HomeMy WebLinkAboutOrdinances (O-11-1790)-03/21/2011ORDINANCE NO. 0-11-1790
AN ORDINANCE authorizing the issuance of "CITY OF COLLEYVILLE,
TEXAS, COMBINATION TAX AND TAX INCREMENT REVENUE
REFLJNDING BONDS, SERIES 2011 "; specifying the terms and features
of said bonds; levying a continuing direct annual ad valorem tax for the
payment of said bonds; providing for the redemption of certain
outstanding obligations of the City; and resolving other matters incident
and related to the issuance, sale, payment and delivery of said bonds,
including the approval and execution of a Paying Agent/Registrar
Agreement, a Purchase Agreement and a Special Escrow Agreement and
the approval and distribution of an Official Statement; and providing an
effective date.
WHEREAS, the City Council of the City of Colleyville, Texas (the "City") has
heretofore issued, sold, and delivered, and there is currently outstanding obligations totaling in
original principal amount $5,340,000 of the following issue or series (hereinafter referred to as
the "Refunded Obligations"), to wit:
(1) City of Colleyville, Texas, T~ and Tax Increment Revenue
Certificates of Obligation, Series 2001 (Reinvestment Zone Number One), dated
February 1, 2001, being the certificates of obligation scheduled to mature on
February 15 in each of the years 2012 through 2020, and aggregating in the
principal amount of $4,945,000 (the "Series 2001 Refunded Certificates"); and
(2) City of Colleyville, Texas, Tax and Tax Increment Revenue
Certificates of Obligation, Series 2002 (Reinvestment Zone Number One), dated
Februaxy 15, 2002, being the certificates of obligation scheduled to mature on
February 15 in each of the years 2015, 2017 and 2020, and aggregating in the
principal amount of $395,000 (the "Series 2002 Refunded Certificates"); and
WHEREAS, pursuant to the provisions of V.T.C.A., Government Code, Chapter 1207, as
amended, the City Council is authorized to issue refunding bonds and deposit the proceeds of
sale directly with the place of payment for the Refunded Obligations, or other authorized
depository, and such deposit, when made in accordance with said statute, shall constitute the
making of firm banking and financial arrangements for the discharge and final payment of the
Refunded Obligations; and
WHEREAS, the City Council hereby finds and determines that the Refunded Obligations
should be refunded at this time, and such refunding will result in the City saving approximately
$596,598.20 in debt service payments on such indebtedness and further provide present value
savings of approximately $445,446.09; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE:
SECTION 1: Authorization - Designation - Principal Amount - Purpose. General
obligation bonds of the City shall be and are hereby authorized to be issued in the aggregate
principal amount of $5,255,000 to be designated and bear the title "CITY OF COLLEYVILLE,
90343309.1/11013521
TEXAS, COMBINATION TAX AND TAX INCREMENT REVENUE REFUNDING BONDS,
SERIES 2011" (hereinafter referred to as the "Bonds"), for the purpose of providing funds for
the dischaxge and final payment of certain outstanding obligations of the City (identified in the
preamble hereof and referred to as the "Refunded Obligations") and to pay costs of issuance, in
accordance with the Constitution and laws of the State of Texas, including V.T.C.A.,
Government Code, Chapter 1207; as amended.
SECTION 2: Fully Registered Obligations - Bond Date - Authorized Denominations-
Stated Maturities - Interest Rates. The Bonds shall be issued as fully registered obligations only,
sha11 be dated February 15, 2011 (the "Bond Date"), shall be in denominations of $5,000 or any
integral multiple (within a Stated Maturity) thereof, and shall become due and payable on
February 15 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:
Year of Principal Interest
Stated Maturitv Amount Rate s
2012 $ 490,000 2.00 %
2013 540,000 2.00
2014 555,000 2.00
2015 565,000 3.00
2016 585,000 3.00
2017 600,000 3.00
2018 615,000 3.00
2019 640,000 4.00
2020 665,000 4.00
The Bonds shall bear interest on the unpaid principal amounts from the Bond Date at the
rate(s) per annum shown above in this Section (calculated on the basis of a 360-day year of
twelve 30-day months). Interest on the Bonds shall be payable on February 15 and August 15 in
each year, commencing August 15, 2011, until maturity or prior redemption.
SECTION 3: Terms of Payment - Paying Agent/Re 'strar. The principal of, premiuxn,
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 whieh at the time of payrnent is legal tender for the payrnent of public and private debts,
and shall be without exchange or collection charges to the Holders.
The selection and appointment of The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas to serve as Paying Agent/Registrar for the Bonds is hereby approved and
confirmed. Books and records relating to the registration, payment, transfer and exchange of the
Bonds (the "Security Register") shall at all times be kept and maintained on behalf of the City by
the Paying Agent/Registrar, as provided herein and 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 are authorized to execute and deliver such Paying
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Agent/Registrar 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 commercial bank, trust
company, financial institution or other entity qualified and authorized to serve in such capacity
and perform tlie 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/Registrax.
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 designated offices initially in Dallas, Texas or, with respect to a successor
Paying Agent/Registrar, at the designated offices of such successor (the "Designated
Payment/Transfer Office"). Interest on the Bonds shall be paid to the Holders whose names
appear in the Security Register at the close of business on the Record Date (the last business day
of the month next preceding each interest payment date) and shall be paid by the Paying
Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the address of
the 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 institutions in the city where the Designated PaymentlTransfer
Office of the Paying Agent/Registrar is located are authorized by law or executive order to close,
then the date for such payment shall be the next succeeding day which is not such a Saturday,
Sunday, legal holiday, or day when banking institutions are authorized to close; and payment on
such date shall have the same force and effect as if made on the original date payrnent was due.
In the event of a nonpayment of interest on a scheduled payrnent 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 AgentlRegistrar, 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 maturing on and after February 15, 2017 shall
be subject to redemption prior to maturity, at the option of the City, in whole or in part 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 February 15, 2016 or on any date thereafter at the
redemption price of par plus accrued interest to the date of redemption.
(b) Exercise of Redem tip on 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
90343309.1/11013521 3
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 a11 Outstanding Bonds of the
same 5tated 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, or principal amount
thereof, to be redeemed within such Stated Maturity by lot.
(d) Notice of Redem tp ion. 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.
All notices. of redemption shall (i) specify the date of redemption far 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) s~ate
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
principa.l amount thereof to be redeemed, sha11 cease to accrue from and after the redemption
date, and (v) specify that payrnent of the redemption price for the Bonds, or the principal amount
thereof to be redeemed, shall be made at the Designated Payment/Transfer 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 payrnent 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 payrnent by the Paying Agent/Registrar.
(e) Conditional Notice of Redemption. With respect to any optional redemption of
the Bonds, unless moneys sufficient to pay the principal of and premium, if any, and interest on
the Bonds to be redeemed shall have been received by the Paying Agent/Registrar prior to the
giving of such notice of redemption, such notice may state that said redemption is conditional
upon the receipt of such moneys by the Paying Agent/Registrar on or prior to the date fixed for
such redemption, or upon the satisfaction of any prerequisites set forth in such notice of
redemption; and, if sufficient moneys are not received, such notice shall be of no force and
effect, the City shall not redeem such Bonds and the Paying AgentfRegistrar shall give notice, in
the manner in which the notice of redemption was given, to the effect that the Bonds have not
been redeemed.
SECTION 5: Re~,istration - 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
90343309.1/11013521 4
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 Paying Agent/Registrar to the Designated
Payment/Transfer Office 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 (other than the Initial Bond(s) referenced in Section 8
hereo fl for transfer at the Designated Payment/Transfer Office of the Paying Agent/Registrar, the
Paying Agent/Registrar sha11 register and deliver, in the name of the designated transferee or
transferees, one or more new Bonds of authorized denominations and having the same Stated
Maturity and of a like aggregate principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds (other than the Initial Bond(s) referenced in Section 8
hereo~ 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
Bands surrendered for exchange, upon surrender of the Bonds to be exchanged at the Designated
Payrnent/Transfer Office of the Paying Agent/Registrar. Whenever any Bonds are surrendered
for exchange, the Paying AgentlRegistrar sha11 register and deliver new Bonds to the Holder
requesting the exchange.
All Bonds issued in any transfer or exchange of Bonds sha11 be delivered to the Holders
at the Designated Payment/Transfer 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 tra.nsfers 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 payrnent 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 Section 18 hereof 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
90343309.1/11013521 5
shall not be applicable to an exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Book-Entry-Only Transfers and Transactions. Notwithstanding the
provisions contained in Sections 3, 4 and 5 hereof relating to the payrnent, and transfer/exchange
of the Bonds, the City hereby approves and authorizes the use of `Book-Entry-Only" securities
clearance, settlement and transfer system provided by The Depository Trust Company, a limited
purpose trust company organized under the laws of the State of New York ("DTC"), in
accordance with the operational arrangements referenced in the Blanket Issuer Letter of
Representation, by and between the City and DTC (the "Depository Agreement").
Pursuant to the Depository Agreement and the rules of DTC, the Bonds shall be
deposited with DTC who shall hold said Bonds for its participants (the "DTC Participants").
While the Bonds are held by DTC under the Depository Agreement, the Holder of the Bonds on
the Security Register for all purposes, including payment and notices, shall be Cede & Co., as
nominee of DTC, notwithstanding the ownership of each actual purchaser or owner of each Bond
(the "Beneficial Owners") being recorded in the records of DTC and DTC Participants.
In the event DTC determines to discontinue serving as securities depository for the Bonds
or otherwise ceases to provide book-entry clearance and settlement of securities transactions in
general or the City determines that DTG is incapable of properly discharging its duties as
securities depository for the Bonds, the City covenants and agrees with the Holders of the Bonds
to cause Bonds to be printed in definitive form and provide for the Bond certificates to be issued
and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the
Bonds in definitive form shall be assigned, transferred and exchanged on the Security Register
maintained by the Paying Agent/Registrar and payrnent of such Bonds shall be made in
accordance with the provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Re~;istration. The Bonds shall be executed on behalf of the
City by the Mayor or Mayor Pro Tem 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 Bond Date shall be deemed to be duly executed on behalf
of the City, notwithstanding that one or more of the individuals 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, a11 as authorized and provided in V.T.C.A., Government
Code, Chapter 1201, as amended.
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 9(c), 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 9(d), manually executed by an authorized officer,
employee or representative 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.
90343309.1/11013521 6
SECTION 8: Initial Bond(s). The Bonds herein authorized shall be initially issued
either (i) as a single fully registered bond in the aggregate principal amount stated in 5ection 1
hereof with principal installments to become due and payable as provided in Section 2 hereof
and numbered T-1, or (ii) as multiple fully registered bonds, being one bond for each year of
maturity in the applicable principal amount and denomination and to be numbered consecutively
from T-1 and upward (hereinafter called the "Initial Bond(s)") and, in either case, the Initial
Bond(s) shall be registered in the name of the initial purchaser(s) or the designee thereof. The
Initial Bond(s) sha11 be the Bond(s) submitted to the Office of the Attorney General of the State
of Texas for approval, certified and registered by the Office of the Comptroller of Public
Accounts of the State of Texas and delivered to the initial purchaser(s). Any time after the
delivery of the Initial Bond(s), the Paying Agent/Registrar, pursuant to written instructions from
the initial purchaser(s), or the designee thereof, sha11 cancel the Initial Bond(s) delivered
hereunder and exchange therefor definitive Bonds of authorized denominations, Stated
Maturities, principal amounts and bearing applicable interest rates for transfer and deliyery to the
Holders named at the addresses identified therefor; all pursuant to and in accordance with such
written instructions from the initial purchaser(s), or the designee thereof, and such other
information and documentation as the Paying Agent/Registrar may reasonably require.
SECTION 9: - 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 insurance legends in the event the
Bonds, or any maturities thereof, are purchased with insurance and 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 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 and the Initial Bond(s) shall be printed, lithographed, engraved,
typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined
by the officers executing such Bonds as evidenced by their execution thereof.
90343309.1/11013521 7
(b) Form of Definitive Bond.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF COLLEYVILLE, TEXAS
COMBINATION TAX AND TAX INCREMENT REVENUE REFUNDING BOND
SERIES 20ll
Bond Date: Interest Rate: Stated Maturity CUSIP NO:
February 15, 2011 % February 15, 20_
Registered Owner:
Principal Amount:
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, acknowledges
itself indebted to and hereby promises to pay to the registered owner named above, or the
registered assigns thereof (the "Registered Owner"), on the Stated Maturity date specified above
the Principal Amount hereinabove stated (or so much thereof as shall not have been paid upon
prior redemption) and to pay interest 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 payrnent date, in which case it shall bear
interest from such date, or unless the "Registration Date" of this Bond is prior to the initial
interest payrnent date in which case it shall bear interest from the Bond Date) at the per annum
rate of interest specified above computed on the basis of a 360-day year of twelve 30-day
months; such interest being payable on February 15 and August 15 in each year, commencing
August 15, 2011, until maturity or prior redemption. Principal of this Bond is payable at its
Stated Maturity or redemption to the registered owner hereof, upon presentation and surrender, at
the Designated Payment/Transfer Office of the Paying AgentlRegistrar executing the registration
certificate appearing hereon, or its successor; provided, however, while this Sond is registered to
Cede & Co., the payrnent of principal upon a partial redemption of the principal amount hereof
may be accomplished without presentation and surrender of this Bond. Interest is payable to the
registered owner of this Bond (or one or more Predecessor Bonds, as defined 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 last business day of
the month next preceding each interest payment date, and interest shall be paid by the Paying
Agent/Registrar by check sent United States Mail, first class postage prepaid, to the address of
the 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. 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 institutions in the city where the Designated
Payment/Transfer Office of the Paying Agent/Registrar is located are authorized by law or
90343309.1/11013521 $
executive order to close, then the date for such payment shall be the next succeeding day which
is not sucli a Saturday, Sunday, legal holiday, or day when ba.nking institutions are authorized to
close; and payment on such date shall have the same force and effect as if made on the original
date payrnent was due. 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 payrnent 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 $5,255,000 (herein referred to as the "Bonds") for the purpose of providing funds for
the discharge and final payment of certain outstanding obligations of the City, and to pay costs of
issuance, under and in strict conformity with the Constitution and laws of the State of Texas and
pursuant to an Ordinance adopted by the City Council of the City (herein referred to as the
"Ordinance").
The Bonds maturing on and after February 15, 2017 may be redeemed prior to their
Stated Maturities, at the option of the City, in whole or in part 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 February 15, 2016, or on any date thereafter, at the redemption price of par,
together with accrued interest to the date of redemption.
At least thirty days prior to any redemption date of the Bonds, the City shall cause a
written notice of such redemption to be sent by United States Mail, first class postage prepaid, to
the registered owners of each Bond to be redeemed at the address shown on the Security Register
and subject to the terms and provisions relating thereto contained in the Ordinance. If a Bond (or
any portion of its principal sum) shall have been duly called for redemption and notice of such
redemption duly given, then upon such redemption date such Bond (or the portion of its principal
suxn to be redeemed) shall become due and payable, and interest thereon sha11 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 payrnent by the Paying Agent/Registrar.
In the event a portion of the principal amount of a Bond is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a new
Bond or Bonds of like maturity and interest rate in any authorized denominations provided by
the Ordinance for the then unredeemed balance of the principal sum thereof will be issued to the
registered owner, without charge. If a Bond is selected for redemption, in whole or in part, the
City and the Paying Agent/Registrar shall not be required to transfer such 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 of a Bond redeemed in part.
With respect to any optional redemption of the Bonds, unless moneys sufficient to pay
the principal of and premium, if any, and interest on the Bonds to be redeemed sha11 have been
received by the Paying Agent/Registrar prior to the giving of such notice of redemption, such
90343309.1/11013521 9
notice may state that said redemption is conditional upon the receipt of such moneys by the
Paying Agent/Registrar on or prior to the date fixed for such redemption, or upon the satisfaction
of any prerequisites set forth in such notice of redemption; and, if sufficient moneys are not
received, such notice shall be of no force and effect, the City shall not redeem such Bonds and
the Paying Agent/Registrar shall give notice, in the manner in which the notice of redemption
was given, to the effect that the Bonds have not been redeemed.
The Bonds are payable from the proceeds of an ad valorem tax levied, within. the
limitations prescribed by law, upon all taxable property in the City, and are additionally payable
from and, together with the Previously Issued Certificates (identified and defined in the
Ordinance), equally and ratably secured by a lien on and pledge of Pledged Tax Increment
Revenues. In the Ordinance, the City reserves and retains the right to issue Additional
Obligations payable, in whole or in part, from the Pledged Taa~ Increment Revenues and equally
and ratably secured by a parity lien on and pledge of such Pledged Tax Increment Revenues
without having to satisfy or comply with any terms or conditions precedent for their issuance
other than as may be required by the laws of the State.
Reference is hereby made to the Ordinance, a copy of which is on file in the Designated
Payrnent/Transfer Office of the Paying Agent/Registrar, and to all the provisions of which the
owner or holder of this Bond by the acceptance hereof hereby assents, for definitions of terms;
the description of and the nature and extent of the tax levied for the payxnent of the Bonds; the
nature and extent of the pledge of the Pledged Tax Incrernent Revenues securing the payment of
the Bonds; 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 provisions upon which the tax levy and the pledge of the Pledged
Tax Increment Revenues and covenants made in the Ordinance may be discharged at or prior to
the maturity of this Bond, and this Bond deemed to be no longer Outstanding thereunder; and for
the other terms and provisions contained therein. Capitalized terms used herein have the
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 Designated
Payrnent/Transfer 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, shall treat the
registered owner whose name appears on the Security Register (i) on the Record Date as the
owner entitled to payment of interest hereon, (ii) on the date of surrender of this Bond as tlie
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, sha11 be affected by notice to the contrary. In the
90343309.1/11013521 1 ~
event of nonpayment of interest on a scheduled payrnent 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 payrnent date of the past
due interest (which shall be 15 days after the Special Record Date) sha11 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 declared that the City is a body corporate
and political subdivision duly organized and legally existing under and by viriue 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 limitation; and that due provision has
been made for the payrnent of the principal of and interest on the Bonds as aforestated. In case
any provision in this Bond 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.
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 Bond Date.
CITY OF COLLEYVILLE, TEXAS
COUNTERSIGNED:
City Secretary
(City Seal)
Mayor
90343309.1/11013521 11
(c) Form of Registration 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 ) 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
(d) Form of Certificate of Payi~Agent/ReQistrar to appear on Definitive Bonds
o~.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered under the provisions of the within-
mentioned Ordinance; the bond or bonds of the above entitled and designated series originally
delivered having been approved by the Attorney General of the State of Texas and registered by
the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar.
