Initial Bonds to the
initial purchasers and both such certifications appearing on the
Initial Bonds, duly signed, shall be conclusive evidence that such
Initial Bonds have been duly certified, registered and delivered.
SECTION 7: Initial Bonds. The Bonds herein authorized
shall be initially issued as twenty (20) fully registered bonds,
being one bond for each year of maturity in the applicable
principal amount and denomination and to be numbered consecutively
from 1 and upward (hereinafter called the "Initial Bonds") and the
Initial Bonds shall be registered 'in the name of the initial
purchaser(s) or the designee thereof. The Initial Bonds shall be
the Bonds 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, upon completion (noting the date of its initial delivery) and
execution of the "Registration certificate of Paying
Agent/Registrar", delivered to the initial purchaser(s).
SECTION 8: Forms. A. Forms Generallv. The Bonds, 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 each
of the Bonds, 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 (including identifying numbers and letters
of the Committee on Uniform Securities Identification Procedures
of the American Bankers Association) and such legends and
endorsements (including any reproduction of an opinion of counsel)
thereon as may, consistently herewith, be established by the City
or determined by the officers executing such Bonds as evidenced by
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their execution. Any portion of the text of any Bonds may be set
forth on the reverse thereof, with an appropriate reference
thereto on the face of the Bond.
The definitive Bonds, including the Initial Bonds, shall be
printed, lithographed, or engraved or produced in any other
similar manner, all as determined by the officers executing such
Bonds as evidenced by their execution thereof.
B. Form of Definitive Bond.
REGISTERED
NO.
REGISTERED
$
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF COLLEYVILLE, TEXAS, WATERWORKS
AND SEWER SYSTEM REVENUE BOND,
SERIES 1994
Issue Date:
June 1, 1994
Interest Rate: Stated Maturity: CUSIP NO:
%
Registered Owner:
Principal Amount:
DOLLARS
The City of Colleyville (hereinafter referred to as the
"City"), a body corporate and municipal corporation in the County
of Tarrant, State of Texas, for value received, hereby promises to
pay to the order of the Registered Owner named above, or the
registered assigns thereof, solely from the revenues hereinafter
identified, on the Stated Maturity date specified above, the
Principal Amount stated above (or so much thereof as shall not
have been paid upon prior redemption) and to pay interest
(computed on the basis of a 36o-day year of twelve 30-day months)
on the unpaid Principal Amount hereof from the interest payment
date next preceding the "Registration Date" of this Bond appearing
below (unless this Bond bears a "Registration Date" as of an
interest payment date, in which case interest shall accrue from
such date, or unless the Registration Date of this Bond is the
delivery date of this Bond (or its Predecessor Bond) to the
initial purchasers, in which case interest shall accrue from such
date of delivery to the initial purchasers) at the per annum rate
of interest specif ied above; such interest being payable on
January 1 and July 1 of each year, commencing January 1, 1995.
Principal of this Bond is payable at its Stated Maturity or
redemption to the registered owner hereof, upon presentation and
surrender, at the principal office of the Paying Agent/Registrar
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executing the registration certificate appearing hereon, or its
successor. Interest is payable to the registered owner of this
Bond ( or one or more Predecessor Bonds, as def ined in the
Ordinance hereinafter referenced) whose name appears on the
"Security Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date", which is the 15th day
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
registered owner recorded in the Security Register or by such
other method, acceptable to the Paying Agent/Registrar, requested
by, and at the risk and expense of, the registered owner. All
payments of principal of, premium, if any, and interest on this
Bond shall be without exchange or collection charges to the owner
hereof 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.
This Bond is one of the series specified in its title issued
in the aggregate principal amount of $2,860,000 (herein referred
to as the "Bonds") for the purpose of making improvements and
extensions to the City's combined Sewer System, including the
design and construction of new sewer lines, under and in strict
conformity with the Constitution and laws of the State of Texas,
including Articles 1111 et seq. and 2368a, V.A.T.C.S., as amended,
the Local Government Code, as amended, and pursuant to an
Ordinance adopted by the governing body of the City (herein
referred to as the "Ordinance").
The Bonds maturing on and after January 1, 2005, may be
redeemed prior to their Stated Maturities, at the option of the
City, in whole or in part (in inverse order of Stated Maturities
if less than all) in principal amounts of $5,000 or any integral
multiple thereof (and if within a Stated Maturity by lot by the
Paying Agent/ Registrar), on January 1, 2004, or on any date
thereafter, at the redemption price of par, together with accrued
interest to the date of redemption, and upon 30 days prior written
notice being given by United States Mail, first class postage
prepaid, to registered owners of the Bonds to be redeemed, and
subject to the terms and provisions relating thereto contained in
the Ordinance. If this Bond (or any portion of the principal sum
hereof) shall have been duly called for redemption and notice of
such redemption duly given, then upon such redemption date this
Bond (or the portion of the principal sum hereof to be redeemed)
shall become due and payable, and interest thereon shall cease to
accrue from and after the redemption date therefor; provided
moneys for the payment of the redemption price and the interest on
the principal amount to be redeemed to the date of redemption are
held for the purpose of such payment by the paying
Agent/Registrar.
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In the event of a partial redemption of the principal amount
of this Bond, payment of the redemption price of such principal
amount shall be made to the registered owner only upon
presentation and surrender of this Bond to the principal office of
the Paying Agent/Registrar, and there shall be issued to the
registered owner hereof, without charge, a new Bond or Bonds of
like maturity and interest rate in any authorized denominations
provided in the Ordinance for the then unredeemed balance of the
principal sum hereof. If this Bond is called for redemption, in
whole or in part, the City and the Paying Agent/Registrar shall
not be required to transfer this Bond to an assignee of the
registered owner within 45 days of the redemption date therefor;
provided, however, such limitation on transferability shall not be
applicable to an exchange by the registered owner of the
unredeemed balance hereof in the event of its redemption in part.
The Bonds are special obligations of the City, and, together
with the outstanding Previously Issued Bonds (identified and
defined in the Ordinance), are payable solely from and equally and
ratably secured by a first lien on and pledge of the Net Revenues
(as defined in the Ordinance) of the City's combined Waterworks
and Sanitary Sewer System (the "System"). The Bonds do not
constitute a legal or equitable pledge, charge, lien or
encumbrance upon any property of the City or the system, except
with respect to the Net Revenues. The Holder hereof shall never
have the right to demand payment of this obligation out of any
funds raised or to be raised by taxation.
subject to satisfying the terms and conditions prescribed
therefor, the City has reserved the right to issue additional
revenue obligations payable from and equally and ratably secured
by a parity lien on and pledge of the Net Revenues of the System,
in the same manner and to the same extent as the Bonds.
