HomeMy WebLinkAboutOrdinance 3627ORDINANCE NO. 3627
AN ORDINANCE APPROVING AND AUTHORIZING THE ISSUANCE
AND SALE OF THE CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019 (CITY POINT
PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A
PROJECT); APPROVING AND AUTHORIZING RELATED
AGREEMENTS, AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of North Richland Hills, Texas (the "City"), pursuant to and in
accordance with the terms, provisions and requirements of the Public
Improvement District Assessment Act, Chapter 372, Texas Local
Government Code (the "PID Act"), has established the "City Point Public
Improvement District", pursuant to Resolution No. 2019-035 adopted by the
City Council of the City (the "City Council") on September 9, 2019; and
WHEREAS, pursuant to the PID Act, the City Council published notice of and held a
public hearing regarding the levy of special assessments against benefitted
property designated as Improvement Zone A of the District on November
12, 2019 and recessed that public hearing until December 9, 2019, and at
the December 9, 2019 meeting of the City Council, after hearing testimony
at such public hearing, the City Council closed the public hearing and
adopted Ordinance No. 3625 (the "Improvement Zone A Assessment
Ordinance"); and
WHEREAS, in the Improvement Zone A Assessment Ordinance, the City Council
approved and accepted the City Point Public Improvement District Service
and Assessment Plan, dated December 9, 2019, (the "Service and
Assessment Plan") relating to the District and levied the Improvement Zone
A Assessments (as defined in the Improvement Zone A Assessment
Ordinance, the "Improvement Zone A Assessments") against the
Improvement Zone A Assessed Property as shown in the Improvement
Zone A Assessment Roll (as defined and described in the Improvement
Zone A Assessment Ordinance); and
WHEREAS, the City is authorized by the PID Act to issue its revenue bonds payable
from the Improvement Zone A Assessments and other revenues received
for the purposes of paying (a) a portion of the Actual Costs (as defined in
the Service and Assessment Plan) of the Public Improvements (as defined
in the Service and Assessment Plan) allocable to Improvement Zone A and
(b) District Formation and Bond Issuance Costs (as defined in the Service
and Assessment Plan) allocable to Improvement Zone A; and
WHEREAS, the City Council hereby finds and determines that it is in the best interests
of the City to issue its bonds to be designated "City of North Richland Hills,
Texas, Special Assessment Revenue Bonds, Series 2019 (City Point
Public Improvement District Improvement Zone A Project)" (the "Bonds"),
Ordinance No. 3627
Page 1 of 11
such series to be payable from and secured by the Pledged Revenues, as
defined in the Indenture (as defined herein); and
WHEREAS, the City Council hereby finds and determines to (i) approve the issuance of
the Bonds to finance a portion of the costs of the Public Improvements
allocable to Improvement Zone A, as identified in the Service and
Assessment Plan, (ii) approve the form, terms and provisions of an
indenture of trust securing the Bonds, (iii) approve the form, terms and
provisions of a Bond Purchase Agreement (defined below) between the
City and the purchaser of the Bonds, (iv) approve a Preliminary Limited
Offering Memorandum (defined below) and a Limited Offering
Memorandum (defined below), (v) approve the form, terms and provisions
of a Continuing Disclosure Agreement (defined below), (vi) approve the
form, terms and provisions of a Construction, Funding and Acquisition
Agreement (defined below), and (vii) approve the form, terms and
provisions of a Landowner Agreement (defined below); and
WHEREAS, the meeting at which this Ordinance is considered is open to the public as
required by law, and the public notice of the time, place and purpose of
such meeting was given as required by Chapter 551, Texas Government
Code.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
NORTH RICHLAND HILLS, TEXAS, THAT:
SECTION 1: (a) The issuance of the Bonds in the principal amount of $2,615,000 for
the purpose of paying (a) a portion of the Actual Costs of the Public
Improvements allocable to Improvement Zone A and (b) District Formation
and Bond Issuance Costs allocable to Improvement Zone A is hereby
authorized and approved.
(b) The Bonds shall be issued and secured under that certain Indenture
of Trust (the "Indenture") dated as of December 1, 2019, between the City
and Wilmington Trust, National Association, as trustee (the "Trustee"),
with such changes as may be necessary or desirable to carry out the intent
of this Ordinance and as approved by the City Manager, the City Attorney
and the Bond Counsel (as defined below), such approval to be evidenced
by the execution and delivery of the Indenture by the Mayor of the City.
The Indenture is hereby approved in substantially the form attached hereto
as Exhibit A which is incorporated herein as a part hereof for all purposes.
The Mayor of the City is hereby authorized and directed to execute the
Indenture and the City Secretary is hereby authorized and directed to
attest such signature of the Mayor.
(c) The Bonds shall be dated, shall mature on the date or dates and in
the principal amounts, shall bear interest, shall be subject to redemption
Ordinance No. 3627
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and shall have such other terms and provisions as set forth in the
Indenture. The Bonds shall be in substantially the form set forth in the
Indenture with such insertions, omissions and modifications as may be
required to conform the form of bond to the actual terms of the Bonds. The
Bonds shall be payable from and secured by the Pledged Revenues (as
defined in the Indenture) and other assets of the Trust Estate (as defined
in the Indenture) pledged to such series, and shall never be payable from
ad valorem taxes.
SECTION 2: The Bonds shall be sold to FMSbonds, Inc. (the "Underwriter") under that
certain Bond Purchase Agreement (the "Bond Purchase Agreement"),
dated the date hereof, between the City and the Underwriter, substantially
in the form attached hereto as Exhibit B which is incorporated herein as
a part hereof for all purposes. The terms of sale are declared to be in the
best interests of the City at the price and on the terms and provisions set
forth in the Bond Purchase Agreement. The form, terms and provisions of
the Bond Purchase Agreement are hereby authorized and approved with
such changes as may be necessary or desirable to carry out the intent of
this Ordinance and as approved by the City Manager, the City Attorney
and Bond Counsel, such approval to be evidenced by the execution and
delivery of the Bond Purchase Agreement by the Mayor. The Mayor of
the City is hereby authorized and directed to execute and deliver the Bond
Purchase Agreement.
SECTION 3: The form and substance of the Preliminary Limited Offering Memorandum
for the Bonds (the "Preliminary Limited Offering Memorandum") and any
addenda, supplement or amendment thereto and the final Limited Offering
Memorandum for the Bonds (the "Limited Offering Memorandum") are
hereby in all respects approved and adopted. The Mayor is hereby
authorized and directed to execute such Limited Offering Memorandum
with such changes and alterations therein as the Mayor, the City Manager,
and Bond Counsel may approve, such approval to be conclusively
evidenced by such execution thereof. The Limited Offering Memorandum
as thus approved, executed and delivered, with such appropriate
variations as shall be approved by the Mayor, City Manager, Bond
Counsel and the Underwriter, may be used by the Underwriter in the
offering and sale of the Bonds. The City Secretary is hereby authorized
and directed to include and maintain a copy of the Preliminary Limited
Offering Memorandum and Limited Offering Memorandum and any
addenda, supplement or amendment thereto thus approved among the
permanent records of this meeting. The use and distribution of the
Preliminary Limited Offering Memorandum in the offering of the Bonds is
hereby ratified, approved and confirmed and the Preliminary Limited
Offering Memorandum is hereby deemed "final" as of its date, within the
meaning of Rule 15c2-12 of the Securities and Exchange Commission.
Notwithstanding the execution, approval and delivery of such Preliminary
Ordinance No. 3627
Page 3 of 11
Limited Offering Memorandum and Limited Offering Memorandum by the
Mayor, this City Council, including the Mayor, is not responsible for and
proclaim no specific knowledge of the information contained in the
Preliminary Limited Offering Memorandum and Limited Offering
Memorandum pertaining to the Development (as defined in the Limited
Offering Memorandum), the Developer (as defined in the Indenture) or
their financial ability to perform the obligations set forth therein, or
pertaining to any builders, any landowners, or the appraisal of the property
in the District.
SECTION 4: That certain "City of North Richland Hills, Texas, Special Assessment
Revenue Bonds, Series 2019 (City Point Public Improvement District
Improvement Zone A Project) Continuing Disclosure Agreement of Issuer"
dated as of December 1, 2019 (the "Continuing Disclosure Agreement")
among the City, P3Works, LLC and HTS Continuing Disclosure Services,
a division of Hilltop Securities Inc. is hereby authorized and approved in
substantially the form attached hereto as Exhibit C which is incorporated
herein as a part hereof for all purposes. The Mayor of the City is authorized
and directed to execute and deliver the Continuing Disclosure Agreement
with such changes as may be required to carry out the purpose of this
Ordinance and as approved by the City Manager, City Attorney, and Bond
Counsel, such approval to be evidenced by the execution thereof.
SECTION 5: That certain "City Point Public Improvement District Improvement Zone A
Construction, Funding, and Acquisition Agreement" dated as of December
9, 2019 (the "Construction, Funding and Acquisition Agreement") between
the City and MM City Point 53, LLC (the "Developer") is hereby authorized
and approved in substantially the form attached hereto as Exhibit D which
is incorporated herein as a part hereof for all purposes. The City Manager
is authorized and directed to execute and deliver the Construction,
Funding and Acquisition Agreement with such changes as may be
required to carry out the purpose of this Ordinance and as approved by
the City Manager, the City Attorney, and the Bond Counsel, such approval
to be evidenced by the execution thereof.
SECTION 6: That certain "Improvement Zone A Landowner Agreement" dated as of
December 9, 2019 (the "Landowner Agreement") between the City and the
Developer is hereby authorized and approved in substantially the form
attached hereto as Exhibit E which is incorporated herein as a part hereof
for all purposes. The City Manager is authorized and directed to execute
and deliver the Landowner Agreement with such changes as may be
required to carry out the purpose of this Ordinance and as approved by
the City Manager, the City Attorney, and Bond Counsel, such approval to
be evidenced by the execution thereof.
SECTION 7: The Mayor, Mayor Pro Tem, the City Manager, the City Attorney, and the
City Secretary are each hereby authorized and directed to take any and
Ordinance No. 3627
Page 4 of 11
all actions on behalf of the City necessary or desirable to carry out the
intent and purposes of this Ordinance and to issue the Bonds in
accordance with the terms of this Ordinance. The City Council also hereby
confirms the prior engagement of Norton Rose Fulbright US LLP ("Bond
Counsel") as the City's bond counsel. The Mayor, Mayor Pro Tem, the City
Manager, City Attorney, and the City Secretary are each hereby
authorized and directed to execute and deliver any and all certificates,
agreements, notices, instruction letters, requisitions, easements and other
land use agreements, and other documents which may be necessary or
advisable in connection with the sale, issuance and delivery of the Bonds
and the carrying out of the purposes and intent of this Ordinance or any
other certificates, agreements, easements and other land use
agreements, or other documents subsequent to the delivery of the Bonds
which may be necessary or appropriate to carry out or fulfill the purpose
and intent of the Service and Assessment Plan and the acquisition and
construction of the Public Improvements.
SECTION 8: This Ordinance shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
SECTION 9: The Section headings herein are for convenience only and shall not affect
the construction hereof.
SECTION 10: If any provision of this Ordinance or the application thereof to any
circumstance shall be held to be invalid, the remainder of this Ordinance
or the application thereof to other circumstances shall nevertheless be
valid, and this governing body hereby declares that this Ordinance would
have been enacted without such invalid provision.
SECTION 11: If appropriate in the context of this Ordinance, words of the singular number
shall be considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 12: The findings and determinations of the City Council contained in the
preamble of this Ordinance 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 13: This Ordinance shall take effect and be in force immediately from and after
its adoption on the date shown below in accordance with Texas
Government Code, Section 1201.028, as amended.
Ordinance No. 3627
Page 5 of 11
/_1011211 i E-'2-YOZG]ZIJ_11zI
PASSED AND APPROVED on this 9th day of December, 2019.
ATTEST:
rlu
Alicia Richardson, City
CITY OF TH H AND HILLS
By:
Oscar Trevino, Mayor
APPROVED AS TO FORM AND LEPG!`AUTY:
Maleshia B. McGinnis, City Attorney
APPROVED AS TO CONTENT:
Craig 1-10sq,�Director of Economic Development
Ordinance No. 3627
Page 6 of 11
EXHIBIT A
INDENTURE OF TRUST
Ordinance No. 3627
Page 7 of 11
L*0 :
BOND PURCHASE AGREEMENT
Ordinance No. 3627
Page 8 of 11
CONTINUING DISCLOSURE AGREEMENT
Ordinance No. 3627
Page 9 of 11
EXHIBIT D
CONSTRUCTION, FUNDING AND ACQUISITION AGREEMENT
Ordinance No. 3627
Page 10 of 11
LANDOWNER AGREEMENT
Ordinance No. 3627
Page 11 of 11
*A:11=311 r_1
INDENTURE OF TRUST
INDENTURE OF TRUST
By and Between
CITY OF NORTH RICHLAND HILLS, TEXAS
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
DATED AS OF DECEMBER 1, 2019
SECURING
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT
IMPROVEMENT ZONE A PROJECT)
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS, FINDINGS AND INTERPRETATION
Section1.1.
Definitions.......................................................................................................5
Section1.2.
Findings........................................................................................................14
Section 1.3.
Table of Contents, Titles and Headings.......................................................14
Section 1.4.
Interpretation................................................................................................14
ARTICLE II
THE BONDS
Section 2.1.
Security for the Bonds..................................................................................14
Section 2.2.
Limited Obligations.......................................................................................15
Section 2.3.
Authorization for Indenture...........................................................................15
Section 2.4.
Contract with Owners and Trustee...............................................................15
ARTICLE III
AUTHORIZATION; GENERAL TERMS AND PROVISIONS REGARDING THE BONDS
Section 3.1.
Authorization.................................................................................................15
Section 3.2.
Date, Denomination, Maturities, Numbers and Interest................................15
Section 3.3.
Conditions Precedent to Delivery of Bonds..................................................16
Section 3.4.
Medium, Method and Place of Payment.......................................................17
Section 3.5.
Execution and Registration of Bonds...........................................................18
Section3.6.
Ownership....................................................................................................18
Section 3.7.
Registration, Transfer and Exchange...........................................................19
Section3.8.
Cancellation..................................................................................................20
Section 3.9.
Temporary Bonds.........................................................................................
20
Section 3.10.
Replacement Bonds.....................................................................................
20
Section 3.11.
Book -Entry Only System..............................................................................21
Section 3.12.
Successor Securities Depository: Transfer Outside Book -Entry -Only
System..........................................................................................................
22
Section 3.13.
Payments to Cede & Co...............................................................................
22
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.1.
Limitation on Redemption.............................................................................23
Section 4.2.
Mandatory Sinking Fund Redemption..........................................................23
Section 4.3.
Optional Redemption....................................................................................24
Section 4.4.
Extraordinary Optional Redemption.............................................................24
Section 4.5.
Partial Redemption.......................................................................................
25
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Page
Section 4.6.
Notice of Redemption to Owners..................................................................25
Section 4.7.
Payment Upon Redemption.........................................................................26
Section 4.8.
Effect of Redemption....................................................................................26
ARTICLE V
FORM OF THE BONDS
Section 5.1.
Form Generally.............................................................................................26
Section 5.2.
CUSIP Registration......................................................................................27
Section5.3.
Legal Opinion...............................................................................................27
ARTICLE VI
FUNDS AND ACCOUNTS
Section 6.1.
Establishment of Funds and Accounts.........................................................27
Section 6.2.
Initial Deposits to Funds and Accounts........................................................28
Section 6.3.
Pledged Revenue Fund................................................................................29
Section6.4.
Bond Fund....................................................................................................
30
Section6.5.
Project Fund.................................................................................................
30
Section 6.6.
Redemption Fund.........................................................................................32
Section 6.7.
Reserve Fund...............................................................................................
32
Section 6.8.
Rebate Fund: Rebate Amount......................................................................34
Section 6.9.
Administrative Fund......................................................................................34
Section 6.10.
Investment of Funds.....................................................................................34
Section 6.11.
Security of Funds..........................................................................................35
ARTICLE VI
COVENANTS
Section 7.1.
Confirmation of Improvement Zone A Assessments....................................35
Section 7.2.
Collection and Enforcement of Improvement Zone A Assessments ............36
Section 7.3.
Against Encumbrances.................................................................................36
Section 7.4.
Records, Accounts, Accounting Reports ......................................................
36
Section 7.5.
Covenants to Maintain Tax -Exempt Status..................................................37
ARTICLE VIII
LIABILITY OF CITY
ARTICLE IX
THE TRUSTEE
Section 9.1.
Trustee as Registrar and Paying Agent........................................................41
Section 9.2.
Trustee Entitled to Indemnity........................................................................41
Section 9.3.
Responsibilities of the Trustee.....................................................................42
98705268.10/1001073255
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Section 9.4.
Property Held in Trust...................................................................................43
Section 9.5.
Trustee Protected in Relying on Certain Documents...................................43
Section 9.6.
Compensation..............................................................................................43
Section 9.7.
Permitted Acts..............................................................................................44
Section 9.8.
Resignation of Trustee.................................................................................44
Section 9.9.
Removal of Trustee......................................................................................44
Section 9.10.
Successor Trustee........................................................................................44
Section 9.11.
Transfer of Rights and Property to Successor Trustee................................45
Section 9.12.
Merger, Conversion or Consolidation of Trustee..........................................46
Section 9.13.
Trustee to File Continuation Statements......................................................46
Section 9.14.
Accounts, Periodic Reports and Certificates................................................46
Section 9.15.
Construction of Indenture.............................................................................46
ARTICLE X
MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 10.1.
Amendments Permitted................................................................................46
Section 10.2.
Owners' Meetings.........................................................................................47
Section 10.3.
Procedure for Amendment with Written Consent of Owners ........................47
Section 10.4.
Effect of Supplemental Indenture.................................................................48
Section 10.5.
Endorsement or Replacement of Bonds Issued After Amendments ............48
Section 10.6.
Amendatory Endorsement of Bonds.............................................................49
Section 10.7.
Waiver of Default..........................................................................................49
Section 10.8.
Execution of Supplemental Indenture...........................................................49
ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1.
Events of Default..........................................................................................
49
Section 11.2.
Immediate Remedies for Default..................................................................50
Section 11.3.
Restriction on Owner's Action......................................................................51
Section 11.4.
Application of Revenues and Other Moneys After Default ...........................52
Section 11.5.
Effect of Waiver............................................................................................
52
Section 11.6.
Evidence of Ownership of Bonds.................................................................52
Section 11.7.
No Acceleration............................................................................................
53
Section 11.8.
Mailing of Notice...........................................................................................53
Section 11.9.
Exclusion of Bonds.......................................................................................
53
Section 11.10.
Remedies Not Exclusive...............................................................................53
98705268.10/1001073255 iv
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Page
Section 11.11.
Direction by Owners.....................................................................................
54
ARTICLE XI
GENERAL COVENANTS AND REPRESENTATIONS
Section 12.1.
Representations as to Trust Estate..............................................................54
Section 12.2.
Accounts, Periodic Reports and Certificates................................................55
Section12.3.
General.........................................................................................................55
ARTICLE XIII
SPECIAL COVENANTS
Section 13.1.
Further Assurances; Due Performance........................................................
55
Section 13.2.
Additional Obligations or Other Liens...........................................................55
Section 13.3.
Books of Record...........................................................................................
56
ARTICLE XIV
PAYMENT AND CANCELLATION OF THE BONDS AND SATISFACTION OF THE
INDENTURE
Section 14.1.
Trust Irrevocable...........................................................................................56
Section 14.2.
Satisfaction of Indenture...............................................................................56
Section 14.3.
Bonds Deemed Paid.....................................................................................57
ARTICLE XV
MISCELLANEOUS
Section 15.1.
Benefits of Indenture Limited to Parties........................................................57
Section 15.2.
Successor is Deemed Included in All References to Predecessor...............58
Section 15.3.
Execution of Documents and Proof of Ownership by Owners......................58
Section 15.4.
Waiver of Personal Liability..........................................................................
58
Section 15.5.
Notices to and Demands on City and Trustee..............................................58
Section 15.6.
Partial Invalidity............................................................................................59
Section 15.7.
Applicable Laws............................................................................................59
Section 15.8.
Payment on Business Day...........................................................................59
Section 15.9.
Counterparts.................................................................................................60
Section 15.10.
Iran, Sudan, and Foreign Terrorist Organizations........................................60
EXHIBITA
....................................................................................................................
A-1
98705268.10/1001073255 v
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of December 1, 2019 is by and between the
City of North Richland Hills, Texas (the "City"), and Wilmington Trust, National Association,
Dallas, Texas, as trustee (together with its successors, the "Trustee"). Capitalized terms used
in the preambles, recitals and granting clauses and not otherwise defined shall have the
meanings assigned thereto in Article I.