The designated offices of the Paying Agent/Registrar in Dallas, Texas is the "Designated
Payment/Transfer Office" for this Bond.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas, as
Paying Agent/Registrar
Registration date:
By:
Authorized Signature
90343309.1/11013521 I Z
(e) Form of Ass~unent.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print
or typewrite name, address, and zip code of transferee):
(Social Security or other identifying number ) the within
Bond and all rights thereunder, and hereby irrevocably constitutes 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.
( fl The Initial Bond(s) shall be in the form set forth in paragraph (b) of this Section,
except that the form of the sin lg e fully registered Initial Bond shall be modified as follows:
REGISTERED
NO. T-1
REGISTERED
$5,255,000
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF COLLEYVILLE, TEXAS
COMBINATION TAX AND TAX 1NCREMENT REVENUE REFUNDING BOND
SERIES 2011
Bond Date: February 15, 2011
Registered Owner:
Principal Amount: FIVE MILLION TWO HUNDRED FIFTY-FIVE THOUSAND 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, acknowledges
itself indebted to and hereby promises to pay to the registered owner named above, or the
registered assigns thereof (the "Registered Owner"), the Principal Amount hereinabove stated on
February 15 in each of the years and in principal installments in accordance with the following
schedule:
STATED PRINCIPAL 1NTEREST
MATURITY 1NSTALLMENTS RATE
(Information to be inserted from schedule in Section 2 hereo fl.
90343309.1/11013521 13
(or so much principal thereof as shall not have been paid upon prior redemption) and to pay
interest on the unpaid principal installments hereof from the interest payrnent 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 it shall bear interest from such date, or unless
the "Registration Date" of this Bond is prior to the initial interest payrnent date in which case it
shall bear interest from the Bond Date) at the per annum rates of interest specified above
computed on the basis of a 360-day year of twelve 30-day months; such interest being payable
on February 15 and August 15 in each year, commencing August 15, 2011, until maturity or
prior redemption. Principal installments of this Bond are payable on the Stated Maturity dates or
on a redernption date to the registered owner hereof by The Bank of New York Mellon Trust
Company, N.A., Dallas, Texas (the "Paying Agent/Registrar"), upon its presentation and
surrender, at its designated offices in Dallas, Texas (the "Designated Payment/Transfer Office").
Interest is payable to the registered owner of this Bond 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 last business day of the month next preceding each interest payment date, and
interest shall be paid by the Paying Agent/Registrar by check sent United States Mail, first class
postage prepaid, to the address of the 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. 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 institutions in the city
where the Designated Payment/Transfer Office of the Paying Agent/Registrar is located are
autharized 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. All payments of principal of, premiuxn,
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.
SECTION 10: Definitions. For purposes of this Ordinance and for clarity with respect to
the issuance of the Bonds herein authorized, and the levy of taxes and appropriation of Pledged
Tax Increment Revenues therefor, the following words or terms, whenever the same appears
herein without qualifying language, are defined to mean as follows:
(a) The term "Creation Ordinance" shall mean Ordinance No. 0-98-1124, finally
adopted by the City Council of the City on November 4, 1998, as amended by Ordinance No. O-
98-1131, finally adopted by the City Council of the City on December 15, 1998, providing for
the creation and establishment of the Zone.
(b) The term "Additional Obligations" shall mean obligations hereafter issued which
by their terms are payable, in whole or in part, from and secured by a parity lien on and pledge of
the Pledged Tax Increment Revenues of the Zone of equal rank and dignity with the lien and
pledge securing the payment of the Previously Issued Certificates and the Bonds.
(c) The term "Bond Fund" sha11 mean the special Fund created and established under
the provisions of Section 11 of this Ordinance.
90343309.1/11013521 14
(d) The term "Bonds" shall mean the $5,255,000 "City of Colleyville, Texas,
Combination Tax and Tax Increment Revenue Refunding Bonds, Series 2011" authorized by this
Ordinance.
(e) The term "Collection Date" sha11 mean, when reference is being made to the levy
and collection of annual ad valorem taxes, the date the annual ad valorem taxes levied each year
by the City become delinquent.
( fl The term "Fiscal Year" sha11 mean the twelve month financial accounting period
used by the City which may be any twelve consecutive month period established by the City.
(g) The term "Government Securities", as used herein, sha11 mean (i) direct
noncallable 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,
(ii) noncallable obligations of an agency or instrumentality of the United States, including
obligations unconditionally guaranteed or insured by the agency or instrumentality and, on the
date of their acquisition or purchase by the City, are rated as to inveshnent quality by a nationally
recognized investment rating firm not less than A.AA or its equivalent and (iii) noncallable
obligations of a state or an agency or a county, municipality, or other political subdivision of a
state that have been refunded and that, on the date of their acquisition or purchase by the City,
are rated as to investment quality by a nationally recognized investment rating firm not less than
AAA or its equivalent.
(h) The term "Outstanding" when used in this Ordinance with respect to Bonds
means, as of the date of determination, all Bonds theretofore issued and delivered under this
Ordinance, except:
(1) those Bonds cancelled by the Paying Agent/Registrar or delivered
to the Paying Agent/Registrar for cancellation;
(2) those Bonds deemed to be duly paid by the City in accordance with
the provisions of Section 19 hereof; and
(3) those mutilated, destroyed, lost, or stolen Bonds which have been
replaced with Bonds registered and delivered in lieu thereof as provided in
Section 18 hereof.
(i) The term "Participating Taxing Units" sha11 mean the City and the following
taxing units levying properiy taxes on real property in the Zone that have determined to deposit
tax increment to the credit of the Tax Increment Fund pursuant to V.T.C.A., Tax Code,
Section 311.013, to wit: Tarrant County, Texas, Tarrant County Hospital District and Tarrant
County Junior College District.
(j) The term "Pledged Tax Increment Revenues" shall mean all amounts deposited
by a11 Participaring Taxing Units to the credit of the Tax Increment Fund as provided by
V.T.C.A., Tax Code, Section 311.013.
90343309.1/11013521 15
(k) The term "Previously Issued Certificates" sha11 mean the outstanding and unpaid
certificates of obligation, excluding the Refunded Obligations, payable from ad valorem taxes
and additionally payable from and secured by a lien on and pledge of the Pledged Tax Increment
Revenues, more particularly described as follows: "City of Colleyville, Texas, Tax and Tax
Increment Revenue Certificates of Obligation, Series 2002 (Reinvestment Zone Number One)",
dated February 15, 2002, which certificates are being refunded in part by the Bonds.
(1) The term "Tax Increment Fund" shall mean the Tax Increment Fund created and
established pursuant to the Creation Ordinance.
(m) The term "Zone" shall mean "Reinvestment Zone Number One, City of
Colleyville, Texas", heretofore created pursuant to V.T.C.A., Taac Code, Chapter 311 and the
Creation Ordinance.
SECTION 11: Bond Fund. For the purpose of paying the interest on and to provide a
sinking fund for the payrnent, redemption and retirement of the Bonds, there sha11 be and is
hereby created a special account or fixnd on the books and records of the City known as the
"SPECIAL SERIES 2011 TAX AND TAX INCREMENT REVENUE BOND FUND", and all
moneys deposited to the credit of the Bond Fund shall be shall be kept and maintained in a
special banking account at the City's depository bank. The Mayor, Mayor Pro Tem; City
Manager, Assistant City Manager/Chief Financial Officer and City Secretary of the City,
individually or jointly, are hereby authorized and directed to cause to be transferred to the Paying
Agent/Registrar for the Bonds, from funds on deposit in the Bond Fund, amounts sufficient to
fully pay and discharge promptly each installment of interest and principal of the Bonds as the
same accrues or matures or comes due by reason of redemption prior to maturity; such transfers
of fiinds to be made in such manner as will cause collected funds to be deposited with the Paying
AgentlRegistrar on or before each principal and interest payrnent date for the Bonds.
Pending the transfer of funds to the Paying Agent/Registrar, money in the Bond Fund
may, at the option of the City, be invested in obligations identified in, and in accordance with the
provisions of, the "Public Funds Investment Act" (V.T.C.A., Government Code, Chapter 2256)
relating to the investment of "bond proceeds"; provided that all such investments shall be made
in such a manner that the money required to be expended from the Bond Fund will be available
at the proper time or times. All interest and income derived from deposits and investments in the
Bond Fund shall be credited to, and any losses debited to, the Bond Fund. All such investments
shall be sold promptly when necessary to prevent any default in connection with the Bonds.
SECTION 12: Levy of Taxes. To provide for the payment of the "Debt Service
Requirements" on the Bonds being (i) the interest on said Bonds and (ii) a sinking fund for their
payment at maturity or redemption or a sinking fund of 2% (whichever amount shall be the
greater), there shall be and there is hereby levied a sufficient tax on each one hundred dollars'
valuation of taxable property in said City to pay such Debt Service Requirements while the
Bonds remain Outstanding, full allowance being made for delinquencies and costs of collection;
and said tax shall be assessed and collected each year and applied to the payrnent of the Debt
Service Requirements, and the same shall not be diverted to any other purpose. The taxes so
levied and collected shall be paid into the Bond Fund. The City Council hereby declares its
purpose and intent to provide and levy a tax legally and fully sufficient to pay the said Debt
90343309.1/11013521 16
Service Requirements, it having been determined that the existing and available taxing authority
of the City for such purpose is adequate to permit a legally sufficient tax in consideration of all
other outstanding indebtedness.
Notwithstanding the requirements of this Section 12 for the levy of a sufficient ad
valorem tax for the Debt Service Requirements of the Bonds, the amount of ad valorem taxes
required to be levied for the payment of Debt Service of the Bonds may be reduced by the sum
of (i) the amount of Pledged Tax Increment Revenues then on deposit to the credit of the Tax
Increment Fund at the time the City's annual tax rate is levied by the City Council and (ii) the
amount of Pledged Tax Increment Revenues budgeted and appropriated for the payment of the
Bonds from the tax levy then being made by the Participating Ta.xing Units. It is the intent of
this Section 12 that the Bonds will be paid first from the Pledged Tax Increment Revenues and
from ad valorem taxes only to the extent such Pledged Tax Increment Revenues are insufficient
for the payment of the Debt Service Requirements.
The City has sufficient current funds available to pay the interest payment to become due
on the Bonds on August 15, 2011, and there will be deposited in the Bond Fund (created for the
payment of the Bonds) such amount of current funds which, together with accrued interest
received from the purchaser of the Bonds, will be sufficient to pay the amounts to become due on
the Bonds on August 15, 2011.
SECTION 13: Pledge of Tax Increment Revenues. The City hereby covenants and
agrees that the Pledged Tax Inerement Revenues, with the exception of those in excess of the
amounts required to be deposited to the Bond Fund as hereafter provided, are hereby pledged,
equally and ratably, to the payment of the principal of and interest on the Previously Issued
Certificates, the Bonds and Additional Obligations, if issued, and the pledge of Pledged Tax
Increment Revenues for the payment of the Bonds shall constitute a lien on such Pledged Tax
Increment Revenues in accordance with the terms and provisions hereof and be valid and binding
without further action by the City and without any filing or recording except for the filing of this
Ordinance in the records of the City.
In accordance with the provisions of the Creation Ordinance, the City represents and
warrants to the holders of the Bonds that it has established a Tax Increment Fund for the Zone,
which Fund is maintained at a depository bank of the City, and while the Bonds axe Outstanding,
the City agrees to deposit to the credit of the Tax Increment Fund all Pledged Tax Increment
Revenues from the Participating Taxing Units when and as such Pledged Tax Increment
Revenues are received in accordance with V.T.C.A., Tax Code, Section 311.013.
SECTION 14: Deposits to Bond Fund. The City hereby covenants and agrees to cause to
be deposited to the credit of the Bond Fund prior to each principal and interest payment date for
the Bonds from the Pledged Tax Increment Revenues an amount equal to one hundred per
centum (100%) of the amount required to fully pay the interest and principal payrnents then due
and payable on the Bonds, such deposits to pay accrued interest and maturing principal on the
Bonds to be made in substantially equal semiannual installments on or before the tenth day of
each February and August of each year, beginning with the February or August first to follow the
delivery of the Bonds to the initial purchaser(s).
90343309.1/11013521 17
The semiannual deposits to the Bond Fund, as hereinabove provided, shall be made until
such time as the Bond Fund contains an amount equal to the amount to pay in full the principal
of and interest on all the Bonds until their maturity or their scheduled redemption date. In
addition, the accrued interest received from the sale of the Bonds and any proceeds of sale of the
Bonds in excess of the amount required to pay the contractual obligations to be incurred
(including change orders to a construction contract) shall be deposited in the Bond Fund, which
amounts shall reduce the sums otherwise required to be deposited in the Bond Fund from the
Pledged Tax Increment Revenues.
SECTION 15: Security of Funds. All moneys on deposit in the Funds for which this
Ordinance makes provision (except any portion thereof as may be at any time properly invested)
shall be secured in the manner and to the fullest extent required by the laws of Texas for the
security of public funds, and moneys on deposit in such Funds shall be used only for the
purposes permitted by this Ordinance.
SECTION 16: Special Covenants. The City hereby further covenants as follows:
(a) The Zone has been established and created pursuant to Ordinance Number 0-98-
1124, as amended, and the provisions of the Act, and while the Bonds are Outstanding, tax
increment revenues collected by the City and by the Participating Tax Units shall be deposited to
the credit of the Tax Increment Fund as required by the provisions of the Act and this Ordinance.
(b) It has the lawfitl power to pledge the Pledged Tax Increment Revenues to the
payment of the Bonds in the manner herein contemplated and has lawfully exercised such power
under the Constitution and laws of the State of Texas, including said power existing under
V.T.C.A., Tax Code, Chapter 311 and V.T.C.A., Local Government Code, Sections 271.041, et
seq.
(c) Other than for the payment of the Previously Issued Certificates and the. Bonds,
the Pledged Tax Increment Revenues have not in any manner been pledged or encumbered to the
payrnent of any debt or obligation of the City or of the Zone.
SECTION 17: Issuance of Additional Obli ations. The City hereby expressly reserves
the right to hereafter issue Additional Obligations payable, in whole or in part, from the Pledged
Tax Increment Revenues and, to the extent provided, secured by a lien on and pledge of the
Pledged Tax Increment Revenues of equal rank and dignity with the lien and pledge securing the
payxnent of the Previously Issued Certificates and the Bonds.
SECTION 18: Mutilated - Destroyed - Lost and Stolen Bonds. In case any Bond shall be
mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a
replacement Bond of like form and tenor, and in the same denomination and bearing a number
not contemporaneously outstanding, in exchange and substitution for such mutilated Bond, or in
lieu of and in substitution for such destroyed, lost or stolen Bond, only upon the approval of the
City and after (i) the filing by the Holder thereof with the Paying Agent/Registrar of evidence
satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such Bond, and of
the authenticity of the ownership thereof and (ii) the furnishing to the Paying Agent/Registrar of
indemnification in an amount satisfactory to hold the City and the Paying Agent/Registrar
90343309.1/11013521 i 8
harmless. All expenses and charges associated with such indemnity and with the preparation,
execution and delivery of a replacement Bond shall be borne by the Holder of the Bond
mutilated, or destroyed, lost or stolen.
Every replacement Bond issued pursuant to this Section shall be a valid and binding
obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with a11
other Outstanding Bonds; notwithstanding the enforceability of payment by anyone of the
destroyed, lost, or stolen Bonds.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 19: Satisfaction of Obligation of City. If the City sha11 pay or cause to be
paid, or there shall otherwise be paid to the Holders, the principaT of, premium, if any, and
interest on the Bonds, at the times and in the manner stipulated in this Ordinance, then the pledge
of taxes levied under this Ordinance and all covenants, agreements, and other obligations of the
City to the Holders shall thereupon cease, terminate, and be discharged and satisfied.
Bonds or any principal amount(s) thereof shall be deemed to have been paid within the
meaning and with the effect expressed above in this Section when (i) money sufficient to pay in
full such Bonds or the principal amount(s) thereof at maturity or to the redemption date therefor,
together with all interest due thereon, shall have been irrevocably deposited with and held in trust
by the Paying Agent/Registrar, ar an authorized escrow agent, or (ii) Government Securities
shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized
escrow agent, which Government Securities have been certified by an independent accounting
firm to mature as to principal and interest in such amounts and at such times as will insure the
availability, without reinvestment, of sufficient money, together with any moneys deposited
therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal
amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has
been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying
Agent/Registrar have been made) the redemption date thereof. The City covenants that no
deposit of moneys or Government Securities will be made under this Section and no use made of
any such deposit which would cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or regulations
adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent/Registrar, or
an authorized escrow agent, pursuant to this Section which is not required for the payment of the
Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such moneys
have been so deposited shall be remitted to the City or deposited as directed by the City.
Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of
and interest on the Bonds and remaining unclaimed for a period of three (3) years after the Stated
Maturity or applicable redemption date of the Bonds (for which such moneys were deposited and
are held in trust to pay) shall upon the request of the City be remitted to the City against a written
receipt therefor. Notwithstanding the above and foregoing, any remittance of funds from the
90343309.1/11013521 19
Paying Agent/Registrar to the City sha11 be subject to any applicable unclaimed property laws of
the State of Texas.
SECTION 20: Ordinance a Contract - Amendments - Outstandin~ Bonds. This
Ordinance shall constitute a contract with the Holders from time to time, be binding on the City,
and sha11 not be amended or repealed by the City so long as any Bond remains Outstanding
except as permitted in this Section and in Section 36 hereof. The City may, without the consent
of or notice to any Holders, from time to time and at any time, amend this Ordinance in any
manner not detrimental to the interests of the Holders, including the curing of any ambiguity,
inconsistency, or formal defect or omission herein. In addition, the City may, with the consent of
Holders holding a majority in aggregate principal amount of the Bonds then Outstanding, amend,
add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of
all Holders of Outstanding Bonds, no such amendment, addition, or rescission shall (1) extend
the time or times of payment of the principal of, premiuxn, if any, and interest on the Bonds,
reduce the principal amount thereof, the redemption price therefor, or the rate of interest thereon,
or in any other way modify the terms of payment of the principal of, premium, if any, or interest
on the Bonds, (2) give any preference to any Bond over any other Bond, or (3) reduce the
aggregate principal amount of Bonds required to be held by Holders for consent to any such
amendment, addition or rescission.
SECTION 21: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section 21, the following terms 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 defined in Section 1.148-1(b) of
the Regulations, and any replacement proceeds as defined in Section 1.148-1(c) 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.
90343309.1/11013521 2~
"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.
(b) Not to Cause Interest to Become Taxable. The City sha11 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 the interest on any
Bond 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 Payrnents. 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 unprovement of which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds (including property financed with
Gross Proceeds of the Refunded Obligations), and not use or permit the use of
such Crross Proceeds (including a11 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
thereo fl 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
(including property financed ~vith Gross Proceeds of the Refunded Obligations),
other than taa~es of general application within the City or interest earned on
investments acquired with such Gross Proceeds pending application for their
intended purposes.
90343309:1/11013521 21
(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 enrity in a transaction which creates a debt for federa.l 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 investrnent 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.