Reference is hereby made to the Ordinance, a copy of which is
on file in the principal office of the Paying Agent/Registrar, and
to all of the provisions of which the Holder by the acceptance
hereof hereby assents, for definitions of terms; the description
of and the nature and extent of the security for the Bonds; the
properties constituting the System; the Net Revenues pledged to
the payment of the principal of and interest on the Bonds; the
nature and extent and manner of enforcement of the lien and pledge
securing the payment of the Bonds; the terms and conditions for
the issuance of additional revenue obligations; the terms and
conditions relating to the transfer or exchange of this Bond; the
conditions upon which the Ordinance may be amended or supplemented
with or without the consent of the Holders; the rights, duties,
and obligations of the city and the Paying Agent/Registrar; the
terms and conditions upon which the liens, pledges, charges and
covenants made therein may be discharged at or prior to the
maturity or redemption of this Bond, and this Bond deemed to be no
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longer outstanding thereunder; and for the other terms and
provisions contained therein. Capitalized terms used herein have
the same meanings assigned in the Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security Register only upon
its presentation and surrender at the principal office of the
Paying Agent/Registrar, with 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 owner hereof, or his duly authorized agent. When a
transfer on the Security Register occurs, one or more new fully
registered Bonds of the same Stated Maturity, of authorized
denominations, bearing the same rate of interest, and of the same
aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of
either, may treat the registered owner hereof whose name appears
on the Security Register (i) on the Record Date as the owner
enti tIed to payment of interest hereon, ( i i) on the date of
surrender of this Bond as the owner entitled to payment of
principal hereof at its Stated Maturity or its redemption, in
whole or in part, and (iii) on any other date as the owner 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 non-payment 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
from the City. 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
Holder appearing on the Security 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 covenanted
that the City is a duly organized and legally existing municipal
corporation under and by virtue of the Constitution and laws of
the State of Texas; that the issuance of the Bonds is duly
authorized by law; that all acts, conditions and things required
to exist and be done precedent to and in the issuance of the Bonds
to render the same lawful and valid obligations of the City have
been properly done, have happened and have been performed in
regular and due time, form and manner as required by the
Constitution and laws of the State of Texas, and the Ordinance;
that the Bonds do not exceed any constitutional or statutory
0165338
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limitation; and that due prov1s1on has been made for the payment
of the principal of and interest on the Bonds by a pledge of the
Net Revenues of the System as aforestated. In case any provision
in this Bond or any application thereof shall be invalid, illegal,
or unenforceable, the validity, legality, and enforceability of
the remaining provisions and applications shall not in any way be
affected or impaired thereby. The terms and provisions of this
Bond 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 Bond to be duly executed under the official seal of the City
as of the Issue Date.
CITY OF COLLEYVILLE, TEXAS
COUNTERSIGNED:
Mayor
City Secretary
(SEAL)
0165338
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C. *Form of Reqistration certificate of Comptroller of Public
Accounts to Appear on Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
s
s
s
s
REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Bond has been examined, certified
as to validity 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
(SEAL)
Comptroller of Public Accounts
of the State of Texas
*NOTE TO PRINTER:
Do not print on Definitive Bonds
D. Form of Certificate of Payinq Aqent/Reqistrar.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered in the name of
the Registered Owner shown above under the provisions of the
within-mentioned Ordinance and duly approved, or a Predecessor
Bond hereof duly approved, by the Attorney General of the State of
Texas and registered by the Comptroller of Public Accounts, as
shown hereon by the records of the Paying Agent/Registrar.
THE FROST NATIONAL BANK,
Austin, Texas,
as Paying Agent/Registrar
Registration date:
By
Authorized Signature
0165338
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E.
Form of Assiqnment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and
transfers unto (Print or typewrite name, address, and zip code of
trans f eree:) ...................................
................................................................
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( Sac ia 1
Securi ty or other identifying number: . . . . . . . . . . . . . . . .) the
within Bond and all rights thereunder, and hereby irrevocably
consti tutes and appoints .......................................
.................. attorney to transfer the within Bond on the
books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature guaranteed:
NOTICE: The signature on this
assignment must correspond
with the name of the registered
owner as it appears on the face of
the within Bond in every
particular.
SECTION 9: Def ini tions. For all purposes of this
Ordinance and in particular for clarity with respect to the
issuance of the Bonds herein authorized and the pledge and
appropriation of revenues to the payment of the Bonds, the
following definitions are provided:
"Additional Parity Obligations" - Bonds,
notes, warrants, certificates of obligation or
other evidences of indebtedness which the City
reserves the right to issue or enter into, as the
case may be, in the future under the terms and
conditions provided in this Ordinance and which are
equally and ratably secured by a first lien on and
pledge of the Net Revenues of the System.
"Bonds" - The "City
Waterworks and Sewer
Series 1994", dated June
this Ordinance.
of Colleyville, Texas
System Revenue Bonds,
1, 1994, authorized by
"City" - The City of Colleyville, located in
the County of Tarrant, Texas.
"Fiscal Year" - The twelve month operational
period of the System ending each year on September
30th; provided, however, at such time as the Series
1975 and Series 1975-A Previously Issued Bonds have
0165338
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.-T.....-. .....-.........-.....-.. ...---......-. ...- -. ..----
0165338
been fully paid as to both principal and interest,
the city may change the Fiscal Year to another
period of not less than twelve calendar months by
the passage of an ordinance, but in no event may
the Fiscal Year be changed more than one time in
any three calendar year period.
"Government Obligations" - Direct obligations
of the United states of America, including
obligations the principal of and interest on which
are unconditionally guaranteed by the United states
of America, and United states Treasury obligations
such as its state and Local Government Series in
book-entry form.
"Gross Revenues" - All income, receipts and
revenues of every nature derived or received from
the operation and ownership (excluding refundable
meter deposits, restricted gifts and grants in aid
of construction) of the System.
"Holder" or "Holders" - The registered owner,
whose name appears in the security Register, for
any Bond.
"Maintenance and Operating Expenses" - All
current expenses of operating and maintaining the
System as authorized by the provisions of Texas
Revised civil statutes Annotated Article 1113, as
amended, including but not limited to, all
salaries, labor, materials, repairs and extensions
necessary to render efficient service; provided,
however, that only such repairs and extensions, as
in the judgment of the City council, reasonably and
fairly exercised, are necessary to maintain the
operations and render adequate service to the City
and the inhabitants thereof, or such as might be
necessary to meet some physical accident or
condition which would otherwise impair obligations
payable from Net Revenues shall be deducted in
determining Net Revenues. Depreciation charges
shall not be considered Maintenance and Operating
Expenses. Maintenance and Operating Expenses shall
include payments under contracts for the purchase
of water supply, treatment of sewage or other
materials, goods or services for the System to the
extent authorized by law and the provisions of such
contract.
"Net Revenues" - Gross Revenues of the System,
with respect to any period, after deducting the
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0165338
System's Maintenance and Operating Expenses during
such period.
"Obligations Similarly Secured"-
Collectively, the Bonds, the Previously Issued
Bonds and any Additional Parity Obligations, which
shall be parity obligations being equally and
ratably secured by and payable from a lien on and
pledge of the Net Revenues of the System.
"Outstanding" - When used in this Ordinance
with respect to any Bonds means, as of the date of
determination, all Bonds theretofore issued and
delivered under this Ordinance, except:
1. those Bonds theretofore
cancelled by the Paying Agent/Registrar
or delivered to the Paying
Agent/Registrar for cancellation;
2. those Bonds for which payment
has been duly provided by the City in
accordance with the provisions of this
Ordinance; and
3. those Bonds that have been
mutilated, destroyed, lost, or stolen and
replacement Bonds have been registered
and delivered in lieu thereof as provided
in this Ordinance.