WHEREAS, a petition was submitted by the Petitioner (defined herein) and filed with the
City Secretary of the City (the "City Secretary") pursuant to the Public Improvement District
Assessment Act, Texas Local Government Code, Chapter 372, as amended (the "PID Act"),
requesting the creation of a public improvement district located within the corporate limits of the
City to be known as the City Point Public Improvement District (the "District"); and
WHEREAS, on September 9, 2019, after due notice, the City Council of the City (the
"City Council") held the public hearing in the manner required by law on the advisability of the
improvement projects and services described in the petition as required by Section 372.009 of
the PID Act and on September 9, 2019, the City Council made the findings required by
Section 372.009(b) of the PID Act and, by Resolution No. 2019-035 adopted by the members of
the City Council, authorized the District in accordance with its finding as to the advisability of the
improvement projects and services; and
WHEREAS, on September 16, 2019, the City published notice of its authorization of the
District in the Fort Worth Star -Telegram, a newspaper of general circulation in the City; and
WHEREAS, no written protests of the District from any owners of record of property
within the District were filed with the City Secretary within 20 days after September 16, 2019;
and
WHEREAS, on October 14, 2019 the City Council by Resolution No. 2019-043 made
findings and determinations relating to the costs of certain Public Improvements to be allocated
to Improvement Zone A (as defined herein), called a public hearing for November 12, 2019, and
directed City staff to (i) prepare a proposed assessment roll for Improvement Zone A as
required by Section 372.016(a) of the PID Act, (ii) file the proposed assessment roll with the City
Secretary and to make it available for public inspection as required by Section 372.016(b) of the
PID Act, and (iii) publish such notices as required by Section 372.016(b) of the PID Act; and
WHEREAS, the City Council, pursuant to Section 372.016(b) of the PID Act, published
notice of a public hearing in a newspaper of general circulation in the City to consider the
proposed "Improvement Zone A Assessment Roll" and the "City Point Public Improvement
Service and Assessment Plan" (the "Service and Assessment Plan") and the levy of the
"Improvement Zone A Assessments" on property designated as Improvement Zone A of the
District; and
WHEREAS, the City Council, pursuant to Section 372.016(c) of the PID Act, mailed
notice of the public hearing to consider the proposed Improvement Zone A Assessment Roll and
the Service and Assessment Plan and the levy of the Improvement Zone A Assessments on
property designated as Improvement Zone A of the District to the last known address of the
owners of the property liable for the Improvement Zone A Assessments; and
Improvement Zone A Indenture of Trust
98705268.10/1001073255 2
WHEREAS, the City Council convened a public hearing on November 12, 2019, and
recessed that public hearing until December 9, 2019, at which time the City Council continued
the public hearing and at such public hearing all persons who appeared, or requested to appear,
in person or by their attorney, were given the opportunity to contend for or contest the proposed
Improvement Zone A Assessment Roll and the Improvement Zone A Assessments, and to offer
testimony pertinent to any issue presented on the amount of the Improvement Zone A
Assessment, the allocation of a portion of the Actual Costs of the Public Improvements to
Improvement Zone A, the purposes of the Improvement Zone A Assessments, the special
benefits of the Public Improvements and the penalties and interest on annual installments and
on delinquent annual installments of the Improvement Zone A Assessment; and
WHEREAS, at the December 9, 2019 public hearing referenced above, there were no
written objections or evidence submitted to the City Secretary in opposition to the Service and
Assessment Plan, the allocation of Actual Costs of Public Improvements to Improvement Zone
A, the Improvement Zone A Assessment Roll, and the levy of the Improvement Zone A
Assessments; and
WHEREAS, the City Council closed the hearing, and, after considering all written and
documentary evidence presented at the hearing, including all written comments and statements
filed with the City, and
WHEREAS, on December 9, 2019 the City approved and accepted the Service and
Assessment Plan in conformity with the requirements of the PID Act and adopted the
Improvement Zone A Assessment Ordinance and therein levied the Improvement Zone A
Assessments; and
WHEREAS, the City Council found and determined that the Improvement Zone A
Assessment Roll and the Service and Assessment Plan should be approved and that the
Improvement Zone A Assessments should be levied as provided in the Service and Assessment
Plan and the Improvement Zone A Assessment Roll; and
WHEREAS, the City Council is authorized by the PID Act to issue its revenue bonds
payable from the Improvement Zone A Assessments for the purpose of paying (a) a portion of
the Actual Costs of the Public Improvements allocable to Improvement Zone A and (b) District
Formation and Bond Issuance Costs (as defined herein) allocable to Improvement Zone A; and
WHEREAS, the City Council now desires to issue revenue bonds, in accordance with
the PID Act, such bonds to be entitled "City of North Richland Hills, Texas, Special Assessment
Revenue Bonds, Series 2019 (City Point Public Improvement District Improvement Zone A
Project)" (the "Bonds"), such Bonds being payable solely from the Assessment Revenue and
other funds pledged under this Indenture to the payment of the Bonds and for the purposes set
forth in this preamble; and
WHEREAS, the Trustee has agreed to accept the trusts herein created upon the terms
set forth in this Indenture;
NOW, THEREFORE, the City, in consideration of the foregoing premises and
acceptance by the Trustee of the trusts herein created, of the purchase and acceptance of the
Bonds by the Owners thereof, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby GRANT, CONVEY, PLEDGE,
TRANSFER, ASSIGN, and DELIVER to the Trustee for the benefit of the Owners, a security
Improvement Zone A Indenture of Trust
98705268.10/1001073255 3
interest in all of the moneys, rights and properties described in the Granting Clauses hereof, as
follows (collectively, the "Trust Estate"):
FIRST GRANTING CLAUSE
The Pledged Revenues, as herein defined, and all moneys and investments held in the
Pledged Funds, including any and all proceeds thereof and any contract or any evidence of
indebtedness related thereto or other rights of the City to receive any of such moneys or
investments, whether now existing or hereafter coming into existence, and whether now or
hereafter acquired;
SECOND GRANTING CLAUSE
Any and all other property or money of every name and nature which is, from time to
time hereafter by delivery or by writing of any kind, conveyed, pledged, assigned or transferred,
to the Trustee as additional security hereunder by the City or by anyone on its behalf or with its
written consent, and the Trustee is hereby authorized to receive any and all such property or
money at any and all times and to hold and apply the same subject to the terms thereof;
TO HAVE AND TO HOLD the Trust Estate, whether now owned or hereafter acquired,
unto the Trustee and its successors or assigns;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the benefit of
all present and future Owners of the Bonds from time to time issued under and secured by this
Indenture, and for enforcement of the payment of the Bonds in accordance with their terms, and
for the performance of and compliance with the obligations, covenants, and conditions of this
Indenture;
PROVIDED, HOWEVER, that, if and to the extent Improvement Zone A Assessments
have been prepaid, the lien related to the Improvement Zone A Assessment on the real property
associated with such prepayment shall be released from the Trust Estate and shall no longer
constitute a part of the Trust Estate;
PROVIDED, FURTHER, HOWEVER, if the City or its assigns shall well and truly pay, or
cause to be paid, the principal or Redemption Price of and the interest on all the Bonds at the
times and in the manner stated in the Bonds, according to the true intent and meaning thereof,
then this Indenture and the rights hereby granted shall cease, terminate and be void; otherwise
this Indenture is to be and remain in full force and effect;
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all
Bonds issued and secured hereunder are to be issued, authenticated, and delivered and the
Trust Estate hereby created, assigned, and pledged is to be dealt with and disposed of under,
upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses,
and purposes as hereinafter expressed, and the City has agreed and covenanted, and does
hereby agree and covenant, with the Trustee and with the respective Owners from time to time
of the Bonds as follows:
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ARTICLE I
DEFINITIONS, FINDINGS AND INTERPRETATION
Section 1.1. Definitions.
Unless otherwise expressly provided or unless the context clearly requires otherwise in
this Indenture, the following terms shall have the meanings specified below:
"Account" means any of the accounts established pursuant to Section 6.1 of this
Indenture.
"Actual Costs" mean, with respect to that portion of the Public Improvements allocated to
Improvement Zone A, the actual costs paid or incurred by or on behalf of the Petitioner of the
District, including: (1) the costs incurred by or on behalf of the Petitioner (either directly or
through affiliates) for the design, planning, financing, administration/management, acquisition,
installation, construction and/or implementation of such Public Improvements; (2) the fees paid
for obtaining permits, licenses, or other governmental approvals for such Public Improvements;
(3) construction management fees; (4) the costs incurred by or on behalf of the Petitioner for
external professional costs, such as engineering, geotechnical, surveying, land planning,
architectural landscapers, appraisals, legal, accounting, and similar professional services; (5) all
labor, bonds, and materials, including equipment and fixtures, by contractors, builders, and
materialmen in connection with the acquisition, construction, or implementation of such Public
Improvements; (6) all related permitting and public approval expenses, architectural,
engineering, and consulting fees, taxes, and governmental fees and charges.
"Additional Interest" means the amount collected by application of the Additional Interest
Rate
"Additional Interest Rate" means the 0.50% additional interest charged on the
Improvement Zone A Assessments pursuant to Section 372.018 of the PI Act.
"Additional Interest Reserve Account" means the reserve account administered by the
City and segregated from other funds of the City in accordance with the provisions of Section
6.7 of this Indenture.
"Additional Interest Reserve Requirement" means an amount equal to 5.5% of the
principal amount of the Outstanding Bonds to be funded from Assessment Revenues deposited
to the Pledged Revenue Fund and to be held in the Additional Interest Reserve Account in
accordance with the provisions of Section 6.7 of this Indenture.
"Additional Obligations" means any bonds or obligations (including specifically, any
installment contracts, reimbursement agreements, temporary notes, or time warrants) secured
in whole or in part by an assessment, other than the Improvement Zone A Assessments
securing the Bonds, levied against property designated as Improvement Zone A of the District in
accordance with the PID Act.
"Administrative Fund" means that Fund established by Section 6.1 and administered
pursuant to Section 6.9 hereof.
"Administrator' means an employee and/or designee of the City who shall have the
responsibilities provided in the Service and Assessment Plan, this Indenture, or any other
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agreement or document approved by the City related to the duties and responsibilities of the
administration of the District. The initial Administrator shall be P3Works, LLC.
"Annual Collection Costs" mean the actual or budgeted costs and expenses allocated to
Improvement Zone A related to the creation and operation of the District and Improvement Zone
A's portion of certain costs of the construction of the Public Improvements, including, but not
limited to, costs and expenses for: (1) the Administrator; (2) City staff; (3) legal counsel,
engineers, accountants, financial advisors, and other consultants engaged by the City; (4)
calculating, collecting, and maintaining records with respect to Improvement Zone A
Assessments and Annual Installments; (5) preparing and maintaining records with respect to the
Improvement Zone A Assessment Roll and Annual Service Plan Updates; (6) paying and
redeeming the Bonds; (7) investing or depositing Improvement Zone A Assessments and
Annual Installments; (8) complying with this Service and Assessment Plan and the PID Act with
respect to the Bonds, including continuing disclosure requirements; and (9) the paying
agent/registrar and the Trustee in connection with the Bonds, including their respective legal
counsel. Annual Collection Costs collected but not expended in any year shall be carried
forward and applied to reduce Annual Collection Costs for subsequent years.
"Annual Debt Service" means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
scheduled (including by reason of Sinking Fund Installments), and (ii) the principal amount of
the Outstanding Bonds due in such Bond Year (including any Sinking Fund Installments due in
such Bond Year).
"Annual Installment" means, with respect to Improvement Zone A Assessed Property,
each annual payment of the Improvement Zone A Assessments shown on the Improvement
Zone A Assessment Roll related to the Bonds and Improvement Zone A's portion of the Public
Improvements, in the amounts shown on Exhibit F-1 attached to the Service and Assessment
Plan; which annual payment includes the Annual Collection Costs and the Additional Interest
collected on each annual payment of the Improvement Zone A Assessments as described in
Section 6.7 herein and as defined and calculated in the Service and Assessment Plan or in any
Annual Service Plan Update.
"Annual Service Plan Update" means the annual review and update of the Service and
Assessment Plan required by the PID Act and the Service and Assessment Plan.
"Applicable Laws" means the PID Act, and all other laws or statutes, rules, or
regulations, and any amendments thereto, of the State of Texas or of the United States, by
which the City and its powers, securities, operations, and procedures are, or may be, governed
or from which its powers may be derived.
"Assessment Revenue" means monies collected by or on behalf of the City from any one
or more of the following: (i) an Improvement Zone A Assessment levied against Improvement
Zone A Assessed Property, or Annual Installment payment thereof, including any interest on
such Improvement Zone A Assessment or Annual Installment thereof during any period of
delinquency, (ii) a Prepayment, and (iii) Foreclosure Proceeds.
"Authorized Amount" means $2,649,601.
"Authorized Denomination" means $100,000 and any integral multiple of $1,000 in
excess thereof; provided, however, that if the total principal amount of any Outstanding Bond is
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less than $100,000 then the Authorized Denomination of such Outstanding Bond shall be the
amount of the Outstanding Bond.
"Authorized Improvements" means improvements authorized by Section 372.003 of the
PID Act, as further described in the Service and Assessment Plan.
"Bond" means any of the Bonds.
"Bond Counsel" means Norton Rose Fulbright US LLP or any other attorney or firm of
attorneys designated by the City that are nationally recognized for expertise in rendering
opinions as to the legality and tax-exempt status of securities issued by public entities.
"Bond Date" means the date designated as the initial date of the Bonds by Section 3.2(a)
of this Indenture.
"Bond Fund" means the Fund established pursuant to Section 6.1 and administered as
provided in Section 6.4.
"Bond Pledged Revenue Account" means the Account of such name established
pursuant to Section 6.1.
"Bond Year' means the one-year period beginning on September 1 in each year and
ending on August 31 in the following year.
"Bonds" means the City's bonds authorized to be issued by Section 3.1 of this Indenture
entitled "City of North Richland Hills, Texas, Special Assessment Revenue Bonds, Series 2019
(City Point Public Improvement District Improvement Zone A Project)".
"Business Day" means any day other than a Saturday, Sunday or legal holiday in the
State of Texas observed as such by the City or the Trustee.
"Capitalized Interest Account" means the Account of such name established pursuant to
Section 6.1.
"Certification for Payment' means a certificate substantially in the form of Exhibit H
attached to the Development Agreement or otherwise approved by the Developer and the City
Representative executed by a Person approved by a City Representative, delivered to the City
Representative and the Trustee specifying the amount of work performed related to the Public
Improvements and allocated to Improvement Zone A and the Actual Costs thereof, and
requesting payment for such Actual Costs from money on deposit in an account of the Project
Fund, as further described in the Development Agreement and Section 6.5 herein.
"City Certificate" means a certificate signed by a City Representative and delivered to
the Trustee.
"City Representative" means the Finance Director or City Manager of the City, or any
other official or agent of the City authorized by the City Council to undertake the action
referenced herein.
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"Closing Date" means the date of the initial delivery of and payment for the Bonds.
"Closing Disbursement Request" means a certificate substantially in the form of Exhibit I
attached to the Development Agreement or otherwise approved by the Developer and the City
Representative executed by a City Representative or a Person approved by a City
Representative, delivered to the City Representative and the Trustee at the time of the Closing
Date, specifying the costs incurred in the establishment, administration, and operation of the
District or issuing the Bonds, and requesting payment for such costs from money on deposit in
the Cost of Issuance Account of the Project Fund, as further described in Section 6.5 herein.
"Code" means the Internal Revenue Code of 1986, as amended, including applicable
regulations, published rulings and court decisions.
"Collateral Assignment and Assumption Agreement" means the "Collateral Assignment
and Assumption Agreement" effective as of December 20, 2019 by and between the Trustee
and the Developer regarding the assignment of certain development rights of the Developer to
the Trustee on behalf of the Owners.
"Commercial Tracts" means approximately 4.76 acres located within the District and
designated as a part of Improvement Zone A, which is more specifically described on Exhibit A-
6 and depicted on Exhibit B-6 of the Service and Assessment Plan.
"Commercial Tracts Assessed Property" means any and all Parcels within the
Commercial Tracts other than Non-Benefitted Property.
"Completion Agreement" means the "Completion Agreement" between the Developer
and the Trustee, effective as of December 20, 2019 regarding the completion of the Public
Improvements within the District.
"Costs of Issuance Account' means the Account of such name established pursuant to
Section 6.1.
"Defeasance Securities" means Investment Securities then authorized by applicable law
for the investment of funds to defease public securities.
"Delinquent Collection Costs" means the costs related to the foreclosure of the lien on
Improvement Zone A Assessed Property and the costs of collection of a delinquent
Improvement Zone A Assessment, including penalties and reasonable attorney's fees actually
paid, but excluding amounts representing the Improvement Zone A Assessment, interest and,
penalty interest.
"Designated Payment/Transfer Office" means (i) with respect to the initial Paying
Agent/Registrar named in this Indenture, the transfer/payment office located in Wilmington,
Delaware or such other location designated by the Paying Agent/Registrar and (ii) with respect
to any successor Paying Agent/Registrar, the office of such successor designated and located
as may be agreed upon by the City and such successor.
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98705268.10/1001073255 8
"Developer' means MM City Point 53, LLC a Texas limited liability company, and its
successors or assigns.
"Development Agreement" means the "City Point Development Agreement' between the
City and the Developer, dated October 21, 2019, which provides for the development of
property within the District, the creation of the District and a tax increment reinvestment zone,
the construction and financing of the Public Improvements, and other matters related thereto.
"District Administration Account' means the Account of such name established pursuant
to Section 6.1.
"District Formation and Bond Issuance Costs" means the costs associated with forming
the District and issuing the Bonds, including but not limited to attorney fees, financial advisory
fees, consultant fees, appraisal fees, printing costs, publication costs, City costs, capitalized
interest, reserve fund requirements, 1st year's Annual Collection Costs, underwriter's discount,
fees charged by the Texas Attorney General, and any other cost or expense directly associated
with the establishment of the District and/or the issuance of the Bonds.
"DTC" shall mean The Depository Trust Company of New York, New York, or any
successor securities depository.
"DTC Participant" shall mean brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations on whose behalf DTC was created to hold
securities to facilitate the clearance and settlement of securities transactions among DTC
Participants.
"Foreclosure Proceeds" means the proceeds, including interest and penalty interest,
received by the City from the enforcement of the Improvement Zone A Assessments against
any Improvement Zone A Assessed Property, whether by foreclosure of lien or otherwise, but
excluding and net of all Delinquent Collection Costs.
"Fund" means any of the funds established pursuant to Section 6.1 of this Indenture.
"Improvement Zone A" means approximately 41.88 acres of property to be developed
within the District, which includes the Single Family Tracts and the Commercial Tracts, as
further identified and described in the Service and Assessment Plan as "Improvement Zone A."
"Improvement Zone A Assessed Property" means, collectively, the Commercial Tracts
Assessed Property and the Single Family Tracts Assessed Property that is designated as a part
of Improvement Zone A within the District, against which an Improvement Zone A Assessment
is levied by the Improvement Zone A Assessment Ordinance in accordance with the Service
and Assessment Plan.
"Improvement Zone A Assessment Ordinance" means Ordinance No. 3625 adopted by
the City Council on December 9, 2019, that levied the Improvement Zone A Assessments on
the Improvement Zone A Assessed Property.
"Improvement Zone A Assessment Roll" means, the Improvement Zone A Assessment
Roll attached as Exhibit F-1 to the Service and Assessment Plan or any other assessment roll
for Improvement Zone A in an amendment or supplement to the Service and Assessment Plan
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98705268.10/1001073255 9
or in an Annual Service Plan Update, showing the total amount of the Improvement Zone A
Assessment levied against Improvement Zone A Assessed Property, and/or the portion of the
total Improvement Zone A Assessment levied against each Single Family Tract and Commercial
Tract located within Improvement Zone A, related to the Bonds and the Public Improvements,
as updated, modified, or amended from time to time in accordance with the terms of the Service
and Assessment Plan and the PI D Act.
"Improvement Zone A Assessments" means the aggregate assessments shown on the
Improvement Zone A Assessment Roll. The singular of such term means the assessment
levied against a specific tract of the Improvement Zone A Assessed Property, as shown on the
Improvement Zone A Assessment Roll, subject to reallocation upon the subdivision of
Improvement Zone A Assessed Property or reduction according to the provisions of the Service
and Assessment Plan and the PI D Act.
"Improvement Zone A Bond Ordinance" means Ordinance No. 3267 adopted by the City
Council on December 9, 2019 authorizing the issuance of the Bonds pursuant to this Indenture.
"Improvement Zone A Construction, Funding, and Acquisition Agreement" means the
"City Point Public Improvement District Improvement Zone A Construction, Funding and
Acquisition Agreement' between the City and the Developer dated as of December 9, 2019
which relates to the levying and collection of Improvement Zone A Assessments, the
construction of the Public Improvements allocated to Improvement Zone A, the maintenance of
the Public Improvements allocated to Improvement Zone A, the issuance of bonds and other
matters related thereto.
"Improvement Zone A Public Improvement Account" means the Account of such name
established pursuant to Section 6.1.
"Indenture" means this Indenture of Trust as originally executed or as it may be from
time to time supplemented or amended by one or more indentures supplemental hereto and
entered into pursuant to the applicable provisions hereof.
"Independent Financial Consultant' means any consultant or firm of such consultants
appointed by the City who, or each of whom: (i) is judged by the City, as the case may be, to
have experience in matters relating to the issuance and/or administration of the Bonds; (ii) is in
fact independent and not under the domination of the City; (iii) does not have any substantial
interest, direct or indirect, with or in the City, or any owner of real property in the District, or any
real property in the District; and (iv) is not connected with the City as an officer or employee of
the City, but who may be regularly retained to make reports to the City.
"Initial Bond" means the Initial Bond as set forth in Exhibit A to this Indenture.
"Interest Payment Date" means the date or dates upon which interest on the Bonds is
scheduled to be paid until their respective dates of maturity or prior redemption, such dates
being on March 1 and September 1 of each year, commencing March 1, 2020.
"Investment Securities" means those authorized investments described in the Public
Funds Investment Act, Texas Government Code, Chapter 2256, as amended; and provided
further investments are, at the time made, included in and authorized by the City's official
investment policy as approved by the City Council from time to time.
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98705268.10/1001073255 10
"Non-Benefitted Property" means Parcels within Improvement Zone A of the District that
accrue no special benefit from the Public Improvements as determined by the City Council.
"Maximum Annual Debt Service" means the largest Annual Debt Service for any Bond
Year after the calculation is made through the final maturity date of any Outstanding Bonds.
"Outstanding" means, as of any particular date when used with reference to the Bonds,
all Bonds authenticated and delivered under this Indenture except (i) any Bond that has been
canceled by the Trustee (or has been delivered to the Trustee for cancellation) at or before such
date, (ii) any Bond for which the payment of the principal or Redemption Price of and interest on
such Bond shall have been made as provided in Article IV, and (iii) any Bond in lieu of or in
substitution for which a new Bond shall have been authenticated and delivered pursuant to
Section 3.10 herein.
"Owner' means the Person who is the registered owner of a Bond or Bonds, as shown in
the Register, which shall be Cede & Co., as nominee for DTC, so long as the Bonds are in
book -entry only form and held by DTC as securities depository in accordance with Section 3.11
herein.
"Parcel" means a specific property within the District identified by either a tax map
identification number assigned by the Tarrant Appraisal District for real property tax purpose, by
metes and bounds description, or by lot and block number in a final subdivision plat recorded in
the Official Public Records of Tarrant County, or by any other means determined by the City.
"Paying Agent/Registrar' means initially the Trustee, or any successor thereto as
provided in this Indenture.
"Person" or "Persons" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Petitioner" means La Verne Butterfield, LP, a California limited partnership, and any
successors or assigns thereof.
"PID Act" means Texas Local Government Code, Chapter 372, as amended.
"Pledged Funds" means the Pledged Revenue Fund, the Bond Fund, the Project Fund,
the Reserve Fund, and the Redemption Fund.
"Pledged Revenue Fund" means that fund established pursuant to Section 6.1 and
administered pursuant to Section 6.3 herein.
"Pledged Revenues" means the sum of (i) Assessment Revenue less the Annual
Collection Costs and (ii) any additional revenues that the City may deposit for the payment of
Bonds.
"Prepayment' means the payment of all or a portion of an Improvement Zone A
Assessment before the due date thereof. Amounts received at the time of a Prepayment which
represent a payment of principal, interest, or penalties on a delinquent installment of an
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98705268.10/1001073255 11
Improvement Zone A Assessment are not to be considered a Prepayment, but rather are to be
treated as the payment of the regularly scheduled Annual Installment.
"Principal and Interest Account" means the Account of such name established pursuant
to Section 6.1.
"Project Fund" means that fund established pursuant to Section 6.1 and administered
pursuant to Section 6.5 herein.
"Public Improvements" means the Authorized Improvements to be constructed within the
District, a portion of which will be allocated to Improvement Zone A, and for which portion the
Improvement Zone A Assessments are levied against Improvement Zone A Assessed Property
that are designed, constructed, and installed in accordance with the Development Agreement
and the Service and Assessment Plan or an Annual Service Plan Update, as further identified
on Exhibit H and described in Section III of the Service and Assessment Plan.
"Purchaser' means the initial purchaser of the Bonds.
"Rebate Amount" has the meaning set forth in section 1.148-1(b) of the Regulations.
"Rebate Fund" means that fund established pursuant to Section 6.1 and administered
pursuant to Section 6.8 herein.
"Record Date" means the close of business on the fifteenth calendar day (whether or not
a Business Day) of the month next preceding an Interest Payment Date.
"Redemption Fund" means that fund established pursuant to Section 6.1 and
administered pursuant to Section 6.6 herein.
"Redemption Price" means, when used with respect to any Bond or portion thereof, the
applicable redemption price shown in Article IV of this Indenture.
"Refunding Bonds" means bonds issued pursuant to the PID Act and/or Chapter 1207 of
the Texas Government Code or any other applicable law of the State of Texas (each as
heretofore and hereinafter amended) to refund all or any portion of the then -Outstanding Bonds.
"Register' means the register specified in Article III of this Indenture.
"Release Conditions" has the meaning set forth in Section 6.1(c)(ii) of the Development
Agreement.
"Reserve Account' means the Account of such name established pursuant to Section
6.1.
"Reserve Account Requirement" means the least of: (i) Maximum Annual Debt Service
on the Bonds as of the Closing Date, (ii) 125% of average Annual Debt Service on the Bonds as
of the Closing Date, or (iii) 10% of the proceeds of the Bonds; provided, however, that such
amount shall be reduced by the amount of any transfers made pursuant to subsections (f) and
(g) of Section 6.7; and provided further that as a result of an optional redemption pursuant to
Section 4.3, the Reserve Account Requirement shall be reduced by a percentage equal to the
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pro rata principal amount of Bonds redeemed by such optional redemption divided by the total
principal amount of the Outstanding Bonds prior to such redemption and the City shall promptly
consult with the Trustee to establish any necessary reduction to the Reserve Account
Requirement. As of the Closing Date of the Bonds, the Reserve Account Requirement is
$237,656.26 which is an amount equal to Maximum Annual Debt Service on the Bonds as of the
date of issuance.
"Reserve Fund" means that fund established pursuant to Section 6.1 and administered
in Section 6.7 herein.
"Service and Assessment Plan" means the document, including the Improvement Zone
A Assessment Roll, as amended, including any annual updates thereto, which is attached as
Exhibit A to the Improvement Zone A Assessment Ordinance.