(fl Not Federall_y 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 Arbitra~e Profits. Except to the extent otherwise provided in Section
148(~ of the Code and the Regulations and rulings thereunder:
(1) The City shall account for a11 Gross Proceeds (including all
receipts, expenditures and investments thereo fl on its books of account separately
and apart from all other funds (and receipts, expenditures and investments
thereo~ 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, 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( fl
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.
90343309.1/11013521 22
(3) As additional consideration for the purchase of the Bonds by the
Underwriters 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 its general fund, other
appropriate fund, or, if permitted by applicable Texas statute, regulation or
opinion of the Attorney General of the State of Texas, the Bond Fund, the amount
that when added to the future value of previous rebate payments made for the
Bonds equals (i) in the case of a Fina1 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
payrnents 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( fl 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(~ 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.
(i) Not to Divert Arbitra~e Profits. 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
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 Mayor, Mayor Pro Tem,
City Manager, Assistant City Manager/Chief Financial Officer and City Secretary, individually
or jointly, 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.
(k) Bonds Not Hedge Bonds. (1) At the time the original obligations being refunded
by the Bonds were issued, the City reasonably expected to spend at least 85% of the spendable
proceeds of such obligations within three years after such obligations were issued and (2) not
more than 50% of the proceeds of the original obligations being refunded by the Bonds were
invested in Nonpurpose Investments having a substantially guaranteed Yield for a period of 4
years or more.
90343309.1/11013521 23
(1) Not An Advance Refundin~. The Bonds are a current refunding of the Series
2001 Refunded Certificates in that the Series 2001 Refunded Certificates are to be paid and
redeemed in full within 90 days of the delivery date of the Bonds.
(m) Qualified Advance Refundin~. The Bonds are issued in part to refund the Series
2002 Refunded Certificates, and the Bonds will be issued more than 90 days before the
redemption of the Series 2002 Refunded Certificates. The City represents as follows:
(1) The Bonds are the first advance refunding of the Series 2002
Refunded Certificates within the meaning of Section 149(d)(3) of the Code.
(2) The Series 2002 Refunded Certificates are being called for
redemption, and will be redeemed not later than the earliest date on which such
bonds may be redeemed and on which the City will realize present value debt
service savings (determined without regard to administrative expenses) on the
issue.
(3) The initial temporary period under Section 148(c) of the Code will
end: (i) with respect to the proceeds of the Bonds not later than 30 days after the
date of issue of such Bonds; and (ii) with respect to proceeds of the Series 2002
Refunded Certificates on the Closing Date if not ended prior thereto.
(4) On and after the date of issue of the Bonds, no proceeds of the
Series 2002 Refunded Certificates will be invested in Nonpurpose Investments
having a Yield in excess of the Yield on the Series 2002 Refunded Certificates.
(5) The Bonds are being issued ~or the purposes stated in the preamble
of this Ordinance. There is a present value savings associated with the refunding.
In the issuance of the Bonds the City has neither: (i) overburdened the tax-exempt
bond market by issuing more bonds, issuing bonds earlier or allowing bonds to
remain outstanding longer than reasonably necessary to accomplish the
governmental purposes for which the Bonds were issued; (ii) employed on
"abusive arbitrage device" within the meaning of Section 1.148-10(a) of the
Regulations; nor (iii) employed a"device" to obtain a material financial
advantage based on arbitrage, within the meaning of Section 149(d)(4) of the
Code, apart from savings attributable to lower interest rates and reduced debt
service payments in early years.
(n) Qualified Tax-Exempt Obligations. 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 represents the amount of "tax-exempt obligations" (excluding private
activity bonds) to be issued by the City (including all subordinate entities of the City) for the
calendar year 2011 will not exceed $10,000,000.
SECTION 22: Sale of Bonds - Official Statement A~ roval. The Bonds authorized by
this Ordinance are hereby sold by the City to RBC Capital Markets, LLC and Coastal Securities,
Inc. (jointly herein referred to as the "Underwriters") in accordance with the Purchase
90343309.1/11013521 24
Agreement, dated February 15, 201 l, attached hereto as Exhibit B and incorporated herein by
reference as a part of this Ordinance for all purposes. The Mayor or Mayor Pro Tem is hereby
authorized and directed to execute said Purchase Agreement for and on behalf of the City and as
the act and deed of this City Council, and in regard to the approval and execution of the Purchase
Agreement, the City Council hereby finds, determines and declares that the representations,
warranties and agreements of the City contained in the Purchase Agreement are true and correct
in all material respects and sha11 be honored and performed by the City.
Furthermore, the use of the Preliminary Official Statement by the Underwriters in
connection with the public offering and sale of the Bonds is hereby ratified, confirmed and
approved in all respects. The final Official Statement, which reflects the terms of sale (together
with such changes approved by the Mayor, Mayor Pro Tem, City Manager, Assistant City
Manager/Chief Financial Officer or City Secretary, any one or more of said officials), shall be
and is hereby in a11 respects approved and the Underwriters are hereby authorized to use and
distribute said final Official Statement, dated February 15, 2011, in the reoffering, sale and
delivery of the Bonds to the public. The Mayor and City Secretary are further authorized to
execute and deliver for and on behalf of tlie City copies of said Official Statement in final form
as may be required by the Underwriters, and such final Official Statement in the form and
content executed by said officials shall be deemed to be approved by the City Council and
constitute the Official Statement authorized for distribution and use by the Underwriters.
SECTION 23: Special Escrow Agreement A~proval and Execution. The "Special
Escrow Agreement" (the "Agreement") by and between the City and The Bank of New York
Mellon Trust Company, N.A., Dallas, Texas (the "Escrow Agent"), attached hereto as Exhibit C
and incorporated herein by reference as a part of this Ordinance for all purposes, is hereby
approved as to form and content, and such Agreement in substantially the form and substance
attached hereto, together with such changes or revisions as may be necessary to accomplish the
refunding or benefit the City, is hereby authorized to be executed by the Mayor or Mayor Pro
Tem and City Secretary for and on behalf of the City and as the act and deed of this City
Council; and such Agreement as executed by said officials shall be deemed approved by the City
Council and constitute the Agreement herein approved.
Furthermore, appropriate officials of the City in cooperation with the Escrow Agent are
hereby authorized and directed to make the necessary arrangements for the purchase of the
escrowed securities referenced in the Agreement and the delivery thereof to the Escrow Agent on
the day of delivery of the Bonds to the Underwriters for deposit to the credit of the "SPECIAL
2011 CITY OF COLLEYVILLE, TEXAS, TAX INCREMENT REVENUE REFUNDING
BOND ESCROW FUND" (the "Escrow Fund"); all as contemplated and provided in V.T.C.A.,
Government Code, Chapter 1207, as amended, this Ordinance and the Agreement.
SECTION 24: Control and Custody of Bonds. The Mayor of the City 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 Bond(s) pending the
approval thereof by the Attorney General, the registration thereof by the Comptroller of Public
Accounts and the delivery thereof to the Underwriters.
90343309.1/11013521 25
SECTION 25: Proceeds of Sa1e. Immediately following the delivery of the Bonds,
proceeds of sale in the sum of (i) $5,301,792.35 sha11 be deposited to the credit of the Escrow
Fund and (ii) $17,258.65 shall be deposited to the credit of the Bond Fund. The balance of the
proceeds of sale of the Bonds shall be expended to pay costs of issuance and any excess amount
budgeted for such purpose shall be deposited to the credit of the Bond Fund.
Additionally, on or immediately prior to the date of the delivery of the Bonds to the
Underwriters, the Assistant City Manager/Chief Financial Officer sha11 cause to be transferred in
immediately available funds to the Escrow Fund from moneys on deposit in the interest and
sinking funds maintained for the payrnent of the Refunded Obligations the sum of $80,000 to
accomplish the refunding.
SECTION 26: Redemption of Refunded Obli atg ions.
(a) The certificates of obligation of that series known as "City of Colleyville, Texas,
Tax and Tax Increment Revenue Certificates of Obligation, Series 2001 (Reinvestment Zone
Nuxnber One)", dated February 1, 2001, being the certificates of obligation scheduled to mature
on February 15 in each of the years 2012 through 2020, and aggregating in the principal amount
of $4,945,000, shall be redeemed and the same are hereby called for redemption on March 21,
2011, at the price of par plus accrued interest to the date of redemption. The City Secretary is
hereby authorized and directed to file a copy of this Ordinance, together with a suggested form
of notice of redemption to be sent to certificateholders, with The Bank of New York Mellon
Trust Company, N.A., Dallas, Texas (successor paying agent/registrar to U.S. Trust Company of
Texas, N.A.), in accordance with the redemption provisions applicable to such certificates of
obligation; such suggested form of notice of redemption being attached hereto as Exhibit D and
incorporated herein by reference as a part of this Ordinance for all purposes.
(b) The certificates of obligation of that series known as "City of Colleyville, Texas,
Tax and Tax Increment Revenue Certificates of Obligation, Series 2002 (Reinvestment Zone
Number One)", dated February 15, 2002, being the certificates of obligation scheduled to mature
on February 15 in each of the years 2015, 2017 and 2020, and aggregating in the principal
amount of $395,000, shall be redeemed and the same are hereby called for redemption on
February 15, 2012 at the price of par plus accrued interest to the date of redemption. The City
Secretary is hereby authorized and directed to file a copy of this Ordinance, together with a
suggested form of notice of redemption to be sent to certificateholders, with The Bank of New
York Mellon Trust Company, N.A., Dallas, Texas (successor paying agent/registrar to U.S. Trust
Company of Texas, N.A.), in accordance with the redemption provisions applicable to such
certificates of obligation; such suggested form of notice of redemption being attached hereto as
Exhibit E and incorporated herein by reference as a part of this Ordinance for all purposes.
(c) The redemption of the Refunded Obligations described above being associated
with the refunding of such Refunded Obligations, the approval, authorization and arrangements
herein given and provided for the redemption of such Refunded Obligations on the redemption
dates designated therefor and in the manner provided shall be irrevocable upon the issuance and
delivery of the Bonds; and the City Secretary is hereby authorized and directed to make all
arrangements necessary to notify the holders of such Refunded Obligations of the City's decision
to redeem such Refunded Obligations on the dates and in the manner herein provided and in
90343309.1/11013521 26
accordance with the ordinances authorizing the issuance of such Refunded Obligations and this
Ordinance.
SECTION 27: Notices to Holders - Waiver. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Bonds. Where this Ordinance provides for
notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders sha11 be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 28: Cancellation. All Bonds surrendered for payment, redemption, transfer,
exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly
cancelled by it and, if surrendered to the City, sha11 be delivered to the Paying Agent/Registrar
and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar. The
City may at any time deliver to the Paying Agent/Registrar for cancellation any Bonds
previously certified or registered and delivered which the City may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly cancelled by the Paying
Agent/Registrar. All cancelled Bonds held by the Paying Agent/Registrar shall be returned to
the City.
SECTION 29: Le ag 1 Opinion. The obligation of the Underwriters to accept delivery of
the Bonds is subject to being furnished a final legal opinion of Fulbright & Jaworski L.L.P.
approving such Bonds as to their validity, said opinion to be dated and delivered as of the date of
delivery and payrnent for such Bonds. A true and correct reproduction of said opinion is hereby
authorized to be printed on the definitive Bonds or an executed counterpart thereof shall
accompany the global Bonds deposited with DTC.
SECTION 30: CUSIl' Numbers. CUSIP numbers may be printed or typed on the
definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Bonds shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Bonds as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds.
SECTION 31: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is
intended or shall be construed to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being
intended to be and being for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
90343309.1/11013521 27
SECTION 32: Inconsistent Provisions. All ordinances, orders or resolutions, or parts
thereof, which are in conflicY or inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this Ordinance sha11 be and remain
controlling as to the matters contained herein.
SECTION 33: Governing Law. This Ordinance shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
SECTION 34: Effect of Headin~s. The Section headings herein are for convenience of
reference only and sha11 not affect the construction hereof.
SECTION 35: Construction of Terms. If appropriate in the context of this Ordinance,
words of the singular number shall be considered to include the plural, words of the plural
number shall be considered to include the singular, and words of the masculine, feminine or
neuter gender sha11 be considered to include the other genders.
SECTION 36: Continuing Disclosure Undertaking.
(a) Definitions. As used in this Section, the following terms have the meanings
ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
(b) Annual Reports. The City shall provide annually to the MSRB (1) within six
months after the end of each fiscal year, beginning in or after 2011, financial information and
operating data with respect to the City of the general type included in the final Official
Statement, being the information described in Exhibit F hereto, and (2) if not provided as part of
such fmancial information and operating data, audited financial statements of the City, when and
if available. Any financial statements so provided shall be prepared in accordance with the
accounting principles described in Exhibit F hereto, or such other accounting principles as the
City may be required to employ from time to time pursuant to state law or regulation, and
audited, if the City commissions an audit of such statements and the audit is completed within
the period during which they must be provided.
If the City changes its fiscal yeax, it will notify the MSRB of the change (and of the date
of the new fiscal year end) prior to the next date by which the City otherwise would be required
to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document available to the public on the MSRB's Internet Web site or filed with the SEC.
90343309.1/11013521 2g
(c) Notice of Certain Events. The City shall provide notice of any of the following
events with respect to the Bonds to the MSRB in a timely manner and not more than 10 business
days after occurrence of the event:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults, if material;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
4. Unscheduled draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions, the issuance by the Internal Revenue Service of proposed
or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-
TEB), or other material notices or deternunations with respect to the tax status of
the Bonds, or other material events affecting the tax status of the Bonds;
7. Modifications to rights of holders of the Bonds, if material;
8. Bond calls, if material, and tender offers;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Bonds, if
material; _
11. Rating changes;
12. Bankruptcy, insolvency, receivership, or similar event of the City, which shall
occur as described below;
13. The consumination of a merger, consolidation, or acquisition involving the City
or the sale of all or substantially a11 of its assets, other than in the ordinary course
of business, the entry into of a definitive agreement to undertake such an action or
the termination of a definitive agreement relating to any such actions, other than
pursuant to its terms, if material; and
14. Appointment of a successor or additional trustee or the change of name of a
trustee, if material.
For these purposes, any event described in the immediately preceding subsection (c)12 is
considered to occur when any of the following occur: the appointment of a receiver, fiscal agent,
or similar officer for the City in a proceeding under the United States Bankruptcy Code or in any
other proceeding under state or federal law in which a court or governmental authority has
assumed jurisdiction over substantially all of the assets or business of the City, or if such
jurisdiction has been assuxned by leaving the existing governing body and officials or officers in
possession but subject to the supervision and orders of a court or governmental authority, or the
entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or
governmental authority having supervision or jurisdiction over substantially all of the assets or
business of the City.
The City shall notify the MSRB, in a timely manner, of any failure by the City to provide
financial information or operating data in accordance with subsection (b) of this Section by the
time required by such Section.
(d) Filings with the MSRB. All financial information, operating data, financial
statements, notices and other documents provided to the MSRB in accordance with this Section
90343309.1/11013521 29
sha11 be provided in an electronic format prescribed by the MSRB and shall be accompanied by
identifying information as prescribed by the MSRB.
(e) Limitations, Disclaimers, and Amendments. The City shall be obligated to
observe and perform the covenants specified in this Section while, but only while, the City
remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except
that the City in any event will give the notice required by subsection (c) hereof of any Bond ca11s
and defeasance that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or
any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER
OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR
TORT, FOR DAMAGES RESULTING 1N WHOLE OR IN PART FROM ANY BREACH BY
THE CITY, WHETHER NEGLIGENT OR WITHOUT FAUI,T ON ITS PART, OF ANY
COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF
ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH
BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC
PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
Notwithstanding anything to the contrary in this Ordinance, the provisions of this Section
may be amended by the City from time to time to adapt to changed circumstances resulting from
a change in legal requirements, a change in law, or a change in the identity, nature, status, or type
of operations of the City, but only if (1) the provisions of this Section, as so amended, would
have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in
compliance with the Rule, taking into account any amendments or interpretations of the Rule to
the date of such amendment, as well as such changed circumstances, and (2) either (a) the
Holders of a majority in aggregate principal amount (or any greater amount required by any
other provision of this Ordinance that authorizes such an amendment) of the Outstanding Bonds
consent to such amendment or (b) a Person that is unaffiliated with the City (such as nationally
recognized bond counsel) determines that such amendment will not materially impair the
90343309.1/11013521 3 ~
interests of the Holders and beneficial owners of the Bonds. The provisions of this Section may
also be amended from time to time or repealed by the City if the SEC amends or repeals the
applicable provisions of the Rule or a court of final jurisdiction determines that such provisions
are invalid, but only if and to the extent that reservation of the City's right to do so would not
prevent underwriters of the initial public ofFering of the Bonds from lawfully purchasing or
selling Bonds in such offering. If the City so amends the provisions of this Section, it shall
include with any amended financial information or operating data next provided pursuant to
subsection (b) hereof an explanation, in narrative form, of the reasons for the amendment and of
the impact of any change in the type of financial information or operating data so provided.
SECTiON 37: Severabilitv. If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
SECTION 38: Further Procedures. Any one or more of the Mayor, Mayor Pro Tem, City
Manager, Assistant City Manager/Chief Financial Officer and City Secretary are hereby
expressly authorized, empowered and directed from time to time and at any time to do and
perform all such acts and things and to execute, acknowledge and deliver in the name and on
behalf of the City all agreements, instruments, certifieates or other documents, whether
mentioned here'in or not, as may be necessary or desirable in order to carry out the terms and
provisions of this Ordinance and the issuance, sale and delivery of the Bonds. In addition, prior
to the delivery of the Bonds, the Mayor, Mayor Pro Tem, City Manager, Assistant City
Manager/Chief Financial Officer or Bond Counsel to the City are each hereby authorized and
directed to approve any changes or corrections to this Ordinance or to any of the documents
authorized and approved by this Ordinance: (i) in order to cure any ambiguity, formal defect, or
omission in the Ordinance or such other docuxnent, or (ii) as requested by the Attorney General
of the State of Texas or his representative to obtain the approval of the Bonds by the Attorney
General. In the event that any officer of the City whose signature shall appear on any document
shall cease to be such officer before the delivery of such document, such signature nevertheless
shall be valid and sufficient for a11 purposes the same as if such officer had remained in office
until such delivery.
SECTION 39: Incorporation of Findin~s and Determinations. The findings and
determinations of the City Council contained in the preamble hereof are hereby incorporated by
reference and made a part of this Ordinance for all purposes as if the same were restated in full in
this Section.
SECTION 40: Public Meeting. It is officially found, determined, and declared that the
meeting at which this Ordinance is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered at such meeting, including this
Ordinance, was given, all as required by V.T.C.A., Government Code, Chapter 551, as amended.