"Previously Issued Bonds" - shall mean the
Outstanding and unpaid revenue bonds of the City
payable from and equally and ratably secured by a
first lien on and pledge of the Net Revenues of the
System, identified as follows:
(1) City of Colleyville, Texas
Waterworks and Sewer System Revenue
Bonds, Series 1975, dated January 1,
1975, and originally issued in the
principal amount of $2,000,000;
(2) City of Colleyville, Texas
Waterworks and Sewer System Revenue
Bonds, Series 1975-A, dated July 1, 1975,
and originally issued in the principal
amount of $250,000;
(3)
Waterworks
City
and
of Colleyville, Texas
Sewer System Revenue
-17-
-..--"--"-.-'.,---
Bonds, Series 1981, dated April 1, 1981,
and originally issued in the principal
amount of $1,400,000;
(4) City of Colleyville, Texas
Waterworks and Sewer System Revenue
Bonds, Series 1987, dated March 1, 1987
and originally issued in the principal
amount of $1,500,000; and
(5) City of Colleyville, Texas,
Waterworks and Sewer System Revenue
Bonds, Series 1989, dated August 1, 1989,
and originally issued in the principal
amount of $750,000.
"Required Reserve Amount" - The amount
required to be deposited and maintained in the
Reserve Fund under the provisions of section 14 of
this Ordinance.
"System" - The waterworks and sewer system of
the City, together with any additions and
extensions thereto and improvements and
replacements thereof hereafter constructed or
acquired.
SECTION 10: Pledqe. The City hereby covenants and
agrees that all of the Net Revenues of the System, with the
exception of those in excess of the amounts required to establish
and maintain the special Funds created for the payment and
security of the Obligations Similarly Secured, are hereby
irrevocably pledged, equally and ratably, to the payment of the
Previously Issued Bonds, the Bonds, and Additional Parity
Obligations, if issued, and the interest thereon, as hereinafter
provided. It is hereby ordained that the Obligations Similarly
Secured, and the interest thereon, shall constitute a first lien
on the Net Revenues of the System and be valid and binding without
any physical delivery thereof or further act by the City.
SECTION 11: Rates and Charges. For the benefit of the
Holders of the Bonds and in addition to all provisions and
covenants in the laws of the State of Texas and in this Ordinance,
the City hereby expressly stipulates and agrees, while any of the
Bonds are Outstanding, to establish and maintain rates and charges
for facilities and services afforded by the System that are
reasonably expected, on the basis of available information and
experience and with due allowance for contingencies, to produce
Gross Revenues in each Fiscal Year sufficient:
0165338
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-'-----,.."----,"---
1. To pay Maintenance and Operating Expenses,
depreciation charges and replacement and betterment
costs, and
2. To produce Net Revenues sufficient to pay
the principal of and interest on the Obligations
Similarly Secured and the amounts required to be
deposited in any reserve or contingency fund
created for the payment and security of the
Obligations Similarly Secured, and any other
obligations or evidences of indebtedness issued or
incurred that are payable only from and secured
solely by a lien on and pledge of the Net Revenues
of the System.
3. Any other legally incurred indebtedness
payable from the revenues of the System and/ or
secured by a lien on the System.
SECTION 12: Waterworks and Sewer System Fund. The City
hereby covenants, agrees and reaffirms its covenants to the
Holders of the Previously Issued Bonds that the Gross Revenues of
the System shall be deposited, as collected and received, into a
separate account (previously created, established and to be
maintained with a depository bank of the City) known as the
Waterworks and Sewer System Fund (herein called the "System Fund")
and that the Gross Revenues of the System shall be kept separate
and apart from all other funds of the City. All Gross Revenues
deposited into the System Fund shall be pledged and appropriated
to the extent required for the following uses and in the order of
priority shown:
FIRST: To the payment of all necessary and
reasonable Maintenance and Operating Expenses as
defined herein or required by statute to be a first
charge on and claim against the Gross Revenues of
the System.
SECOND: To the payment of the amounts required to
be deposited into the Interest and Sinking Fund
(hereinafter defined) created and established for
the payment of the principal of and interest on
each of the Obligations similarly Secured as the
same become due and payable.
THIRD: To the payment of the amounts required to be
deposited into the Reserve Fund (hereinafter
defined) to establish and maintain the Required
Reserve Amount in accordance with the provisions of
this Ordinance or any other ordinance relating to
the issuance of Obligations Similarly Secured.
0165338
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Any Net Revenues remaining in the System Fund after
satisfying the foregoing payments, or making adequate and
sufficient provision for the payment thereof, may be appropriated
and used for any other City purpose now or hereafter permitted by
law.
SECTION 13: Interest and Sinkinq Fund. For purposes of
providing funds to pay the principal of and interest on the
Obligations Similarly Secured as the same become due and payable,
the City agrees to maintain on the books and records of the City,
a separate and special account or fund known as the "Waterworks
and Sewer System Interest and Sinking Fund" (the "Interest and
Sinking Fund") and moneys deposited to the credit of such account
shall be kept in a special fund maintained at the depository of
the City. The City covenants that there shall be deposited to the
credit of the Interest and Sinking Fund prior to each principal
and interest payment date from the available Net Revenues an
amount equal to one hundred per centum (100%) of the amount
required to fully pay the interest on and the principal of the
Bonds then falling due and payable, such deposits to pay maturing
principal and accrued interest on the Bonds to be made in
substantially equal monthly installments on or before the
fifteenth day of each month, beginning on or before the fifteenth
day of the month next following the delivery of the Bonds to the
initial purchaser(s).
The required monthly deposits to the Interest and Sinking
Fund for the payment of principal of and interest on the Bonds
shall continue to be made as hereinabove provided until such time
as (i) the total amount on deposit in the Interest and Sinking
Fund and Reserve Fund is equal to the amount required to fully pay
and discharge all outstanding obligations Similarly Secured
(principal and interest) or, (ii) the Bonds are no longer
Outstanding.
Accrued interest and premium, if any, received from the
initial purchaser(s) of the Bonds, shall be taken into
consideration and reduce the amount of the monthly deposits
hereinabove required to be deposited into the Interest and Sinking
Fund from the Net Revenues of the System. Additionally, any
proceeds of the Bonds not required to complete the improvements
and extensions to be made to the System shall be deposited into
the Interest and Sinking Fund and may be taken into consideration
and reduce the amount of monthly deposits required to be deposited
into the Interest and Sinking Fund from the Net Revenues of the
System.
0165338
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.--.-.-..--r--....
SECTION 14: Reserve Fund. For purposes of accumulating
and maintaining funds as a reserve for the payment of the
Obligations Similarly Secured, the City agrees, covenants and
reaffirms its covenants to the Holders of the Previously Issued
Bonds to maintain a special fund or account known as the
"Waterworks and Sewer System Reserve Fund" (the "Reserve Fund"),
which Fund shall be kept and maintained at an official depository
of City funds. All funds deposited to the credit of the Reserve
Fund (excluding earnings and income derived or received from
deposits or investments which may be transferred to the System
Fund referenced in section 13 of this Ordinance during such
periods as there is on deposit in the Reserve Fund the Required
Reserve Amount) shall be used solely for the payment of the
principal of and interest on the Obligations Similarly Secured,
when and to the extent other funds available for such purposes are
insufficient.