"Sinking Fund Installment" means the amount of money to redeem or pay at maturity the
portion of the principal of Bonds payable from such installments at the times and in the amounts
provided in Section 4.2 herein.
"Single Family Tracts" means approximately 36.67 acres located within the District and
designated as a part of Improvement Zone A and Improvement Zone B, which is more
specifically described on Exhibit A-4 and depicted on Exhibit B-4 of the Service and Assessment
Plan.
"Single Family Tracts Assessed Property" means any and all Parcels within the Single
Family Tracts that are designated as a part of Improvement Zone A other than Non-Benefitted
Property
"Stated Maturity" means the date the Bonds, or any portion of the Bonds, as applicable,
are scheduled to mature without regard to any redemption or prepayment.
"Supplemental Indenture" means an indenture which has been duly executed by the
Trustee and the City Representative pursuant to an ordinance adopted by the City Council and
which indenture amends or supplements this Indenture, but only if and to the extent that such
indenture is specifically authorized hereunder.
"Tax Certificate" means the Certificate as to Tax Exemption delivered by the City on the
Closing Date for the Bonds setting forth the facts, estimates and circumstances in existence on
the Closing Date which establish that it is not expected that the proceeds of the Bonds will be
used in a manner that would cause the interest on such Bonds to be included in the gross
income of the Owners thereof for Federal income tax purposes.
"Trust Estate" means the Trust Estate described in the granting clauses of this
Indenture.
"Trustee" means Wilmington Trust, National Association, and its successors, and any
other corporation or association that may at any time be substituted in its place, as provided in
Article IX, such entity to serve as Trustee and Paying Agent/Registrar for the Bonds.
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Section 1.2. Findings.
The declarations, determinations and findings declared, made and found in the preamble
to this Indenture are hereby adopted, restated and made a part of the operative provisions
hereof.
Section 1.3. Table of Contents. Titles and Headinas
The table of contents, titles, and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only and are not to be considered a part hereof
and shall not in any way modify or restrict any of the terms or provisions hereof and shall never
be considered or given any effect in construing this Indenture or any provision hereof or in
ascertaining intent, if any question of intent should arise.
Section 1.4. Interpretation.
(a) Unless the context requires otherwise, words of the masculine gender shall be
construed to include correlative words of the feminine and neuter genders and vice versa, and
words of the singular number shall be construed to include correlative words of the plural
number and vice versa.
(b) Words importing persons include any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust, unincorporated
organization or government or agency or political subdivision thereof.
(c) Any reference to a particular Article or Section shall be to such Article or Section
of this Indenture unless the context shall require otherwise.
(d) This Indenture and all the terms and provisions hereof shall be liberally
construed to effectuate the purposes set forth herein to sustain the validity of this Indenture.
ARTICLE II
THE BONDS
Section 2.1. Security for the Bonds.
The Bonds, as to both principal and interest, are and shall be equally and ratably
secured by and payable from a first lien on and pledge of the Trust Estate.
The lien on and pledge of the Trust Estate shall be valid and binding and fully perfected
from and after the Closing Date, without physical delivery or transfer of control of the Trust
Estate, the filing of this Indenture or any other act; all as provided in Texas Government Code,
Chapter 1208, as amended, which applies to the issuance of the Bonds and the pledge of the
Trust Estate granted by the City under this Indenture, and such pledge is therefore valid,
effective and perfected. If Texas law is amended at any time while the Bonds are Outstanding
such that the pledge of the Trust Estate granted by the City under this Indenture is to be subject
to the filing requirements of Texas Business and Commerce Code, Chapter 9, as amended,
then in order to preserve to the registered owners of the Bonds the perfection of the security
interest in such pledge, the City agrees to take such measures as it determines are reasonable
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98705268.10/1001073255 14
and necessary under Texas law to comply with the applicable provisions of Texas Business and
Commerce Code, Chapter 9, as amended, and enable a filing to perfect the security interest in
such pledge to occur.
Section 2.2. Limited Obligations.
The Bonds are special and limited obligations of the City, payable solely from and
secured solely by the Trust Estate, including the Pledged Revenues and the Pledged Funds;
and the Bonds shall never be payable out of funds raised or to be raised by taxation or from any
other revenues, properties or income of the City.
Section 2.3. Authorization for Indenture.
The terms and provisions of this Indenture and the execution and delivery hereof by the
City to the Trustee have been duly authorized by official action of the City Council of the City.
The City has ascertained and it is hereby determined and declared that the execution and
delivery of this Indenture is necessary to carry out and effectuate the purposes set forth in the
preambles of this Indenture and that each and every covenant or agreement herein contained
and made is necessary, useful or convenient in order to better secure the Bonds and is a
contract or agreement necessary, useful and convenient to carry out and effectuate the
purposes herein described.
Section 2.4. Contract with Owners and Trustee.
(a) The purposes of this Indenture are to establish a lien and the security for, and to
prescribe the minimum standards for the authorization, issuance, execution and delivery of, the
Bonds and to prescribe the rights of the Owners, and the rights and duties of the City and the
Trustee.
(b) In consideration of the purchase and acceptance of any or all of the Bonds by
those who shall purchase and hold the same from time to time, the provisions of this Indenture
shall be a part of the contract of the City with the Owners, and shall be deemed to be and shall
constitute a contract among the City, the Owners, and the Trustee.
ARTICLE III
AUTHORIZATION; GENERAL TERMS AND PROVISIONS REGARDING THE BONDS
Section 3.1. Authorization.
The Bonds are hereby authorized to be issued and delivered in accordance with the
Constitution and laws of the State of Texas, including particularly the PID Act. The Bonds shall
be issued in the aggregate principal amount of $2,615,000 for the purpose of paying (a) a
portion of the Actual Costs of the Public Improvements allocable to Improvement Zone A and (b)
District Formation and Bond Issuance Costs allocable to Improvement Zone A.
Section 3.2. Date, Denomination, Maturities, Numbers and Interest.
(a) The Bonds shall be dated December 1, 2019 (the "Bond Date") and shall be
issued in Authorized Denominations. The Bonds shall be in fully registered form, without
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coupons, and shall be numbered separately from R-1 upward, except the Initial Bond, which
shall be numbered T-1.
(b) Interest shall accrue and be paid on each Bond from the later of the Closing
Date or the most recent Interest Payment Date to which interest has been paid or provided for,
at the rate per annum set forth below until the principal thereof has been paid on the maturity
date specified below or otherwise provided for. Such interest shall be payable semiannually on
March 1 and September 1 of each year, commencing March 1, 2020 computed on the basis of
a 360-day year of twelve 30-day months.
(c) The Bonds shall mature on September 1 in the years and in the principal
amounts and shall bear interest as set forth below:
Year Principal Amount ($) Interest Rate (%)
2025 400,000 4.875
2030 530,000 5.250
2040 1,685,000 5.625
(d) The Bonds shall be subject to mandatory sinking fund redemption, optional
redemption, and extraordinary optional redemption prior to maturity as provided in Article IV
herein, and shall otherwise have the terms, tenor, denominations, details, and specifications as
set forth in the form of Bond set forth in Exhibit A to this Indenture.
Section 3.3. Conditions Precedent to Delivery of Bonds.
(a) As a condition precedent to the delivery of the Bonds and for the benefit of the
Owners of the Bonds, the Trustee is hereby instructed to execute a Completion Agreement and
a Collateral Assignment and Assumption Agreement and to deliver the same to the Developer
for its execution, unless otherwise instructed by the City in a City Certificate.
(b) The Bonds shall be executed by the City and delivered to the Trustee,
whereupon the Trustee shall authenticate the Bonds and, upon payment of the purchase price
of the Bonds, shall deliver the Bonds upon the order of the City, but only upon delivery to the
Trustee of:
(i) a certified copy of the Improvement Zone A Assessment Ordinance;
(ii) a certified copy of the Improvement Zone A Bond Ordinance;
(iii) a copy of the executed Development Agreement;
(iv) a copy of the executed Improvement Zone A Construction, Funding, and
Acquisition Agreement;
(v) a copy of the executed Completion Agreement;
(vi) a copy of the executed Collateral Assignment and Assumption
Agreement;
(vii) a copy of this Indenture executed by the Trustee and the City; and
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(viii) a City Certificate directing the authentication and delivery of the Bonds,
describing the Bonds to be authenticated and delivered, designating the purchasers to
whom the Bonds are to be delivered, stating the purchase price of the Bonds and stating
that all items required by this Section are therewith delivered to the Trustee in form and
substance satisfactory to the City.
Section 3.4. Medium, Method and Place of Payment.
(a) Principal of and interest on the Bonds shall be paid in lawful money of the
United States of America, as provided in this Section.
(b) Interest on the Bonds shall be payable to the Owners thereof as shown in the
Register at the close of business on the relevant Record Date; provided, however, that in the
event of nonpayment of interest on a scheduled Interest Payment Date, and for thirty (30) days
thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Trustee, 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 (the "Special Payment Date," which shall be fifteen (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 Owner of a
Bond appearing on the books of the Trustee at the close of business on the last Business Day
preceding the date of mailing such notice.
(c) Interest on the Bonds shall be paid by check, dated as of the Interest Payment
Date, and sent, United States mail, first-class, postage prepaid, by the Paying Agent/Registrar
to each Owner at the address of each as such appears in the Register or by such other
customary banking arrangement acceptable to the Paying Agent/Registrar and the Owner;
provided, however, the Owner shall bear all risk and expense of such other banking
arrangement.
(d) The principal of each Bond shall be paid to the Owner of such on the due date
thereof, whether at the maturity date or the date of prior redemption thereof, upon presentation
and surrender of such Bond at the Designated Payment/Transfer Office of the Paying
Agent/Registrar.
(e) If the date for the payment of the principal of or interest on the Bonds shall be a
Saturday, Sunday, legal holiday, or day on which banking institutions in the city where the
Designated Payment/Transfer Office of the Paying Agent/Registrar is located are required or
authorized by law or executive order to close, the date for such payment shall be the next
succeeding day that is not a Saturday, Sunday, legal holiday, or day on which such banking
institutions are required or authorized to close, and payment on such date shall for all purposes
be deemed to have been made on the due date thereof as specified in Section 3.2 of this
Indenture.
(f) Unclaimed payments of amounts due hereunder shall be segregated in a
special account and held in trust, uninvested by the Paying Agent/Registrar, for the account of
the Owner of the Bonds to which such unclaimed payments pertain. Subject to any escheat,
abandoned property, or similar law of the State of Texas, any such payments remaining
unclaimed by the Owners entitled thereto for two (2) years after the applicable payment or
redemption date shall be applied to the next payment or payments on such Bonds thereafter
coming due and, to the extent any such money remains after the retirement of all Outstanding
Bonds, shall be paid to the City to be used for any lawful purpose. Thereafter, none of the City,
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the Paying Agent/Registrar, or any other Person shall be liable or responsible to any holders of
such Bonds for any further payment of such unclaimed moneys or on account of any such
Bonds, subject to any applicable escheat law or similar law of the State of Texas, including the
provisions of Title 6 of the Texas Property Code, as amended.
Section 3.5. Execution and Registration of Bonds.
(a) The Bonds shall be executed on behalf of the City by the Mayor or Mayor Pro
Tern and City Secretary, by their manual or facsimile signatures, and the official seal of the City
shall be impressed or placed in facsimile thereon. Such facsimile signatures on the Bonds shall
have the same effect as if each of the Bonds had been signed manually and in person by each
of such officers, and such facsimile seal on the Bonds shall have the same effect as if the
official seal of the City had been manually impressed upon each of the Bonds.
(b) In the event that any officer of the City whose manual or facsimile signature
appears on the Bonds ceases to hold such office before the authentication of such Bonds or
before the delivery thereof, such manual or facsimile signature nevertheless shall be valid and
sufficient for all purposes as if such officer had remained in such office.
(c) Except as provided below, no Bond shall be valid or obligatory for any purpose
or be entitled to any security or benefit of this Indenture unless and until there appears thereon
the Certificate of Trustee substantially in the form provided herein, duly authenticated by
manual execution by an officer or duly authorized signatory of the Trustee. It shall not be
required that the same officer or authorized signatory of the Trustee sign the Certificate of
Trustee on all of the Bonds. In lieu of the executed Certificate of Trustee described above, the
Initial Bond delivered at the Closing Date shall have attached thereto the Comptroller's
Registration Certificate substantially in the form provided herein, manually executed by the
Comptroller of Public Accounts of the State of Texas, or by his or her duly authorized agent,
which certificate shall be evidence that the Initial Bond has been duly approved by the Attorney
General of the State of Texas, is a valid and binding obligation of the City, and has been
registered by the Comptroller of Public Accounts of the State of Texas, including the provisions
of Title 6 of the Texas Property Code, as amended.
(d) On the Closing Date, one Initial Bond representing the entire principal amount of
all Bonds, payable in stated installments to the Purchaser, or its designee, executed with the
manual or facsimile signatures of the Mayor or Mayor Pro Tern and the City Secretary,
approved by the Attorney General, and registered and manually signed by the Comptroller of
Public Accounts, will be delivered to the Purchaser or its designee. Upon payment for the
Initial Bond, the Trustee shall cancel the Initial Bond and deliver to DTC on behalf of the
Purchaser one registered definitive Bond for each year of maturity of the Bonds, in the
aggregate principal amount of all Bonds for such maturity, registered in the name of Cede &
Co., as nominee of DTC.
Section 3.6. Ownership.
(a) The City, the Trustee the Paying Agent/Registrar and any other Person may
treat the Person in whose name any Bond is registered as the absolute owner of such Bond for
the purpose of making and receiving payment as provided herein (except interest shall be paid
to the Person in whose name such Bond is registered on the relevant Record Date) and for all
other purposes, whether or not such Bond is overdue, and neither the City nor the Trustee, nor
the Paying Agent/Registrar, shall be bound by any notice or knowledge to the contrary.
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(b) All payments made to the Owner of any Bond shall be valid and effectual and
shall discharge the liability of the City, the Trustee and the Paying Agent/Registrar upon such
Bond to the extent of the sums paid.
Section 3.7. Registration, Transfer and Exchange.
(a) So long as any Bond remains Outstanding, the City shall cause the Paying
Agent/Registrar to keep at the Designated Payment/Transfer Office a Register in which,
subject to such reasonable regulations as it may prescribe, the Paying Agent/Registrar shall
provide for the registration and transfer of Bonds in accordance with this Indenture. The
Paying Agent/Registrar represents and warrants that it will, upon written instruction, file and
maintain a copy of the Register with the City, and shall cause the Register to be current with all
registration and transfer information as from time to time may be applicable.
(b) A Bond shall be transferable only upon the presentation and surrender thereof
at the Designated Payment/Transfer Office of the Paying Agent/Registrar with such
endorsement or other evidence of transfer as is acceptable to the Paying Agent/Registrar. No
transfer of any Bond shall be effective until entered in the Register.
(c) The Bonds shall be exchangeable upon the presentation and surrender thereof
at the Designated Payment/Transfer Office of the Paying Agent/Registrar for a Bond or Bonds
of the same maturity and bearing the same interest rate and in any Authorized Denomination
and in an aggregate principal amount equal to the unpaid principal amount of the Bond
presented for exchange.
(d) The Trustee is hereby authorized to authenticate and deliver Bonds transferred
or exchanged in accordance with this Section. A new Bond or Bonds will be delivered by the
Paying Agent/Registrar, in lieu of the Bond being transferred or exchanged, at the Designated
Payment/Transfer Office, or sent by United States mail, first-class, postage prepaid, to the
Owner or his designee. Each transferred Bond delivered by the Paying Agent/Registrar in
accordance with this Section shall constitute an original contractual obligation of the City and
shall be entitled to the benefits and security of this Indenture to the same extent as the Bond or
Bonds in lieu of which such transferred Bond is delivered.
(e) Each exchange Bond delivered in accordance with this Section shall constitute
an original contractual obligation of the City and shall be entitled to the benefits and security of
this Indenture to the same extent as the Bond or Bonds in lieu of which such exchange Bond is
delivered.
(f) No service charge shall be made to the Owner for the initial registration,
subsequent transfer, or exchange for a different Authorized Denomination of any of the Bonds.
The Paying Agent/Registrar, however, may require the Owner to pay a sum sufficient to cover
any tax or other governmental charge that is authorized to be imposed in connection with the
registration, transfer, or exchange of a Bond.
(g) Neither the City nor the Paying Agent/Registrar shall be required to issue,
transfer, or exchange any Bond or portion thereof called for redemption prior to maturity within
forty-five (45) days prior to the date fixed for redemption; provided, however, such limitation
shall not be applicable to an exchange by the Owner of the uncalled principal balance of a
Bond redeemed in part.
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Section 3.8. Cancellation.
All Bonds paid or redeemed before scheduled maturity in accordance with this
Indenture, and all Bonds in lieu of which exchange Bonds or replacement Bonds are
authenticated and delivered in accordance with this Indenture, shall be cancelled, and proper
records shall be made regarding such payment, redemption, exchange, or replacement. The
Trustee shall dispose of cancelled Bonds in accordance with its records retention requirements.
Section 3.9. Temporary Bonds.
(a) Following the delivery and registration of the Initial Bond and pending the
preparation of definitive Bonds, the proper officers of the City may execute and, upon the City's
request, the Trustee shall authenticate and deliver, one or more temporary Bonds that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Bonds in lieu of which they are delivered, without
coupons, and with such appropriate insertions, omissions, substitutions and other variations as
the officers of the City executing such temporary Bonds may determine, as evidenced by their
signing of such temporary Bonds.
(b) Until exchanged for Bonds in definitive form, such Bonds in temporary form shall
be entitled to the benefit and security of this Indenture.
(c) The City, without unreasonable delay, shall prepare, execute and deliver to the
Trustee the Bonds in definitive form; thereupon, upon the presentation and surrender of the
Bond or Bonds in temporary form to the Paying Agent/Registrar, the Paying Agent/Registrar
shall cancel the Bonds in temporary form and the Trustee shall authenticate and deliver in
exchange therefor a Bond or Bonds of the same maturity and series, in definitive form, in the
Authorized Denomination, and in the same aggregate principal amount, as the Bond or Bonds
in temporary form surrendered. Such exchange shall be made without the making of any
charge therefor to any Owner.
Section 3.10. Replacement Bonds.
(a) Upon the presentation and surrender to the Paying Agent/Registrar of a
mutilated Bond, the Trustee shall authenticate and deliver in exchange therefor a replacement
Bond of like tenor and principal amount, bearing a number not contemporaneously
outstanding. The City or the Paying Agent/Registrar may require the Owner of such Bond to
pay a sum sufficient to cover any tax or other governmental charge that is authorized to be
imposed in connection therewith and any other expenses connected therewith.
(b) In the event that any Bond is lost, apparently destroyed or wrongfully taken, the
Trustee, pursuant to the applicable laws of the State of Texas and in the absence of notice or
knowledge that such Bond has been acquired by a bona fide purchaser, shall authenticate and
deliver a replacement Bond of like tenor and principal amount bearing a number not
contemporaneously outstanding, provided that the Owner first complies with the following
requirements:
(i) furnishes to the Paying Agent/Registrar satisfactory evidence of his or her
ownership of and the circumstances of the loss, destruction or theft of such Bond;
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98705268.10/1001073255 20
(ii) furnishes such security or indemnity as may be required by the Paying
Agent/Registrar and the Trustee to save them and the City harmless;
(iii) pays all expenses and charges in connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Trustee and the Paying Agent/Registrar
and any tax or other governmental charge that is authorized to be imposed; and
(iv) satisfies any other reasonable requirements imposed by the City and the
Trustee.
(c) After the delivery of such replacement Bond, if a bona fide purchaser of the
original Bond in lieu of which such replacement Bond was issued presents for payment such
original Bond, the City and the Paying Agent/Registrar shall be entitled to recover such
replacement Bond from the Person to whom it was delivered or any Person taking therefrom,
except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost, or expense incurred by the City, the
Paying Agent/Registrar or the Trustee in connection therewith.
(d) In the event that any such mutilated, lost, apparently destroyed or wrongfully
taken Bond has become or is about to become due and payable, the Paying Agent/Registrar,
in its sole discretion, instead of issuing a replacement Bond, may pay such Bond if it has
become due and payable or may pay such Bond when it becomes due and payable.
(e) Each replacement Bond delivered in accordance with this Section shall
constitute an original additional contractual obligation of the City and shall be entitled to the
benefits and security of this Indenture to the same extent as the Bond or Bonds in lieu of which
such replacement Bond is delivered.
Section 3.11. Book -Entry Only System.
The Bonds shall initially be issued in book -entry -only form and shall be deposited with
DTC, which is hereby appointed to act as the securities depository therefor, in accordance with
the letter of representations from the City to DTC. On the Closing Date the definitive Bonds
shall be issued in the form of a single typewritten certificate for each maturity thereof registered
in the name of Cede & Co., as nominee for DTC.
With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the
City and the Paying Agent/Registrar shall have no responsibility or obligation to any DTC
Participant or to any Person on behalf of whom such a DTC Participant holds an interest in the
Bonds. Without limiting the immediately preceding sentence, the City and the Paying
Agent/Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the
records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in
the Bonds, (ii) the delivery to any DTC Participant or any other Person, other than an Owner, as
shown on the Register, of any notice with respect to the Bonds, including any notice of
redemption, or (iii) the payment to any DTC Participant or any other Person, other than an
Owner, as shown in the Register of any amount with respect to principal of, premium, if any, or
interest on the Bonds. Notwithstanding any other provision of this Indenture to the contrary, the
City and the Paying Agent/Registrar shall be entitled to treat and consider the Person in whose
name each Bond is registered in the Register as the absolute owner of such Bond for the
purpose of payment of principal of, premium, if any, and interest on Bonds, for the purpose of
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giving notices of redemption and other matters with respect to such Bond, for the purpose of
registering transfer with respect to such Bond, and for all other purposes whatsoever. The
Paying Agent/Registrar shall pay all principal of, premium, if any, and interest on the Bonds only
to or upon the order of the respective Owners as shown in the Register, as provided in this
Indenture, and all such payments shall be valid and effective to fully satisfy and discharge the
City's obligations with respect to payment of principal of, premium, if any, and interest on the
Bonds to the extent of the sum or sums so paid. No Person other than an Owner, as shown in
the Register, shall receive a Bond certificate evidencing the obligation of the City to make
payments of amounts due pursuant to this Indenture. Upon delivery by DTC to the Paying
Agent/Registrar of written notice to the effect that DTC has determined to substitute a new
nominee in place of Cede & Co., and subject to the provisions in this Indenture with respect to
interest checks or drafts being mailed to the registered owner at the close of business on the
relevant Record Date, the word "Cede & Co." in this Indenture shall refer to such new nominee
of DTC.
Section 3.12. Successor Securities Depository: Transfer Outside Book -Entry -Only
System.
In the event that the City determines that DTC is incapable of discharging its
responsibilities described herein and in the letter of representations from the City to DTC, the
City shall (i) appoint a successor securities depository, qualified to act as such under Section
17A of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC Participants
of the appointment of such successor securities depository and transfer one or more separate
Bonds to such successor securities depository; or (ii) notify DTC and DTC Participants of the
availability through DTC of certificated Bonds and cause the Paying Agent/Registrar to transfer
one or more separate registered Bonds to DTC Participants having Bonds credited to their DTC
accounts. In such event, the Bonds shall no longer be restricted to being registered in the
Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name of
the successor securities depository, or its nominee, or in whatever name or names Owners
transferring or exchanging Bonds shall designate, in accordance with the provisions of this
Indenture.
Section 3.13. Payments to Cede & Co.
Notwithstanding any other provision of this Indenture to the contrary, so long as any
Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect
to principal of, premium, if any, and interest on such Bonds, and all notices with respect to such
Bonds shall be made and given, respectively, in the manner provided in the blanket letter of
representations from the City to DTC.
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.1. Limitation on Redemption.
The Bonds shall be subject to redemption before their scheduled maturity only as
provided in this Article IV.
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Section 4.2. Mandatory Sinking Fund Redemption.