SECTION 41: Effective Date. In accordance with the provisions of V.T.C.A.,
Government Code, Section 1201.028, as amended, this Ordinance shall be in force and effect
from and after its passage on the date shown below and it is so ordained.
90343309.1/11013521 31
FIRST READING, February 9, 2011.
SECOND AND FINAL READING, PASSED AND ADOPTED, February 15, 2011.
CITY OF COLLEYVILLE, TEXAS
~
David Kelly, Mayor
ATTEST:
(City Seal)
APPROVED AS TO FORM:
~/ J • ~
Matthew C.G. Boyle, City Attorney
90343309.1/11013521
S-1
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
90343309.1/11013521 A-1
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT is entered into as of February 15, 2011 (this "Agreement"), by and
between The Bank of New York Mellon Trust Company, N.A., Dallas, Texas, a banking
association duly organized and existing under the laws of the United States of America (the
"Bank") and the City of Colleyville, Texas (the "Issuer").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance of its "City of
Colleyville, Texas, Combination Tax and Tax Increment Revenue Refunding Bonds,
Series 2011", dated February 15, 2011 (the "Securities"), such Securities scheduled to be
delivered to the initial purchasers thereof on or about March 17, 2011; and
WHEREAS, the Issuer has selected the Bank to serve as Paying Agent/Registrar in
connection with the payment of the principal of, premium, if any, and interest on said Securities
and with respect to the registration, transfer and exchange thereof by the registered owners
thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the
Issuer and has full power and authority to perform and serve as 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 "Authorizing Document" (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 Authorizing Document.
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
90369627.1/11013521
the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01 Defmitions. 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 a11 installments of interest, or both, are due and payable on
any Security which has become accelerated pursuant to the terms of the Security.
"Authorizing DocumenY' means the resolution, order, or ordinance of the
governing body of the Issuer pursuant to which the Securities are issued, as the
same may be amended or modified, including any pricing certificate related
thereto, certified by the secretary or any other officer of the Issuer and delivered
to the B ank.
"Bank Office" means the designated office of the Bank at the address
shown in Section 3.01 hereof. The Bank will notify the Issuer in writing of any
change in location of the Bank Office.
"Financial Advisor" means First Southwest Company.
"Holder" and "Security Holder" each means the Person in whose name a
Security is registered in the Security Register.
"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 a11 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
Authorizing Document).
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to the terms of the
Authorizing Document.
"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
90369627.1/11013521 2
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 Authorizing Document
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 Paving A~ent. As Paying Agent, the Bank sha11 pay, provided
adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer,
on behalf of the Issuer the principal of each Security at its Stated Maturity, Redemption Date or
Acceleration Date, to the Holder upon surrender of the Security to the Bank at the following
address:
First Class/
Registered/Certified Express Deliverv Onlv Bv Hand Onlv
The Bank of New York The Bank of New York Mellon The Bank of New York Mellon
Mellon Trust Company, N.A. Trust Company, N.A. Trust Company, N.A.
Global Corporate Trust Global Corporate Trust Global Corporate Trust
P. O. Box 2320 2001 Bryan Street, 9~' Floor Corporate Trust Window
Dallas, Texas 75221-2320 Dallas, Texas 75201 101 Barclay Street, 1St Floor East
New York, New York 10286
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 (as defined in the Authorizing Document). All payrnents 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 paying agent 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.
90369627.1/11013521 3
Section 3.02 Pavment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Securities on the dates specified in the Authorizing Document.
ARTICLE FOUR
REGISTRAR
Section 4.01 Securitv Register - Transfers and Exchan~es. 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 the Bank may prescribe. All transfers, exchanges and replacements
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, such written instrument to be in a form satisfactory to the Bank and 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 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 Securities. The Issuer shall provide additional Securities when needed to
facilitate transfers or exchanges thereof. The Bank covenants that such additional Securities, if
and when provided, 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 Securitv Re~ister. 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.
90369627.1/11013521 4
Section 4.04 List of Securitv 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.
Section 4.05 Return of Cancelled Securities. The Bank will, at such reasonable
intervals as it determines, surrender to the Issuer, all Securities in lieu of which or in exchange
for which other Securities have been issued, or which have been paid.
' 5ection 4.06 Mutilated, Destroyed, Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions of the Authorizing Docuxnent, 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, destroyed, lost or stolen, the Bank may execute
and deliver a replacement Security of like form and terior, 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 mutilated, destroyed, lost or stolen
Security, only upon the approval of the Issuer anci 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,
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.
90369627.1/11013521 5
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 the Issuer.
(e) The Bank may consult with counsel, and the written advice of such counsel or 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.
( fl 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.
(g) The Bank is also authorized to transfer funds relating to the closing and initial
delivery of the Securities in the manner disclosed in the closing memoranduxn or letter as
prepared by the Issuer, the Financial Advisor or other agent. The Bank may act on a facsimile or
e-mail transmission of the closing memorandum or letter acknowledged by the Issuer, the
Issuer's financial advisor or other agent as the final closing memorandum or letter. The Bank
shall not be liable for any losses, costs or expenses arising directly or indirectly from the Bank's
reliance upon and compliance with such instructions.
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.
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.
90369627.1/11013521 6
Section 5.04 Mav 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 Monevs Held bv Bank - Paving Agent Account/Collateralization. A
paying agent account shall at a11 times be kept and maintained by the Bank for the receipt,
safekeeping, and disbursement of moneys received from the Issuer under this Agreement 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 paying agent accounts to the extent
such money is not insured by the Federal Deposit Insurance Corporation. Payments made from
such paying agent account shall be made by check drawn on such account unless the owner of
the Securities shall, at its own expense and risk, request an alternative method of payment.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal of, premium (if any), or interest on any
Security and remaining unclaimed for three years after final maturity of the Security has become
due and payable will be held by the Bank and disposed of only in accordance with Title 6 of the
Texas Property Code, as amended. The Bank shall have no liability by virtue of actions taken in
compliance with this provision.
Th~ Bank is not obligated to pay interest on any money received by it under this
Agreement.
This Agreement relates solely to money deposited for the purposes described herein, and
the parties agree that the Bank may serve as depository for other funds of the Issuer, act as
trustee under indentures authorizing other bond transactions of the Issuer, or act in any other
capacity not in conflict with its duties hereunder.
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 Interuleader. 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 the
administrative office 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 in the State
of Texas to determine the rights of any Person claiming any interest herein.
90369627.1/11013521 7
In the event the Bank becomes involved in litigation in connection with this Section, the
Issuer, to the extent permitted by law, agrees to indemnify and save the Bank harmless from all
loss, cost, damages, expenses, and attorney fees suffered or incurred by the Bank as a result. The
obligations of the Bank under this Agreement shall be performable at the principal corporate
ofFice of the Bank in the City of Dallas, Texas.
5ection 5.08 DTC 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", which
establishes requirements for securities to be eligible for such type depository trust services,
including, but not limited to, requirements for the timeliness of payrnents and funds availability,
transfer turnaround time, and notification of redemptions and ca11s.
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 Assignment. This Agreement may not be assigned by either party without
the prior written consent ofthe 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 the signature page hereof.
Section 6.04 Effect of Headin~s. The Article and Section headings herein are for
convenience of reference only and shall not affect the construction hereof.
Section 6.05 Successors and Assi~ns. All covenants and agreements herein by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 6.06 Severabilitv. In case any provision herein sha11 be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 6.07 Mer~er, Conversion, Consolidation, or Succession. Any corporation or
association into which the Bank may be merged or converted or with which it may be
consolidated, or any corporation or association resulting from any merger, conversion, or
consolidation to which the Bank sha11 be a party, or any corporation or association succeeding to
all or substantially all of the corporate trust business of the Bank shall be the successor of the
Bank as Paying Agent under this Agreement without the execution or filing of any paper or any
further act on the part of either parties hereto.
90369627.1/11013521 g
Section 6.08 Benefits of Asreement. Nothing herein, express or implied, sha11 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 6.09 Entire A~reement. This Agreement and the Authorizing Document
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 Authorizing
Document, the Authorizing Document shall govern.
Section 6.10 Counterparts. 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 6.11 Termination. This Agreement will tertninate (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 has been given to the Holders of the Securities of the appoinhnent of a successor Paying
Agent/Registrar. However, if the Issuer fails to appoint a successor Paying Agent/Registrar
within a reasonable time, the Bank may petition a court of competent jurisdiction within the State
of Texas to appoint a successor. Furthermore, the Bank and the 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 terniination of this Agreement, the Bank agrees to promptly transfer and
deliver the Security Register (or a copy thereo~, together with the 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 sha11 survive and remain in full force
and effect following the termination of this Agreement.
Section 6.12 Governin~ Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
[Remainder ofpage left blank intentionallyJ
90369627.1/11013521 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas
By:
Title:
Address: 2001 Bryan Street, 11~ Floor
Da11as, Texas 75201
Attest:
Title:
By:
Attest:
City Secretary
CITY OF COLLEYVILLE, TEXAS
Mayor
Address: 100 Main Street
Colleyville, Texas 76034
90369627.1/11013521 S-1
ANNEX A
90369627.1/11013521 A-1
EXHIBIT B
PURCHASE AGREEMENT
90343309.1/11013521 $-1
CITY OF COLLEYVILLE, TEXAS
(Tarrant County, Texas)
$2,945,000 General Obligarion Refunding Bonds, Series 2011
and
$5,255,000 Combination Tax and Tax Increment Revenue Refunding Bonds, Series 2011
PURCHASE AGREEMENT
Februaxy 15, 2011
Mapor and City Council
City of Collepville, Texas
100 Main Street
Colleyville, Texas 76034
Ladies and Gentlemen:
The undersigned, (the `~e~ire.rentative'~, acting on its own behalf, and on behalf of the other
underwriters listed on Schedule I hereto (collectivelp, the "Underwriters"), and not acting as a
fiduciary or agent fox you, offers to ente~ into the following agreement with the City of Colleyville,
Texas (the "Issuer" or the "City'~ which, upon the Issue~'s written acceptance of this offer, will be
binding upon the Issuer and upon the Underwriters. This offer is made subject to the Issuer's
written acceptance hereof on or before 10:00 p.m., Central Time, on February 15, 2011, and, if not
so accepted, will be subject to withdxawal by the Underwriters upon written notice delivered to the
Issuer at any time prior to the acceptance hexeof by the Issuer. Terms not otklerwise defined in this
Agreement (as defined below) shall have the same meanings set forth in the xespective Ordinances
(as defined herein) ox in the Official Statement (as defined herein).
1. Purchase a~d Sale of the Obligations. Subject to the terms and conditions and in reliance
upon the repxesentations, warxanties and agreements set fo~th hexein, the Underwriters hereby agree,
joindy and sevexally, to purchase from the Issuer, and the Issuer herebp agrees to sell and deliver to
the Underu~riters, all, but not less than all, of the Issuer's $2,945,000 General Obligation Refunding
Bonds, Series 2011 (the "GO Bonds'~ and all, but not less than all, of the Issuer's $5,255,000
Combination, Tax and Tax Increment Revenue Refunding Bonds, Series 2011 (the "TIBZ Bonds'~.
Inasmuch as this purchase and sale represents a negotiated transaction, the Issuer acknowledges and
agrees that: (i) the transaction described in this Purchase Agreement (the "Agreement") is an arm's
length, commercial transaction between the Issuer and the Underwriters in which the Underwriters
are acting solely as a principal and are not acting as a municipal advisor, financial advisor or fiduciary
to the Issuer; (i.i) the Underwriters have not assumed any advisory or fiduciary responsibilitp to the
Issuer with Yespect to the transaction described herein and the discussions, undertakings and
procedures leading thereto (irrespective of whether the Underu~riters have provided other services
or is currendy providing other services to the Issuer on other matters); (iu) the Underwriters are
acting solely in their capacity as underwriters for their own accounts, (iv) the only obligations the
Underwriters have to the Issuer with respect to the transaction described herein expressly are set
forth in this Agreement; and (v) the Issuer has consulted its own legal, accounting, tax, financial and
othex advisors, as applicable, to the extent it has deemed appxopriate. The Representative has been
dulp authorized to execute this Agreement and to act hereunder.
The principal amount of the GO Bonds and the TIRZ Bonds (collectivelp, the
"Obligations") to be issued, the maturities and interest rates per annum are set fo~th in Schedule II
hereto. The GO Bonds shall be as described in, and shall be issued and secuYed undex and pursuant
to the provisions of the ordinance authorizing the issuance and sale of the GO Bonds adopted by
the Issuer on Februarp 15, 2011 (the "GO Bond Ordinance'~. The TIRZ Bonds shall be as described
in, and shall be issued and secured under and pursuant to the provisions of the ordinance
authorizing the issuance and sale of the TIRZ Bonds adopted by the Issuer on February 15, 2011
(the `TIBZ Bond Ordinance"and together with the GO Bond Ordinance, the "Ordinances'~.
The purchase pxice for the GO Bonds shall be $3,007,442.10 (representing the par amount
of the GO Bonds, plus a re-offering premiutn of $80,914.10 less an underwriting discount of
$18,472.00), plus accxued interest calculated on the basis of a 360-day year of twelve 30-dap months,
from the dated date of the GO Bonds to the date of the Closing (as hereinafter defined).
The purchase price for the TIRZ Bonds shall be $5,389,286.56 (representing the par amount
of the TIRZ Bonds, plus a re-offering pxemium of $167,804.25 less an underwriting discount of
$33,517.69), plus accYUed interest calculated on the basis of a 360-dap pear of twelve 30-day months,
from the dated date of the TIRZ Bonds to the date of the Closing (as hereinafter defined).
Delivered to the Issuer herewith is the Representative's good faith deposit in the form of a
corporate check payable to the oYder of the Issuer in the total axnount of 8$ 1,250 (the "Check" -
$29,800 for the GO Bonds, and $51,450 for the TIRZ Bonds). In the event that the Issuer accepts
this Agreement for each series of the Obligations, the respective Checks shall be held uncashed by
the Issuer until the time of Closing, at which time the Checks shall be xeturned uncashed to the
Representative. In the event that the Issuer does not accept the either series of Obligations
addressed by this Agreement, the respective Check shall be irrunediately returned to the
Representative. Should the Issuer fail to deliver the either sexies of the Obligations at the Closing,
or should the Issuex be unable to satisfp the conditions to the obligations of the Underwriters to
puxchase, accept delivery of and pay for either series of the Obligations, as set forth in this
Agreement (unless waived bp the Representarive), or should such obligations of the Underwriters be
terminated for any reason permitted by this Agxeement, the Check associated with the undelivered
series of Obligations shall immediatelp be returned to the Representative. In the event that the
Underwriters fail (other than for a reason pern~itted hereunder) to purchase, accept delivery of and
pay for either series of the Obligations at the Closing as herein provided, the Check for the
undelivered series of Obligations shall be cashed and the amount thexeof retained bp the Issuer as
and foY fully liquidated damages for such failure of the Underwriters, and, except as set forth in
Sections 8 and 10 of this Agreement, no party shall have any furthex rights against the other
hereunder. The Underwriters and the Issuex undexstand that in such event the Issuex's actual
damages may be greateY oY may be less than such amount. Accordinglp, the Underwriters hereby
waive anp right to claim that the Issuer's actual damages are less than such amount, and the Issuer's
acceptance of this offer shall constitute a waiver of anp right the Issuer map have to additional
damages from the Underwriters. The Underwriters hexebp agree not to stop or cause payment on
the Checks to be stopped unless the Issuer has breached anp of the terms of this Agreement.
2
2. Public Offering. The Underwxiters agree to make a bona fide public offering of all of the
Obliga.tions at a price not to exceed the public offexing price set forth on pages 2 and 4 of the
Official Statement and map subsequently change such offering, price without any xequirement of
prior notice. On or before Closing, the Representative shall certify, in forms pxepared by Bond
Counsel, the uiitial offering prices to the public at which the Underwriters reasonably expected to
sell or in fact sold a substantial amount of each stated maturity of the Obligations sold to the public.
The Underwriters may offer and sell Obligations to certain dealers (including dealers depositing
Obliga.tions into investment trusts) and others at prices lower than the public offering price stated
on pages 2 and 4 of the Official Statement.
3. The Official Statement. (a) The Issuer previously has delivered copies of the Preliminary
Official Statement dated February 7, 2011 (the "Preliminary O~cial Statesnent") to the Underwriters.
The Issuer will prepare, ox cause to be prepaxed, a final Official Statement relating to the
Obligations, which will be (i) dated the date of this Agreement, (ii) complete within the meaning of
Rule 15c2-12 of the United States Securities and Exchange Commission, as amended (the "Bule"),
and (iu) substantially in the form of the most recent version of the Prelitninarp Official Statement
provided to the Underwriters before the execution hereof. Such final Official Statement, including
the coveY pages relating to the Obligations, all exhibits, appendices, maps, charts, pictures, diagrains,
repo~ts, and statements included or incorporated therein or attached thereto, and all amendments
and supplements thereto that may be authorized for use with respect to the Obligations, is herein
referred to as the "Officzal Statenaent." Until the Official Statement has been prepared and is available
for distriburion, the Issuer shall provide to the Underwriters sufficient quanriries (which may be in
electronic mail form) of the Preliminarp Official Statement_ as the RepYesentarive reasonably deems
necessarp to satisfy the obligations of-the Underwxiters under the Rule with respect to distribution to
each potential customer, upon request, of a copp of the Preliminarp Official Statement.
(b) The Preliminary Official Statement has been prepared for use bp the Underwriters in
connection with the public offering, sale and distribution of the Obligations bp the Underwriters.
The Issuex hereby represents and warrants that the Prelimina~y Official Statement is deemed final by
the IssueY as of its date, except for the omission of such information which is dependent upon the
final pricing of the Obligations for completion, all as permitted to be excluded bp Section (b)(1) of
the Ru1e.
(c) The Issuer hereby authorizes the Official Statement and the information therein
contained to be used by the Underwritexs in connection with the public offering and the sale of the
Obligations. The IssueY consents to the use bp the Underwriters prior to the date hereof of the
Preliminarp Official Statement in connection with the public offering of the Obligations. The Issuer
shall provide, or cause to be provided, to the Underwriters as soon as practicable after the date of
the Issuex's acceptance of this Agreement (but, in anp event, not later than within seven (7) business
days after the Issuer's acceptance of this Agreement and in sufficient time to accompany anp
confirmation that requests payment from any customer) a final Official Statement which is complete
as of the date of its delivety to the Underwriters in such reasonable quantity and foxmats as the
Representative shall reasonablp request, and in any event in a"designated electronic format" (as
defined in MSRB Rule G-32), in order for the Underwriters to comply with Section (b)(4) of the
Rule and the rules of the Municipal Securities Rulemaking Boaxd (the "MSRB").