In accordance with the provisions of the ordinances
authorizing the issuance of the Previously Issued Bonds, the
amount currently on deposit in the Reserve Fund is $373,696 (the
"Current Reserve"). By reason of the issuance of the Bonds, the
total amount required to be accumulated and maintained in the
Reserve Fund shall be and is hereby increased to the sum of
$567,692 (the "Required Reserve Amount"), which amount equals at
least the average annual principal and interest requirements for
the Bonds and the Previously Issued Bonds now Outstanding.
Beginning on or before the fifteenth day of the month next
following the delivery of the Bonds and on or before the fifteenth
day of each following month until the Required Reserve Amount has
been accumulated in the Reserve Fund, the City covenants and
agrees to deposit to the Reserve Fund an amount equal to 1/60th of
the difference between the Required Reserve Amount and the Current
Reserve.
When and so long as the cash and investments in the Reserve
Fund total not less than the Required Reserve Amount, no deposits
need be made to the credit of the Reserve Fundi but, if and when
the Reserve Fund at any time contains less than the Required
Reserve Amount (other than as the result of the issuance of
Additional Parity Obligations as provided in the preceding
paragraph), the City covenants and agrees to cure the deficiency
in the Required Reserve Amount by resuming monthly deposits to
said Fund in an amount equal to 1/60th of the Required Reserve
Amount from the Net Revenues of the System on or before the
fifteenth day of each month until the Required Reserve Amount has
been fully restored. The City further covenants and agrees that,
subj ect only to the payments to be made to the Interest and
Sinking Fund, the Net Revenues shall be applied and appropriated
and used to establish and maintain the Required Reserve Amount and
to cure any deficiency in such amounts as required by the terms of
0165338
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this Ordinance and any other ordinance pertaining to the issuance
of Additional Parity Obligations.
Money in the Reserve Fund, at the option of the City, may
be invested or reinvested from time to time in direct obligations
or obligations the principal and interest of which are guaranteed
by the united states of America or invested in direct obligations
of or participation certificates guaranteed by the Federal
Intermediate Credit Banks, Federal Land Banks, Federal National
Mortgage Association, Federal Home Loan Banks, Banks for
Cooperatives, and in certificates of deposit of any bank or trust
company the deposits of which are fully secured by a pledge of
securities of any of the kinds hereinabove specified, such
obligations or securities to mature in not more than ten (10)
years from the date of such investment. Any obligations in which
money is so invested shall be kept in escrow in the City's
depository bank and shall be promptly sold and the proceeds of
sale applied to the making of payments required to be made from
the Reserve Fund whenever such payments are necessary to be made.
The deposits to the Reserve Fund shall be subordinate to those
required to be made into the Interest and sinking Fund.
SECTION 15: Incorporation of certain provisions of Series
1989 Bond Ordinance. sections 15 through 23, 25 through 30, 36
through 40 and 42 of Ordinance No. 0-89-733 authorizing the
issuance of the "City of Colleyville, Texas, Waterworks and Sewer
System Revenue Bonds, Series 1989", finally adopted by the City
Council on August 15, 1989 are hereby incorporated herein by
reference and made a part hereof for all purposes as if such
sections were restated in full as a part hereof.
In reference to (i) section 21 incorporated herein by
reference relating to the City providing and maintaining casualty
and other insurance on the properties of the System and its
operations and (ii) section 22 incorporated herein by reference
relating to an annual audit of the records and accounts of the
City, including the System, the City hereby agrees and covenants
to comply with such sections as the same now exist and will exist
when the Previously Issued Bonds identified in section 24 hereof
are paid and discharged and Section 41 of Ordinance No. 0-89-733
becomes effective and applicable. Furthermore, each year while
the Bonds remain Outstanding the City covenants and agrees that
immediately following the receipt of the City's annual audit of
its financial records and accounts, including the accounts and
records of the System, a true and correct copy of such annual
audit shall be furnished to the Texas Water Development Board,
Attn. Development Fund Manager, by first class mail postage
prepaid.
0165338
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SECTION 16: Special Covenants.
covenants as follows:
The City hereby further
A. It has the lawful power to pledge the Net Revenues
supporting this issue of Bonds and has lawfully exercised said
powers under the Constitution and laws of the State of Texas,
including said power existing under Texas Revised Civil Statutes
Annotated Articles 1111 et seq, as amended, and Texas Revised
civil Statutes Annotated Article 2368a, as amended.
B. The Obligations Similarly Secured shall be equally and
ratably secured by a lien on and a pledge of the Net Revenues of
the System in a manner that one bond shall have no preference over
any other bond.
C. Other than for the payment of the Outstanding Obligations
Similarly Secured, the Bonds, and the outstanding "City of
Colleyville, Texas, Tax and Waterworks and Sewer System (Limited
Pledge) Revenue certificates of Obligation, Series 1989", dated
August 1, 1989 and "City of Colleyville, Texas, Tax and Waterworks
and Sewer System (Limited Pledge) Revenue certificates of
Obligation, Series 1991, dated January 1, 1991, the Net Revenues
of the System have not in any manner been pledged to the payment
of any debt or obligation of the City or of the System.
D. As long as any Obligations Similarly Secured, or any
interest thereon, remaln Outstanding, the City will not sell,
lease or encumber the System or any substantial part thereof,
provided that this covenant shall not be construed to prohibit the
sale of such machinery, or other properties or equipment which has
become obsolete or otherwise unsuited to the efficient operation
of the System; also, with the exception of Additional Parity
Obligations issued in accordance with the terms and conditions of
this Ordinance, it will not encumber the Net Revenues unless such
encumbrance is made junior and subordinate to all of the
provisions of this Ordinance.
E. No free service of the System shall be allowed, and
should the City or any of its agents or instrumentalities make use
of the services and facilities of the System, payment of the
reasonable value thereof shall be made by the City out of funds
from sources other than the revenues and income of the System.
F. To the extent that it legally may, the City further
covenants and agrees that, so long as any of the obligations
Similarly Secured, or any interest thereon, are Outstanding, no
franchise shall be granted for the installation or operation of
any competing waterworks and sanitary sewer systems other than
those owned by the City, and the operation of any such systems by
anyone other than the City is hereby prohibited.
0165338
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SECTION 17: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section, the following terms
shall have the following meanings:
"Closing Date" means the date on which the Bonds
are first authenticated and delivered to the initial
purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986,
as amended by all legislation, if any, effective on or
before the Closing Date.
"Computation Date" has the meaning set forth in
section 1.148-1(b) of the Regulations.
"Gross Proceeds" means any proceeds as def ined in
section 1.148-1(b) of the Regulations, and any
replacement proceeds as defined in section 1.148-1 (e) of
the Regulations, of the Bonds.
"Investment" has the meaning set forth in section
1.148-1(b) of the Regulations.
"Nonpurpose Investment" means any investment
property, as defined in section 148(b) of the Code, in
which Gross Proceeds of the Bonds are invested and which
is not acquired to carry out the governmental purposes
of the Bonds.
"Rebate Amount" has the meaning set forth in
section 1.148-1(b) of the Regulations.
"Regulations" means any proposed, temporary, or
final Income Tax Regulations issued pursuant to sections
103 and 141 through 150 of the Code, and 103 of the
Internal Revenue Code of 1954, which are applicable to
the Bonds. Any reference to any specific Regulation
shall also mean, as appropriate, any proposed, temporary
or final Income Tax Regulation designed to supplement,
amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning
set forth in section 1.148-5 of the Regulations and (2)
the Bonds has the meaning set forth in section 1.148-4
of the Regulations.