(a) The Bonds are subject to mandatory sinking fund redemption prior to their
stated maturity and will be redeemed by the City in part at the Redemption Price of par plus
accrued and unpaid interest to the redemption date from moneys available for such purpose in
the Principal and Interest Account of the Bond Fund pursuant to Article VI, on the dates and in
the respective Sinking Fund Installments as set forth in the following schedule:
Term Bonds Maturing September 1, 2025
Redemption Date
September 1, 2021
September 1, 2022
September 1, 2023
September 1, 2024
September 1, 2025*
Sinking Fund Installment ($
Term Bonds Maturing September 1, 2030
Redemption Date
September 1, 2026
September 1, 2027
September 1, 2028
September 1, 2029
September 1, 2030*
70,000
80,000
80,000
85,000
85,000
Sinkina Fund Installment
Term Bonds Maturing September 1, 2040
Redemption Date
September 1, 2031
September 1, 2032
September 1, 2033
September 1, 2034
September 1, 2035
September 1, 2036
September 1, 2037
September 1, 2038
September 1, 2039
September 1, 2040*
* Stated Maturity.
95,000
100,000
105,000
115,000
115,000
Sinking Fund Installment ($)
125,000
130,000
140,000
150,000
160,000
170,000
180,000
195,000
210,000
225,000
(b) At least forty-five (45) days prior to each mandatory sinking fund redemption
date, the Trustee shall select a principal amount of Bonds of such maturity equal to the Sinking
Fund Installment amount of such Bonds to be redeemed, shall call such Bonds for redemption
on such scheduled mandatory redemption date, and shall give notice of such redemption, as
provided in Section 4.6.
(c) The principal amount of Bonds of a stated maturity required to be redeemed on
any mandatory sinking fund redemption date pursuant to subparagraph (a) of this Section 4.2
shall be reduced, at the option of the City, by the principal amount of any Bonds of such maturity
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which, at least forty-five (45) days prior to the sinking fund redemption date shall have been
acquired by the City at a price not exceeding the principal amount of such Bonds plus accrued
unpaid interest to the date of purchase thereof, and delivered to the Trustee for cancellation.
(d) The principal amount of Bonds required to be redeemed on any mandatory
sinking fund redemption date pursuant to subparagraph (a) of this Section 4.2 shall be reduced
on a pro rata basis among Sinking Fund Installments by the principal amount of any Bonds
which, at least forty-five (45) days prior to the sinking fund redemption date, shall have been
redeemed pursuant to the optional redemption or extraordinary optional redemption provisions
hereof and not previously credited to a mandatory sinking fund redemption.
Section 4.3. Optional Redemption.
The City reserves the right and option to redeem Bonds maturing on or after September
1, 2040 before their scheduled maturity date, in whole or in part, on any date on or after
September 1, 2030, at the Redemption Price of par plus accrued interest to the date of
redemption.
Section 4.4. Extraordinary Optional Redemption.
Notwithstanding any provision in this Indenture to the contrary, the City reserves the
right and option to redeem Bonds before their respective scheduled maturity dates, in whole or
in part, on the first day of any month, at the Redemption Price of 100% of the principal amount
of such Bonds, or portions thereof, to be redeemed plus accrued interest to the date of
redemption from amounts on deposit in the Redemption Fund as a result of Prepayments
(including related transfers to the Redemption Fund as provided in Section 6.7(h), transfers to
the Redemption Fund made pursuant to Section 6.3(d), 6.3(e), 6.3(f), 6.4(c), 6.7(e), 6.7(f), 6.7(i),
or 6.70) hereof, or as a result of unexpended amounts transferred from the Project Fund as
provided in Section 6.5(d).
Section 4.5. Partial Redemption.
(a) If less than all of the Bonds are to be redeemed pursuant to either Sections 4.2,
or 4.3, Bonds shall be redeemed in minimum principal amounts of $100,000 or any integral of
$1,000 in excess thereof by a pro rata reduction of the outstanding maturities. If less than all of
the Bonds of a particular maturity are to be redeemed, the Bonds of such maturity shall be
redeemed by lot or other customary method that results in a random selection. Each Bond
shall be treated as representing the number of Bonds that is obtained by dividing the principal
amount of such Bond by the smallest Authorized Denomination for such Bond.
(b) If less than all of the Bonds are to be redeemed pursuant to Section 4.4, Bonds
shall be redeemed in minimum principal amounts of $5,000 or any integral of $1,000 in excess
thereof by a pro rata reduction of the outstanding maturities. If less than all of the Bonds of a
particular maturity are to be redeemed, the Bonds of such maturity shall be redeemed by lot or
other customary method that results in a random selection. Each Bond shall be treated as
representing the number of Bonds that is obtained by dividing the principal amount of such
Bond by the smallest Authorized Denomination for such Bond.
(c) A portion of a single Bond of an Authorized Denomination may be redeemed,
but only in a principal amount equal to $1,000 or any integral thereof. The Trustee shall treat
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each $1,000 portion of such Bond as though it were a single bond for purposes of selection for
redemption. No redemption shall result in a Bond in a denomination of less than an Authorized
Denomination; provided, however, if the amount of Outstanding Bonds is less than an
Authorized Denomination after giving effect to such partial redemption, a Bond in the principal
amount equal to the unredeemed portion, but not less than $1,000, may be issued.
(d) Upon surrender of any Bond for redemption in part, the Trustee in accordance
with Section 3.7 of this Indenture, shall authenticate and deliver and exchange the Bond or
Bonds in an aggregate principal amount equal to the unredeemed portion of the Bond so
surrendered, such exchange being without charge.
Section 4.6. Notice of Redemption to Owners.
(a) The Trustee shall give notice of any redemption of Bonds by sending notice by
United States mail, first-class, postage prepaid, not less than thirty (30) days before the date
fixed for redemption, to the Owner of each Bond or portion thereof to be redeemed, at the
address shown in the Register. So long as the Bonds are in book -entry -only form and held by
the DTC as security depository, Owner means Cede & Co., as nominee for DTC.
(b) The notice shall state the redemption date, the Redemption Price, the place at
which the Bonds are to be surrendered for payment, and, if less than all the Bonds Outstanding
are to be redeemed, and subject to Section 4.5 hereof, an identification of the Bonds or
portions thereof to be redeemed, any conditions to such redemption and that on the
redemption date, if all conditions, if any, to such redemption have been satisfied, such Bond
shall become due and payable.
(c) Any notice given as provided in this Section shall be conclusively presumed to
have been duly given, whether or not the Owner receives such notice.
(d) The City has the right to rescind any optional redemption or extraordinary
optional redemption described in Section 4.3 or 4.4 by written notice to the Trustee on or prior
to the date fixed for redemption. Any notice of redemption shall be cancelled and annulled if
for any reason funds are not available on the date fixed for redemption for the payment in full of
the Bonds then called for redemption, and such cancellation shall not constitute an Event of
Default under the Indenture. The Trustee shall mail notice of rescission of redemption in the
same manner notice of redemption was originally provided.
(e) With respect to any optional redemption of the Bonds, unless the Trustee has
received funds sufficient to pay the Redemption Price of the Bonds to be redeemed before
giving of a notice of redemption, the notice may state the City may condition redemption on the
receipt of such funds by the Trustee on or before the date fixed for the redemption, or on the
satisfaction of any other prerequisites set forth in the notice of redemption. If a conditional
notice of redemption is given and such prerequisites to the redemption are not satisfied and
sufficient funds are not received, the notice shall be of no force and effect, the City shall not
redeem the Bonds and the Trustee shall give notice, in the manner in which the notice of
redemption was given, that the Bonds have not been redeemed.
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Section 4.7. Payment Upon Redemption.
(a) The Trustee shall make provision for the payment of the Bonds to be redeemed
on such date by setting aside and holding in trust an amount from the Redemption Fund or
otherwise received by the Trustee from the City and shall use such funds solely for the purpose
of paying the Redemption Price on the Bonds being redeemed.
(b) Upon presentation and surrender of any Bond called for redemption at the
designated corporate trust office of the Trustee on or after the date fixed for redemption, the
Trustee shall pay the Redemption Price on such Bond to the date of redemption from the
moneys set aside for such purpose.
Section 4.8. Effect of Redemption.
Notice of redemption having been given as provided in Section 4.6 of this Indenture, the
Bonds or portions thereof called for redemption shall become due and payable on the date fixed
for redemption provided that funds for the payment of the Redemption Price on such Bonds to
the date fixed for redemption are on deposit with the Trustee; thereafter, such Bonds or portions
thereof shall cease to bear interest from and after the date fixed for redemption, whether or not
such Bonds are presented and surrendered for payment on such date.
ARTICLE V
FORM OF THE BONDS
Section 5.1. Form Generally.
(a) The Bonds, including the Registration Certificate of the Comptroller of Public
Accounts of the State of Texas, the Certificate of the Trustee, and the Assignment to appear on
each of the Bonds, (i) shall be substantially in the form set forth in Exhibit A to this Indenture
with such appropriate insertions, omissions, substitutions, and other variations as are permitted
or required by this Indenture, and (ii) may have such letters, numbers, or other marks of
identification (including identifying numbers and letters of the Committee on Uniform Securities
Identification Procedures of the American Bankers Association) and such legends and
endorsements (including any reproduction of an opinion of counsel) thereon as, consistently
herewith, may be determined by the City or by the officers executing such Bonds, as evidenced
by their execution thereof.
(b) Any portion of the text of any Bonds may be set forth on the reverse side
thereof, with an appropriate reference thereto on the face of the Bonds.
(c) The definitive Bonds shall be typewritten, printed, lithographed, or engraved,
and may be produced by any combination of these methods or produced in any other similar
manner, all as determined by the officers executing such Bonds, as evidenced by their
execution thereof.
(d) The Initial Bond submitted to the Attorney General of the State of Texas may be
typewritten and photocopied or otherwise reproduced.
Improvement Zone A Indenture of Trust
98705268.10/1001073255 26
Section 5.2. CUSIP Registration.
The City may secure identification numbers through the CUSIP Services, managed by
S&P Global Market Intelligence on behalf of The American Bankers Association, New York,
New York, and may authorize the printing of such numbers on the face of the Bonds. It is
expressly provided, however, that the presence or absence of CUSIP numbers on the Bonds
shall be of no significance or effect as regards the legality thereof; and neither the City, the
Trustee, nor the attorneys approving the Bonds as to legality are to be held responsible for
CUSIP numbers incorrectly printed on the Bonds. The Trustee may include in any redemption
notice a statement to the effect that the CUSIP numbers on the Bonds have been assigned by
an independent service and are included in such notice solely for the convenience of the
Owners of the Bonds and that neither the City nor the Trustee shall be liable for any
inaccuracies of such numbers.
Section 5.3. Legal Opinion.
The approving legal opinion of Bond Counsel may be printed on or attached to each
Bond over the certification of the City Secretary of the City, which may be executed in facsimile.
ARTICLE VI
FUNDS AND ACCOUNTS
Section 6.1. Establishment of Funds and Accounts.
(a) Creation of Funds. The following Funds are hereby created and established
under this Indenture:
(i)
Pledged Revenue Fund;
(ii)
Bond Fund;
(iii)
Project Fund;
(iv)
Reserve Fund;
(v)
Redemption Fund;
(vi)
Rebate Fund; and
(vii)
Administrative Fund.
(b) Creation of Accounts.
(i) The following Accounts are hereby created and established under the
Bond Fund:
(A) Capitalized Interest Account; and
(B) Principal and Interest Account.
(ii) The following Accounts are hereby created and established under the
Reserve Fund:
(A) Reserve Account; and
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98705268.10/1001073255 27
(B) Additional Interest Reserve Account.
(iii) The following Accounts are hereby created and established under the
Project Fund:
(A) Improvement Zone A Public Improvement Account; and
(B) Costs of Issuance Account.
(iv) The following Account is hereby created and established under the
Pledged Revenue Fund:
(A) Bond Pledged Revenue Account.
(v) The following Account is hereby created and established under the
Administrative Fund:
(A) District Administration Account.
(c) Each Fund and each Account created within such Fund shall be maintained by
the Trustee separate and apart from all other funds and accounts of the City. The Pledged
Funds shall constitute trust funds which shall be held in trust by the Trustee as part of the Trust
Estate solely for the benefit of the Owners of the Bonds.
(d) Interest earnings and profit on each respective Fund and Account established
by this Indenture shall be applied or withdrawn for the purposes of such Fund or Account only
as specified below.
Section 6.2. Initial Deposits to Funds and Accounts.
(a) The proceeds from the sale of the Bonds shall be paid to the Trustee and
deposited or transferred by the Trustee as follows:
(i) to the Capitalized Interest Account of the Bond Fund: $99,079.65;
(ii) to the Reserve Account of the Reserve Fund: $237,656.26
(iii) to the Additional Interest Reserve Account of the Reserve Fund:
$13,075.00;
(iv) to the District Administration Account of the Administrative Fund:
$13,820.20;
(v) to the Costs of Issuance Account of the Project Fund: $148,881.67; and
(vi) to the Improvement Zone A Public Improvement Account of the Project
Fund: $2,024,037.22.
Section 6.3. Pledged Revenue Fund.
(a) On or before February 15 of each year while the Bonds are Outstanding and
beginning February 15, 2021, the City shall deposit or cause to be deposited the Pledged
Revenues into the Pledged Revenue Fund. From amounts deposited into the Pledged
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98705268.10/1001073255 28
Revenue Fund, the City shall deposit or cause to be deposited such Pledged Revenues as
follows: (i) first, to the Bond Pledged Revenue Account of the Pledged Revenue Fund in an
amount sufficient to pay debt service on the Bonds coming due in such calendar year, (ii)
second, to the Reserve Account of the Reserve Fund in an amount to cause the amount in the
Reserve Account to equal the Reserve Account Requirement, (iii) third, to the Additional
Interest Reserve Account in an amount to cause the Additional Interest Reserve Account to
equal the Additional Interest Reserve Requirement, (iv) fourth, to pay other costs of the Public
Improvements that are allocated to Improvement Zone A, and (v) fifth, to pay other costs
permitted by the PID Act.
(b) From time to time as needed to pay the obligations relating to the Bonds, but no
later than five (5) Business Days before each Interest Payment Date, the Trustee shall
withdraw from the Bond Pledged Revenue Account and transfer to the Principal and Interest
Account of the Bond Fund, an amount, taking into account any amounts then on deposit in
such Principal and Interest Account and any expected transfers from the Capitalized Interest
Account to the Principal and Interest Account, such that the amount on deposit in the Principal
and Interest Account equals the principal (including any Sinking Fund Installments) and interest
due on the Bonds on the next Interest Payment Date.
(c) If, after the foregoing transfers and any transfer from the Reserve Fund as
provided in Section 6.7 herein, there are insufficient funds to make the payments provided in
paragraph (b) above, the Trustee shall apply the available funds in the Principal and Interest
Account first to the payment of interest, then to the payment of principal (including any Sinking
Fund Installments) on the Bonds, as described in Section 11.4(a) hereof.
(d) Notwithstanding Section 6.3(a) hereof, the Trustee shall deposit Prepayments to
the Pledged Revenue Fund and as soon as practicable after such deposit shall transfer such
Prepayments to the Redemption Fund.
(e) Notwithstanding Section 6.3(a) hereof, the Trustee shall deposit Foreclosure
Proceeds to the Pledged Revenue Fund and as soon as practicable after such deposit shall
transfer such Foreclosure Proceeds first, to the Reserve Fund to restore any transfers from the
Reserve Fund made with respect to the Improvement Zone A Assessed Property to which the
Foreclosure Proceeds relate, and second, to the Redemption Fund.
(f) After satisfaction of the requirement to provide for the payment of the principal
and interest on the Bonds and to fund any deficiency that may exist in an account of the
Reserve Fund, the Trustee shall, as instructed by the City pursuant to a City Certificate, apply
Improvement Zone A Assessments for any lawful purposes permitted by the PID Act for which
Improvement Zone A Assessments may be paid, including transfers to the Redemption Fund.
(g) Any additional Pledged Revenues remaining after the satisfaction of the
foregoing shall be applied by the Trustee, as instructed by the City pursuant to a City
Certificate, for any lawful purpose permitted by the PID Act for which such additional Pledged
Revenues may be used, including transfers to other Funds and Accounts created pursuant to
this Indenture.
Improvement Zone A Indenture of Trust
98705268.10/1001073255 29
Section 6.4. Bond Fund.
(a) On each Interest Payment Date, the Trustee shall withdraw from the Principal
and Interest Account of the Bond Fund and transfer to the Paying Agent/Registrar the principal
(including any Sinking Fund Installments) and/or interest then due and payable on the Bonds,
less any amount to be used to pay the interest on the Bonds on such Interest Payment Date
that will be transferred from the Capitalized Interest Account, as provided below.
(b) If amounts in the Principal and Interest Account are insufficient for the purposes
set forth in paragraph (a) above, the Trustee shall withdraw from the Reserve Fund amounts to
cover the amount of such insufficiency in the order described in Section 6.7(g) hereof.
Amounts so withdrawn from the Reserve Fund shall be deposited in the Principal and Interest
Account and transferred to the Paying Agent/Registrar.
(c) Moneys in the Capitalized Interest Account shall be used for the payment of
interest on the Bonds on the following dates and in the following amounts:
Date Amount
March 1, 2020 $28,026.52
September 1, 2020 $71,053.13
Any amounts on deposit in the Capitalized Interest Account after the payment of interest on
the dates and in the amounts listed above shall be transferred to the Improvement Zone A
Public Improvement Account of the Project Fund, or if the Project Fund has been closed as
provided in Section 6.5(f) herein, such amounts shall be transferred to the Redemption Fund
to be used to redeem Bonds and the Capitalized Interest Account shall be closed.
Section 6.5. Proiect Fund.
(a) Money on deposit in the Project Fund shall be used for the purposes specified in
Section 3.1 hereof.
(b) Disbursements from the Costs of Issuance Account of the Project Fund shall be
made by the Trustee to pay costs of issuance of the Bonds pursuant to either one or more City
Certificates or an executed, completed, and accepted Closing Disbursement Request.
(c) Disbursements from the Improvement Zone A Public Improvement Account to
pay Actual Costs of the Public Improvements allocated to Improvement Zone A shall be made
by the Trustee upon receipt by the Trustee of either a properly executed and completed
Certification for Payment or written direction from the City or its designee approving the
disbursement; provided, however that no amount in excess of the Authorized Amount shall be
disbursed from the Improvement Zone A Public Improvement Account unless the Trustee has
also received a written certification from the Developer that the Release Conditions have been
satisfied. The provisions and procedures related to such disbursements contained in the
Improvement Zone A Construction, Funding, and Acquisition Agreement, and no other
provisions of the Improvement Zone A Construction, Funding and Acquisition Agreement, are
herein incorporated by reference and deemed set forth herein in full; provided that the Trustee
Improvement Zone A Indenture of Trust
98705268.10/1001073255 30
shall be permitted to rely fully on any City Certificate or other written direction received
pursuant to this Section of the Indenture without investigation.
(d) If the City Representative determines in his or her sole discretion that amounts
then on deposit in the Improvement Zone A Public Improvement Account of the Project Fund
are not expected to be expended for purposes of the Project Fund due to the abandonment, or
constructive abandonment, of the Public Improvements the Actual Costs of which are allocated
to Improvement Zone A, such that, in the opinion of the City Representative, it is unlikely that
the amounts in the Improvement Zone A Public Improvement Account of the Project Fund will
ever be expended for the purposes of the Project Fund, the City Representative shall file a City
Certificate with the Trustee which identifies the amounts then on deposit in the Improvement
Zone A Public Improvement Account of the Project Fund that are not expected to be used for
purposes of the Project Fund. If such City Certificate is so filed, the amounts on deposit in the
Improvement Zone A Public Improvement Account of the Project Fund shall be transferred to
the Redemption Fund to redeem Bonds on the earliest practicable date after notice of
redemption has been provided in accordance with the Indenture.
(e) In making any determination pursuant to this Section, the City Representative
may conclusively rely upon a certificate of an Independent Financial Consultant.
(f) Upon the filing of a City Certificate stating that all Public Improvements have
been completed and that all Actual Costs of the Public Improvements allocable to the
Improvement Zone A have been paid, or that any such Actual Costs are not required to be paid
from the Project Fund pursuant to either a Certification for Payment or written direction from the
City or its designee, the Trustee (i) shall transfer the amount, if any, remaining within the
Improvement Zone A Public Improvement Account of the Project Fund to the Bond Fund and
(ii) shall close the Project Fund.
(g) Not later than six (6) months following the Closing Date, upon a determination
by the City Representative that all costs of issuance of the Bonds have been paid, any
amounts remaining in the Costs of Issuance Account shall be transferred to another Account in
the Project Fund and used to pay Actual Costs of the Public Improvements allocated to
Improvement Zone A, or to the Principal and Interest Account of the Bond Fund and used to
pay interest on the Bonds, as directed by the City in a City Certificate filed with the Trustee,
and following such transfer, the Costs of Issuance Account shall be closed.
Section 6.6. Redemption Fund.
(a) The Trustee shall cause to be deposited to the Redemption Fund from the Bond
Pledged Revenue Account of the Pledged Revenue Fund an amount sufficient to redeem
Bonds as provided in Sections 4.3 and 4.4 on the dates specified for redemption as provided in
Sections 4.3 and 4.4. Amounts on deposit in the Redemption Fund shall be used and
withdrawn by the Trustee to redeem Bonds as provided in Article IV.
Section 6.7. Reserve Fund.
(a) The City agrees with the Owners of the Bonds to accumulate from the deposits
outlined in Section 6.3(a) hereof, and when accumulated, maintain in the Reserve Account of
the Reserve Fund, an amount equal to not less than the Reserve Account Requirement. All
amounts deposited in the Reserve Account of the Reserve Fund shall be used and withdrawn
Improvement Zone A Indenture of Trust
98705268.10/1001073255 31
by the Trustee for the purpose of making transfers to the Principal and Interest Account of the
Bond Fund as provided in this Indenture.
(b) Whenever a transfer is made from the Reserve Account to the Bond Fund due
to a deficiency in the Bond Fund, the Trustee shall provide written notice thereof to the City,
specifying the amount withdrawn and the source of such funds.
(c) Whenever, on any Interest Payment Date, or on any other date at the written
request of a City Representative, the amount in the Reserve Account exceeds the Reserve
Account Requirement, the Trustee shall provide written notice to the City Representative of the
amount of the excess. Such excess shall be transferred to the Principal and Interest Account
to be used for the payment of interest on the Bonds on the next Interest Payment Date in
accordance with Section 6.4 hereof, unless within thirty (30) days of such notice to the City
Representative, the Trustee receives a City Certificate instructing the Trustee to apply such
excess: (i) to pay amounts due under Section 6.8 hereof, (ii) to the Administrative Fund in an
amount not more than the Annual Collection Costs for the Bonds, or (iii) to the Project Fund if
such application and the expenditure of funds is expected to occur within three (3) years of the
date hereof.
(d) If, after a Reserve Fund withdrawal, the amount on deposit in the Reserve
Account of the Reserve Fund is less than the Reserve Account Requirement, the Trustee shall
transfer from the Pledged Revenue Fund to the Reserve Account of the Reserve Fund the
amount of such deficiency, in accordance with Section 6.3.
(e) The Trustee, if necessary, will transfer from the Bond Pledged Revenue Account
of the Pledged Revenue Fund to the Additional Interest Reserve Account on March 1 and
September 1 of each year, commencing March 1, 2020 an amount equal to the Additional
Interest until the Additional Interest Reserve Requirement has been accumulated in the
Additional Interest Reserve Account. Once the Additional Interest Reserve Requirement has
been accumulated in the Additional Interest Reserve Account, all amounts in excess of the
Additional Interest Reserve Requirement shall be transferred by the Trustee to the Redemption
Fund to redeem Bonds as provided in Article IV; provided, however, that at any time the
amount on deposit in the Additional Interest Reserve Account is less than the Additional
Interest Reserve Requirement, the Trustee shall resume depositing the Additional Interest into
the Additional Interest Reserve Account until the Additional Interest Reserve Requirement has
accumulated in the Additional Interest Reserve Account.