(d) If, after the date of this Agteement up to and including the date the Underwritexs axe
no longer required to provide an Official Statement to potential customers who request the same
pursuant to the Rule (the earlier of (i) ninety (90) days from the "end of the underwriting period" (as
defined in Rule) and (u) the time when the Official Statement is available to any person from the
MSRB, but in no case less than 25 daps after the "end of the underwriting period" fox the
Obligations), the Issuex becomes awaxe of any fact or event which might or would cause the Official
Statement, as then supplemented or amended, to contain anp untrue statement of a material fact oY
to omit to state a material fact required to be stated therein ox necessarp to make the statements
therein not misleading in any material Yespect, or if it is necessary to axnend or supplement the
Official Statement to complp with law, the Issuer will notify the Representative (and for the
purposes of this clause provide the Representative with such information as the Repxesentative may
fxom time to time reasonably request), and if, in the reasonable opinion of the Representative, such
fact or event requires prepaxation and publication of a supplement or amendment to the Official
Statement, the Issuer will prepare and furnish, at the Issuer's own expense (in a form and manner
approved. bp the RepYesentarive), a reasonable nutnber of copies of either amendments or
supplements to the Official Statement so that the statements in the Official Statement as so
amended and supplemented will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading in any material Yespect ox so that the Official Statement will complp with law; provided,
however, that for all purposes of this Agreement and anp certificate delivered bp the Issuer in
accordance herewith, the Issuer makes no repYesentations with respect to the descriptions in the
Pxeliminary Official Statement or the Official Statement of The Depositorp Trust Companp, New
York, New York ("DTC"), or its book-entry-only system. If such notification shall be subsequent
to the Closing, the Issuer shall furnish such legal opinions, cerrificates, instruments and other
documents as the Representative may reasonablp deem necessary to evidence the truth and accuracy
of such supplement or amendment to the Official Statement.
(e) The Representative herebp agrees to timelp file the Official Statement with the
MSRB. Unless otherwise notified in writing by the Representative, the Issuex can assume that the
"end of the underwriting period" for purposes of the Rule is the date of the Closing.
4. Representations, [~arranties, and Covenants of the Issuer. The Issuer hexeby
represents and waxrants to and covenants with the Underwriters that:
(a) The Issuer is a home rule municipality and a political subdivision of the State of
Texas (the "State"), and a body politic and corporate, and has full legal right, power and authoritp to
(i) ente~ into this Agreement, to adopt the Ordinances, to sell the Obligations, and to issue and
deliver the Obligations to the Underwriters as provided herein and to carrp out and consuminate all
other transactions described in the Ordinances, this Agreement, the escrow agreement as described
in the Ordinances (the "Escroav Agreement"), the Continuing Disclosure Undertaking (as defined in
Section 6(h)(2) of this Agreement), and all documents required hereunder and thereunder to be
executed and delivered by the Issuer, (ii) to sell, issue and delivex the Obligations to the
Underwriters as provided herein, and (iii) to carrp out and consLUninate the transactions described in
this Agreement, the Ordinances, and the Official Statement, and the Issuer has complied, and will at
the Closing be in compliance, in all material respects with the terms of the general laws of the State,
including particulaxly V.T.C.A., Texas Governxnent Code, Chapter 1207, as amended, this
Agreement, and Oxdinances as thep pertain to this transaction.
(b) Bp all necessary official action of the Issuer prior to or concuxrently with the
acceptance hereof, the Issuer has dulp authorized all necessary action to be taken by it for (i) the
4
adoption of the Odinances and the issuance and sale of the Obligations (ii) the approval, execution
and delivery of, and the performance by the Issuer of the obligations on its part, contained in the
Obligations, the Ordinances, the Escrow Agreement, and this Agreement and (iu) the
consuinmation bp it of all other transactions described in the Official Statement, the Ordinances,
and this Agreement, the Escrow Agreement and anp and all such other agreements and documents
as may be required to be executed, delivered and/or received by the Issuer in order to carrp out, give
effect to, and consummate the transactions described herein and in the Official Statement;
(c) The Ordinances, the Escrow Agreement, and this Agreement constitute, legal, valid
and binding agreements of the Issuer enti.tled to the benefits of the Ordinances and enforceable in
accordance with their teYms, subject to principals of soveYeign immunity, bankruptcy, insolvencp,
reorganization, moratorium and other similax laws and principles of equity relating to or affecting
the enforcement of creditors' rights. Upon the issuance, authentication and deliverp of the
Obligations as aforesaid, the Ordinances will provide for the papment of the Obligauons bp the levy
and collection of direct and continuing ad valorem tax, within the limits pxescribed by law, on all
taxalble pxoperty located withing the City. The TIRZ Bonds are additionally papable from and
secuxed bp a lien on and pledge of Pledged Tax Increment Revenues.
(d) To the best of its knowledge, the Issuer is not in breach of or default in any material
respect under anp applicable constitutional provision, law ox achninistrative regulation of the State or
the United States, relating to the issuance of the Obligations, or any applicable judgment or decree
or anp loan agreement, indenture, bond, note, resolution, agreement ox other instrument to which
the Issuer is a party ox to which the Issuer is otherwise subject, and no event which would have a
material and adverse effect upon the business oY financial condition of the Issuer has occurred and is
continuing which constitutes or with the passage of time or the giving of notice, or both, would
constitute a default or event of default by the Issuer under anp of the foregoing; and the egecution
and deliverp of the Obligations, this Agreement, the Escrow Agreement and the adoption of the
Ordinances, and compliance with the provisions on the Issuer's part contained therein, will not
conflict with or constitute a material bxeach of or default under any constitutional provision,
administrative regulation relating to the issuance of bonds, judgment, decree, loan agreement,
indenture, bond, note, resolution, agreement or other instrument to which the Issuer is a party ox to
which the Issuex is or to which anp of its property or assets are otherwise subject or under the terms
of any such law, regulati.on or instrument, except as provided by the Obligations and the
Ordinances;
(e) All authorizations, approvals, licenses, permits, consents and orders of anp
governmental authority, legislative bodp, board, agency or commission having jurisdiction of the
matter which are required for the due authorization of, which would constitute a condition
precedent to, or the absence of which would materiallp adverselp affect the due performance by the
Issuer of its obligations under this Agreement, the Ordinances, the Escrow Agreement, and the
Obligations have been duly obtained, except for the approval of the Obligations by the Attornep
General of the State of Texas and the registration of the Obligarions bp the Comptroller of Public
Accounts of the State of Texas (each of which will be obtained priox to Closing) and such approvals,
consents and orders as may be required under the Blue Skp or securities laws of any jurisdiction in
connection with the offering and sale of the Obligations;
(~ The Obligations and the Ordinances conform to the descriptions thereof contained
in the Official Statement under the caption "THE OBLIGATIONS';• the proceeds of the sale of the
Obligations will be applied generallp as described in the Official Statement under the caption
`2'L,AN OF FINANCING - Use of GO Bond Proceed.r" and `TLAN OF FINANCIIVG - Use of TIKZ
Borcd Proceecls'; and the Undertaking conforms to the description thereof contained in the Official
Statement under the caption "CONTINUIlVG DISCLOSUKE OF INFOI~MATION".
(g) There is no litigation, action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, government agencp, public board ox body, pending or, to the best
knowledge of the Issuer, threatened against the Issuer, affecting the existence of the Issuer or the
tides of its officers to their respective offices, or affecting or seeking to prohibit, restrain or enjoin the
sale, issuance or delivery of the Obligations, ox the collection of taxes or revenues pledged to the
payment of principal of and interest on the Obligations pursuant to the Ordinances or in any way
contesting or affecting the validitp or enforceability of the Obligations, this Agreement, the Escrow
Agreement, or contesting the exclusion from gross income of interest on the Obligations for federal
income tax purposes; or contesting in any way the completeness or accuracy of the Preluninary
Official Statement or the Official Statement or anp supplement or amendment thereto, or contesting
the powers of the Issuer ox any authority for the issuance of the Obligations, the adoption of the
Ordinances or the execution and delivery of this Agreement or the Escrow Agreement, nox, to the
best knowledge of the Issuer, is there anp basis therefoY, wherein an unfavorable decision, ruling or
finding would materiallp adversely affect the validitp or enforceability of the Obligations, the
Ordinances, this Agreement, or the Escrow Agxeement;
(h) As of the date thereof, the Preliminary Official Statement did not contain anp untrue
statement of a material fact or omit to state a material fact xequixed to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they wexe made, not
misleading in anp material respect;
(i) At the time of the Issuer's acceptance hereof and (unless the Official Statement is axnended
or supplemented pursuant to paragraph (d) of Section 3 of this Agteement) at all times subsequent
thereto during the pexiod up to and including twenty-five (25) days subsequent to the end of the
underwriting period, the Official Statement does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circutnstances under which they were made, not misleading in any
material respect; provided, however, that if the Issuer notifies the Representative of anp fact or event
as required bp Section 3(d) hereof, and the Repxesentative determines that such fact or event does
not require preparation and publication of a supplement or amendment to the Official Statement,
then the Official Statement in its then-current form shall be conclusively deemed to be complete and
correct in all material respects and the Issuer shall have no furthex obligation under this section or
Section 3(d) with respect to such event;
(j) If the Official Statement is supplemented o~ amended pursuant to paragraph (d) of
Section 3 of this Agreement, at the time of each supplement or amendment thereto and (unless
subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent
thereto during the period up to and including twentp-five (25) days subsequent to the end of the
underwriting period the Official Statement as so supplemented or amended will not contain any
untrue statement of a material fact or omit to state anp matexial fact required to be stated therein oY
necessarp to make the statements therein, in light of the circumstances under which made, not
misleading in anp material respect; provided, however, that if the Issuer notifies the Representative
of any fact or event as required by Section 3(d) hereof, and the Representative determines that such
fact or event does not require prepaxation and publication of a supplement or amendment to the
Official Statement, then the Official Statement in its then-cu~rent foYm shall be conclusively deemed
to be complete and correct in all material respects and the Issuer shall have no futther obligation
under this section or Section 3(d) with respect to such event;
(k) The Issuer will apply, ox cause to be applied, the proceeds from the sale of the
Obligations as pxovided in and subject to all of the texms and provisions of the Ordinances and will
not take or omit to take anp action which action or omission will advexsely affect the exclusion from
gross income for federal income tax purposes of the interest on the Obligations;
(1) The Issuer will furnish such information and execute such instruments and take such
action in cooperation with the Underwritexs, as the Representative, at the sole expense of the
Underwxiters, map reasonablp request (A) to (y) qualify the Obligations for offex and sale under the
Blue Sky ox otheY securities laws and regulations of such states and othe~ jurisdictions in the United
States as the Representative may designate and (z) determine the eligibility of the Obligations for
investment under the laws of such states and other jurisdictions and (B) to continue such
qualifications in effect so long as required for the distribution of the Obligations (provided,
however, that the Issuer will not be required to qualify as a foreign corporation or to file any general
or special consents to service of process under the laws of anp jurisdiction) and will advise the
Representative iminediatelp of receipt by the Issuer of anp notification with respect to the
suspension of the qualification of the Obligations fox sale in anp jurisdiction or the initiation or
threat of any proceeding for that purpose;
(m) The financial statements of, and other financial information regaxding the Issuer, in
the Official Statement fairlp present the financial position and results of the Issuer as of the dates
and for the periods therein set forth. Prior to the Closing, the Issuer will not take anp action within
or under its control that will cause anp adverse change of a material nature in such financial position,
results of operations ox condition, financial or otherwise, of the Issuer. The Issuer is not a party to
anp litigation or other proceeding which, if decided adversely to the Issuex, would have a materiallp
adverse effect on the financial condition of the Issuer;
(n) Prior to the Closing, the Issuer will not offer or issue any bonds, notes or other
obliga.tions for borxowed monep or incux any material liabilities (except in the ordinary course of
business), direct or contingent, papable from or secured bp any of the Issuer's ad valorem taxes ot
the Pledged Tax Inc~ement Revenues pledged to the payment of the Obligations without the prior
approval of the Representative;
(o) Any certificate, signed by any official of the Issuer authorized to do so in connection
with the transactions contemplated bp this Agreement, shall be deemed a representation and
warranty bp the Issuer to the Underwriters as to the statements made therein.
5. Closltlg. (a) At 10:00 a.m. Central Time, on March 17, 2011, or at such other time
and date as shall have been mutuallp agreed upon bp the Issuer and the Repxesentative (the
"Clo.ring'~, the Issuer will, subject to the texms and conditions hereof, deliver the Obligations to the
Representative, duly executed and authenticated and the RepYesentative will, subject to the terms
and conditions hereof, accept such deliverp and pay the puxchase price of the Obligations, as set
forth in Section 1 of this Agreement, bp a certified ox bank cashier's check, papable in imtnediately
available funds, or wire transfex, payable in itivnediatelp available funds, to the order of the Issue~.
7
Payment fox the Obligations as aforesaid shall be made at the offices of the Paping Agent/Registrar,
or such other place as shall have been mutually agteed upon by the Issuer and the Representative.
The initial Obligations shall be registered in the name of the Representative.
(b) Delivery of the Obliga.tions in definitive form shall be made to DTC. The definitive
Obligations shall be delivered in fullp registered form, bearing CUSIP numbers without coupons,
with one certificate fox each maturity of the Obligations, registexed in the name of Cede & Co., all as
provided in the Ordinances, and shall be made available to the RepYesentative at least one business
dap befoYe Closing for purposes of inspection (i) at DTC or (ii) at the Registrar, if the definitive
Obligations are to be held in safekeeping for DTC by the Registrax pursuant to DTC's FAST
System.
6. Closing Conditions. The Underwriters have entered into this Agreement in reliance upon
the representations, waxranties and agreements of the Issuer contained herein, and in reliance upon
the representations, warranties and agreements to be contained in the documents and instr~unents to
be delivered at the Closing and upon the performance by the Issuer of its obligations hereunder,
both as of the date hereof and as of the date of the Closing. Accordingly, the Underwriters'
obligations under this Agreement to purchase, to accept delivery of and to pap fox the Obligations
shall be conditioned upon the performance bp the Issuer of its obligations to be pexfoxmed
hereunder and under such documents and instruments at or prior to the Closing, and shall also be
subject to the following additional conditions, including the deliverp bp the Issuer of such
documents as axe enumerated herein, in form and substance reasonably satisfactory to the
Representative:
(a) The representations and waxranties of the Issuer contained herein shall be true,
complete and correct in all material respects on the date hereof and on and as of the date of the
Closing, as if made on the date of the Closing;
(b) The Issuex shall have performed and complied with all agreements and conditions
required bp this Agreement to be performed or complied with by it prior to or at the Closing;
(c) At the time of the Closing, (i) this Agreement, the Ordinances, the Escrow
AgYeement, and the Obligations shall be in fu11 force and effect and shall not have been amended,
modified or supplemented, and the Official Statement shall not have been supplemented or
amended, except in anp such case as may have been agreed to by the Representative; and (u) all
actions of the Issuer required to be taken bp the Issuer shall be performed in order for Bond
Counsel and counsel to the Underwriters to deliver their Yespective opinions referred to hereafter;
(d) At or prior to the Closing, the GO Bond Ordinance and the TIRZ Bond Ordinance
shall have been duly adopted bp the governing body of the Issuer and the Issuer shall have duly
executed and delivered, and the Paying Agent/Registrax shall have dulp authenticated, the definitive
Obliga rions,
(e) At the time of the Closing, thexe shall not have occurred any change or any
development involving a prospective change in the condition, financial or otherwise, or in the
revenues or operations of the Issuer, from that set forth in the Official Statement that in the
reasonable judgment of the Representative, is material and adverse and that makes it, in the
reasonable judgment of the Representative, impracticable to market the Obligations on the terms
and in the manner described in the Official Statement;
(~ The Issuer shall not have failed to pap principal or interest when due on anp of its
outstanding obligations fox boxxowed monep;
(g) All steps to be taken, all instruments and othex documents to be executed, and all
other legal matters in connection with the transaction described in this Agreement shall be in
reasonablp satisfactory legal form and effect to the Representative;
(h) At or prior to the Closing, the Underwriters or their counsel shall have xeceived one
(1) copp of each of the following documents:
(1) The Official Statement, and each supplement or amendment thereto, if anp,
as map have been agreed to by the Representative, or a conformed copy theYeof;
(2) The GO Bond Ordinance and the TIRZ Bond Ordinance (each including
the Undertaking of the Issuer which satisfies the requirements of secrion (b)(5)(i) of the
Rule) with such supplements or amendments as may have been agreed to by the
Representative;
(3) A copy of the resolution or ordinance passed by the City Council of the City
evidencing its appxoval of the issuance of the Obligations;
(4) the approving opinion of Fulbright & Jaworski L.L.P., Dallas, Texas ("Bond
Counsel") with respect to each series of the Obligations, in substantiallp the forms attached
to the Official Statement;
(5) a supplemental opinion of Bond Counsel addressed to the Issuer and the
Underwriters, substantially to the effect that:
(i) the Obligations are exempted securities within the meaning of
Section 3(a)(2) of the Securities. Act of 1933, as amended (the "1933 Act'~, and it is
not necessary, in connection with the offering and sale of the Obligations, to register
the Obligations undex the 1933 Act or to qualify the Ordinances under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"~; and
(ii) the statements and information contained in the Official Statement
under the captions "PLAN OF FINANCING - Refunded Obligations","THE
OBLIGATIONS" (exclusive of the subcaptions "Book-Entry-Only Spstem," and
"Obligationsholders' Remedies" and the last sentence under "Tax Rate Limitation"),
"TAX MATTERS", "CONTINUING DISCLOSURE OF INFORMATION"
(exclusive of the subcaptiaon "Compliance with Prior Undertakings"), and the
subcaptions "OTHER INFORMATION - Registration and Qualification of
Obligations for Sale," "OTHER INFORMATION - Legal Opinons (exclusive of
the last sentence of the first paragraph thereo~ and "OTHER INFORMATION -
Legal Investments and Eligibility to Secuxe Public Funds in Texas" are an accurate
and fair description of the laws and legal issues addressed therein and conform to the
provisions of the Ordinances;
(6) An opinion, dated the date of the Closing and addtessed to the Underwriters,
of counsel for the Underwriters, to the effect that:
(i) the Obligations are exempt securities undex the 1933 Act and the
Trust Indenture Act and it is not necessarp in connection with the offering and sale
of the Obligations to register the Obligations under the 1933 Act, and the
Ordinances need not be qualified under the Trust Indenture Act; and
(ii) based upon their participation in the preparation of the Official
Statement as counsel fox the Underwriters and theiY participation at conferences at
which the Official Statement was discussed, but without having undertaken to
determine independendp the accuracy, completeness or fairness of the statements
contained in the Official Statement, such counsel has no reason to believe that the
Official Statement contains anp untrue statement of a material fact or omits to state a
material fact necessarp to make the statements therein, in light of the circumstances
under which they were made, not misleading (except for anp financial, foYecast,
technical and statistical statements and data-included in the Official Statement, and
the infozmation regarding DTC and its book-entry, in each case as to which no view
need be expressed);
(7) A cert'tficate, dated the date of Closing, of an appropriate official of the
Issuer to the effect that (i) the representations and warranties of the Issuer conta.ined herein
are true and co~rect in all material respects on and as of the date of Closing as if made on the
date of Closing; (ii) no litigation or proceeding against the Issuer is pending oY, to the best of
his or her knowledge, threatened in any court or administrarive body nor is there a basis for
litigation which would (a) contest the right of the Councilmembers or officials of the Issuer
to hold and exercise their respective positions, (b) contest the due organization and valid
existence of the Issuer, (c) contest the validity, due authorization and execution of the
Obligations, this Agreement, the Escrow Agreement, ox the Ordinances or (d) attempt to
enjoin or otherwise prevent the Issuer from functioning, levying and collecting ad valorem
taxes or, with Yespect to the TIRZ Bonds, the Pledged Tax Incxement Revenues, including
for payments on the Obligations pursuant to the OYdinances, to pap the principal of and
inteYest on the respective series of Obligations, or the pledge thereof; (iii) a11 official actions
of the Issuer relating to the Official Statement, the Obligations, this Agreement, the Escrow
Agreement, and the Ordinances have been duly taken bp the Issuer, are in full force and
effect and have not been modified, amended or repealed, and (iv) to the best of his or her
knowledge, no event affecting the Issuer has occuxred since the date of the Official
Statement which should be disclosed in the Official Statement for the purpose for which it is
to be used or which it is necessary to disclose thexein in order to make the statements and
information thexein, in light of the circumstances under which made, not misleading in anp
material respect as of the time of Closing, and the information contained in the Official
Statement is correct in all material respects and, as of the date of the Official Statement did
not, and as of the date of the Closing does not, contain anp untrue statement of a material
fact or omit to state a material fact requ.ixed to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which thep were made, not
misleading in anp material respect;
10
(8) A certificate of the Issuer setting forth the facts, estimates and circumstances
in existence on the date of the Closing, which establish that it is not expected that the
pxoceeds of the Obligations will be used in a mannex that would cause the Obligations to be
"axbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986,
as amended (the "Code"), and anp applicable regulations (whether fina1, temporary or
proposed) issued pursuant to the Code;
(9) The approving opinion of the Attornep General of the State of Texas and the
registration certificate of the Comptroller of Public Accounts of the State of Texas with
Yespect to the inirial GO Bond;
The approving opinion of the Attoxnep General of the State of Texas and the
registration certificate of the Comptroller of Public Accounts of the State of Texas with
respect to the initial TIRZ Bond;
(10~ Evidence satisfactory to the Representarive that GO Bonds have been
assigned a xating of "A.AA (stable outlook" by Fitch Ra.tings and "AAA (stable outlook)" bp
Standard & Poox's Ra.tings Services, a Standard and Poor's Financial Setvices LLC business
and that such rarings are in effect as of the date of Closing;
Evidence satisfactory to the Representative that TIRZ Bonds have been assigned a
rating of "A.AA (stable outlook" by Fitch Ratings and "AAA (stable outlook" bp Standard &
Poox's Rattngs Services, a Standaxd and Poor's Financial Services LLC business and that
such ratings are in effect as of the date of Closing; .