0165338
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(b) Not to Cause Interest to Become Taxable. The City
shall not use, permit the use of, or omit to use Gross Proceeds or
any other amounts (or any property the acquisition, construction
or improvement of which is to be financed directly or indirectly
with Gross Proceeds) in a manner which, if made or omitted,
respectively, would cause interest on (1) any Bond issued
hereunder or (2) any series of bonds or obligations issued or
incurred by the Texas Water Development Board or the Texas Water
Resources Finance Authority to become includable in the gross
income, as defined in section 61 of the Code, of the owner thereof
for federal income tax purposes. Without limiting the generality
of the foregoing, unless and until the City receives a written
opinion of counsel 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 on any Bond, the City shall comply with each of the
specific covenants in this section.
(c) 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
stated Maturity of Bonds:
(1) exclusively own, operate and possess all
property the acquisition, construction or improvement of
which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds, and not use
or permit the use of such Gross Proceeds (including all
contractual arrangements with terms different than those
applicable to the general public) or any property
acquired, constructed or improved with such Gross
Proceeds in any activity carried on by any person or
entity (including the United states or any agency,
department and instrumentality thereof) other than a
state or local government, unless such use is solely as
a member of the general public; and
(2) not directly or indirectly impose or accept
any charge or other payment by any person or entity who
is treated as using Gross Proceeds of the Bonds or any
property the acquisition, construction or improvement of
which is to be financed or refinanced 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.
0165338
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(d) 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 Bonds to
make or finance loans to any person or entity 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, constructed or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes;
(2) capacity in or service from such property is committed to such
person or entity 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,
constructed or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of
a loan.
(e) Not to Invest at Higher Yield. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the city shall not at any time prior to the
final stated Maturity of the Bonds directly or indirectly invest
Gross Proceeds in any Investment (or use Gross Proceeds to replace
money so invested), if as a result of such investment the Yield
from the Closing Date of all Investments acquired with Gross
Proceeds (or with money replaced thereby), whether then held or
previously disposed of, exceeds the Yield of the Bonds.
(f) Not Federall v 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 Bonds to be federally guaranteed
within the meaning of section 149(b) of the Code and the
Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the
information required by section 149 (e) of the Code with the
Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits.
otherwise provided in section 148(f)
Regulations and rulings thereunder:
Except to the extent
of the Code and the
(1) The City shall account for all Gross
Proceeds (including all receipts, expenditures and
investments thereof) on its books of account separately
and apart from all other funds (and receipts,
expenditures and investments thereof) and shall retain
all records of accounting for at least six years after
the day on which the last outstanding Bond is
discharged. However, to the extent permitted by law,
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0165338
the City may commingle Gross Proceeds of the Bonds with
other money of the City, provided that the City
separately accounts for each receipt and expenditure of
Gross Proceeds and the obligations acquired therewith.
(2) Not less frequently than each Computation
Date, the City shall calculate the Rebate Amount in
accordance with rules set forth in section 148(f) of the
Code and the Regulations and rulings thereunder. The
City shall maintain such calculations with its official
transcript of proceedings relating to the issuance of
the Bonds until six years after the final Computation
Date.
(3) As additional consideration for the purchase
of the Bonds by the Purchasers and the loan of the money
represented thereby and in order to induce such purchase
by measures designed to insure the excludability of the
interest thereon from the gross income of the owners
thereof for federal income tax purposes, the City shall
pay to the united states out of the Bond Fund or its
general fund, as permitted by applicable Texas statute,
regulation or opinion of the Attorney General of the
state of Texas, the amount that when added to the future
value of previous rebate payments made for the Bonds
equals (i) in the case of a Final computation Date as
defined in section 1.148-3 (e) (2) of the Regulations, one
hundred percent ( 100%) of the Rebate Amount on such
date; and (ii) in the case of any other Computation
Date, ninety percent (90%) of the Rebate Amount on such
date. In all cases, the rebate payments shall be made
at the times, in the installments, to the place and in
the manner as is or may be required by section 148(f) of
the Code and the Regulations and rulings thereunder, and
shall be accompanied by Form 8038-T or such other forms
and information as is or may be required by section
148 (f) of the Code and the Regulations and rulings
thereunder.
(4) The City shall exercise reasonable diligence
to assure that no errors are made in the calculations
and payments required by paragraphs (2) and (3), and if
an error is made, to discover and promptly correct such
error within a reasonable amount of time thereafter (and
in all events within one hundred eighty (180) days after
discovery of the error), including payment to the United
states of any additional Rebate Amount owed to it,
interest thereon, and any penalty imposed under section
1.148-3(h) of the Regulations.
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(i) Not to Divert Arbitraqe Profits. Except to the extent
permi tted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds,
enter into any transaction that reduces the amount required to be
paid to the united states pursuant to Subsection H of this Section
because such transaction results in a smaller profit or a larger
loss than would have resulted if the transaction had been at arm's
length and had the Yield of the Bonds not been relevant to either
party.
(j) Elections. The City hereby directs and authorizes the
City Manager and Director of Finance, either or any combination of
them, to make elections permitted or required pursuant to the
provisions of the Code or the Regulations, as they deem necessary
or appropriate in connection with the Bonds, in the certificate as
to Tax Exemption or similar or other appropriate certificate, form
or document.
SECTION 18: Qualified Tax Exempt Obliqations. In accordance
with the provisions of paragraph (3) of subsection (b) of section
265 of the Code, the City hereby designates the Bonds to be
"qualified tax exempt obligations" in that the Bonds 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 in which the Bonds are issued will not
exceed $10,000,000.
SECTION 19: Sale of Bonds. The sale of the Bonds to TEXAS
WATER DEVELOPMENT BOARD (the "Board") pursuant to a loan
commitment received from the Board, at the price of par, without
accrued interest, is hereby confirmed. Delivery of said Bonds
shall be made to the Board as soon as may be after the adoption of
this Ordinance, upon payment therefor in accordance with the terms
of such loan commitment from the Board.
SECTION 20: Control and Custody of Bonds. The Mayor shall be
and is hereby authorized to take and have charge of all necessary
orders and records pending investigation by the Attorney General
of the State of Texas, including the printing and supply of
definitive Bonds, and shall take and have charge and control of
the Initial Bonds pending the approval thereof by the Attorney
General, the registration thereof by the Comptroller of Public
Accounts and the delivery thereof to the Board.
Furthermore, the Mayor, City Secretary, Director of Finance
and City Manager, 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 issuance of the Bonds,
including a certification as to facts, estimates, circumstances
0165338
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and reasonable expectations pertaining to the use and expenditure
and investment of the proceeds of the Bonds as may be necessary
for the approval of the Attorney General, the registration of the
Bonds by the Comptroller of Public Accounts and, together with the
City's financial advisor, bond counsel and the Paying Agent/
Registrar, make the necessary arrangements for the delivery of the
Initial Bonds to the Board.