(f) Whenever, on any Interest Payment Date, or on any other date at the written
request of the City Representative, the amounts on deposit in the Additional Interest Reserve
Account exceed the Additional Interest Reserve Requirement, the Trustee shall provide written
notice to the City Representative of the amount of the excess (the "Excess Additional Interest
Reserve Amount"). The Trustee shall determine the value of cash and investments on deposit
in the Additional Interest Reserve Account as of September 30 of each year. So long as no
Event of Default (of which the Trustee has received written notice pursuant to Section 9.3
hereof), shall have occurred under this Indenture and be continuing, if as of the date of such
determination the value of cash and investments on deposit in the Additional Interest Reserve
Account exceeds the Additional Interest Reserve Requirement for the Bonds, the Trustee shall
transfer such Excess Additional Interest Reserve Amount, at the direction of the City pursuant
to a City Certificate, to the Administrative Fund for the payment of Annual Collection Costs. In
the event that the Trustee does not receive a City Certificate directing the transfer of the
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98705268.10/1001073255 32
Excess Additional Interest Reserve Amount to the Administrative Fund within forty-five (45)
days of providing notice to the City of such Excess Additional Interest Reserve Amount, the
Trustee shall transfer the Excess Additional Interest Reserve Amount to the Redemption Fund
to redeem Bonds pursuant to Section 4.4 hereof.
(g) Whenever, on any Interest Payment Date, the amount on deposit in the Bond
Fund is insufficient to pay the debt service on the Bonds due on such date, the Trustee shall
transfer first, from the Additional Interest Reserve Account of the Reserve Fund and second,
from the Reserve Account of the Reserve Fund to the Bond Fund the amounts necessary to
cure such deficiency.
(h) Whenever Bonds are to be redeemed with the proceeds of Prepayments
pursuant to Section 4.4, a proportionate amount in the Reserve Account of the Reserve Fund
shall be transferred on the Business Day prior to the redemption date (or any other date
specified in a City Certificate) by the Trustee to the Redemption Fund to be applied to the
redemption of the Bonds. The amount so transferred from the Reserve Account of the Reserve
Fund shall be equal to a percentage of the amount of the Bonds redeemed with such
percentage equal to the lesser of: (i) the amount required to be in the Reserve Account of the
Reserve Fund, as a percentage of the Outstanding Bonds prior to the redemption, and (ii) the
amount actually in the Reserve Account of the Reserve Fund, as a percentage of the
Outstanding Bonds prior to the redemption. If after such transfer, and after applying
investment earnings on the Prepayment toward the payment of accrued interest, there are
insufficient funds to pay the principal amount plus accrued and unpaid interest on such Bonds
to the date fixed for redemption of the Bonds to be redeemed as a result of such Prepayment,
the Trustee shall transfer an amount equal to the shortfall from the Additional Interest Reserve
Account to the Redemption Fund to be applied to the redemption of the Bonds.
(i) If the amount held in the Reserve Fund together with the amount held in the
Bond Fund and Redemption Fund is sufficient to pay the principal amount and of all
Outstanding Bonds on the next Interest Payment Date, together with the unpaid interest
accrued on such Bonds as of such Interest Payment Date, the moneys from such Funds shall
be transferred to the Redemption Fund and thereafter used to redeem all Bonds as of such
Interest Payment Date.
Q) At the final maturity of the Bonds, the amount on deposit in the Reserve Account
and the Additional Interest Reserve Account shall be transferred to the Redemption Fund and
applied to the payment of the principal of the Bonds.
Section 6.8. Rebate Fund: Rebate Amount.
(a) There is hereby established a special fund of the City to be designated "City of
North Richland Hills, Texas, Rebate Fund" to be held by the Trustee in accordance with the
terms and provisions of this Indenture. Amounts on deposit in the Rebate Fund shall be used
solely for the purpose of paying amounts relating to the Bonds due the United States
Government in accordance with the Code.
(b) In order to assure that Rebate Amount is paid to the United States rather than to
a third party, investments of funds on deposit in the Rebate Fund shall be made in accordance
with the Code and the Tax Certificate.
Improvement Zone A Indenture of Trust
98705268.10/1001073255 33
(c) The Trustee conclusively shall be deemed to have complied with the provisions
of this Section and Section 7.5(h) and shall not be liable or responsible if it follows the
instructions of the City and shall not be required to take any action under this Section and
Section 7.5(h) in the absence of written instructions from the City.
(d) If, on the date of each annual calculation, the amount on deposit in the Rebate
Fund exceeds the Rebate Amount, the City may direct the Trustee, pursuant to a City
Certificate, to transfer the amount in excess of the Rebate Amount to the Bond Fund.
Section 6.9. Administrative Fund.
(a) The City shall deposit or cause to be deposited to the District Administration
Account of the Administrative Fund the amounts collected each year to pay the Annual
Collection Costs.
(b) Moneys in the District Administration Account of the Administrative Fund shall
be held by the Trustee separate and apart from the other Funds created and administered
hereunder and used as directed by a City Certificate solely for the purposes set forth in the
Service and Assessment Plan, as determined by the City.
Section 6.10. Investment of Funds.
(a) Money in any Fund or Account established pursuant to this Indenture shall be
invested by the Trustee as directed by the City pursuant to a City Certificate filed with the
Trustee at least two (2) days in advance of the making of such investment in time deposits or
certificates of deposit secured in the manner required by law for public funds, or be invested in
direct obligations of, including obligations the principal and interest on which are
unconditionally guaranteed by, the United States of America, in obligations of any agencies or
instrumentalities thereof, or in such other investments as are permitted under the Public Funds
Investment Act Texas Government Code, Chapter 2256, as amended, or any successor law,
as in effect from time to time; provided that all such deposits and investments shall be made in
such manner (which may include repurchase agreements for such investment with any primary
dealer of such agreements) that the money required to be expended from any Fund will be
available at the proper time or times. Such investments shall be valued each year in terms of
current market value as of September 30. For purposes of maximizing investment returns, to
the extent permitted by law, money in such Funds may be invested in common investments of
the kind described above, or in a common pool of such investment which shall be kept and
held at an official depository bank, which shall not be deemed to be or constitute a
commingling of such money or funds provided that safekeeping receipts or certificates of
participation clearly evidencing the investment or investment pool in which such money is
invested and the share thereof purchased with such money or owned by such Fund are held by
or on behalf of each such Fund. If necessary, such investments shall be promptly sold to
prevent any default.
(b) Obligations purchased as an investment of moneys in any Fund or Account shall
be deemed to be part of such Fund or Account, subject, however, to the requirements of this
Indenture for transfer of interest earnings and profits resulting from investment of amounts in
Funds and Accounts. Whenever in this Indenture any moneys are required to be transferred
by the City to the Trustee, such transfer may be accomplished by transferring a like amount of
Investment Securities.
Improvement Zone A Indenture of Trust
98705268.10/1001073255 34
(c) The Trustee and its affiliates may act as sponsor, advisor, depository, principal
or agent in the acquisition or disposition of any investment. The Trustee shall have no
investment discretion and the Trustee shall follow the written instructions of any City Certificate.
In the absence of written instructions, the Trustee shall be required to invest funds in Blackrock
Liquidity Fed Funds. The Trustee shall not incur any liability for losses arising from any
investments made pursuant to this Section. The Trustee shall not be required to determine the
suitability or legality of any investments.
(d) Investments in any and all Funds and Accounts may be commingled in a
separate fund or funds for purposes of making, holding and disposing of investments,
notwithstanding provisions herein for transfer to or holding in or to the credit of particular Funds
or Accounts of amounts received or held by the Trustee hereunder, provided that the Trustee
shall at all times account for such investments strictly in accordance with the Funds and
Accounts to which they are credited and otherwise as provided in this Indenture.
(e) The Trustee will furnish the City monthly cash transaction statements which
include detail for all investment transactions made by the Trustee hereunder; and, unless the
Trustee receives a written request, the Trustee is not required to provide brokerage
confirmations so long as the Trustee is providing such monthly cash transaction statements.
Section 6.11. Security of Funds.
All Funds or Accounts heretofore created or reaffirmed, to the extent not invested as
herein permitted, shall be secured in the manner and to the fullest extent required by law for the
security of public funds, and such Funds or Accounts shall be used only for the purposes and in
the manner permitted or required by this Indenture.
ARTICLE VI
COVENANTS
Section 7.1. Confirmation of Improvement Zone A Assessments.
The City hereby confirms, covenants, and agrees that the Improvement Zone A
Assessments to be collected from the Improvement Zone A Assessed Property are as so
reflected in the Service and Assessment Plan (as it may be updated from time to time) and, in
accordance with the Improvement Zone A Assessment Ordinance, it has levied the
Improvement Zone A Assessments against the respective Improvement Zone A Assessed
Property from which the Pledged Revenues will be collected and received.
Section 7.2. Collection and Enforcement of Improvement Zone A Assessments.
(a) For so long as any Bonds are Outstanding, the City covenants, agrees and
warrants that it will take and pursue all actions permissible under Applicable Laws to cause the
Improvement Zone A Assessments to be collected and the liens thereof enforced continuously,
in the manner and to the maximum extent permitted by Applicable Laws, and to cause no
reduction, abatement or exemption in the Improvement Zone A Assessments.
(b) The City will determine or cause to be determined, no later than February 15 of
each year, whether or not any Annual Installment is delinquent and, if such delinquencies exist,
the City will order and cause to be commenced as soon as practicable any and all appropriate
Improvement Zone A Indenture of Trust
98705268.10/1001073255 35
and legally permissible actions to obtain such Annual Installment, and any delinquent charges
and interest thereon, including diligently prosecuting an action in district court to foreclose the
currently delinquent Annual Installment. Notwithstanding the foregoing, the City shall not be
required under any circumstances to purchase or make payment for the purchase of the
delinquent Improvement Zone A Assessment or the corresponding Improvement Zone A
Assessed Property. Furthermore, nothing shall obligate the City, the City Attorney, or any
appropriate designee to undertake collection or foreclosure actions against delinquent
accounts in violation of applicable state law, court order, or existing contractual provisions
between the City and its appropriate collections enforcement designees.
Section 7.3. Against Encumbrances.
(a) Other than liens created in connection with the indebtedness issued in
compliance with Section 13.2 hereof or as specified in Section 9.6 hereof, the City shall not
create and, to the extent Pledged Revenues are timely received, shall not suffer to remain, any
lien, encumbrance or charge upon the Pledged Revenues, or upon any other property pledged
under this Indenture.
(b) So long as Bonds are Outstanding hereunder, the City shall not issue any
bonds, notes or other evidences of indebtedness secured by any pledge of or other lien or
charge on the Pledged Revenues or other property pledged under this Indenture, except for
the Bonds and other indebtedness issued in compliance with Section 13.2 hereof.
Section 7.4. Records, Accounts, Accounting Reports.
The City hereby covenants and agrees that so long as any of the Bonds or any interest
thereon remain Outstanding and unpaid, it will keep and maintain a proper and complete system
of records and accounts pertaining to the Improvement Zone A Assessments. The Trustee and
the holder or holders of any Bonds or any duly authorized agent or agents of such holders shall
have the right at all reasonable times to inspect all such records, accounts, and data relating
thereto, upon written request to the City by the Trustee or duly authorized representative, as
applicable. The City shall provide the Trustee or duly authorized representative, as applicable,
an opportunity to inspect such books and records relating to the Bonds during the City's regular
business hours and on a mutually agreeable date not later than thirty days after the City
receives such request.
Section 7.5. Covenants to Maintain Tax -Exempt Status.
(a) Definitions. When used in this Section, the following terms shall have the
following meanings:
"Closing Date" means the date on which the Bonds are first
authenticated and delivered to the initial purchasers against
payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended
by all legislation, if any, effective on or before the Closing Date.
"Computation Date" has the meaning set forth in section 1.148-
1(b) of the Regulations.
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98705268.10/1001073255 36
"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.
"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 shall not use, permit the
use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause 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 Payments. Except as permitted by section 141 of the
Code and the Regulations and rulings thereunder, the City shall at all times prior to the last
Stated Maturity of Bonds:
(i) exclusively own, operate and possess all property the acquisition,
construction or improvement of which is to be financed or refinanced directly or indirectly
with Gross Proceeds of the Bonds, and not use or permit the use of such Gross
Proceeds (including all contractual arrangements with terms different than those
applicable to the general public) or any property acquired, constructed or improved with
such Gross Proceeds in any activity carried on by any person or entity (including the
United States or any agency, department and instrumentality thereof) other than a state
or local government, unless such use is solely as a member of the general public; and
(ii) 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
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98705268.10/1001073255 37
property the acquisition, construction or improvement of which is to be financed or
refinanced directly or indirectly with such Gross Proceeds, other than taxes of general
application within the City or interest earned on investments acquired with such Gross
Proceeds pending application for their intended purposes.
(d)
No Private Loan.
(i) Except to the extent permitted by section 141 of the Code and the
Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Bonds
to make or finance loans to any person or entity other than a state or local government.
For purposes of the foregoing covenant, such Gross Proceeds are considered to be
"loaned" to a person or entity if: (1) property acquired, constructed or improved with such
Gross Proceeds is sold or leased to such person or entity in a transaction which creates
a debt for federal income tax purposes; (2) capacity in or service from such property is
committed to such person or entity under a take -or -pay, output or similar contract or
arrangement; or (3) indirect benefits, or burdens and benefits of ownership, of such
Gross Proceeds or any property acquired, constructed or improved with such Gross
Proceeds are otherwise transferred in a transaction which is the economic equivalent of
a loan.
(ii) The City covenants and agrees that the levied Improvement Zone A
Assessments will meet the requirements of the "tax assessment loan exception" within
the meaning of section 1.141-5(d) of the Regulations on the date the Bonds are
delivered and will ensure that the Improvement Zone A Assessments continue to meet
such requirements for so long as the Bonds are outstanding hereunder.
(e) Not to Invest at Higher Yield. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any Investment
(or use Gross Proceeds to replace money so invested) if, as a result of such investment, the
Yield from the Closing Date of all Investments acquired with Gross Proceeds (or with money
replaced thereby), whether then held or previously disposed of, exceeds the Yield of the
Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of
the Code and the Regulations and rulings thereunder, the City shall not take or omit to take
any action which would cause the Bonds to be federally guaranteed within the meaning of
section 149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the information required by section
149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other form and
in such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section
148(f) of the Code and the Regulations and rulings thereunder:
(i) The City shall account for all Gross Proceeds (including all receipts,
expenditures and investments thereof) on its books of account separately and apart from
all other funds (and receipts, expenditures and investments thereof) and shall retain all
records of accounting for at least six years after the day on which the last outstanding
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98705268.10/1001073255 38
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.
(ii) Not less frequently than each Computation Date, the City shall calculate
the Rebate Amount in accordance with rules set forth in section 148(f) of the Code and
the Regulations and rulings thereunder. The City shall maintain such calculations with
its official transcript of proceedings relating to the issuance of the Bonds until six years
after the final Computation Date.
(iii) As additional consideration for the purchase of the Bonds by the
Purchasers and the loan of the money represented thereby and in order to induce such
purchase by measures designed to insure the excludability of the interest thereon from
the gross income of the owners thereof for federal income tax purposes, the City shall,
pursuant to a City Certificate, direct the Trustee to transfer to the Rebate Fund from the
funds or subaccounts designated in such City Certificate and direct the Trustee to pay to
the United States from the Rebate 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 Final
Computation Date as defined in Section 1.148-3(e)(2) of the Regulations, one hundred
percent (100%) of the Rebate Amount on such date; and (ii) in the case of any other
Computation Date, ninety percent (90%) of the Rebate Amount on such date. In all
cases, the rebate payments shall be made at the times, in the installments, to the place
and in the manner as is or may be required by section 148(f) of the Code and the
Regulations and rulings thereunder, and shall be accompanied by Form 8038-T or such
other forms and information as is or may be required by Section 148(f) of the Code and
the Regulations and rulings thereunder.
(iv) The City shall exercise reasonable diligence to assure that no errors are
made in the calculations and payments required by paragraphs (ii) and (iii), 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 Arbitrage 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.
0) Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem,
City Manager, or 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 Tax Certificate or similar or other appropriate
certificate, form or document.
Improvement Zone A Indenture of Trust
98705268.10/1001073255 39
ARTICLE VIII
LIABILITY OF CITY
The City shall not incur any responsibility in respect of the Bonds or this Indenture other
than in connection with the duties or obligations explicitly herein or in the Bonds assigned to or
imposed upon it. The City shall not be liable in connection with the performance of its duties
hereunder, except for its own willful default or act of bad faith. The City shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms, conditions
covenants or agreements of the Trustee herein or of any of the documents executed by the
Trustee in connection with the Bonds, or as to the existence of a default or event of default
thereunder.
In the absence of bad faith, the City may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the City and conforming to the requirements of this Indenture. The City shall not be
liable for any error of judgment made in good faith unless it shall be proved that it was negligent
in ascertaining the pertinent facts.
No provision of this Indenture, the Bonds, the Improvement Zone A Assessment
Ordinance, or any agreement, document, instrument, or certificate executed, delivered or
approved in connection with the issuance, sale, delivery, or administration of the Bonds (the
"Bond Documents"), shall require the City to expend or risk its own general funds or otherwise
incur any financial liability (other than with respect to the Trust Estate and the Annual Collection
Costs) in the performance of any of its obligations hereunder, or in the exercise of any of its
rights or powers, if in the judgment of the City there are reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured to it.
Neither the Owners nor any other Person shall have any claim against the City or any of
its officers, officials, agents, or employees for damages suffered as a result of the City's failure
to perform in any respect any covenant, undertaking, or obligation under any Bond Documents
or as a result of the incorrectness of any representation in, or omission from, any of the Bond
Documents, except to the extent that any such claim relates to an obligation, undertaking,
representation, or covenant of the City, in accordance with the Bond Documents and the PID
Act. Any such claim shall be payable only from the Trust Estate or the amounts collected to pay
Annual Collection Costs on deposit in the Administrative Fund. Nothing contained in any of the
Bond Documents shall be construed to preclude any action or proceeding in any court or before
any governmental body, agency, or instrumentality against the City or any of its officers,
officials, agents, or employees to enforce the provisions of any of the Bond Documents or to
enforce all rights of the Owners of the Bonds by mandamus or other proceeding at law or in
equity.
The City may rely on and shall be protected in acting or refraining from acting upon any
notice, resolution, request, consent, order, certificate, report, warrant, bond, or other paper or
document believed by it to be genuine and to have been signed or presented by the proper
party or proper parties. The City may consult with counsel with regard to legal questions, and
the opinion of such counsel shall be full and complete authorization and protection in respect of
any action taken or suffered by it hereunder in good faith and in accordance therewith.
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98705268.10/1001073255 40
Whenever in the administration of its duties under this Indenture, the City shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of willful misconduct on the part of the City, be deemed to be
conclusively proved and established by a certificate of the Trustee, an Independent Financial
Consultant, or an independent inspector or other independent third -party designated by the City
Council to so act on behalf of the City, and such certificate shall be full warrant to the City for
any action taken or suffered under the provisions of this Indenture upon the faith thereof, but in
its discretion the City may, in lieu thereof, accept other evidence of such matter or may require
such additional evidence as to it may seem reasonable.
In order to perform its duties and obligations hereunder, the City may employ such
persons or entities as it deems necessary or advisable. The City shall not be liable for any of
the acts or omissions of such persons or entities employed by it in good faith hereunder, and
shall be entitled to rely, and shall be fully protected in doing so, upon the opinions, calculations,
determinations, and directions of such persons or entities.
ARTICLE IX
THE TRUSTEE
Section 9.1. Trustee as Registrar and Paving Agent
The Trustee is hereby designated and agrees to act as Paying Agent/Registrar for and in
respect to the Bonds.
Section 9.2. Trustee Entitled to Indemnity
The Trustee shall be under no obligation to spend its own funds, to institute any suit, or
to undertake any proceeding under this Indenture, or to enter any appearance or in any way
defend in any suit in which it may be made defendant, or to take any steps in the execution of
the trusts hereby created or in the enforcement of any rights and powers hereunder, until it shall
be indemnified, to the extent permitted by law, to its satisfaction against any and all costs and
expenses, outlays, and counsel fees and other reasonable disbursements, and against all
liability except as a consequence of its own gross negligence or willful misconduct.
Nevertheless, the Trustee may begin suit, or appear in and defend suit, or do anything else in its
judgment proper to be done by it as the Trustee, without indemnity, and in such case the
Trustee may make transfers from the Pledged Revenue Fund or the District Administration
Account of the Administrative Fund to pay all costs and expenses, outlays, and counsel fees
and other reasonable disbursements properly incurred in connection therewith and shall, to the
extent permitted by law, be entitled to a preference therefor over any Bonds Outstanding
hereunder.
Section 9.3. Responsibilities of the Trustee.
The recitals contained in this Indenture and in the Bonds shall be taken as the
statements of the City and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of the offering
documents, this Indenture, or the Bonds or with respect to the security afforded by this
Indenture, and the Trustee shall incur no liability with respect thereto. Except as otherwise
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98705268.10/1001073255 41
expressly provided in this Indenture, the Trustee shall have no responsibility or duty with respect
to: (i) the issuance of Bonds for value; (ii) the application of the proceeds thereof, except to the
extent that such proceeds are received by it in its capacity as Trustee; (iii) the application of any
moneys paid to the City or others in accordance with this Indenture, except as to the application
of any moneys paid to it in its capacity as Trustee; or (iv) any calculation of arbitrage or rebate
under the Code. The Trustee has the right to act through agents and attorneys and shall have
no liability for the negligence or willful misconduct of the agents and attorneys appointed with
due care.
The duties and obligations of the Trustee shall be determined by the express provisions
of this Indenture, and the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture.
The Trustee shall not be liable for any action taken or omitted by it in the performance of
its duties under this Indenture, except for its own gross negligence or willful misconduct, both
before and after default by the City. In no event shall the Trustee be liable for incidental,
indirect, special or consequential damages in connection with or arising from this Indenture for
the existence, furnishing, or use of the Public Improvements allocable to Improvement Zone A.
The Trustee shall not be required to take notice, and shall not be deemed to have notice,
of any default or Event of Default hereunder, unless the Trustee shall be notified specifically of
the default or Event of Default in a written instrument or document delivered to it by the City or
by the holders of at least twenty-five percent (25%) of the aggregate principal amount of Bonds
then Outstanding. In the absence of delivery of a notice satisfying those requirements, the
Trustee may assume conclusively that there is no default or Event of Default.
In case a default or an Event of Default has occurred and is continuing hereunder (of
which the Trustee has been notified), the Trustee shall exercise those rights and powers vested
in it by this Indenture and shall use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his own affairs.
Section 9.4. Property Held in Trust.
All moneys and securities held by the Trustee at any time pursuant to the terms of this
Indenture shall be held by the Trustee in trust for the purposes and under the terms and
conditions of this Indenture.
Section 9.5. Trustee Protected in Relying on Certain Documents.
The Trustee may rely upon any order, notice, request, consent, waiver, certificate,
statement, affidavit, requisition, bond, or other document provided to the Trustee in accordance
with the terms of this Indenture that it shall in good faith reasonably believe to be genuine and to
have been adopted or signed by the proper board or Person or to have been prepared and
furnished pursuant to any of the provisions of this Indenture, or upon the written opinion of any
counsel, architect, engineer, insurance consultant, management consultant, or accountant
believed by the Trustee to be qualified in relation to the subject matter, and the Trustee shall be
under no duty to make any investigation or inquiry into any statements contained or matters
referred to in any such instrument. The Trustee may consult with counsel, who may or may not
be Bond Counsel, and the opinion of such counsel shall be full and complete authorization and
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98705268.10/1001073255 42
protection in respect of any action taken, suffered, or omitted to be taken by it in good faith and
in accordance therewith.
Whenever the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action under this Indenture, such matter may be
deemed to be conclusively proved and established by a City Certificate, unless other evidence
in respect thereof be hereby specifically prescribed. Such City Certificate shall be full warrant
for any action taken or suffered in good faith under the provisions hereof, but in its sole
discretion the Trustee may in lieu thereof accept other evidence of such fact or matter or may
require such further or additional evidence as it may deem reasonable. Except as otherwise
expressly provided herein, any request, order, notice, or other direction required or permitted to
be furnished pursuant to any provision hereof by the City to the Trustee shall be sufficiently
executed if executed in the name of the City by the City Representative.