(11) The Escrow Agreement dulp executed on behalf of the Issuex and The Bank
of New York Mellon Trust Company, N.A. (the "Escrow Agent"), which provides that from
the p~oceeds of the sale of the Obligations received from the Underwritexs, the Issuer will
deposit with the Escrow Agent the amount necessarp to accomplish the discharge and final
payment of the Refunded Obligations on their xespective redemption dates from the escrow
fund described therein; and
(12) A copp of a special report prepared bp Grant Thornton LLP, independent
certified public accountants (the "Verification Agent") addressed to the Issuer, Bond Counsel
and the Representative, verifying (i) the axithmetical computations of the adequacy of the
maturing principal arid interest on the fedeYal securities and uninvested cash on hand under
the Escrow Agreement to pap, when due, the principal of and interest on the Refunded
Obligations, and (u) the computation of the pield with respect to the federal securities and
the Obligations.
Such additional legal opinions, certificates, instrutnents and othex documents as may be
required by the Ordinances ox as Bond Counsel, the Representative, or counsel to the Underwxiters
may reasonably request to evidence the txuth and accuxacp, as of the date hereof and as of the date
of the Closing, of the Issuex's xepresentations and waxranties contained hexein and of the statements
and information contained in the Official Statement and the due performance or satisfaction bp the
Issuer on or prior to the date of the Closing of all the respective agreements then to be performed
and conditions then to be satisfied by the Issuer.
11
All of the opinions, letters, certificates, instruments and other documents mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof if,
but onlp if, thep are in form and substance reasonablp satisfactory to the Representative.
If the Issuer shall be unable to satisfp the conditions to the obligations of the Underwriters
to purchase, to accept delivery of and to pay for the Obligations described in this Agreement, or if
the obligation of the Underwriters to purchase, to accept deliverp of and to pap for the Obliga.tions
shall be terminated for any reason permitted bp this Agreement, as it relates to such Obligations, this
Agreement shall te~ininate and neither the Underwriters noY the Issuer shall be under any further
obligation heYeundex, except that the respective obligations of the Issuer and the Underwriters set
forth in Section 1(with respect to the Check(s)) and 8 hereof shall continue in full force and effect.
7. 7"ertnination. The Representative shall have the right to cancel the Underwriters'
obligation to purchase the Obligations (as evidenced by a written notice to the Issuer texminating the
obligation of the Underwriters to accept delivery of and pay for either or both series of Obligations)
if; between the date of this Agxeement and the Closing, the market price or maxketability of the
Obligations shall be materiallp adversely affected, in the reasonable judgment of the Representative,
by the occurrence of any of the following:
(a) legislation shall be enacted by or introduced in the Congress of the United States or
recommended to the Congress for passage bp the President of the United States, or the Treasurp
Department of the United States or the Internal Revenue Service or any member of the Congress or
favorably reported for passage to either House of the Congxess by any committee of such House to
which such legislation has been refexred. for consideration, a decision by a court of the United States
or of the State or the United States Tax Court shall be rendered, or an order, ruling, regulation (final,
temporarp ox proposed), press release, statement or other form of norice bp or on behalf of the
Treasury Depaxtment of the United States, the Internal Revenue Service or other governmental
agencp shall be made ox proposed, the effect of any or all of which would be to impose, directlp oY
indirectlp, federal income taxation upon interest Yeceived on obligations of the general chaxacter of
the Obligations;
(b) legislation introduced in ox enacted (or resolution passed) by the Congress or an
order, decree, or injunction issued by any court of competent jurisdiction, or an ordex, ruling,
regulation (fina1, temporary, or proposed), press release or other form of notice issued or made by or
on behalf of the U.S. Securities and Exchange Comnzission, or anp other governmental agencp
having jurisdiction of the subject matter, to the effect that obligations of the genexal character of the
Obligations, including any or all underlying arrangements, are not exempt from registxation under or
other requirements of the 1933 Act, or that the Ordinances aYe not exempt from qualification under
or other requixements of the Trust Indenture Act, or that the issuance, offering, or sale of
obligations of the geneYal character of the Obligations, including anp or all underlying arrangements,
as described herein or in the Official Statement or otherwise, is or would be in violation of the
federal securities law as amended and then in effect;
(c) a general suspension of trading in securities on the New York Stock Exchange or
other national securities exchange, the establishment of minimum prices on any such exchange, the
establishxnent of material restrictions (not in force as of the date hereo fl upon trading securities
generallp by any governmental authority or any national securities exchange, a general banking
moYatorium declared by federal, State of New York, or State officials authorized to do so;
12
(d) the New York Stock Exchange or other national securities exchange, or anp
governxnental authoYitp, shall impose, as to the Obliga.tions or as to obligations of the general
chaxacter of the Obligations, anp material restrictions not now in force, or increase materially those
now in force, with respect to the extension of credit bp, or the charge to the net capital requirements
of, the Underwriters;
(e) anp amendment to the fedeYal or state Constitution or acrion by any federal oY state
court, legislative body, regulatorp body, or othex authority materially adversely affecting the tax
status of the Issuex, its propexty, income securities (ox interest thexeon), or the validitp or
enforceability of the assessments or the levp of taxes to pay principal of and interest on the
Obligarions;
(~ any event occurring, or information becoming known which, in the reasonable
judgment of the Representative, makes untrue in any material respect any statement or information
contained in the Official Statement, or has the effect that the Official Statement contains anp untrue
statement of material fact ox omits to state a material fact xequired to be stated therein or necessary
to make the statements thexein, in the light of the circumstances undex which they wexe made, not
misleading in anp material respect;
(g) there shall have occurred since the date of this Agreement any materiallp adverse
change in the affairs ox financial condirion of the Issuer, except fox changes which the Official
Statement discloses are expected to occut;
(h) the United States shall have either become engaged in hostilities that did not exist
prior to the date hereof or issued a declaration of wax or a national emergency, or there shall have
occurred a new material outbreak or escalation of hostilities or a national or international calamitp or
crisis, financial or otherwise,~in which the effect of such outbreak, calamity or crisis on the financial
markets of the United States would make it impractical or inadvisable to proceed with the public
offering or delivery of the Obligations;
(i) anp fact or e~ent shall exist or have existed that, in the Representative's reasonable
judgment, requires or has required an axnendment of ox supplement to the Official Statement and
the Issuer has failed to amend or supplement the Official Statement in compliance with the
AgYeement;
(j) there shall have occurred ox anp published notice shall have been given of anp
intended review for possible downgrade, downgrading, suspension, withdrawal, or negative change
in credit watch status bp any national xating service that is furnishing a xating on the Obligations to
any of the Issuer's obligations that axe secuYed in a like manner as the Obligations; and
(k) the puYChase of and payment for the Obligations by the Underwriters, or the resale
of the Obligations by the UnderwriteYS, on the terms and conditions herein provided shall be
prohibited by any applicable law, governmental authoritp, board, agency or coi~ninission; provided,
however, that such prohibition is not caused by anp intentional act, or failure to act, of the
Underwriters.
With respect to the condition described in subparagxaph (k) above, the Underwriters are not
aware of any current, pending or proposed law or government inquiry or investigation as of the date
13
of execution of this Agxeement which would permit the RepYesentative to invoke the Underwriters'
texmination rights thereunder.
8. Expenses (a) The Underwritexs shall be under no obligation to pap, and the Issuer
shall pay, anp expenses incident to the performance of the Issuer's obligations hereundet, including,
but not limited to (i) the cost of pxeparation and printing of the Obligations, (ii) the fees and
disbursements of Bond Counsel; (iu) the fees and disbursements of the Financial Advisor to the
Issuer; (iv) the fees and disbuYSements of any other engineers, accountants, and other experts,
consulta.nts or advisers retained bp the Issuex; (v) the fees for bond ratings; (vi) the costs of
preparing, printing and mailing the Preliminary Official Statement and the Official Statement; (vu)
the fees and expenses of the Paying Agent/Registrax, Escrow Agent, or Verification Agent; (vui) any
bond inusurance fees or premiums; (ix) advertising expenses (except anp advertising expenses of the
Underwriters as set forth below); (x) the out-of-pocket, miscellaneous and closing expenses,
including the cost of travel, of the officers and other officials of the Issuer; and (x) any other
expenses mutually agreed to bp the Issuer and the Representative to be xeasonablp considered
expenses of the Issuer-which are incident to the transactions described herein.
(b) The Underwriters shall pay {i) the cost of preparation and printing of this
. Agreement, the B1ue Skp Survey and Lega1 Investtnent Memorandum, if anp; (u) all adverrising
expenses in connection with the public offering of the Obligations; and (iu) all other expenses
incurred by it i~ connection with the public offering of the Obligations, including the fees and
disbuYSements of counsel xetained by the Underwritexs.
9. Notices. Any notice or other communication to be given to the Issuer under this
Agreement may be given bp delivering the same in writing to the City of Colleyville, Texas, 100 Main
Street, Colleyville, Texas 76034, Attention: Chief Financial Officer, and anp notice or other
communication to be given to the Underwriters undex this Agreement may be given bp delivering
the same in writing to RBC Capital Markets, LLC, 2711 N. Haskell Avenue, Suite 2500, Dallas,
Texas 75204, Attenrion: Matt Boles.
10. Parties in Interest. This Agreement as heretofore specified shall constitute the entire
agYeement between us and is made solely fox the benefit of the Issuer and the Underwrite~s
(including successors or assigns of the Underwriters) and no other person shall acquire or have any
right hereunder or bp virtue hexeof. T'his Agreement map not be assigned by the Issuer. All of the
Issuer's representations, warranties and agxeements contained in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigations made bp or on behalf of any
of the Underwriters; (u) deliverp of and payment for the Obligations pursuant to this Agreement;
and (iu) any tern~ination of this Agreement.
11. Effective~ess. This Agreement shall become effective upon the acceptance hereof by the
Issuer and shall be valid and enforceable at the time of such acceptance.
12. Choice of Law. This Agreement shall be governed bp and construed in accordance with
the laws of the State of Texas.
13. Severability. If anp provision of this Agreement shall be held or deemed to be ox shall, in
fact, be invalid, inoperative ox unenforceable as applied in any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions because it conflicts with anp provision or provisions of any
14
Constitution, statute, rule of public policy, or any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative ox unenfo~ceable in anp othex
case or circutnstance, ox of rendering anp other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatever.
14. Business Day. For purposes of this AgYeement, "business day" means any day on which
the New York Stock Exchange is open for trading.
15. Section Headings. Section headings have been inserted in this Agreement as a matter of
convenience of refexence onlp, and it is agreed that such section headings are not a part of this
Agreement and will not be used in the interpretation of any provisions of this Agreement.
16. Counterparts. This Agreement may be executed in several counterparts each of which shall
be regatded as an original (with the same effect as if the signatures thexeto and hereto were upon the
same document) and all of which shall constitute one and the same document. -
17. No Personall,iability. None of the members of the City Council, nor any officex, agent or
employee of the Issuer shall be charged personally bp the Underwriters with any liability, or be held
liable to the Underwriters under any term or provision of this Agxeement, or because of execution
o~ attempted execution, ox because of any breach or attempted or alleged bxeach of this Agreement.
18. Entire Agreeme~t. This Agreement, together with anp contempoxaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Obligations, repYesents the entire agreement between the Issuex and the
Underwriters with respect to the preparation of the Official Statement, and the conduct of the
offering, the purchase, and the sale of the Obligarions.
If pou agree with the foregoing, please sign the enclosed counterpaxt of this Agreement and
xeturn it to the Underwxiters. This Agreement shall become a binding agreement between pou and
the Under~vriters when at least the counterpart of this Agxeement shall have been signed by or on
behalf of each of the paxties hereta
[T'he balance of thrs page has been interztionally left blank.J
15
Respectfully submitted,
RBC CAPITAL MARKETS, LLC
COASTAL SECURITIES, INC.
By: RBC CAPITAL MARKETS, LLC
as the Repxesentative
Bp:
Name:
Title
ACCEPTANCE
ACCEPTED this dap of Februarp, 2011 at a.m./p.m., C.S.T.
CIT'Y OF COLLEYVILLE, TEXAS
By:
Name: David Kelley
Title: Mayor
ATTEST:
Bp:
Title: City Secretary
SCHEDULE I
LIST OF UNDERWRITERS
RBC CAPITAL MARKETS, LLC
COASTAL SECURITIES, INC.
SCHEDULE II
$2,945,000 City of Colleyville, Texas
General Obligarion Refunding Bonds, Series 2011^
Interest Accrues From: February 15, 2011
Principal Maturitp Interest
llmount eb.15 Rate Yield
$800,000 2012 2.000% 0.540°/a
710,000 2013 2.000% 0.940%
525,000 2014 2.000% 1340%
135,000 2015 3.000% 1.800%
145,000 2016 3.000% 2.070%
150,000 2017 3.000% 2.340%
150,000 2018 3.000% 2.680%
160,000 2019 4.000% 2.850°/a
170~000 2020 4.000% 3.050%
$5,255,000 City of Colleyville, Texas
Combination Tax and Tax Increment Revenue Refunding Bonds, Series 2011*
Interest Accrues Fxom: February 15, 2011
Principal Maturiry Interest
ilmount eb.15 Rate Yield
$490,000 2012 2.000% 0.540%
540,000 2013 2.000% 0.940%
555,000 2014 2.000% 1.340%
565,000 2015 3.000% 1.800%
585,000 2016 3.000% 2.070%
600,000 2017 3.000% 2.340%
615,000 2018 3.000% 2.G80%
640,000 2019 4.000% 2.850°/a
6G5,000 2020 4.000% 3.050%
~ The GO Bonds are not subject to redemption prior to maturity.
*The Issuer ieserves the right to redeem TIRZ Bonds having stated maturities on and after February 15, 2017, in whole or in pazt in pricipal amounts
of $5000 oz any integcal multiple theLeof, on February 15, 2016, or any date theseafter, at the paz value theseof plus accrued interest to the date of
xedemption. .
EXHIBIT C
SPECIAL ESCROW AGREEMENT
90343309.1/11013521 C-1
SPECIAL ESCROW AGREEMENT
THIS SPECIAL ESCROW AGREEMENT (the "Agreement") is made and entered into
as of February 15, 2011, by and between the City of Colleyville, Texas (the "Issuer") and The
Banlc of New York Mellon Trust Company, N.A., a banking association organized and existing
under the laws of the United States of America, or its successors or assigns hereunder (the
"Escrow Agent").