SECTION 21: Rules and Regulations of Texas Water Develoo-
ment Board. In compliance with the published rules and
regulations of the Board, the City agrees and covenants that upon
completion of the project to be financed with the proceeds of the
Bonds issued for making improvements and extensions to the System,
the proper officials of the City shall cause to be prepared and
submitted to the Board (i) a final accounting of the total costs
of the project and the expenditure of funds therefor and (ii) a
copy of the construction plans for the project as built and
completed. In addition to other information required by the
Board, said final accounting shall identify (i) all funds utilized
or represented to be available in the City'S application, from
whatever source derived and (ii) all project costs contained and
approved in the City'S application to the Board, or approved in
subsequent change orders. If the total cost of the project is
less than the amount of the project funds available, then the City
shall return to the Board the amount of such excess to the nearest
mul tiple of the authorized denomination for the Bonds and the
Board shall return to the City a like principal amount of Bonds,
in inverse order of their Stated Maturities. Any surplus proceeds
from the sale of the Bonds, remaining after completion of the
project and the cancellation of the Bonds by the Board shall be
deposited into the Interest and Sinking Fund. The City further
covenants and agrees (i) that all proceeds of sale of the Bonds
shall be deposited in a "Special Series 1993 Revenue Bond
Construction Fund" hereby created and established with the City'S
depository bank and (ii) all funds deposited in such Fund shall be
disbursed only for the project the Bonds are being issued to
finance and, as is appropriate, in accordance with the provisions
of Chapter 15 or 17 of the Texas Water Code.
The City further agrees and covenants to comply with all
applicable laws of the State of Texas and all applicable rules and
policies of the Board with respect to the acquisition and
construction of the project and the loan of funds to the City by
the Board evidenced by the Bonds.
SECTION 22: Proceeds of Sale. The proceeds of sale of the
Bonds shall be deposited in the construction fund referred to in
section 17 hereof. Pending expenditure for authorized projects
and purposes and subject to the provisions of section 21 hereof,
such proceeds of sale may be invested in accordance with the
provisions of the Public Funds Investment Act of 1987 applicable
0165338
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to the investment of "bond proceeds" and any investment earnings
realized may be expended for such authorized projects and purposes
or deposited in the Interest and Sinking Fund as shall be
determined by the City Council.
SECTION 23: Leqal Opinion. The obligation of the Board to
accept delivery of the Bonds shall be subject to being furnished
an opinion from Fulbright & Jaworski L.L.P., Attorneys, Dallas,
Texas, as to the legality and validity of the issuance of the
Bonds and as to the tax exempt status of interest thereon from
federal income taxation, said opinion to be dated and delivered as
of the date of delivery and payment for the Bonds.
SECTION 24: Amendments to Ordinance Upon Discharqe of
Previous Iv Issued Bonds. At such time as the Series 1975, Series
1975-A, Series 1981 and Series 1987 Previously Issued Bonds
identified in Section 9 have been paid or are no longer
Outstanding, the Sections 9, 11, 12, 13, 14, and 15 of this
Ordinance shall be amended and modified, merged, consolidated and
otherwise modified in the manner and as provided in section 41 of
Ordinance No. 0-89-733, finally adopted on August 15, 1989,
authorizing the issuance of "City of Colleyville, Texas,
Waterworks and Sewer System Revenue Refunding Bonds, Series 1989",
which Section 41 is hereby incorporated by reference and made a
part hereof for all purposes as of such Section was restated in
full as a part hereof.
SECTION 25: Insurance. The Bonds have been offered and
sold with the principal of and interest thereon being insured by
AMBAC Indemnity Corporation (hereinafter called "AMBAC") pursuant
to a Municipal Bond Guaranty Insurance Policy. In accordance with
the terms and conditions applicable to insurance provided by
AMBAC, the City covenants and agrees that, in the event the
principal and interest due on the Bonds shall be paid by AMBAC
pursuant to the policy referred to this Section, the assignment
and pledge of all funds and all covenants, agreements and other
obligations of the City to the Holders shall continue to exist and
AMBAC shall be subrogated to the rights of such Holders; and
furthermore, the City covenants and agrees that:
(a) Consent of AMBAC where Holder Consent
Reauired. AMBAC shall be deemed to be the holder of the
Bonds insured by AMBAC at all times for the purpose of
the execution and delivery of any amendment, change or
modification of this Ordinance or the initiation by
Holders of any action to be taken under this Ordinance
at the Holder's request, which under this Ordinance (or
under such underlying documents requires the written
approval or consent of or can be initiated by the
Holders of a majority (50% percent) in aggregate
principal amount of the Bonds at the time Outstanding.
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0165338
(b) Defeasance. In the event that the principal
and redemption price, if applicable, and interest due on
the Bonds shall be paid by AMBAC pursuant to the policy
referred to in this Section, all covenants, agreements
and other obligations of the City to the Holders shall
continue to exist and AMBAC shall be subrogated to the
rights of such Holders.
(c) Notices to be Given to AMBAC. While the
Municipal Bond Guaranty Insurance Policy is in effect,
the City shall furnish to AMBAC:
(1) as soon as practicable after the
filing thereof, a copy of any financial
statement of the City and a copy of any audit
and annual report of the City;
(2) a copy of any notice to be given to
the registered owners of the Bonds,
including, without limitation, notice of any
redemption or defeasance of Bonds, and any
certificate rendered pursuant to this
Ordinance relating to the security for the
Bonds; and
(3) such additional information as it
may reasonably request.
The City will permit AMBAC to discuss the affairs,
finances and accounts of the City, or any information
AMBAC may reasonably request regarding the security for
the Bonds with appropriate officers of the City. The
City will permit AMBAC to have access to and make copies
of all books and records relating to the Bonds at any
reasonable time.
(d) Consent of AMBAC. Any provision of this
Ordinance expressly recognizing or granting rights in or
to AMBAC may not be amended in any manner which affects
the rights of AMBAC hereunder without the prior written
consent of AMBAC. Furthermore, anything in this
Ordinance to the contrary notwithstanding, upon the
occurrence and continuance of an event of default, AMBAC
shall be entitled to control and direct the enforcement
of all rights and remedies granted to the Holders of the
Bonds for the benefit of such Holders.
(e) Concernina the Bond Insurance Policy. As long
as insurance for the Bonds shall be in full force and
effect, the City agrees to comply with the following
provisions:
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0165338
(1) if five (5) days prior to an
interest payment date for the Bonds the City
determines that there will be insufficient
funds in the Interest and Sinking Fund to pay
the principal of or interest on the Bonds on
such interest payment date, the City shall so
notify AMBAC. Such notice shall specify the
amount of the anticipated deficiency, the
Bonds to which such deficiency is applicable
and whether such Bonds will be deficient as
to principal or interest, or both.
(2) the City shall, after giving notice
to AMBAC as provided in (1) above, make
available to AMBAC and the united States
Trust Company of New York, as insurance
trustee for AMBAC, the registration books of
the City maintained by the Paying
Agent/Registrar, and all records relating to
the funds and accounts maintained under this
Ordinance.
(3) the City shall cause the Paying
Agent/Registrar to provide AMBAC and the
united States Trust Company of New York with
a list of registered owners of Bonds entitled
to receive principal or interest payments
from AMBAC under the terms of the Municipal
Bond Insurance POlicy, and shall cause the
paying Agent/Registrar to make arrangements
with United States Trust Company of New York
(i) to mail checks or drafts to the
registered owners of Bonds entitled to
receive full or partial interest payments
from AMBAC, and (ii) to pay principal upon
Bonds surrendered to united States Trust
Company of New York by the registered owners
of Bonds entitled to receive full or partial
principal payments from AMBAC.