The Trustee shall not be under any obligation to see to the recording or filing of this
Indenture, or otherwise to the giving to any Person of notice of the provisions hereof except as
expressly required in Section 9.13 herein.
Section 9.6. Compensation.
Unless otherwise provided by contract with the Trustee, the Trustee shall transfer from
the Administrative Fund, from time to time, reasonable compensation for all services rendered
by it hereunder, including its services as Registrar and Paying Agent, together with all its
reasonable expenses, charges, and other disbursements and those of its counsel, agents and
employees, incurred in and about the administration and execution of the trusts hereby created
and the exercise of its powers and the performance of its duties hereunder, subject to any limit
on the amount of such compensation or recovery of expenses or other charges as shall be
prescribed by specific agreement, and the Trustee shall have a first lien therefor on any and all
funds at any time held by it in the Administrative Fund. None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers, if
in the judgment of the Trustee there are reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it. If the City shall fail to make any payment
required by this Section, the Trustee may make such payment from any moneys in its
possession under the Administrative Fund.
Section 9.7. Permitted Acts.
The Trustee and its directors, officers, employees, or agents may become the owner of
or may in good faith buy, sell, own, hold and deal in Bonds and may join in any action that any
Owner of Bonds may be entitled to take as fully and with the same rights as if it were not the
Trustee. The Trustee may act as depository, and permit any of its officers or directors to act as
a member of, or in any other capacity with respect to, the City or any committee formed to
protect the rights of holders of Bonds or to effect or aid in any reorganization growing out of the
enforcement of the Bonds or this Indenture, whether or not such committee shall represent the
holders of a majority in aggregate outstanding principal amount of the Bonds.
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98705268.10/1001073255 43
Section 9.8. Resignation of Trustee.
The Trustee may at any time resign and be discharged of its duties and obligations
hereunder by giving not fewer than thirty (30) days' written notice, specifying the date when
such resignation shall take effect, to the City and each Owner of any Outstanding Bond. Such
resignation shall take effect upon the appointment of a successor as provided in Section 9.10
and the acceptance of such appointment by such successor. The rights of the Trustee to
indemnity and reimbursement of fees and expenses shall survive the Trustee's resignation.
Section 9.9. Removal of Trustee.
The Trustee may be removed at any time by (i) the Owners of at least a majority of the
aggregate outstanding principal of the Bonds by an instrument or concurrent instruments in
writing signed and acknowledged by such Owners or by their attorneys -in -fact, duly authorized
and delivered to the City, or (ii) so long as the City is not in default under this Indenture, the City.
Copies of each such instrument shall be delivered by the City to the Trustee and any successor
thereof. The Trustee may also be removed at any time for any breach of trust or for acting or
proceeding in violation of, or for failing to act or proceed in accordance with, any provision of
this Indenture with respect to the duties and obligations of the Trustee by any court of
competent jurisdiction upon the application of the City or the Owners of not less than ten
percent (10%) of the aggregate outstanding principal of the Bonds. The rights of the Trustee to
indemnity and reimbursement of fees and expenses shall survive the Trustee's removal.
Section 9.10. Successor Trustee.
If the Trustee shall resign, be removed, be dissolved, or become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or if a receiver, liquidator, or conservator of the
Trustee or of its property shall be appointed, or if any public officer shall take charge or control
of the Trustee or of its property or affairs, the position of the Trustee hereunder shall thereupon
become vacant.
If the position of Trustee shall become vacant for any of the foregoing reasons or for any
other reason, a successor Trustee may be appointed within one year after any such vacancy
shall have occurred by the Owners of at least twenty-five percent (25%) of the aggregate
outstanding principal of the Bonds by an instrument or concurrent instruments in writing signed
and acknowledged by such Owners or their attorneys -in -fact, duly authorized and delivered to
such successor Trustee, with notification thereof being given to the predecessor Trustee and
the City.
Until such successor Trustee shall have been appointed by the Owners of at least
twenty-five percent (25%) of the aggregate outstanding principal of the Bonds, the City shall
forthwith (and in no event in excess of thirty (30) days after such vacancy occurs) appoint a
Trustee to act hereunder. Copies of any instrument of the City providing for any such
appointment shall be delivered by the City to the Trustee so appointed. The City shall mail
notice of any such appointment to each Owner of any Outstanding Bonds within thirty (30) days
after such appointment. Any appointment of a successor Trustee made by the City immediately
and without further act shall be superseded and revoked by an appointment subsequently made
by the Owners of Bonds.
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98705268.10/1001073255 44
If in a proper case no appointment of a successor Trustee shall be made within forty-five
(45) days after the giving by any Trustee of any notice of resignation in accordance with Section
9.8 herein or after the occurrence of any other event requiring or authorizing such appointment,
the Trustee or any Owner of Bonds may apply to any court of competent jurisdiction for the
appointment of such a successor, and the court may thereupon, after such notice, if any, as the
court may deem proper, appoint such successor and the City shall be responsible for the costs
of such appointment process.
Any successor Trustee appointed under the provisions of this Section shall be a
commercial bank or trust company or national banking association (i) having a capital and
surplus and undivided profits aggregating at least $50,000,000, if there be such a commercial
bank or trust company or national banking association willing and able to accept the
appointment on reasonable and customary terms, and (ii) authorized by law to perform all the
duties of the Trustee required by this Indenture.
Each successor Trustee shall mail, in accordance with the provisions of the Bonds,
notice of its appointment to the Trustee, any rating agency which, at the time of such
appointment, is providing a rating on the Bonds and each of the Owners of the Bonds.
Section 9.11. Transfer of Rights and Property to Successor Trustee.
Any successor Trustee appointed under the provisions of Section 9.10 shall execute,
acknowledge, and deliver to its predecessor and the City an instrument in writing accepting
such appointment, and thereupon such successor, without any further act, deed, or
conveyance, shall become fully vested with all moneys, estates, properties, rights, immunities,
powers, duties, obligations, and trusts of its predecessor hereunder, with like effect as if
originally appointed as Trustee. However, the Trustee then ceasing to act shall nevertheless,
on request of the City or of such successor, execute, acknowledge, and deliver such
instruments of conveyance and further assurance and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in such successor all the rights,
immunities, powers, and trusts of such Trustee and all the right, title, and interest of such
Trustee in and to the Trust Estate, and shall pay over, assign, and deliver to such successor
any moneys or other properties subject to the trusts and conditions herein set forth. Should any
deed, conveyance, or instrument in writing from the City be required by such successor for more
fully and certainly vesting in and confirming to it any such moneys, estates, properties, rights,
powers, duties, or obligations, any and all such deeds, conveyances, and instruments in writing,
on request and so far as may be authorized by law, shall be executed, acknowledged, and
delivered by the City.
Section 9.12. Merger, Conversion or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged or with which it
may be consolidated or any corporation or association resulting from any merger, conversion or
consolidation to which it shall be a party or any corporation or association to which the Trustee
may sell or transfer all or substantially all of its corporate trust business shall be the successor
to such Trustee hereunder, without any further act, deed or conveyance, provided that such
corporation or association shall be a commercial bank or trust company or national banking
association qualified to be a successor to such Trustee under the provisions of Section 9.10, or
a trust company that is a wholly -owned subsidiary of any of the foregoing.
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98705268.10/1001073255 45
Section 9.13. Trustee to File Continuation Statements.
If necessary, the Trustee shall file or cause to be filed, such continuation statements as
are delivered to the Trustee by the City, or on behalf of the City, and which may be required by
the Texas Uniform Commercial Code, as from time to time in effect (the "UCC"), in order to
continue perfection of the security interest of the Trustee in such items of tangible or intangible
personal property and any fixtures as may have been granted to the Trustee pursuant to this
Indenture in the time, place and manner required by the UCC.
Section 9.14. Accounts. Periodic Resorts and Certificates.
The Trustee shall keep or cause to be kept proper books of record and account
(separate from all other records and accounts) in which complete and correct entries shall be
made of its transactions relating to the Funds and Accounts established by this Indenture and
which shall at all times be subject to inspection by the City, and the Owner or Owners of not less
than ten percent (10%) in principal amount of any Bonds then Outstanding or their
representatives duly authorized in writing.
Section 9.15. Construction of Indenture.
The Trustee may construe any of the provisions of this Indenture insofar as the same
may appear to be ambiguous or inconsistent with any other provision hereof, and any
construction of any such provisions hereof by the Trustee in good faith shall be binding upon the
Owners of the Bonds. Permissive rights of the Trustee are not to be construed as duties.
ARTICLE X
MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 10.1. Amendments Permitted.
(a) This Indenture and the rights and obligations of the City and of the Owners of the
Bonds may be modified or amended at any time by a Supplemental Indenture, except as
provided below, pursuant to the affirmative vote at a meeting of Owners of the Bonds, or with
the written consent without a meeting, of the Owners of more than fifty percent (50%) of the
aggregate principal amount of the Bonds then Outstanding. No such modification or
amendment shall (i) extend the maturity of any Bond or reduce the interest rate thereon, or
otherwise alter or impair the obligation of the City to pay the principal of, and the interest and
any premium on, any Bond, without the express consent of the Owner of such Bond, or (ii)
permit the creation by the City of any pledge or lien upon any portion of the Trust Estate
superior to or on a parity with the pledge and lien created for the benefit of the Bonds (except as
otherwise permitted by Applicable Laws and this Indenture), or reduce the percentage of Bonds
required for the amendment hereof. Any such amendment may not modify any of the rights or
obligations of the Trustee without its written consent.
(b) This Indenture and the rights and obligations of the City and of the Owners may
also be modified or amended at any time by a Supplemental Indenture, without the consent of
any Owners, only to the extent permitted by law and only for any one or more of the following
purposes:
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98705268.10/1001073255 46
(i) to add to the covenants and agreements of the City in this Indenture
contained, other covenants and agreements thereafter to be observed, or to limit or
surrender any right or power herein reserved to or conferred upon the City;
(ii) to make modifications not adversely affecting any Outstanding Bonds in
any material respect;
(iii) to make such provisions for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained in this Indenture,
or in regard to questions arising under this Indenture, as the City and the Trustee may
deem necessary or desirable and not inconsistent with this Indenture, and that shall not
adversely affect the rights of the Owners of the Bonds;
(iv) to provide for the issuance of Additional Obligations or Refunding Bonds,
as set forth in Section 13.2 herein; and
(v) to make such additions, deletions or modifications as may be necessary
or desirable to assure exemption from federal income taxation of interest on the Bonds.
The Trustee must receive an opinion of counsel for such Supplemental Indenture to the
effect that the same is authorized or permitted by the terms of this Indenture. Any modification
or amendment made pursuant to this Section 10.1(b) shall not be subject to the notice
procedures.
Section 10.2. Owners' Meetin
The City may at any time call a meeting of the Owners of the Bonds. In such event the
City is authorized to fix the time and place of such meeting and to provide for the giving of notice
thereof, and to fix and adopt rules and regulations for the conduct of the meeting.
Section 10.3. Procedure for Amendment with Written Consent of Owners.
The City and the Trustee may at any time adopt a Supplemental Indenture amending the
provisions of the Bonds or of this Indenture, to the extent that such amendment is permitted by
Section 10.1 herein, to take effect when and as provided in this Section. A copy of such
Supplemental Indenture, together with a request to Owners for their consent thereto, shall be
mailed by first-class mail, by the Trustee to each Owner of Bonds from whom consent is
required under this Indenture, but failure to mail copies of such Supplemental Indenture and
request shall not affect the validity of the Supplemental Indenture when assented to as in this
Section provided.
Such Supplemental Indenture shall not become effective unless there shall be filed with
the Trustee the written consents of the Owners as required by this Indenture and a notice shall
have been mailed as hereinafter in this Section provided. Each such consent shall be effective
only if accompanied by proof of ownership of the Bonds for which such consent is given, which
proof shall be such as is permitted by Section 11.6 herein. Any such consent shall be binding
upon the Owner of the Bonds giving such consent and on any subsequent Owner (whether or
not such subsequent Owner has notice thereof), unless such consent is revoked in writing by
the Owner giving such consent or a subsequent Owner by filing such revocation with the
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Trustee prior to the date when the notice hereinafter in this Section provided for has been
mailed.
After the Owners of the required percentage of Bonds have filed their consents to the
Supplemental Indenture, the City shall mail a notice to the Owners in the manner hereinbefore
provided in this Section for the mailing of the Supplemental Indenture, stating in substance that
the Supplemental Indenture has been consented to by the Owners of the required percentage of
Bonds and will be effective as provided in this Section (but failure to mail copies of such notice
shall not affect the validity of the Supplemental Indenture or consents thereto). Proof of the
mailing of such notice shall be filed with the Trustee. A record, consisting of the papers required
by this Section 10.3 to be filed with the Trustee, shall be proof of the matters therein stated until
the contrary is proved. The Supplemental Indenture shall become effective upon the filing with
the Trustee of the proof of mailing of such notice, and the Supplemental Indenture shall be
deemed conclusively binding (except as otherwise hereinabove specifically provided in this
Article) upon the City and the Owners of all Bonds at the expiration of forty-five (45) days after
such filing, except in the event of a final decree of a court of competent jurisdiction setting aside
such consent in a legal action or equitable proceeding for such purpose commenced within such
forty-five day period; provided, however, that the Trustee during such forty-five day period and
any such further period during which any such action or proceeding may be pending shall be
entitled in its sole discretion to take such action, or to refrain from taking such action, with
respect to such Supplemental Indenture as it may deem expedient.
Section 10.4. Effect of Supplemental Indenture.
From and after the time any Supplemental Indenture becomes effective pursuant to this
Article X, this Indenture shall be deemed to be modified and amended in accordance therewith,
the respective rights, duties, and obligations under this Indenture of the City, the Trustee, and all
Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such Supplemental Indenture shall be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 10.5. Endorsement or Replacement of Bonds Issued After Amendments.
The City may determine that Bonds issued and delivered after the effective date of any
action taken as provided in this Article X shall bear a notation, by endorsement or otherwise, in
form approved by the City, as to such action. In that case, upon demand of the Owner of any
Bond Outstanding at such effective date and presentation of his Bond for that purpose at the
designated office of the Trustee or at such other office as the City may select and designate for
that purpose, a suitable notation shall be made on such Bond. The City may determine that
new Bonds, so modified as in the opinion of the City is necessary to conform to such Owners'
action, shall be prepared, executed, and delivered. In that case, upon demand of the Owner of
any Bonds then Outstanding, such new Bonds shall be exchanged at the designated office of
the Trustee without cost to any Owner, for Bonds then Outstanding, upon surrender of such
Bonds.
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Section 10.6. Amendatory Endorsement of Bonds.
The provisions of this Article X shall not prevent any Owner from accepting any
amendment as to the particular Bonds held by such Owner, provided that due notation thereof is
made on such Bonds.
Section 10.7. Waiver of Default.
Subject to the second and third sentences of Section 10.1(a) hereof, with the written
consent of more than fifty percent (50%) in aggregate principal amount of the Bonds then
Outstanding, the Owners may waive compliance by the City with certain past defaults under the
Indenture and their consequences. Any such consent shall be conclusive and binding upon the
Owners and upon all future Owners. For the avoidance of doubt, any waiver given pursuant to
this Section shall be subject to Section 11.5 below.
Section 10.8. Execution of Supplemental Indenture.
In executing, or accepting the additional trusts created by, any Supplemental Indenture
permitted by this Article or the modification thereby of the trusts created by this Indenture, the
Trustee shall receive, and shall be fully protected in relying upon, an opinion of counsel
addressed and delivered to the Trustee and the City stating that the execution of such
Supplemental Indenture is permitted by and in compliance with this Indenture. The Trustee
may, but shall not be obligated to, enter into any such Supplemental Indenture which affects the
Trustee's own rights, duties and immunities under this Indenture or otherwise.
ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1. Events of Default.
(a) Each of the following occurrences or events shall be and is hereby declared to
be an "Event of Default," to wit:
(i) The failure of the City to deposit the Pledged Revenues to the Bond
Pledged Revenue Account of the Pledged Revenue Fund;
(ii) The failure of the City to enforce the collection of the Improvement Zone
A Assessments, including the prosecution of foreclosure proceedings;
(iii) The failure to make payment of the principal of or interest on any of the
Bonds when the same becomes due and payable and such failure is not remedied within
thirty (30) days; and
(iv) Default in the performance or observance of any other covenant,
agreement or obligation of the City under this Indenture and the continuation thereof for
a period of ninety (90) days after written notice to the City by the Trustee, or by the
Owners of at least twenty-five percent (25%) of the aggregate outstanding principal of
the Bonds with a copy to the Trustee, specifying such default by the Owners of at least
twenty-five percent (25%) of the aggregate outstanding principal of the Bonds requesting
that the failure be remedied.
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(b) Nothing in Section 11.1(a) will be viewed to be an Event of Default if it is in
violation of any applicable state law or court order.
(c) Nothing in Section 11.1(a)(iii) shall require the City to advance any funds other
than the Pledged Revenues that have been received by the City or other funds currently
available in the Pledged Funds to pay the principal of or interest on the Bonds.
Section 11.2. Immediate Remedies for Default.
(a) Subject to Article VIII, upon the happening and continuance of any one or more
of the Events of Default described in Section 11.1, the Trustee may, and at the written direction
of the Owners of at least twenty-five percent (25%) of the aggregate outstanding principal of
the Bonds and its receipt of indemnity satisfactory to it shall, proceed against the City for the
purpose of protecting and enforcing the rights of the Owners under this Indenture, by action
seeking mandamus or by other suit, action, or special proceeding in equity or at law, in any
court of competent jurisdiction, for any relief to the extent permitted by this Indenture or by
Applicable Laws, including, but not limited to, the specific performance of any covenant or
agreement contained herein, or injunction; provided, however, that no action for money
damages against the City may be sought or shall be permitted. The Trustee retains the right to
obtain the advice of counsel in its exercise of remedies of default.
(b) THE PRINCIPAL OF THE BONDS SHALL NOT BE SUBJECT TO
ACCELERATION UNDER ANY CIRCUMSTANCES.
(c) If the assets of the Trust Estate are sufficient to pay all amounts due with
respect to Outstanding Bonds, in the selection of Trust Estate assets to be used in the payment
of Bonds due under this Article, the City shall determine, in its absolute discretion, and shall
instruct the Trustee by City Certificate, which Trust Estate assets shall be applied to such
payment and shall not be liable to any Owner or other Person by reason of such selection and
application. In the event that the City shall fail to deliver to the Trustee such City Certificate,
the Trustee shall select and liquidate or sell Trust Estate assets as provided in the following
paragraph, and shall not be liable to any Owner, or other Person, or the City by reason of such
selection, liquidation or sale.
(d) Whenever moneys are to be applied pursuant to this Article XI, irrespective of
and whether other remedies authorized under this Indenture shall have been pursued in whole
or in part, the Trustee may cause any or all of the assets of the Trust Estate, including
Investment Securities, to be sold. The Trustee may so sell the assets of the Trust Estate and
all right, title, interest, claim and demand thereto and the right of redemption thereof, in one or
more parts, at any such place or places, and at such time or times and upon such notice and
terms as the Trustee may deem appropriate and as may be required by law and apply the
proceeds thereof in accordance with the provisions of this Section. Upon such sale, the
Trustee may make and deliver to the purchaser or purchasers a good and sufficient
assignment or conveyance for the same, which sale shall be a perpetual bar both at law and in
equity against the City, and all other Persons claiming such properties. No purchaser at any
sale shall be bound to see to the application of the purchase money proceeds thereof or to
inquire as to the authorization, necessity, expediency, or regularity of any such sale.
Nevertheless, if so requested by the Trustee, the City shall ratify and confirm any sale or sales
by executing and delivering to the Trustee or to such purchaser or purchasers all such
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instruments as may be necessary or, in the judgment of the Trustee, proper for the purpose
which may be designated in such request.
Section 11.3. Restriction on Owner's Action.
(a) No Owner shall have any right to institute any action, suit or proceeding at law
or in equity for the enforcement of this Indenture or for the execution of any trust thereof or any
other remedy hereunder, unless (i) a default has occurred and is continuing of which the
Trustee has been notified in writing, (ii) such default has become an Event of Default and the
Owners of not less than twenty-five percent (25%) of the aggregate principal amount of the
Bonds then Outstanding have made written request to the Trustee and offered it reasonable
opportunity either to proceed to exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, (iii) the Owners have furnished to the Trustee
indemnity as provided in Section 9.2 herein, (iv) the Trustee has for ninety (90) days after such
notice failed or refused to exercise the powers hereinbefore granted, or to institute such action,
suit, or proceeding in its own name, (v) no written direction inconsistent with such written
request has been given to the Trustee during such 90-day period by Owners of a majority of
the aggregate principal amount of the Bonds then Outstanding, and (vi) notice of such action,
suit, or proceeding is given to the Trustee in writing; however, all proceedings at law or in
equity shall be instituted and maintained in the manner provided herein and for the equal
benefit of the Owners of all Bonds then Outstanding. The notification, request and furnishing of
indemnity set forth above shall, at the option of the Trustee, be conditions precedent to the
execution of the powers and trusts of this Indenture and to any action or cause of action for the
enforcement of this Indenture or for any other remedy hereunder.
(b) Subject to Article VIII, nothing in this Indenture shall affect or impair the right of
any Owner to enforce, by action at law, payment of any Bond at and after the maturity thereof,
or on the date fixed for redemption or the obligation of the City to pay each Bond issued
hereunder to the respective Owners thereof at the time and place, from the source and in the
manner expressed herein and in the Bonds.
(c) In case the Trustee or any Owners shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Trustee or any Owners, then and in
every such case the City, the Trustee and the Owners shall be restored to their former
positions and rights hereunder, and all rights, remedies and powers of the Trustee shall
continue as if no such proceedings had been taken.
Section 11.4. Application of Revenues and Other Moneys After Default.
(a) All moneys, securities, funds and Pledged Revenues and other assets of the
Trust Estate and the income therefrom received by the Trustee pursuant to any right given or
action taken under the provisions of this Article shall, after payment of the cost and expenses
of the proceedings resulting in the collection of such amounts, the expenses (including its
counsel), liabilities, and advances incurred or made by the Trustee and the fees of the Trustee
in carrying out this Indenture, during the continuance of an Event of Default, notwithstanding
Section 11.2 hereof, shall be applied by the Trustee, on behalf of the City, to the payment of
interest and principal or Redemption Price then due on Bonds, as follows:
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FIRST: To the payment to the registered owners entitled thereto all installments
of interest then due in the direct order of maturity of such installments, and, if the
amount available shall not be sufficient to pay in full any installment, then to the
payment thereof ratably, according to the amounts due on such installment, to
the registered owners entitled thereto, without any discrimination or preference;
and
SECOND: To the payment to the registered owners entitled thereto of the unpaid
principal of Outstanding Bonds, or Redemption Price of any Bonds which shall
have become due, whether at maturity or by call for redemption, in the direct
order of their due dates and, if the amounts available shall not be sufficient to pay
in full all the Bonds due on any date, then to the payment thereof ratably,
according to the amounts of principal due and to the registered owners entitled
thereto, without any discrimination or preference.
Within ten (10) days of receipt of such good and available funds, the Trustee may fix a
record and payment date for any payment to be made to Owners pursuant to this Section 11.4.
(b) In the event funds are not adequate to cure any of the Events of Default
described in Section 11.1, the available funds shall be allocated to the Bonds that are
Outstanding in proportion to the quantity of Bonds that are currently due and in default under
the terms of this Indenture.
(c) The restoration of the City to its prior position after any and all defaults have
been cured, as provided in Section 11.3, shall not extend to or affect any subsequent default
under this Indenture or impair any right consequent thereon.
Section 11.5. Effect of Waiver.