WITNESSETH:
WHEREAS, the City Council of the Issuer has heretofore issued, sold and delivered, and
there is currently outstanding obligations of the following issue or series, totaling in principal
amount of $5,340,000 (collectively, the "Refunded Obligations") more particularly described as
follows:
(a) City of Colleyville, Texas, T~ and Tax Increment Revenue Certificates of
Obligation, Series 2001 (Reinvestment Zone Number One), dated February 1,
2001, being the certificates of obligation scheduled to mature on February 15 in
each of the years 2012 through 2020, and aggregating in the principal amount of
$4,945,000 (the "Series 2001 Refunded Certificates"); and
(b) City of Colleyville, Texas, Tax and Tax Increment Revenue Certificates of
Obligation, Series 2002 (Reinvestment Zone Number One), dated February 15,
2002, being the certificates of obligation scheduled to mature on February 15 in
each of the years 2015, 2017 and 2020, and aggregating in the principal amount of
$395,000 (the "Series 2002 Refunded Certificates"); and
WHEREAS, in accordance with the provisions of Texas Government Code,
Chapter 1207, as amended (the "Act"), the Issuer is authorized to sell refunding bonds in an
amount sufficient to provide for the payment of obligations to be refunded, deposit the proceeds
of such refunding bonds with any place of payment for the obligations being refunded, or other
authorized depository, and enter into an escrow or similar agreement with such depository for the
safekeeping, investment, reinvestment, administration and disposition of such deposit, upon such
terms and conditions as the parties may agree, provided such deposits may be invested only in
(i) direct noncallable 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, (ii) noncallable obligations of an agency or instrumentality of the United States,
including obligations unconditionally guaranteed or insured by the agency or instrumentality and
on the date of their acquisition or purchase by the Issuer are rated as to investment quality by a
nationally recognized investment rating firm not less than AAA or its equivalent and
(iii) noncallable obligations of a state or an agency or a county, municipality, or other political
subdivision of a state that have been refunded and on the date of their acquisition or purchase by
the Issuer, are rated as to investment quality by a nationally recognized investment rating firm
not less than AAA or its equivalent (hereinafter called the "Governmental Securities") that
mature and/or beax interest payable at such times and in such amounts as will be sufficient to
provide for the scheduled payment of the Refunded Obligations; and
90371546.1/11013521
WHEREAS, the Refunded Obligations are scheduled to mature, or be redeemed, and
interest thereon is payable on the dates and in the manner set forth in Exhibit A attached hereto
and incorporated herein by reference as a part of this Agreement for all purposes; and
WHEREAS, the Issuer, pursuant to an ordinance (the "Ordinance") duly passed and
adopted by the City Council of the Issuer on February 15, 2011, authorized the issuance of bonds
known as "City of Colleyville, Texas, Combination Tax and Tax Increment Revenue Refunding
Bonds, Series 201 l," dated February 15, 2011 (the "Bonds"), and such Bonds are being issued to
refund, discharge and make final payment of the principal of and interest on the Refunded
Obligations; and
WHEREAS, upon the delivery of the Bonds, the proceeds of sale, together with other
available funds of the Issuer to be deposited with the Escrow Agent, are to be used in part to
purchase the Governmental Securities listed and identified in Exhibit B attached hereto and
incorporated herein by reference as a part of this Agreement for all purposes (together with
substituted securities therefor in accordance with the provisions of Section 11 hereof, hereinafter
referred to as the "Escrowed Securities"); and
WHEREAS, the Escrowed Securities sha11 be held and deposited to the credit of the
"Escrow Fund" to be established and maintained by the Escrow Agent in accordance with this
Agreement; and
WHEREAS, the Escrowed Securities, together with the beginning cash balance in the
Escrow Fund, shall mature and the interest thereon shall be payable at such times to insure the
existence of monies sufficient to pay the principal amount of the Refunded Obligations and the
accrued interest thereon, as the same shall become due in accordance with the terms of the
ordinances authorizing the issuance of the Refunded Obligations and as set forth in Exhibit A
attached hereto; and
WHEREAS, the Issuer has completed all arrangements for the purchase of the Escrowed
Securities listed in Exhibit B and the deposit and credit of the same to the Escrow Fund as
provided herein; and
WHEREAS, the Escrow Agent is a banking association organized and existing under the
laws of the United States of America, possessing trust powers and is fully qualified and
empowered to enter into this Agreement and authorized to do business in the State of Texas; and
WHEREAS, in Section 23 of the Ordinance, the City Council duly approved and
authorized the execution of this Agreement; and
WHEREAS, the Issuer and the Escrow Agent, as the case may be, shall take all action
necessary to call, pay, redeem and retire said Refunded Obligations in accordance with the
provisions thereof, including, without limitation, all actions required by the ordinances
authorizing the issuance of the Refunded Obligations, the Act, the Ordinance and this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and to
secure the payment of the principal of and the interest on the Refunded Obligations as the same
90371546.1/11013521 2
shall become due, the Issuer and the Escrow Agent hereby mutually undertake, promise and
agree as follows:
SECTION 1. Receipt ofRefunded Obli~ations Ordinances and the Ordinance. Receipt of
copies of the ordinances authorizing the issuance of the Refunded Obligations and the Ordinance
is hereby acknowledged by the Escrow Agent. Reference herein to or citation herein of any
provision of said documents shall be deemed an incorporation of such provision as a part hereof
in the same manner and with the same effect as if it were fully set forth herein.
SECTION 2. Escrow Fund Creation/Fundin~. There is hereby created by the Issuer with
the Escrow Agent a special segregated and irrevocable trust fund designated "SPECIAL 2011
CITY OF COLLEYVILLE, TEXAS, TAX INCREMENT REVENUE REFUNDING BOND
ESCROW FUND" (hereinafter called the "Escrow Fund") for the benefit of the holders of the
Refunded Obligations, and, immediately following the delivery of the Bonds, the Issuer agrees
and covenants to cause to be deposited with the Escrow Agent the following amounts:
$4,968,800.35 For the purchase of Escrowed Securities listed in Exhibit B to be
held for the account of the Escrow Fund;
$ 412,992.00 For deposit in the Escrow Fund as a beginning cash balance
(representing $332,992 from Bond proceeds and $80,000 from
transfers from the interest and sinking funds for the Refunded
Obligations).
The Escrow Agent hereby accepts the Escrow Fund and further agrees to receive said
moneys, apply the same as set forth herein, and to hold the cash and Escrowed Securities
deposited and credited to the Escrow Fund for application and disbursement for the purposes and
in the manner provided in this Agreement.
SECTION 3. Escrow Fund Sufficiencv WarrantX. The Issuer hereby represents that the
cash and Escrowed Securities, together with the interest to be earned thereon, deposited to the
credit of the Escrow Fund will be sufficient to pay the principal of and premium and interest on
the Refunded Obligations as the same sha11 become due and payable, and such Refunded
Obligations, and the interest thereon, are to mature or be redeemed and shall be paid at the times
and in the amounts set forth and identified in Exhibit A attached hereto.
Furthermore, the Escrow Agent acknowledges receipt of copies of the ordinances
authorizing the issuance of the Refunded Obligations and a copy of the Ordinance which
provides for the redemption of the (i) Series 2001 Refunded Certificates on March 21, 201 l, and
(ii) Series 2002 Refunded Certificates on February 15, 2012, at the price of par plus accrued
interest to the date of redemption, and the Escrow Agent agrees to cause a notice of redemption
pertaining to the Refunded Obligations to be sent to the registered owners thereof appearing on
the registration books at least thirty (30) days prior to the respective redemption dates therefor.
SECTION 4. Pled~e of Escrow. The Escrow Agent agrees that all cash and Escrowed
Securities, together with any income or interest earned thereon, held in the Escrow Fund shall be
and is hereby irrevocably pledged to the payment of the principal of and interest on the Refunded
90371546.1/11013521 3
Obligations which will mature and become due on and after the date of this Agreement, and such
funds initially deposited and to be received from maturing principal and interest on the Escrowed
Securities in the Escrow Fund shall be applied solely in accordance with the provisions of this
Agreement.
SECTION 5. Escrow InsufficiencX - Issuer Warranty to Cure. If, for any reason, the
funds on hand in the Escrow Fund shall be insufficient to make the payments set forth in Exhibit
A attached hereto, as the same becomes due and payable, the Issuer shall make timely deposits to
the Escrow Fund, from lawfully available funds, of additional funds in the amounts required to
make such payments. Notice of any such insufficiency shall be immediately given by the
Escrow Agent to the Issuer by the fastest means possible, but the Escrow Agent shall in no
manner be responsible for the Issuer's failure to ma.ke such deposits.
SECTION 6. Escrow Fund Securities - Se~ a~. The Escrow Agent shall hold said
moneys and Escrowed Securities in the Escrow Fund at all times as a special and separate trust
fund for the benefit of the holders of the Refunded Obligations, wholly segregated from other
moneys and securities on deposit with the Escrow Agent; shall never commingle said Escrowed
- Securities and moneys with other moneys or securities of the Escrow Agent; and shall hold and
dispose of the assets therein only as set forth herein. Nothing herein contained shall be construed
as req~tiring the Escrow Agent to keep the identical moneys, or any part thereof, in said Escrow
Fund, if it is impractical, but moneys of an equal amount, except to the extent such are
represented by the Escrowed Securities, shall always be maintained ori deposit in the Escrow
Fund by the Escrow Agent, as escrow agent; and a special account evidencing such facts shall at
all times be maintained on the books of the Escrow Agent.
SECTION 7. Escrow Fund Collections/Pavrnents. The Escrow Agent shall from time to
time collect and receive the principal of and interest on the Escrowed Securities as they
respectively mature and become due and credit the same to the Escrow Fund. On or before each
principal and/or interest payment date or redemption date, as the case may be, for the Refunded
Obligations shown in Exhibit A attached hereto, the Escrow Agent, without further direction
from anyone, including the Issuer, shall cause to be withdrawn from the Escrow Fund the
amount required to pay the accrued interest on the Refunded Obligations due and payable on said
payment date and the principal of the Refunded Obligations due and payable on said payment
date or redemption date, as the case may be, and the amount withdrawn from the Escrow Fund
sha11 be immediately transmitted and deposited with the paying agent for each respective series
of Refunded Obligations to be paid with such amount. The paying agent for each respective
series of Refunded Obligations is the Escrow Agent.
If any Refunded Obligation or interest coupon thereon shall not be presented for payment
when the principal thereof or interest thereon shall have become due, and if cash shall at such
times be held by the Escrow Agent in trust for that purpose sufficient and available to pay the
principal of such Refunded Obligation and interest thereon it shall be the duty of the Escrow
Agent to hold said cash without liability to the holder of such Refunded Obligation for interest
thereon after such maturity or redemption date, in trust for the benefit of the holder of such
Refunded Obligation, who shall thereafter be restricted exclusively to said cash for any claim of
whatever nature on his part on or with respect to said Refunded Obligation, including for any
claim for the payment thereof and interest thereon. All cash required by the provisions hereof to
90371546.1/11013521 4
be set aside or held in trust for the payment of the Refunded Obligations, including interest
thereon, sha11 be applied to and used solely for the payment of the Refunded Obligations and
interest thereon with respect to which such cash has been so set aside in trust.
Subject to the provisions of the last sentence of Section 25 hereof, cash held by the
Escrow Agent in trust for the payment and discharge of any of the Refunded Obligations and
interest thereon which rernains unclaimed for a period of three (3) years after the stated maturity
date or redemption date of such Refunded Obligations shall be returned to the Issuer.
Notwithstanding the above and foregoing, any remittance of funds from the Escrow Agent to the
Issuer shall be subject to any applicable unclaimed property laws of the State of Texas.
SECTION 8. Disposal of Refunded Obli atg ions. All Refunded Obligations cancelled on
account of payment by the Escrow Agent shall be cremated or otherwise destroyed by the
Escrow Agent, and an appropriate certificate of destruction furnished the Issuer.
SECTION 9. Escrow Fund Encumbrance. The escrow ~ created hereby shall be
irrevocable and the holders of the Refunded Obligations shall have an express lien on all moneys
and Escrowed Securities in the Escrow Fund until paid out, used and applied in accordance with
this Agreement.
Unless disbursed in payment of the Refunded Obligations, all funds and the Escrowed
Securities _ received by the Escrow Agent for the account of the Issuer hereunder shall be and
remain the property of the Escrow Fund and the Issuer and the owners of the Refunded
Obligations shall be entitled to a preferred claim and shall have a first lien upon such funds and
Escrowed Securities enjoyed by a trust beneficiary. The funds and Escrowed Securities received
by the Escrow Agent under this Agreement shall not be considered as a banking deposit by the
Issuer and the Escrow Agent and the Issuer shall have no right or title with respect thereto,
except as otherwise provided herein. Such funds and Escrowed Securities shall not be subject to
checks or drafts drawn by the Issuer.
SECTION 10. Absence of Escrow Ag~,ent Claim - Lien on Escrow Fund. The Escrow
Agent shall have no lien whatsoever upon any of the moneys or Escrowed Securities in the
Escrow Fund for payment of services rendered hereunder, services rendered as paying
agent/registrar for the Refunded Obligations, or for any costs or expenses incurred hereunder and
reimbursable from the Issuer.
SECTION 11. Substitution - Reinvestments. (a) The Escrow Agent shall be authorized to
accept initially and temporarily cash and/or substituted Escrowed Securities pending the delivery
of the Escrowed Securities identified in the Exhibit B attached hereto, or shall be authorized to
redeem the Escrowed Securities and reinvest the proceeds thereof, together with other moneys
held in the Escrow Fund in noncallable direct obligations of the United States of America
provided such early redemption and reinvestment of proceeds does not change the repayment
schedule of the Refunded Obligations appearing in Exhibit A and the Escrow Agent receives the
following:
(i) an opinion by an independent certified public accountant to the
effect that (i) the initial and/or temporary substitution of cash and/or securities for
90371546.1/11013521 5
one or more of the Escrowed Securities identified in Exhibit B pending the
receipt and delivery thereof to the Escrow Agent or (ii) the redemption of one or
more of the Escrowed Securities and the reinvestment of such funds in one or
more substituted Governmental Securities, together with the interest thereon and
other available moneys then held in the Escrow Fund, will, in either case, be
sufficient, without reinvestment, to pay, as the same become due in accordance
with Exhibit A, the principal of, and interest on, the Refunded Obligations which
have not previously been paid, and
(ii) with respect to an early redemption of Escrowed Securities and the
reinvestment of the proceeds thereof, an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a) such investment will not
cause interest on the Bonds or Refunded Obligations to be included in the gross
income for federal income tax purposes, under the Code and related regulations as
in effect on the date of such investment, or otherwise make the interest on the
Bonds or the Refunded Obligations subject to Federal income taxation and
(b) such reinvestment complies with the Constitution and laws of the State of
Texas and with all relevant documents relating to the issuance of the Refunded
Obligations and the Bonds.
(b) If on the date and in the amount shown in Exhibit C attached hereto there exists
cash in the Escrow Fund, the Escrow Agent and the Issuer agree at least fifteen (15) days prior to
such date, to subscribe for the purchase of United States Treasury Securities - State and Local
Government Series (SLGS) bearing zero interest (0%) and on such date, in the amount and
scheduled to mature as provided in Exhibit C and subscription forms prepared therefor as may
be then required by the United States Department of the Treasury; provided that the then existing
rules and regulations and policy of United States Department of the Treasury permit and
authorize such investments. Should the policy, rules and regulations of the United States
Department of Treasury not permit or authorize the purchase of such SLGS at such time or
times, such cash balance or balances shall remain uninvested and held in trust for the benefit of
the holders of the Refunded Obligations and used for the payment of the Refunded Obligations
on the dates and in the amount such moneys would have been expended had such SLGS been
acquired and matured.
SECTION 12. Restriction Re: Escrow Fund Investments/Re-Investment. Except as
provided in Section 11 hereof, moneys in the Escrow Fund will be invested only in the Escrowed
Securities listed in Exhibit B and neither the Issuer nor the Escrow Agent shall reinvest any
moneys deposited in the Escrow Fund except as specifically provided by this Agreement.
SECTION 13. Excess Funds. If at any time through redemption or cancellation of the
Refunded Obligations there exists or will exist excesses of interest on or maturing principal of
the Escrowed Securities in excess of the amounts necessary hereunder for the Refunded
Obligations, the Escrow Agent may transfer such excess amounts to or on the order of the Issuer,
provided that the Issuer delivers to the Escrow Agent the following:
(i) an opinion by an independent certified public accountant that after
the transfer of such excess, the principal amount of securities in the Escrow Fund,
90371546.1/11013521 6
together with the interest thereon, and other available monies then held in the
Escrow Fund, will be sufficient to pay, as the same become due and without
reinvestment, in accordance with Exhibit A, the principal of, and interest on, the
Refunded Obligations which have not previously been paid, and
(ii) an unqualified opinion of nationally recognized municipal bond
counsel to the effect that (a) such transfer will not cause interest on the Bonds or
the Refunded Obligations to be included in gross income for federal income tax
purposes, under the Code and related regulations as in effect on the date of such
transfer, or otherwise make the interest on the Bonds or the Refunded Obligations
subject to Federal income taxation, and (b) such transfer complies with the
Constitution and laws of the State of Texas and with all relevant documents
relating to the issuance of the Refunded Obligations or the Bonds.
SECTION 14. Collateralization. The Escrow Agent sha11 continuously secure the monies
in the Escrow Fund not invested in Escrowed Securities by a pledge of direct obligations of the
United States of America, in the par or face amount at least equal to the principal amount of said
uninvested monies to the extent such money is not insured by the Federal Deposit Insurance
Corporation.
SECTION 15. Absence of Escrow A~ent's Liability Re: Investments. The Escrow Agent
shall not be liable or responsible for any loss resulting from any investment made in the
Escrowed Securities or substitute securities as provided in Section 11 hereo£
SECTION 16. Escrow Agent's Com~ensation - Escrow Administration - Settlement of
Pa~in~ A~ents' Char~es. The Issuer agrees to pay the Escrow Agent for the performance of
services hereunder and as reimbursement for anticipated expenses to be incurred hereunder the
amount of $ and, except for reimbursement of costs and expenses incurred by the Escrow
Agent pursuant to Sections 3, 11, and 19 hereof, the Escrow Agent hereby agrees said amount is
full and complete payment for the administration of this Agreement.
The Issuer also agrees to deposit with the Escrow Agent on the effective date of this
Agreement, the sum of $600, which represents the total charge due the Escrow Agent as paying
agent for the Refunded Obligations and the Escrow Agent acknowledges and agrees that such
amount is and represents the total amount of compensation due the Escrow Agent for services
rendered as paying agent for the Refunded Obligations. The Escrow Agent hereby agrees to pay,
assume and be fully responsible for any additional charges that it may incur in the performance
of its duties and responsibilities as paying agent for the Refunded Obligations.
SECTION 17. Escrow A~ent's Duties - Responsibilities - Liability. The Escrow Agent
shall not be responsible for any recital herein, except with respect to its organization and its
powers and authority. As to the existence or nonexistence of any fact relating to the Issuer or as
to the sufficiency or validity of any instrument, paper or proceedings relating to the Issuer, the
Escrow Agent shall be entitled to rely upon a certificate signed on behalf of the Issuer by its
Mayor, Mayor Pro Tem, City Manager and Assistant City Manager/Chief Financial Officer, any
one or more of said officials, as sufficient evidence of the facts therein contained. The Escrow
Agent may accept a certificate of the City Secretary under the Issuer's seal, to the effect that a
90371546.1/11013521 7
resolution or other instrument in the form therein set forth has been adopted by the City Council
of the Issuer, as conclusive evidence that such resolution or other instrument has been duly
adopted and is in full force and effect.
The duties and obligations of the Escrow Agent shall be determined solely by the express
provisions of this Agreement and the Escrow Agent shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the Escrow Agent.
In the absence of bad faith on the part of the Escrow Agent, the Escrow Agent may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificate or opinion furnished to the Escrow Agent, conforming to the
requirements of this Agreement; but notwithstanding any provision of this Agreement to the
contrary, in the case of any such certificate or opinion or any evidence which by any provision
hereof is specifically required to be furnished to the Escrow Agent, the Escrow Agent shall be
under a duty to examine the same to determine whether it conforms to the requirements of this
Agreement.