(4) the City shall cause the Paying
Agent/Registrar to notify, at the time it
provides notice to AMBAC pursuant to (1)
above, the registered owners of Bonds
entitled to receive the payment of principal
or interest thereon from AMBAC (i) as to the
fact of such entitlement, (ii) that AMBAC
will remit to them all or a part of the
interest payments next coming due, (iii) that
should they be entitled to receive full
payment of principal from AMBAC they must
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tender their Bonds (along with a form of
transfer of title thereto) for payment to
united states Trust Company of New York, as
insurance trustee for AMBAC, and not the
Paying Agent/Registrar, and (iv) that should
they be entitled to receive partial payment
of principal from AMBAC they must tender
their Bonds for payment thereon first to the
Paying Agent/Registrar, who shall note on
such Bonds the portion of the principal paid
by the Paying Agent/Registrar, and then,
along with a form of transfer of title
thereto, to AMBAC, which will then pay the
unpaid portion of principal.
(5) AMBAC shall, to the extent it makes
a payment of principal of or interest on
Bonds, become subrogated to the rights of the
recipients of such payments in accordance
with the terms of the Municipal Bond
Insurance POlicy, and to evidence such
subrogation (i) in the case of subrogation as
to claims for past due interest, the City
shall cause the Paying Agent/Registrar to
note AMBAC's rights as subrogee on the
registration books of the City maintained by
the Paying Agent/Registrar upon receipt from
AMBAC of proof of the payment of interest
thereon to the registered owners of the
Bonds, and (ii) in the case of subrogation as
to claims for past due principal, the City
shall cause the Paying Agent/Registrar to
note AMBAC's rights as subrogee on the
registration books of the City maintained by
the Paying Agent/ Registrar upon surrender of
the Bonds by the registered owners thereof
together with proof of the payment of
principal thereof.
SECTION 26: Public Meetinq. 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 V.T.C.A, Government Code, Chapter 551, as amended.
0165338
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PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of June 21, 1994 (this
"Agreement"), by and between the City of Colleyville, Texas (the
"Issuer"), and The Frost National Bank, Austin, Texas, a banking
association duly organized and existing under the laws of the
united States of America, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
issuance of its "City of Colleyville, Texas, Waterworks and Sewer
System Revenue Bonds, Series 1994" (the "Securities"), which
Securities are to be delivered to the initial purchasers on or
about September 9, 1994; and
WHEREAS, the Issuer has selected the Bank, and the Bank has
accepted, to serve as the paying Agent/Registrar for said
Securities; and
WHEREAS, the Bank hereby represents it has full power and
authority to perform the duties and serve as the Paying
Agent/Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
section 1.01. Appointment. The Issuer hereby appoints the
Bank to serve as Paying Agent with respect to the Securities, and,
as Paying Agent for the Securities, the Bank shall be responsible
for paying on behalf of the Issuer the principal, premium (if
any), and interest on the Securities as the same become due and
payable to the registered owners thereof; all in accordance with
this Agreement and the "Bond Resolution" (hereinafter defined) .
The Issuer hereby appoints the Bank as Registrar with respect to
the Securities and, as Registrar for the Securities, the Bank
shall keep and maintain for and on behalf of the Issuer books and
records as to the ownership of said Securities and with respect to
the transfer and exchange thereof as provided herein and in the
"Bond Resolution".
0180331
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The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
section 1.02. Compensation. As compensation for the Bank's
services as Paying Agent/Registrar, the Issuer hereby agrees to
pay the Bank the fees and amounts set forth in Annex A attached
hereto.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) .
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal offices of the Bank as
indicated on page 11 hereof. The Bank will notify the Issuer
in writing of any change in location of the Bank Office.
"Bond Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer,
ending September 30th.
"Holder" and "Security Holder" each means the Person in
whose name a Security is registered in the Security Register.
"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
Mayor, City Secretary, City Manager of Director of Finance,
anyone or more of said officials, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is
required or authorized to be closed.
0180331
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-. --'--~--'---------'----,------
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the
Resolution) .
"Responsible Officer" when used with respect to the Bank
means the Chairman or Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
Section 2.02. Other Definitions. The terms "Bank,"
"Issuer," and "Securities (Security)" have the meanings assigned
to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
section 3.01. Duties of Paying Agent. As Paying Agent, the
Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on
behalf of the Issuer the principal of each Security at its Stated
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Maturity, or Acceleration Date, to the Holder upon surrender of
the Security to the Bank at the Bank Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the interest on each
Security when due, by computing the amount of interest to be paid
each Holder and making payment thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date.
All payments of principal and/or interest on the Securities to the
registered owners shall be accomplished (1) by the issuance of
checks, payable to the registered owners, drawn on the fiduciary
account provided in Section 5.05 hereof, sent by United States
mail, first class, postage prepaid, to the address appearing on
the Security Register or (2) by such other method, acceptable to
the Bank, requested in writing by the Holder at the Holder's risk
and expense.
Section 3.02. Payment Dates. The Issuer hereby instructs
the Bank to pay the principal of and interest on the Securities at
the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
section 4.01. Security Reqister - Transfers and Exchanges.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
referred to as the "Security Register") for recording the names
and addresses of the Holders of the Securities, the transfer,
exchange and replacement of the Securities and the payment of the
principal of and interest on the Securities to the Holders and
containing such other information as may be reasonably required by
the Issuer and subject to such reasonable regulations as the
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
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----.----.-r---.-------
securities, the exchange or transfer by the Holders thereof will
be completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder, or his duly authorized
agent, in form and manner satisfactory to the Paying
Agent/Registrar.
Section 4.02. Certificates. The Issuer shall provide an
adequate inventory of printed Securities to facilitate transfers
or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use
and reasonable care will be exercised by the Bank in maintaining
such Securities in safekeeping, which shall be not less than the
care maintained by the Bank for debt securities of other
governments or corporations for which it serves as registrar, or
that is maintained for its own securities.
section 4.03. Form of Security Reqister. The Bank, as
Registrar, will maintain the Security Register relating to the
registration, payment, transfer and exchange of the Securities in
accordance with the Bank's general practices and procedures in
effect from time to time. The Bank shall not be obligated to
maintain such Security Register in any form other than those which
the Bank has currently available and currently utilizes at the
time.
The Security Register may be maintained in written form or in
any other form capable of being converted into written form within
a reasonable time.
section 4.04. List of Security Holders. The Bank will
provide the Issuer at any time requested by the Issuer, upon
payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the
information contained in the Security Register at any time the
Bank is customarily open for business, provided that reasonable
time is allowed the Bank to provide an up-to-date listing or to
convert the information into written form.
The Bank will not release or disclose the contents of the
Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
0180331
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Section 4.05. Return of Cancelled Certificates. The Bank
will, at such reasonable intervals as it determines and in
accordance with applicable law, provide the Issuer with a full and
complete accounting of all Securities in lieu of which or in
exchange for which other Securities have been issued, or which
have been paid.