No delay or omission of the Trustee, or any Owner, to exercise any right or power
accruing upon any default shall impair any such right or power or shall be construed to be a
waiver of any such default or an acquiescence therein; and every power and remedy given to
the Trustee or the Owners, respectively, may be exercised from time to time and as often as
may be deemed expedient.
Section 11.6. Evidence of Ownership of Bonds.
(a) Any request, consent, revocation of consent or other instrument which this
Indenture may require or permit to be signed and executed by the Owners of Bonds may be in
one or more instruments of similar tenor, and shall be signed or executed by such Owners in
person or by their attorneys duly appointed in writing. Proof of the execution of any such
instrument, or of any instrument appointing any such attorney, or the holding by any Person of
the Bonds shall be sufficient for any purpose of this Indenture (except as otherwise herein
expressly provided) if made in the following manner:
(i) The fact and date of the execution of such instruments by any Owner of
Bonds or the duly appointed attorney authorized to act on behalf of such Owner may be
provided by a guarantee of the signature thereon by a bank or trust company or by the
certificate of any notary public or other officer authorized to take acknowledgments of
deeds, that the Person signing such request or other instrument acknowledged to him
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the execution thereof, or by an affidavit of a witness of such execution, duly sworn to
before such notary public or other officer. Where such execution is by an officer of a
corporation or association or a member of a partnership, on behalf of such corporation,
association or partnership, such signature guarantee, certificate, or affidavit shall also
constitute sufficient proof of his authority.
(ii) The ownership of Bonds and the amount, numbers and other
identification and date of holding the same shall be proved by the Register.
(b) Except as otherwise provided in this Indenture with respect to revocation of a
consent, any request or consent by an Owner of Bonds shall bind all future Owners of the
same Bond in respect of anything done or suffered to be done by the City or the Trustee in
accordance therewith.
Section 11.7. No Acceleration.
In the event of the occurrence of an Event of Default under Section 11.1 hereof, the right
of acceleration of any Stated Maturity is not granted as a remedy hereunder and the right of
acceleration under this Indenture is expressly denied.
Section 11.8. Mailing of Notice.
Any provision in this Article for the mailing of a notice or other document to Owners shall
be fully complied with if it is mailed, first-class postage prepaid, only to each Owner at the
address appearing upon the Register.
Section 11.9. Exclusion of Bonds.
Bonds owned or held by or for the account of the City shall be promptly delivered to the
Trustee and cancelled. Such Bonds will not be deemed Outstanding for any purpose, including
without limitation, the purpose of consent or other action or any calculation of Outstanding
Bonds provided for in this Indenture, and the City shall not be entitled with respect to such
Bonds to give any consent or take any other action provided for in this Indenture.
Section 11.10. Remedies Not Exclusive.
No remedy herein conferred upon or reserved to the Trustee or to the Owners is
intended to be exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to any other remedy given hereunder or now or hereafter
existing at law or in equity, by statute or by contract.
Section 11.11. Direction by Owners.
Anything herein to the contrary notwithstanding, the Owners of at least twenty-five
percent (25%) of the aggregate outstanding principal of the Bonds shall have the right by an
instrument in writing executed and delivered to the Trustee, to direct the choice of remedies and
the time, method and place of conducting an proceeding for any remedy available to the Trustee
hereunder, under each Supplemental Indenture or otherwise, or exercising any trust or power
conferred upon the Trustee, including the power to direct or withhold directions with respect to
any remedy available to the Trustee or the Owners, provided, (i) such direction shall not be
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otherwise than in accordance with Applicable Laws and the provisions hereof, (ii) that the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction, and (iii) that the Trustee shall have the right to decline to follow any such
direction which in the opinion of the Trustee would be unjustly prejudicial to Owners not parties
to such direction.
ARTICLE XI
GENERAL COVENANTS AND REPRESENTATIONS
Section 12.1. Representations as to Trust Estate.
(a) The City represents and warrants that it is authorized by Applicable Laws to
authorize and issue the Bonds, to execute and deliver this Indenture and to pledge the Trust
Estate in the manner and to the extent provided in this Indenture, and that the Pledged
Revenues are and the Trust Estate is free and clear, and will and remain free and clear, of any
pledge, lien, charge, or encumbrance thereon or with respect thereto prior to, or of equal rank
with, the pledge and lien created in or authorized by this Indenture except as expressly
provided herein.
(b) The City shall at all times, to the extent permitted by Applicable Laws, defend,
preserve and protect the pledge of the Trust Estate and all the rights of the Owners and the
Trustee, under this Indenture against all claims and demands of all Persons whomsoever.
(c) The City will take all steps reasonably necessary and appropriate, and will direct
the Trustee to take all steps reasonably necessary and appropriate, to collect all delinquencies
in the collection of the Improvement Zone A Assessments and any other amounts pledged to
the payment of the Bonds to the fullest extent permitted by the PID Act and other Applicable
Laws.
(d) To the extent permitted by law, notice of the Annual Installments shall be sent
by, or on behalf of the City, to the affected property owners on the same statement or such
other mechanism that is used by the City, so that such Annual Installments are collected
simultaneously with ad valorem taxes and shall be subject to the same penalties, procedures,
and foreclosure sale in case of delinquencies as are provided for ad valorem taxes of the City.
Section 12.2. Accounts, Periodic Reports and Certificates.
The Trustee shall keep or cause to be kept proper books of record and account
(separate from all other records and accounts) in which complete and correct entries shall be
made of its transactions relating to the Funds and Accounts established by this Indenture and
which shall at all times be subject to inspection by the City and each of the Owner or Owners of
not less than ten percent (10%) in principal amount of any Bonds then Outstanding or their
representatives duly authorized in writing.
Section 12.3. General.
The City shall do and perform or cause to be done and performed all acts and things
required to be done or performed by or on behalf of the City under the provisions of this
Indenture.
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98705268.10/1001073255 54
ARTICLE XIII
SPECIAL COVENANTS
Section 13.1. Further Assurances; Due Performance.
(a) At any and all times the City will duly execute, acknowledge and deliver, or will
cause to be done, executed and delivered, all and every such further acts, conveyances,
transfers, and assurances in a manner as the Trustee shall reasonably require for better
conveying, transferring, pledging, and confirming unto the Trustee, all and singular, the
revenues, Funds, Accounts and properties constituting the Pledged Revenues, and the Trust
Estate hereby transferred and pledged, or intended so to be transferred and pledged.
(b) The City will duly and punctually keep, observe and perform each and every
term, covenant and condition on its part to be kept, observed and performed, contained in this
Indenture.
Section 13.2. Additional Obligations or Other Liens.
(a) The City reserves the right to issue Additional Obligations under other
indentures, assessment ordinances, or similar agreements or other obligations that do not
constitute or create a lien on any portion of the Trust Estate and are not payable from Pledged
Revenues or any other portion of the Trust Estate, provided that such Additional Obligations
shall comply with Section 13.2(d) hereof.
(b) Other than Refunding Bonds, the City will not create or voluntarily permit to be
created any debt, lien or charge on the Trust Estate, and will not do or omit to do or suffer to be
or omitted to be done any matter or things whatsoever whereby the lien of this Indenture or the
priority hereof might or could be lost or impaired; and further covenants that it will pay or cause
to be paid or will make adequate provisions for the satisfaction and discharge of all lawful
claims and demands which if unpaid might by law be given precedence over or any equality
with this Indenture as a lien or charge upon the Trust Estate; provided, however, that nothing in
this Section shall require the City to apply, discharge, or make provision for any such lien,
charge, claim, or demand so long as the validity thereof shall be contested by it in good faith,
unless thereby, in the opinion of Bond Counsel or counsel to the Trustee, the same would
endanger the security for the Bonds.
(c) Additionally, the City has reserved the right to issue bonds or other obligations
secured by and payable from Pledged Revenues so long as such pledge is subordinate to the
pledge of Pledged Revenues securing payment of the Bonds.
(d) Notwithstanding anything to the contrary herein, no Refunding Bonds, Additional
Obligations or subordinate obligations may be issued by the City unless: (1) the principal
(including sinking fund installments) of such Refunding Bonds, Additional Obligations or
subordinate obligations are scheduled to mature on September 1 of the years in which principal
is schedule to mature, and (2) the interest on such Refunding Bonds, Additional Obligations or
subordinate obligations must be scheduled to be paid on March 1 and/or September 1 of the
years in which interest is scheduled to be paid.
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Section 13.3. Books of Record.
(a) The City shall cause to be kept full and proper books of record and accounts, in
which full, true and proper entries will be made of all dealing, business and affairs of the City,
which relate to the Trust Estate and the Bonds.
(b) The Trustee shall have no responsibility with respect to the financial and other
information received by it pursuant to this Section 13.3 except to receive and retain the same,
subject to the Trustee's document retention policies, and to distribute the same in accordance
with the provisions of this Indenture. Specifically, but without limitation, the Trustee shall have
no duty to review such information, is not considered to have notice of the contents of such
information or a default based on such contents, and has no duty to verify the accuracy of such
information.
ARTICLE XIV
PAYMENT AND CANCELLATION OF THE BONDS AND SATISFACTION OF THE
INDENTURE
Section 14.1. Trust Irrevocable.
The trust created by the terms and provisions of this Indenture is irrevocable until the
Bonds secured hereby are fully paid or provision is made for their payment as provided in this
Article.
Section 14.2. Satisfaction of Indenture.
If the City shall pay or cause to be paid, or there shall otherwise be paid to the Owners,
principal of and interest on all of the Bonds, at the times and in the manner stipulated in this
Indenture, and all amounts due and owing with respect to the Bonds have been paid or provided
for, then the pledge of the Trust Estate and all covenants, agreements, and other obligations of
the City to the Owners of such Bonds, shall thereupon cease, terminate, and become void and
be discharged and satisfied. In such event, the Trustee shall execute and deliver to the City
copies of all such documents as it may have evidencing that principal of and interest on all of
the Bonds has been paid so that the City may determine if the Indenture is satisfied; if so, the
Trustee shall pay over or deliver all moneys held by it in the in Funds and Accounts held
hereunder to the Person entitled to receive such amounts, or, if no Person is entitled to receive
such amounts, then to the City.
Section 14.3. Bonds Deemed Paid.
All Outstanding Bonds shall prior to the Stated Maturity or redemption date thereof be
deemed to have been paid and to no longer be deemed Outstanding if (i) in case any such
Bonds are to be redeemed on any date prior to their Stated Maturity, the Trustee shall have
given notice of redemption on such date as provided herein, (ii) there shall have been deposited
with the Trustee either moneys in an amount which shall be sufficient, or Defeasance Securities
the principal of and the interest on which when due will provide moneys which, together with any
moneys deposited with the Trustee at the same time, shall be sufficient to pay when due the
principal of and interest on of the Bonds to become due on such Bonds on and prior to the
redemption date or maturity date thereof, as the case may be, (iii) the Trustee shall have
received a report by an independent certified public accountant selected by the City verifying the
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sufficiency of the moneys or Defeasance Securities deposited with the Trustee to pay when due
the principal of and interest on of the Bonds to become due on such Bonds on and prior to the
redemption date or maturity date thereof, as the case may be, (iv) if the Bonds are then rated,
the Trustee shall have received written confirmation from each rating agency that such deposit
will not result in the reduction or withdrawal of the rating on the Bonds, and (v) the Trustee shall
have received an opinion of Bond Counsel to the effect that (A) any Bond having been deemed
to have been paid as provided in this Section is no longer Outstanding hereunder and is no
longer secured by or entitled to the benefits of this Indenture, (B) such defeasance is in
accordance with the terms hereof and (C) such defeasance will not adversely affect the
exclusion of interest on such Bond from gross income for purposes of federal income taxation.
Neither Defeasance Securities nor moneys deposited with the Trustee pursuant to this Section
nor principal or interest payments on any such Defeasance Securities shall be withdrawn or
used for any purpose other than, and shall be held in trust for, the payment of the principal of
and interest on the Bonds. Any cash received from such principal of and interest on such
Defeasance Securities deposited with the Trustee, if not then needed for such purpose, shall,
be reinvested in Defeasance Securities as directed in writing by the City maturing at times and
in amounts sufficient to pay when due the principal of and interest on the Bonds on and prior to
such redemption date or maturity date thereof, as the case may be. Any payment for
Defeasance Securities purchased for the purpose of reinvesting cash as aforesaid shall be
made only against delivery of such Defeasance Securities.
ARTICLE XV
MISCELLANEOUS
Section 15.1. Benefits of Indenture Limited to Parties.
Nothing in this Indenture, expressed or implied, is intended to give to any Person other
than the City, the Trustee and the Owners, any right, remedy, or claim under or by reason of this
Indenture. Any covenants, stipulations, promises or agreements in this Indenture by and on
behalf of the City shall be for the sole and exclusive benefit of the Owners and the Trustee.
Section 15.2. Successor is Deemed Included in All References to Predecessor.
Whenever in this Indenture or any Supplemental Indenture either the City or the Trustee
is named or referred to, such reference shall be deemed to include the successors or assigns
thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the
City or the Trustee shall bind and inure to the benefit of the respective successors and assigns
thereof whether so expressed or not.
Section 15.3. Execution of Documents and Proof of Ownership by Owners.
Any request, declaration, or other instrument which this Indenture may require or permit
to be executed by Owners may be in one or more instruments of similar tenor, and shall be
executed by Owners in person or by their attorneys duly appointed in writing.
Except as otherwise herein expressly provided, the fact and date of the execution by any
Owner or his attorney of such request, declaration, or other instrument, or of such writing
appointing such attorney, may be proved by the certificate of any notary public or other officer
authorized to take acknowledgments of deeds to be recorded in the state in which he purports
to act, that the Person signing such request, declaration, or other instrument or writing
Improvement Zone A Indenture of Trust
98705268.10/1001073255 57
acknowledged to him the execution thereof, or by an affidavit of a witness of such execution,
duly sworn to before such notary public or other officer.
Except as otherwise herein expressly provided, the ownership of registered Bonds and
the amount, maturity, number, and date of holding the same shall be proved by the Register.
Any request, declaration or other instrument or writing of the Owner of any Bond shall
bind all future Owners of such Bond in respect of anything done or suffered to be done by the
City or the Trustee in good faith and in accordance therewith.
Section 15.4. Waiver of Personal Liabil
No member, officer, agent, or employee of the City shall be individually or personally
liable for the payment of the principal of, or interest or any premium on, the Bonds; but nothing
herein contained shall relieve any such member, officer, agent, or employee from the
performance of any official duty provided by law.
Section 15.5. Notices to and Demands on City and Trustee.
(a) Except as otherwise expressly provided in this Indenture, all notices or other
instruments required or permitted under this Indenture, including any City Certificate or City
Certificate, shall be in writing and shall be delivered by hand, mailed by first-class mail, postage
prepaid, or transmitted by facsimile or e-mail and addressed as follows:
If to the City: City of North Richland Hills, Texas
4301 City Point Drive,
North Richland Hills, Texas 76180
Attn: City Manager
If to the Trustee Wilmington Trust, National Association
or the Paying Agent/Registrar: 15950 North Dallas Parkway, Suite 550
Dallas, Texas 75248
Attn: Dayna Smith
Any such notice, demand, or request may also be transmitted to the appropriate party by
telephone and shall be deemed to be properly given or made at the time of such transmission if,
and only if, such transmission of notice shall be confirmed in writing and sent as specified
above.
Any of such addresses may be changed at any time upon written notice of such change
given to the other party by the party effecting the change. Notices and consents given by mail
in accordance with this Section shall be deemed to have been given five Business Days after
the date of dispatch; notices and consents given by any other means shall be deemed to have
been given when received.
(b) The Trustee shall mail to each Owner of a Bond notice of (i) any substitution of
the Trustee; or (ii) the redemption or defeasance of all Bonds Outstanding.
(c) The Trustee agrees to accept and act upon instructions or directions pursuant to
this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the City shall provide to the Trustee an
Improvement Zone A Indenture of Trust
98705268.10/1001073255 58
incumbency certificate listing designated persons authorized to provide such instructions,
which incumbency certificate shall be amended whenever a person is to be added or deleted
from the listing. If the City elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its sole discretion elects to act
upon such instructions, the Trustee's understanding of such instructions shall be deemed
controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee's reliance upon and compliance with such instructions
notwithstanding such instructions conflict or are inconsistent with a previous or subsequent
written instruction. The City agrees to assume all risks arising out of the use of such electronic
methods to submit instructions and directions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by
third -parties.
Section 15.6. Partial Invalidity.
If any Section, paragraph, sentence, clause, or phrase of this Indenture shall for any
reason be held illegal or unenforceable, such holding shall not affect the validity of the
remaining portions of this Indenture. The City hereby declares that it would have adopted this
Indenture and each and every other Section, paragraph, sentence, clause, or phrase hereof and
authorized the issue of the Bonds pursuant thereto irrespective of the fact that any one or more
Sections, paragraphs, sentences, clauses, or phrases of this Indenture may be held illegal,
invalid, or unenforceable.
Section 15.7. Applicable Laws.
This Indenture shall be governed by and enforced in accordance with the laws of the
State of Texas applicable to contracts made and performed in the State of Texas.
Section 15.8. Payment on Business Day.
In any case where the date of the maturity of interest or of principal (and premium, if
any) of the Bonds or the date fixed for redemption of any Bonds or the date any action is to be
taken pursuant to this Indenture is other than a Business Day, the payment of interest or
principal (and premium, if any) or the action need not be made on such date but may be made
on the next succeeding day that is a Business Day with the same force and effect as if made on
the date required and no interest shall accrue for the period from and after such date.
Section 15.9. Counterparts.
This Indenture may be executed in counterparts, each of which shall be deemed an
original.
Section 15.10. Iran, Sudan, and Foreign Terrorist Organizations.
The Trustee represents that neither it nor any of its parent company, wholly- or majority -
owned subsidiaries, and other affiliates is a company identified on a list prepared and
maintained by the Texas Comptroller of Public Accounts under Section 2252.153 or Section
2270.0201, Texas Government Code, and posted on any of the following pages of such officer's
internet website: https:Hcomptroller.texas.gov/purchasing/docs/sudan-Iist.pdf,
https:Hcomptroller.texas.gov/purchasing/docs/iran-list.pdf, or
Improvement Zone A Indenture of Trust
98705268.10/1001073255 59
https:Hcomptroller.texas.gov/purchasing/docs/fto-list.pdf. The foregoing representation is made
solely to comply with Section 2252.152, Texas Government Code, and to the extent such
Section does not contravene applicable Federal law and excludes the Trustee and each of its
parent company, wholly- or majority -owned subsidiaries, and other affiliates, if any, that the
United States government has affirmatively declared to be excluded from its federal sanctions
regime relating to Sudan or Iran or any federal sanctions regime relating to a foreign terrorist
organization. The Trustee understands "affiliate" to mean any entity that controls, is controlled
by, or is under common control with the Trustee and exists to make a profit.
[Remainder of Page Intentionally Left Blank]
Improvement Zone A Indenture of Trust
98705268.10/1001073255 60
IN WITNESS WHEREOF, the City and the Trustee have caused this Indenture of Trust
to be executed all as of the date hereof.
CITY OF NORTH RICHLAND HILLS, TEXAS
0
Oscar Trevino, Mayor
ATTEST:
Alicia Richardson, City Secretary
APPROVED AS TO FORM AND LEGALITY:
Maleshia B. McGinnis, City Attorney
APPROVED AS TO CONTENT:
Craig Hulse, Economic Development Director
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
in
Authorized Officer
Signature Page to Indenture of Trust
relating to
CITY OF NORTH RICHLAND HILLS, TEXAS
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A PROJECT)
(a) Form of Bond.
REGISTERED
No.
EXHIBIT A
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER
OF THE STATE OF TEXAS, THE CITY, OR ANY OTHER
POLITICAL CORPORATION, SUBDIVISION OR AGENCY
THEREOF, IS PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF OR INTEREST ON THIS BOND.
United States of America
State of Texas
REGISTERED
CITY OF NORTH RICHLAND HILLS, TEXAS
SPECIAL ASSESSMENT REVENUE BOND, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT
IMPROVEMENT ZONE A PROJECT)
INTEREST RATE MATURITY DATE DATE OF DELIVERY CUSIP NUMBER
% September 1, 20_ December 20, 2019
The City of North Richland Hills, Texas (the "City"), for value received, hereby promises
to pay, solely from the Trust Estate, to
or registered assigns, on the Maturity Date, as specified above, the sum of
DOLLARS
unless this Bond shall have been sooner called for redemption and the payment of the principal
hereof shall have been paid or provision for such payment shall have been made, and to pay
interest on the unpaid principal amount hereof from the later of the Date of Delivery, as specified
above, or the most recent Interest Payment Date to which interest has been paid or provided for
until such principal amount shall have been paid or provided for, 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 to be paid semiannually on March 1 and September 1 of each year, commencing
March 1, 2020 until maturity or prior redemption.
Capitalized terms appearing herein that are defined terms in the Indenture defined
below, have the meanings assigned to them in the Indenture. Reference is made to the
Indenture for such definitions and for all other purposes.
The principal of this Bond shall be payable without exchange or collection charges in
lawful money of the United States of America upon presentation and surrender of this Bond at
the corporate trust office in Wilmington, Delaware (the "Designated Payment/Transfer Office"),
of Wilmington Trust, National Association, as trustee and paying agent/registrar (the "Trustee",
Indenture of Trust
98705268.10/1001073255 A-1
which term includes any successor trustee under the Indenture), or, with respect to a successor
trustee and paying agent/registrar, at the Designated Payment/Transfer Office of such
successor. Interest on this Bond is payable by check dated as of the Interest Payment Date,
mailed by the Trustee to the registered owner at the address shown on the registration books
kept by the Trustee or by such other customary banking arrangements acceptable to the
Trustee, requested by, and at the risk and expense of, the Person to whom interest is to be
paid. For the purpose of the payment of interest on this Bond, the registered owner shall be the
Person in whose name this Bond is registered at the close of business on the "Record Date,"
which shall be fifteenth calendar day of the month next preceding such Interest Payment Date;
provided, however, that in the event of nonpayment of interest on a scheduled Interest Payment
Date, and for thirty (30) days thereafter, a new record date for such interest payment (a "Special
Record Date") will be established by the Trustee, 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 (the "Special Payment Date," which shall be
fifteen (15) days after the Special Record Date) shall be sent at least five Business Days prior to
the Special Record Date by United States mail, first-class, postage prepaid, to the address of
each Owner of a Bond appearing on the books of the Trustee at the close of business on the
last Business Day preceding the date of mailing such notice.
If a date for the payment of the principal of or interest on the Bonds is a Saturday,
Sunday, legal holiday, or a day on which banking institutions in the city in which the Designated
Payment/Transfer Office is located are authorized by law or executive order to close, then the
date for such payment shall be the next succeeding Business Day, and payment on such date
shall have the same force and effect as if made on the original date payment was due.
This Bond is one of a duly authorized issue of assessment revenue bonds of the City
having the designation specified in its title (herein referred to as the "Bonds"), dated December
1, 2019 and issued in the aggregate principal amount of $2,615,000 and issued, with the
limitations described herein, pursuant to an Indenture of Trust, dated as of December 1, 2019
(the "Indenture"), by and between the City and the Trustee, to which Indenture reference is
hereby made for a description of the amounts thereby pledged and assigned, the nature and
extent of the lien and security, the respective rights thereunder to the holders of the Bonds, the
Trustee, and the City, and the terms upon which the Bonds are, and are to be, authenticated
and delivered and by this reference to the terms of which each holder of this Bond hereby
consents. All Bonds issued under the Indenture are equally and ratably secured by the
amounts thereby pledged and assigned. The Bonds are being issued for the purpose of paying
(a) a portion of the Actual Costs of the Public Improvements allocable to Improvement Zone A
and (b) District Formation and Bond Issuance Costs allocable to Improvement Zone A.
The Bonds are limited obligations of the City payable solely from the Trust Estate as
defined in the Indenture. Reference is hereby made to the Indenture, copies of which are on file
with and available upon request from the Trustee, for the provisions, among others, with respect
to the nature and extent of the duties and obligations of the City, the Trustee and the Owners.
The Owner of this Bond, by the acceptance hereof, is deemed to have agreed and consented to
the terms, conditions and provisions of the Indenture.