The Escrow Agent shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Escrow Agent unless it shall be proved that the Escrow
Agent was negligent in ascertaining or acting upon the pertinent facts.
The Escrow Agent sha11 not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of not less than a
majority in aggregate principal amount of all said Refunded Obligations at the time outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to
the Escrow Agent not in conflict with the intent and purpose of this Agreement. For the
purposes of determining whether the holders of the required principal amount of said Refunded
Obligations have concurred in any such direction, Refunded Obligations owned by any obligor
upon the Refunded Obligations, or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with such obligor, shall be disregarded, except that
for the purposes of determining whether the Escrow Agent sha11 be protected in relying on any
such direction only Refunded Obligations which the Escrow Agent knows are so owned shall be
so disregarded.
The term "Responsible Officers" of the Escrow Agent, as used in this Agreement, shall
mean and include the Chairman of the Board of Directors, the President, any Vice President and
any Second Vice President, the Secretary and any Assistant Secretary, the Treasurer and any
Assistant Treasurer, and every other officer and assistant officer of the Escrow Agent
customarily performing functions similar to those performed by the persons who at the time shall
be officers, respectively, or to whom any corporate trust matter is referred, because of his
knowledge of and familiarity with a particulax subject; and the term "Responsible Officer" of the
Escrow Agent, as used in this Agreement, sha11 mean and include any of said officers or persons.
SECTION 18. Limitation Re: Escrow Agent's Duties/Responsibilities - Liabilities to
Third Parties. The Escrow Agent shall not be responsible or liable to any person in any manner
whatever for the sufficiency, correctness, genuineness, effectiveness, or validity of this
90371546.1/11013521 g
Agreement with respect to the Issuer, or for the identity or authority of any person making or
executing this Agreement for and on behalf of the Issuer. The Escrow Agent is authorized by the
Issuer to rely upon the representations of the Issuer with respect to this Agreement and the
deposits made pursuant hereto and as to the Issuer's right and power to execute and deliver this
Agreement, and the Escrow Agent shall not be liable in any manner as a result of such reliance.
The duty of the Escrow Agent hereunder shall only be to the Issuer and the holders of the
Refunded Obligations. Neither the Issuer nor the Escrow Agent shall assign or attempt to assign
or transfer any interest hereunder or any portion of any such interest. Any such assignment or
attempted assignment shall be in direct conflict with this Agreement and be without effect.
This Agreement shall not create an obligation on the part of the Escrow Agent to
calculate or in any way verify the sufficiency or projected future sufficiency of the maturing
principal of and interest on the Escrow Securities, any substitute Escrow Securities and other
money held by the Escrow Agent pursuant to this Agreement to pay the Refunded Obligations.
SECTION 19. Interpleader. In the event conflicting demands or notices are made upon
the Escrow Agent growing out of or relating to this Agreement or the Escrow Agent in good
faith is in doubt as to what action should be taken hereunder, the Escrow Agent shall have the
right at its election to:
(i) Withhold and stop all further proceedings in, and performance of,
this Agreement with respect to the issue in question and of all instructions
received hereunder in regard to such issue; and
(ii) File a suit in interpleader and obtain an order from a court of
appropriate jurisdiction in the State of Texas requiring all persons involved to
interplead and litigate in such court their several claims and rights among
themselves.
In the event the Escrow Agent becomes involved in litigation in connection with this
Agreement, the Issuer, to the extent permitted by law, agrees to indemnify and save the Escrow
Agent harmless from all loss, cost, damages, expenses and attorney fees suffered or incurred by
the Escrow Agent as a result thereof. The obligations of the Escrow Agent under this Agreement
shall be performable at the principal corporate office of the Escrow Agent in the City of Dallas,
Texas. To the extent permitted by law, and subj ect to any applicable statutes of limitation, the
foregoing indemnification shall survive the resignation or removal of the Escrow Agent or the
termination of this Agreement.
The Escrow Agent may advise with legal counsel in the event of any dispute or question
regarding the construction of any of the provisions hereof or its duties hereunder, and in the
absence of negligence or bad faith on the part of the Escrow Agent, no liability shall be incurred
by the Escrow Agent for any action taken pursuant to this Section and the Escrow Agent shall be
fully protected in acting in accordance with the opinion and instructions of legal counsel that is
knowledgeable and has expertise in the field of law addressed in any such legal opinion or with
respect to the instructions given.
90371546.1/11013521 9
SECTION 20. Accountin l-~Report. Promptly following the February 15, 2012
redemption date for the Series 2002 Refunded Certificates, the Escrow Agent shall forward by
letter to the Issuer, to the attention of the Assistant City Manager/Chief Financial Officer, or
other designated official of the Issuer, a statement in detail of the Escrowed Securities and
monies held, and the income and maturities thereof, and disbursements from the Escrow Fund
for the payment of the Refunded Obligations.
SECTION 21. Notices. Any notice, authorization, request or demand required or
permitted to be given hereunder shall be in writing and shall be deemed to have been duly given
when mailed by registered or certified mail, postage prepaid addressed as follows:
CITY OF COLLEYVILLE, TEXAS
100 Main Street
Colleyville, Texas 76034
Attention: Assistant City Manager/Chief Financial Officer
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
2001 Bryan Street, 11 th Floor
Dallas, Texas 75201
Attention: Issuer Administrative Services
The United States Post Office registered or certified mail receipt showing delivery of the
aforesaid shall be conclusive evidence of the date and fact of delivery.
Any party hereto may change the address to which notices axe to be delivered by giving
to the other parties not less than ten (10) days prior notice thereof.
SECTION 22. Performance Date. Whenever under the terms of this Agreement the
performance date of any provision hereof, including the date of maturity of interest on or
principal of the Refunded Obligations, shall be a Sunday or a legal holiday or a day on which the
Escrow Agent is authorized by law to close, then the performance thereof, including the payment
of principal of and interest on the Refunded Obligations, need not be made on such date but may
be performed or paid, as the case may be, on the next succeeding business day of the Escrow
Agent with the same force and effect as if made on the date of performance or payment and with
respect to a payment, no interest shall accrue for the period after such date.
SECTION 23. Warrantv of Parties Re: Power to Execute and Deliver Escrow A~reement.
The Issuer covenants that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Agreement, in any and every said
Refunded Obligation as executed, authenticated and delivered and in all proceedings pertaining
thereto as said Refunded Obligations sha11 have been modified as provided in this Agreement.
The Issuer covenants that it is duly authorized under the Constitution and laws of the State of
Texas to execute and deliver this Agreement, that all actions on its part for the payment of said
Refunded Obligations as provided herein and the execution and delivery of this Agreement have
been duly and effectively taken and that said Refunded Obligations and coupons in the hands of
the holders and owners thereof are and will be valid and enforceable obligations of the Issuer
according to the import thereof as provided in this Agreement.
90371546.1/11013521 j 0
SECTION 24. Severabilitv. If any one or more of the covenants or agreements provided
in this Agreement on the part of the parties to be performed should be determined by a court of
competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and
construed to be severable from the remaining covenants and agreements herein contained and
shall in no way affect the validity of the remaining provisions of this Agreement. In the event
any covenant or agreement contained in this Agreement is declared to be severable from the
other provisions of this Agreement, written notice of such event sha11 immediately be given to
each national rating service (Moody's Investors Service, Inc. ["Moody's"], Standard & Poor's
Ratings Services, a Standard & Poor's Financial Services LLC business ["S&P"J or Fitch Inc.
["Fitch"]) which has rated the Refunded Obligations on the basis of this Agreement.
SECTION 25. Termination. This Agreement shall terminate when the Refunded
Obligations, including interest due thereon, have been paid and discharged in accordance with
the provisions of this Agreement. If any Refunded Obligations are not presented for payment
when due and payable, the nonpayment thereof shall not prevent the termination of this
Agreement. Funds for the payment of any nonpresented Refunded Obligations and accrued
interest thereon shall upon termination of this Agreement be held by the Escrow Agent for such
purpose in accordance with Section 7 hereof. Any moneys or Escrowed Securities held in the
Escrow Fund at termination and not needed for the payxnent of the principal of or interest on any
of the Refunded Obligations sha.ll be paid or transferred to the Issuer.
SECTION 26. Time of the Essence. Time shall be of the essence in the performance of
obligations from time to time imposed upon-the Escrow Agent by this Agreement.
SECTION 27. Successors/Assi~ns. .(a) Should the Escrow Agent not be able to legally
serve or perform the duties and obligations under this Agreement, or should the Escrow Agent be
declared to be insolvent or closed for any reason by federal or state regulatory authorities or a
court of competent jurisdiction, the Issuer, upon being notified or discovering the Escrow
Agent's inability or disqualification to serve hereunder, shall forthwith appoint a successor to
replace the Escrow Agent, and upon being notified of such appointment, the Escrow Agent shall
(i) transfer a11 funds and securities held hereunder, together with all books, records and accounts
relating to the Escrow Fund and the Refunded Obligations, to such successor and (ii) assign all
rights, duties and obligations under this Agreement to such successor. If the Issuer should fail to
appoint such a successor within nineTy (90) days from the date the Issuer discovers, or is notified
of, the event or circumstance causing the Escrow Agent's inability or disqualification to serve
hereunder, the Escrow Agent, or a bondholder of the Refunded Obligations, may apply, at the
expense of the Issuer, to a court of competent jurisdiction to appoint a successor or assigns of the
Escrow Agent and such court, upon determining the Escrow Agent is unable to continue to serve,
sha11 appoint a successor to serve under this Agreement and the amount of compensation, if any,
to be paid to such successor for the remainder of the term of this Agreement for services to be
rendered both for administering the Escrow Fund and for paying agent duties and responsibilities
for the Refunded Obligations.
(b) Furthermore, the Escrow Agent may resign and be discharged from performing its
duties and responsibilities under this Agreement upon notifying the Issuer in writing of its
intention to resign and requesting the Issuer to appoint a successor. No such resignation shall
take effect until a successor has been appointed by the Issuer and such successor has accepfed
90371546.1/11013521 11
such appointment and agreed to perform all duties and obligations hereunder for a total
compensation equal to the unearned proportional amount paid the Escrow Agent under
Section 16 hereof for the administration of this Agreement and the unearned proportional amount
of the paying agents fees for the Refunded Obligations due the Escrow Agent.
Any successor to the Escrow Agent shall be a commercial bank, trust company or other
financial institution that is duly qualified under applicable law (the Act, or other appropriate
statute) to serve as escrow agent hereunder and authorized and empowered to perform the duties
and obligations contemplated by this Agreement and organized and doing business under the
laws of the United States or the State of Texas, having its principal office and place of business
in the State of Texas, having a combined capital and surplus of at least $5,000,000 and be subject
to the supervision or examination by Federal or State authority.
Any successor or assigns to the Escrow Agent shall execute, acknowledge and deliver to
the Issuer and the Escrow Agent, or its successor or assigns, an instrument accepting such
appointment hereunder, and the Escrow Agent shall execute and deliver an instrument
transferring to such successor, subject to the terms of this Agreement, all the rights, powers and
trusts created and established and to be performed under this Agreement. Upon the request of
any such successor Escrow Agent, the Issuer shall execute any and all instruments in writing for
more fully and certainly vesting in and confirming to such successor Escrow Agent all such
rights, powers and duties. The term "Escrow Agent" as used herein shall be the Escrow Agent
and its legal assigns and successor hereunder.
SECTION 28. Escrow A~reement Amendment/Modification. This Agreement shall be
binding upon the Issuer and the Escrow Agent and their respective successors and legal
representatives and shall inure solely to the benefit of the holders of the Refunded Obligations,
the Issuer, the Escrow Agent and their respective successors and legal representatives.
Furthermore, no alteration, amendment or modification of any provision of this Agreement
(1) shall alter the firm financial arrangements made for the payment of the Refunded
Obligations or (2) shall be effective unless (i) prior written consent of such alteration,
amendment or modification shall have been obtained from the holders of all Refunded
Obligations outstanding at the time of such alteration, amendment or modification and (ii) such
alteration, amendment or modification is in writing and signed by the parties hereto; provided,
however, the Issuer and the Escrow Agent may, without the consent of the holders of the
Refunded Obligations, amend or modify the terms and provisions of this Agreement to cure in a
manner not adverse to the holders of the Refunded Obligations any ambiguity, formal defect or
omission in this Agreement. If the parties hereto agree to any amendment or modification to this
Agreement, prior written notice of such amendment or proposed modification, together with the
legal documents amending or modifying this Agreement, shall be furnished to each national
rating service (S&P, Moody's or Fitch) which has rated the Refunded Obligations on the basis of
this Agreement, prior to such amendment or modification being executed.
SECTION 29. Effect of Headin~s. The Section headings herein are for convenience only
and shall not affect the construction hereof.
90371546.1/11013521 12
SECTION 30. Executed Counteraarts. This Agreement may be executed in several
counterparts, all or any of which shall be regarded for all purposes as one original and shall
constitute and be but one and the same instrument.
SECTION 31. Governin~w. This Agreement shall be governed by the laws of the
State of Texas and shall be effective as of the date of the delivery of the Bonds.
[Remainder ofpage left blank intentionallyJ
90371546:1/11013521 13
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their duly authorized officers and attested as of the date first above written.
(City Seal)
ATTEST:
City Secretary
(Bank Seal)
ATTEST:
Title:
CITY OF COLLEYVILLE, TEXAS
Mayor
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Escrow Agent
Title:
90371546.1/11013521 s-1
EXI~IBIT A
REFUNDED OBLIGATIONS
90371546.1/11013521 !~-1
EXHIBIT B
ESCROWED SECURITIES (SLGS)
903'71546.1/11013521 B-1
EXHIBIT C
ZERO REINVESTMENTS
NONE
90371546.1/I 1013521 C-1
EXHIBIT D
CITY OF COLLEYVILLE, TEXAS
TAX AND TAX INCREMENT REVENUE CERTIFICATES OF OBLIGATION,
SERIES 2001 (REINVESTMENT ZONE NUMBER ONE)
DATED FEBRUARY 1, 2001
NOTICE IS HEREBY GIVEN that the certificates of obligation of the above series
maturing on and after February 15, 2012, and aggregating in the principal amount of $4,945,000,
have been called for redemption on March 21, 2011 at the redemption price of par and accrued
interest to the date of redemption, such certificates of obligation being identified as follows:
Year of Principal CUSIP Year of Principal CUSIP
Maturitv Amount Number Maturitv Amount Number
2012 $450,000 2017 $570,000
2013 $475,000 2018 $600,000
- 2014 $495,000 2019 $630,000
2015 $520,000 2020 $660,000
2016 $545,000
NOTICE OF REDEMPTION
ALL SUCH CERTIFICATES OF OBLIGATION sha11 become due and payable on
March 21, 2011, and interest thereon shall cease to accrue from and after said redemption date
and payrnent of the redemption price of said certificates of obligation shall be paid to the
registered owners of the certificates of obligation only upon presentation and surrender thereof to
The Bank of New Yark Mellon Trust Company, N.A., Dallas, Texas (successor paying
agent/registrar to U.S. Trust Company of Texas, N.A.) at its designated offices at the following
addresses:
First Class/Registered/Certified
Express Delivery/Courier
By Hand Only
The Bank of New York Mellon
Tntst Company, N.A.
Institutional Trust Services
P. O. Box 2320
Dallas, Texas 75221-2320
The Bank of New York Mellon
Trust Company, N.A.
Institutional Trust Services
2001 Bryan Street,
9th Floor
Dallas, Texas 75201
The Bank of New York
Mellon Trust Company, N.A.
Room 234-North Building
Institutional Trust
Securities Window
55 Water Street
New York, New York 10041
THIS NOTICE is issued and given pursuant to the terms and conditions prescribed for
the redemption of said certificates of obligation and pursuant to an ordinance by the City Council
of the City of Colleyville, Texas.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas
Address: 2001 Bryan Street, 11 th Floor
Dallas, Texas 75201
90343309.1/11013521 D-1
E~HIBIT E
NOTICE OF REDEMPTION
CITY OF COLLEYVILLE, TEXAS
TAX AND TAX INCREMENT REVENUE CERTIFICATES OF OBLIGATION,
SERIES 2002 (REINVESTMENT ZONE NUMBER ONE)
DATED FEBRUARY 15, 2002
NOTICE IS HEREBY GIVEN that the certificates of obligation of the above series
maturing on and after February 15, 2013, and aggregating in the principal amount of $395,000,
have been called for redemption on February 15, 2012 at the redemption price of par and accrued
interest to the date of redemption, such certificates being identified as follows:
Year of Principal CUSII' Year of Principal CUSIP
Maturitv Amount Number Maturitv Amount Number
2013 $40,000~ 2017 $50,000
2014 $45,000* 2018 $50,000***
2015 $45,000 2019 $55,000***
2016 $50,000** 2020 $60,000
* represents mandatory sinking fund redemption for term certificate maturing in the year 2015.
** represents mandatory sinking fiirid redemption for term certificate maturing in the year 2017.
*"* represents mandatory sinking fund redemption for term certificate maturing in the year 2020.
ALL SUCH CERTIFICATES OF OBLIGATION shall become due and payable on
February 15, 2012, and interest thereon shall cease to accrue from and after said redemption date
and payment of the redemption price of said certificates of obligation shall be paid to the
registered owners of the certificates of obligation only upon presentation and surrender thereof to
The Bank of New York Mellon Trust Company, N.A., Da11as, Texas (successor paying
agent/registrar to U.S. Trust Company of Texas, N.A.) at its designated offices at the following
addresses:
First Class/Re~istered/Certified
Express Delivery/Courier
Bv Hand Only
The Bank of New York Mellon
Trust Company, N.A.
Institutional Trust Services
P. O. Box 2320
Dallas, Texas 75221-2320
The Bank of New York Mellon
Trust Company, N.A.
Institutional Trust Services
2001 Bryan Street,
9th Floor
Dallas, Texas 75201
The Bank of New York
Mellon Trust Company, N.A.
Room 234-North Building
Institutional Trust
Securities Window
55 Water Street
New York, New York 10041
THIS NOTICE is issued and given pursuant to the terms and conditions prescribed for
the redemption of said certificates and pursuant to an ordinance by the City Council of the City
of Colleyville, Texas.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas
Address: 2001 Bryan Street, 1 lth Floor
Dallas, Texas 75201
90343309.1/11013521 E-1
EXHIBIT F
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 36 of this Ordinance.
Annual Financial Information and Onerating Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in Appendix B or under
the Tables of the Official Statement referred to) below:
l. Financial information of the general type included in the Official
Statement as Appendix B for the most recently concluded fiscal year.
2. The information included in Tables 1 through 6 and 8 through 13
in the Official Statement.
Accounting Principles
The accounting principles referred to in such Section are generally those described in
Appendix B to the Official Statement, as such principles may be changed from time to time to
comply with state law or regulation.
90343309.1/11013521 F-1