Section 4.06.Mutilated. Destroyed. Lost or Stolen
Securities. The Issuer hereby instructs the Bank, subject to the
provisions of the Bond Resolution, to deliver and issue Securities
in exchange for or in lieu of mutilated, destroyed, lost, or
stolen Securities as long as the same does not result in an
overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed, lost or stolen Security, only
upon the approval of the Issuer and after (i) the filing by the
Holder thereof with the Bank of evidence satisfactory to the Bank
of the destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
Section 4.07. Transaction Information to Issuer. The Bank
will, within a reasonable time after receipt of written request
from the Issuer, furnish the Issuer information as to the
Securities it has paid pursuant to section 3.01, Securities it has
delivered upon the transfer or exchange of any Securities pursuant
to Section 4.01, and Securities it has delivered in exchange for
or in lieu of mutilated, destroyed, lost, or stolen Securities
pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01. Duties of Bank. The Bank undertakes to perform
the duties set forth herein and agrees to use reasonable care in
the performance thereof.
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Section 5.02. Reliance on Documents. Etc. (a) The Bank
may conclusively rely, as to the truth of the statements and
correctness of the opinions expressed therein, on certificates or
opinions furnished to the Bank.
(b) The Bank shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Bank was negligent in ascertaining the pertinent
facts.
(c) No provisions of this Agreement shall require the Bank
to expend or risk its own funds or otherwise incur any financial
liability for performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security, or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties. without limiting the
generality of the foregoing statement, the Bank need not examine
the ownership of any Securities, but is protected in acting upon
receipt of Securities containing an endorsement or instruction of
transfer or power of transfer which appears on its face to be
signed by the Holder or an agent of the Holder. The Bank shall
not be bound to make any investigation into the facts or matters
stated in a resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
note, security, or other paper or document supplied by Issuer.
(e) The Bank may consult with counsel, and the written
advice of such counselor any opinion of counsel shall be full and
complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
Section 5.03. Recitals of Issuer. The recitals contained
herein with respect to the Issuer and in the Securities shall be
taken as the statements of the Issuer, and the Bank assumes no
responsibility for their correctness.
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The Bank shall in no event be liable to the Issuer, any
Holder or Holders of any Security, or any other Person for any
amount due on any Security from its own funds.
section 5.04. May Hold Securities. The Bank, in its
individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Issuer with the same
rights it would have if it were not the Paying Agent/Registrar, or
any other agent.
section 5.05. Moneys Held by Bank Fiduciary
Account/Collateralization. A fiduciary account shall at all times
be kept and maintained by the Bank for the receipt, safekeeping
and disbursement of moneys received from the Issuer hereunder for
the payment of the Securities, and money deposited to the credit
of such account until paid to the Holders of the Securities shall
be continuously collateralized by securities or obligations which
qualify and are eligible under both the laws of the State of Texas
and the laws of the United States of America to secure and be
pledged as collateral for fiduciary accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
Payments made from such trust account shall be made by check drawn
on such trust account unless the owner of such Securities shall,
at its own expense and risk, request such other medium of payment.
The Bank shall be under no liability for interest on any
money received by it hereunder.
Subj ect to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any Security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
Section 5.06. Indemnification. To the extent permitted by
law, the Issuer agrees to indemnify the Bank for, and hold it
harmless against, any loss, liability, or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with its acceptance or administration of its duties
hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of
its powers or duties under this Agreement.
section 5.07. Internleader. The Issuer and the Bank agree
that the Bank may seek adjudication of any adverse claim, demand,
or controversy over its person as well as funds on deposit, in
either a Federal or State District Court located in the State and
County where either the Bank Office or the administrative offices
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of the Issuer is located, and agree that service of process by
certified or registered mail, return receipt requested, to the
address referred to in Section 6.03 of this Agreement shall
constitute adequate service. The Issuer and the Bank further
agree that the Bank has the right to file a Bill of Interpleader
in any court of competent jurisdiction to determine the rights of
any Person claiming any interest herein.
Section 5.08. DT Services. It is hereby represented and
warranted that, in the event the Securities are otherwise
qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the
Bank has the capability and, to the extent within its control,
will comply with the "Operational Arrangements", effective August
1, 1987, which establishes requirements for securities to be
eligible for such type depository trust services, including, but
not limited to, requirements for the timeliness of payments and
funds availability, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment. This Agreement may be amended only
by an agreement in writing signed by both of the parties hereto.
Section 6.02. Assiqnment. This Agreement may not be
assigned by either party without the prior written consent of the
other.
Section 6.03. Notices. Any request, demand, authorization,
direction, notice, consent, waiver, or other document provided or
permitted hereby to be given or furnished to the Issuer or the
Bank shall be mailed or delivered to the Issuer or the Bank,
respectively, at the addresses shown on page 11.
Section 6.04. Effect of Headinqs. The Article and section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 6.05. Successors and Assiqns. All covenants and
agreements herein by the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section 6.06. Severability. In case any provision herein
shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
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_.__.~_._---_.._......_-_._. ...-.'--.-.. .....-....-.. -----I.
Section 6.07. Benefits of Agreement. Nothing herein,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any benefit or any
legal or equitable right, remedy, or claim hereunder.
Section 6.08. Entire Agreement. This Agreement and the Bond
Resolution constitute the entire agreement between the parties
hereto relative to the Bank acting as Paying Agent/Registrar and
if any conflict exists between this Agreement and the Bond
Resolution, the Bond Resolution shall govern.
section 6.09. Counteroarts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same
Agreement.
Section 6.10. Termination. This Agreement will terminate
(i) on the date of final payment of the principal of and interest
on the Securities to the Holders thereof or (ii) may be earlier
terminated by either party upon sixty (60) days written notice;
provided, however, an early termination of this Agreement by
either party shall not be effective until (a) a successor Paying
Agent/Registrar has been appointed by the Issuer and such
appointment accepted and (b) notice given to the Holders of the
Securities of the appointment of a successor Paying
Agent/Registrar. Furthermore, the Bank and Issuer mutually agree
that the effective date of an early termination of this Agreement
shall not occur at any time which would disrupt, delay or
otherwise adversely affect the payment of the Securities.
Upon an early termination of this Agreement, the Bank agrees
to promptly transfer and deliver the Security Register (or a copy
thereof), together with other pertinent books and records relating
to the Securities, to the successor paying Agent/Registrar
designated and appointed by the Issuer.
The provisions of Section 1.02 and of Article Five shall
survive and remain in full force and effect following the
termination of this Agreement.
Section 6.11. Governinq Law. This Agreement shall be
construed in accordance with and governed by the laws of the State
of Texas.
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EXHmIT A
Annual Administration .......................................................... $ 41.67 per month**
Annual Account Maintenance................................................ $ 4.00 per bondholder
** Plus reimbursement of out-of -pocket expenses (services, stationery, and postage)
This fee is subject to review at one year from the initial date ofthe Issue and each year
thereafter.
The Annual Administration Fee is calculated and charged semiannually at each Interest
Payment Date. To calculate the semi-annual account maintenance fee, the number of
bondholder accounts at each payment rate is determined and charged at the semi-annual
rate of $2.00 each..
There is no Acceptance Charge.
-,.--t'-_._~"._.
SECTION 27: Effective Date. This Ordinance shall take
effect and be in force immediately from and after its third
reading and final passage, and it is so ordained.
FIRST READING, May 17, 1994.
SECOND READING, June 7, 1994.
THIRD READING, June 21, 1994.
FINALLY PASSED AND ADOPTED, this August 2, 1994.
CITY OF COLLEYVILLE, TEXAS
fJST: id .
ILIA --" fJNud
C Y Secretary
(City Seal)
APPROVED AS TO FORM:
~ 7:k:-
( -- .....
City Attorney
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