Notwithstanding any provision hereof, the Indenture may be released and the obligation
of the City to make money available to pay this Bond may be defeased by the deposit of money
and/or certain direct or indirect Defeasance Securities sufficient for such purpose as described
in the Indenture.
Indenture of Trust
98705268.10/1001073255 A-2
The Bonds are issuable as fully registered bonds only in Authorized Denominations,
subject to the provisions of the Indenture authorizing redemption in denominations of $100,000
and any multiple of $1,000 in excess thereof.
The Bonds are subject to sinking fund redemption prior to their respective maturities and
will be redeemed by the City in part at a price equal to the principal amount thereof plus accrued
and unpaid interest thereon to the date set for redemption from moneys available for such
purpose in the Redemption Fund pursuant to Article VI of the Indenture, on the dates and in the
Sinking Fund Installment amounts as set forth in the following schedule:
Term Bonds Maturing September 1, 2025
Redemption Date
September 1, 2021
September 1, 2022
September 1, 2023
September 1, 2024
September 1, 2025*
Sinkina Fund Installment
Term Bonds Maturing September 1, 2030
Redemption Date
September 1, 2026
September 1, 2027
September 1, 2028
September 1, 2029
September 1, 2030*
70,000
80,000
80,000
85,000
85,000
Sinkina Fund Installment
Term Bonds Maturing September 1, 2040
Redemption Date
September 1, 2031
September 1, 2032
September 1, 2033
September 1, 2034
September 1, 2035
September 1, 2036
September 1, 2037
September 1, 2038
September 1, 2039
September 1, 2040*
* Stated Maturity.
95,000
100,000
105,000
115,000
115,000
Sinking Fund Installment ($)
125,000
130,000
140,000
150,000
160,000
170,000
180,000
195,000
210,000
225,000
At least forty-five (45) days prior to each mandatory sinking fund
Trustee shall select a principal amount of Bonds of such maturity equal
Installments of such Bonds to be redeemed, shall call such Bonds for
scheduled mandatory sinking fund redemption date, and shall give noticE
as provided in Section 4.6 of the Indenture.
Indenture of Trust
98705268.10/1001073255 A-3
redemption date, the
to the Sinking Fund
redemption on such
of such redemption,
The principal amount of Bonds of a stated maturity required to be redeemed on any
mandatory sinking fund redemption date shall be reduced, at the option of the City, by the
principal amount of any Bonds of such maturity which, at least forty-five (45) days prior to the
mandatory sinking fund redemption date shall have been acquired by the City at a price not
exceeding the principal amount of such Bonds plus accrued unpaid interest to the date of
purchase thereof, and delivered to the Trustee for cancellation.
The principal amount of Bonds required to be redeemed on any mandatory sinking fund
redemption date shall be reduced on a pro rata basis among Sinking Fund Installments by the
principal amount of any Bonds which, at least forty-five (45) days prior to the sinking fund
redemption date, shall have been redeemed pursuant to the optional redemption or
extraordinary optional redemption provisions hereof and not previously credited to a mandatory
sinking fund redemption.
The City reserves the right and option to redeem Bonds maturing on or after September
1, 2040 before their scheduled maturity date, in whole or in part, on any date on or after
September 1, 2030, at par plus accrued interest to the date of redemption.
Bonds are subject to extraordinary optional redemption prior to maturity in whole or in
part, on the first day of any month, at a Redemption Price equal to the principal amount of the
Bonds called for redemption, plus accrued and unpaid interest to the date fixed for redemption
from amounts on deposit in the Redemption Fund as a result of Prepayments, other transfers to
the Redemption Fund pursuant to the Indenture, or as a result of unexpended amounts
transferred from the Project Fund as provided in the Indenture.
The Trustee shall give notice of any redemption of Bonds by sending notice by United
States mail, first-class, postage prepaid, not less than thirty (30) days before the date fixed for
redemption, to the Owner of each Bond (or part thereof) to be redeemed, at the address shown
on the Register. The notice shall state the redemption date, the Redemption Price, the place at
which the Bonds are to be surrendered for payment, and, if less than all the Bonds Outstanding
are to be redeemed, an identification of the Bonds or portions thereof to be redeemed. Any
notice so given shall be conclusively presumed to have been duly given, whether or not the
Owner receives such notice.
With respect to any optional redemption of the Bonds, unless the Trustee has received
funds sufficient to pay the Redemption Price of the Bonds to be redeemed before giving of a
notice of redemption, the notice may state the City may condition redemption on the receipt of
such funds by the Trustee on or before the date fixed for the redemption, or on the satisfaction
of any other prerequisites set forth in the notice of redemption. If a conditional notice of
redemption is given and such prerequisites to the redemption are not satisfied and sufficient
funds are not received, the notice shall be of no force and effect, the City shall not redeem the
Bonds and the Trustee shall give notice, in the manner in which the notice of redemption was
given, that the Bonds have not been redeemed.
The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the City and the rights of the holders
of the Bonds under the Indenture at any time Outstanding affected by such modification. The
Indenture also contains provisions permitting the holders of specified percentages in aggregate
principal amount of the Bonds at the time Outstanding, on behalf of the holders of all the Bonds,
to waive compliance by the City with certain past defaults under the Improvement Zone A Bond
Ordinance or the Indenture and their consequences. Any such consent or waiver by the holder
Indenture of Trust
98705268.10/1001073255 A-4
of this Bond or any predecessor Bond evidencing the same debt shall be conclusive and binding
upon such holder and upon all future holders thereof and of any Bond issued upon the transfer
thereof or in exchange therefor or in lieu thereof, whether or not notation of such consent or
waiver is made upon this Bond.
As provided in the Indenture, this Bond is transferable upon surrender of this Bond for
transfer at the Designated Payment/Transfer Office, with such endorsement or other evidence
of transfer as is acceptable to the Trustee, and upon delivery to the Trustee of such
certifications and/or opinion of counsel as may be required under the Indenture for the transfer
of this Bond. Upon satisfaction of such requirements, one or more new fully registered Bonds of
the same Stated Maturity, of Authorized Denominations, bearing the same rate of interest, and
for the same aggregate principal amount will be issued to the designated transferee or
transferees.
Neither the City nor the Trustee shall be required to issue, transfer or exchange any
Bond called for redemption where such redemption is scheduled to occur within forty-five (45)
calendar days of the transfer or exchange date; provided, however, such limitation shall not be
applicable to an exchange by the registered owner of the uncalled principal balance of a Bond
called in part.
The City, the Trustee, and any other Person may treat the Person in whose name this
Bond is registered as the owner hereof for the purpose of receiving payment as herein provided
(except interest shall be paid to the Person in whose name this Bond is registered on the
Record Date or Special Record Date, as applicable) and for all other purposes, whether or not
this Bond be overdue, and neither the City nor the Trustee shall be affected by notice to the
contrary.
The City has reserved the right to issue Additional Obligations on the terms and
conditions specified in the Indenture.
NEITHER THE FULL FAITH AND CREDIT NOR THE GENERAL TAXING POWER OF
THE CITY OF NORTH RICHLAND HILLS, TEXAS, TARRANT COUNTY, TEXAS, OR THE
STATE OF TEXAS, OR ANY POLITICAL SUBDIVISION THEREOF, IS PLEDGED TO THE
PAYMENT OF THE BONDS.
IT IS HEREBY CERTIFIED AND RECITED that the issuance of this Bond and the series
of which it is a part is duly authorized by law; that all acts, conditions and things required to be
done precedent to and in the issuance of the Bonds have been properly done and performed
and have happened in regular and due time, form and manner, as required by law; and that the
total indebtedness of the City, including the Bonds, does not exceed any Constitutional or
statutory limitation.
IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be
executed under the official seal of the City.
Mayor, City of North Richland Hills, Texas
City Secretary, City of North Richland Hills, Texas
Indenture of Trust
98705268.10/1001073255 A-5
[City Seal]
(b) Form of Comptroller's Registration Certificate.
The following Registration Certificate of Comptroller of Public Accounts shall appear on
the Initial Bond:
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER §
OF PUBLIC ACCOUNTS § REGISTER NO.
THE STATE OF TEXAS §
I HEREBY CERTIFY THAT there is on file and of record in my office a certificate to the
effect that the Attorney General of the State of Texas has approved this Bond, and that this
Bond has been registered this day by me.
[SEAL]
WITNESS MY SIGNATURE AND SEAL OF OFFICE this
Comptroller of Public Accounts
of the State of Texas
(c) Form of Certificate of Trustee.
The following Certificate of Trustee shall appear on all bonds except the Initial Bond:
CERTIFICATE OF TRUSTEE
It is hereby certified that this is one of the Bonds of the series of Bonds referred to in the
within mentioned Indenture.
DATED:
(d) Form of Assignment.
WILMINGTON TRUST, NATIONAL ASSOCIATION,
Dallas, Texas, as Trustee
By:
Authorized Signatory
ASSIGNMENT
Indenture of Trust
98705268.10/1001073255 A-6
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 hereunder and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration hereof, with full power of substitution in the premises.
Date:
Signature Guaranteed By:
Authorized Signatory
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 and must be
guaranteed in a manner acceptable to the
Trustee.
(e) The Initial Bond shall be in the form set forth in paragraphs (a) through (d) of this
Exhibit A, except for the following alterations:
(i) immediately under the name of the Bond the heading "INTEREST RATE"
and "MATURITY DATE" shall both be completed with the expression "As Shown Below,"
and the reference to the "CUSIP NUMBER" shall be deleted;
(ii) in the first paragraph
specified above, the sum of
following will be inserted: "on Septembe
installments and bearing interest at the
schedule:
of the Bond,
the words "on the Maturity Date, as
_ DOLLARS" shall be deleted and the
each of the years, in the principal
per annum rates set forth in the following
Ri
Year Principal Amount ($) Interest Rate (%)'
(Information to be inserted from Section 3.2(c) hereof); and
the Initial Bond shall be numbered T-1.
Indenture of Trust
98705268.10/1001073255 A-7
EXHIBIT B
BOND PURCHASE AGREEMENT
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A
PROJECT)
BOND PURCHASE AGREEMENT
December 9, 2019
City of North Richland Hills
4301 City Point Drive
North Richland Hills, Texas 76180
Ladies and Gentlemen:
The undersigned, FMSbonds, Inc. (the "Underwriter"), offers to enter into this Bond
Purchase Agreement (this "Agreement") with the City of North Richland Hills, Texas (the
"City"), which will be binding upon the City and the Underwriter upon the acceptance of this
Agreement by the City. This offer is made subject to its acceptance by the City by execution of
this Agreement and its delivery to the Underwriter on or before 10:00 p.m., Central Time, on the
date hereof and, if not so accepted, will be subject to withdrawal by the Underwriter upon written
notice delivered to the City at any time prior to the acceptance hereof by the City. All
capitalized terms not otherwise defined herein shall have the meanings given to such terms in the
Indenture (defined herein) between the City and Wilmington Trust, National Association, as
trustee (the "Trustee"), authorizing the issuance of the Bonds (defined herein), and in the Limited
Offering Memorandum (defined herein).
1. Purchase and Sale of Bonds. Upon the terms and conditions and upon the basis of
representations, warranties, and agreements hereinafter set forth, the Underwriter hereby agrees
to purchase from the City, and the City hereby agrees to sell to the Underwriter, all (but not less
than all) of the $2,615,000 aggregate principal amount of the "City of North Richland Hills,
Texas, Special Assessment Revenue Bonds, Series 2019 (City Point Public Improvement District
Improvement Zone A Project)" (the "Bonds"), at a purchase price of $2,536,550 (representing
the aggregate principal amount of the Bonds less an Underwriter's discount of $78,450).
Inasmuch as this purchase and sale represents a negotiated transaction, the City
understands, and hereby confirms, that the Underwriter is not acting as a municipal advisor or
fiduciary of the City (including, without limitation, a Municipal Advisor (as such term is defined
in Section 975(e) of the Dodd Frank Wall Street Reform and Consumer Protection Act)), but
rather is acting solely in its capacity as Underwriter for its own account. The City acknowledges
and agrees that (i) the purchase and sale of the Bonds pursuant to this Agreement is an arm's
length commercial transaction between the City and the Underwriter and the Underwriter has
financial and other interests that differ from any other party to this Agreement, (ii) in connection
therewith and with the discussions, undertakings, and procedures leading up to the
consummation of this transaction, the Underwriter is and has been acting solely as a principal
and is not acting as the agent, municipal advisor, financial advisor, or fiduciary of the City, (iii)
the Underwriter has not assumed an advisory or fiduciary responsibility in favor of the City with
respect to the offering described herein or the discussions, undertakings, and procedures leading
thereto (regardless of whether the Underwriter has provided other services or is currently
providing other services to the City on other matters) and the Underwriter has no obligation to
the City with respect to the offering described herein except the obligations expressly set forth in
this Agreement, (iv) the City has consulted its own legal, financial and other advisors to the
extent it has deemed appropriate, (v) the Underwriter has financial and other interests that differ
from those of the City, and (vi) the Underwriter has provided to the City prior disclosures under
Rule G-17 of the Municipal Securities Rulemaking Board ("MSRB"), which have been received
by the City. The City further acknowledges and agrees that following the issuance and delivery
of the Bonds, the Underwriter has indicated that it may have periodic discussions with the City
regarding the expenditure of Bond proceeds and the construction of the Public Improvements
financed with the Bonds (the "Improvement Zone A Public Improvements") and, in connection
with such discussions, the Underwriter shall be acting solely as a principal and will not be acting
as the agent or fiduciary of, and will not be assuming an advisory or fiduciary responsibility in
favor of, the City.
The Bonds shall be dated December 1, 2019 and shall have the maturities and redemption
features, if any, and bear interest at the rates per annum shown on Schedule I hereto. Payment
for and delivery of the Bonds, and the other actions described herein, shall take place on
December 20, 2019 (or such other date as may be agreed to by the City and the Underwriter) (the
"Closing Date").
2. Authorization Instruments and Law. The Bonds were authorized by an ordinance
enacted by the City Council of the City (the "City Council") on December 9, 2019 (the "Bond
Ordinance") and shall be issued pursuant to the provisions of Subchapter A of Chapter 372,
Texas Local Government Code, as amended (the "Act"), and the Indenture of Trust, dated as of
December 1, 2019, between the City and the Trustee, authorizing the issuance of the Bonds (the
"Indenture"). The Bonds shall be substantially in the form described in, and shall be secured
under the provisions of, the Indenture.
The Bonds and interest thereon shall be secured by the proceeds of special assessments
(the "Assessments") levied on the assessable parcels within Improvement Zone A of the City
Point Public Improvement District (the "District"). The District was established by a resolution
enacted by the City Council on September 9, 2019 (the "Creation Resolution") in accordance
with the Act. A Service and Assessment Plan (the "Service and Assessment Plan") which sets
forth the costs of the Improvement Zone A Public Improvements and the method of payment of
the Assessments levied against assessable property located within Improvement Zone A of the
District pursuant to an ordinance adopted by the City Council on December 9, 2019, (the
"Assessment Ordinance" and, together with the Creation Resolution, the Indenture and the Bond
Ordinance, the "Authorizing Documents"). The Bonds shall be further secured by certain
applicable funds and accounts created under the Indenture.
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The Bonds shall be as described in Schedule I, the Indenture, and the Limited Offering
Memorandum (defined herein). The proceeds of the Bonds shall be used for (i) paying a portion
of the costs of the Improvement Zone A Public Improvements, (ii) paying capitalized interest on
the Bonds, (iii) funding a deposit to the Reserve Account of the Reserve Fund for the Bonds and
a deposit to the Additional Interest Reserve Account of the Reserve Fund, (iv) paying District
formation costs allocable to Improvement Zone A of the District and (v) Bond issuance costs.
3. Limited Public Offering. The Underwriter agrees to make a bona fide limited
public offering of all of the Bonds in accordance with Section 11 hereof. On or before the third
(3rd) business day prior to the Closing Date, the Underwriter shall execute and deliver to Bond
Counsel the Issue Price Certificate (defined herein), in substantially the form attached hereto as
Appendix B.
4. Limited Offering Memorandum.
(a) Delivery of Limited Offering Memorandum. The City previously has
delivered, or caused to be delivered, to the Underwriter the Preliminary Limited Offering
Memorandum for the Bonds dated November 7, 2019, as supplemented on November 11,
2019 and December 2, 2019, (the "Preliminary Limited Offering Memorandum"), in a
"designated electronic format," as defined in the Municipal Securities Rulemaking Board
("MSRB") Rule G-32 ("Rule G-32"). The City will prepare, or cause to be prepared, a
final Limited Offering Memorandum relating to the Bonds (the "Limited Offering
Memorandum") which will be (i) dated the date of this Agreement, (ii) complete within
the meaning of the United States Securities and Exchange Commission's Rule 15c2-12,
as amended ("Rule 15c2-12"), (iii) in a "designated electronic format," and
(iv) substantially in the form of the most recent version of the Preliminary Limited
Offering Memorandum provided to the Underwriter before the execution hereof. The
Limited Offering Memorandum, including the cover page thereto, all exhibits, schedules,
appendices, maps, charts, pictures, diagrams, reports, 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 Bonds are collectively referred to herein as
the "Limited Offering Memorandum." Until the Limited Offering Memorandum has
been prepared and is available for distribution, the City shall provide to the Underwriter
sufficient quantities (which may be in electronic format) of the Preliminary Limited
Offering Memorandum as the Underwriter reasonably deems necessary to satisfy the
obligation of the Underwriter under Rule 15c2-12 with respect to distribution to each
potential customer, upon request, of a copy of the Preliminary Limited Offering
Memorandum.
(b) Preliminary Limited Offering Memorandum Deemed Final. The
Preliminary Limited Offering Memorandum has been prepared for use by the
Underwriter in connection with the offering, sale, and distribution of the Bonds. The
City hereby represents and warrants that the Preliminary Limited Offering Memorandum
has been deemed "final" by the City as of its date, except for the omission of such
information which is dependent upon the final pricing of the Bonds for completion, all as
permitted to be excluded by Section (b)(1) of Rule 15c2-12.
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(c) Use of Limited Offering Memorandum in Offering and Sale. The City
hereby authorizes the Limited Offering Memorandum and the information therein
contained to be used by the Underwriter in connection with the offering and the sale of
the Bonds. The City consents to the use by the Underwriter prior to the date hereof of the
Preliminary Limited Offering Memorandum in connection with the offering of the Bonds.
The City shall provide, or cause to be provided, to the Underwriter as soon as practicable
after the date of the City's acceptance of this Agreement (but, in any event, not later than
the earlier of the Closing Date or seven (7) business days after the City's acceptance of
this Agreement) copies of the Limited Offering Memorandum which is complete as of
the date of its delivery to the Underwriter. The City shall provide the Limited Offering
Memorandum, or cause the Limited Offering Memorandum to be provided, (i) in a
"designated electronic format" consistent with the requirements of Rule G-32 and (ii) in a
printed format in such quantity as the Underwriter shall reasonably request in order for
the Underwriter to comply with Section (b)(4) of Rule 15c2-12 and the rules of the
MSRB.
(d) Updating of Limited Offering Memorandum. If, after the date of this
Agreement, up to and including the date the Underwriter is no longer required to provide
a Limited Offering Memorandum to potential customers who request the same pursuant
to Rule 15c2-12 (the earlier of (i) ninety (90) days from the "end of the underwriting
period" (as defined in Rule 15c2-12) and (ii) the time when the Limited Offering
Memorandum is available to any person from the MSRB, but in no case less than the
25th day after the "end of the underwriting period" for the Bonds), the City becomes
aware of any fact or event which might or would cause the Limited Offering
Memorandum, as then supplemented or amended, to contain any untrue statement of a
material fact or to omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary to amend or supplement the Limited Offering
Memorandum to comply with law, the City will notify the Underwriter (and for the
purposes of this clause provide the Underwriter with such information as it may from
time to time request), and if, in the reasonable judgment of the Underwriter, such fact or
event requires preparation and publication of a supplement or amendment to the Limited
Offering Memorandum, the City will forthwith prepare and furnish, at no expense to the
Underwriter (in a form and manner approved by the Underwriter), either an amendment
or a supplement to the Limited Offering Memorandum so that the statements therein 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, in light of the circumstances under which they were made, not
misleading or so that the Limited Offering Memorandum will comply with law; provided,
however, that for all purposes of this Agreement and any certificate delivered by the City
in accordance herewith, (i) the City makes no representations with respect to the
descriptions in the Preliminary Limited Offering Memorandum or the Limited Offering
Memorandum of The Depository Trust Company, New York, New York ("DTC"), or its
book -entry -only system, and (ii) the City makes no representation with respect to the
information in the Preliminary Limited Offering Memorandum or the Limited Offering
Memorandum under the captions and subcaptions "PLAN OF FINANCE
Development Plan and Plan of Finance," "BOOK -ENTRY ONLY SYSTEM," "THE
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IMPROVEMENT ZONE A PUBLIC IMPROVEMENTS," "THE DEVELOPMENT,"
"THE DEVELOPER," `BONDHOLDERS' RISKS" (only as it pertains to the Developer,
the Improvement Zone A Public Improvements and the Development), "THE
ASSESSMENT CONSULTANT AND ADMINISTRATOR," "APPRAISAL OF
PROPERTY WITHIN IMPROVEMENT ZONE A OF THE DISTRICT," "LEGAL
MATTERS Litigation The Developer," "CONTINUING DISCLOSURE — The
Developer", "UNDERWRITING' and "INFORMATION RELATING TO THE
TRUSTEE" (collectively, the "Non -City Disclosures"). If such notification shall be
subsequent to the Closing Date, the City, at no expense to the Underwriter, shall furnish
such legal opinions, certificates, instruments, and other documents as the Underwriter
may reasonably deem necessary to evidence the truth and accuracy of such supplement or
amendment to the Limited Offering Memorandum. The City shall provide any such
amendment or supplement, or cause any such amendment or supplement to be provided,
(i) in a "designated electronic format" consistent with the requirements of Rule G-32 and
(ii) in a printed format in such quantity as the Underwriter shall reasonably request in
order for the Underwriter to comply with Section (b)(4) of Rule 15c2-12 and the rules of
the MSRB.
(e) Filing with MSRB. The Underwriter hereby agrees to timely file the
Limited Offering Memorandum with the MSRB through its Electronic Municipal Market
Access ("EMMA") system within one business day after receipt but no later than the
Closing Date. Unless otherwise notified in writing by the Underwriter, the City can
assume that the "end of the underwriting period" for purposes of Rule 15c2-12 is the
Closing Date.
(f) Limited Offering. The Underwriter hereby represents, warrants and
covenants that the Bonds were initially sold pursuant to a limited offering. The Bonds
were sold to not more than thirty-five persons that qualify as "Accredited Investors" (as
defined in Rule 501 of Regulation D under the Securities Act (as defined herein)) or
"Qualified Institutional Buyers" (within the meaning of Rule 144A under the Securities
Act).
5. City Representations, Warranties and Covenants. The City represents, warrants
and covenants that:
(a) Due Organization, Existence and Authority. The City is a political
subdivision of the State of Texas (the "State"), and has, and at the Closing Date will
have, full legal right, power and authority:
(i) to enter into:
(1) this Agreement;
(2) the Indenture;
(3) the "City Point Development Agreement" among the City,
and NM City Point 53, LLC (the "Developer") effective as of October 25,
2019 (the "Development Agreement");
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(4) the "City Point Public Improvement District Improvement
Zone A Construction, Funding, and Acquisition Agreement" between the
Developer and the City dated as of December 9, 2019 (the "CFA
Agreement"),
(5) the "City of North Richland Hills, Texas, Special
Assessment Revenue Bonds, Series 2019 (City Point Public Improvement
District Improvement Zone A Project) Continuing Disclosure Agreement
of the Issuer" with respect to the Bonds, dated as of December 1, 2019
(the "City Continuing Disclosure Agreement"), executed and delivered by
the City, P3Works, LLC, as Administrator and HTS Continuing
Disclosure Services, a division of Hilltop Securities, Inc., as
Dissemination Agent; and
(6) the "Improvement Zone A Landowner Agreement" dated
as of December 9, 2019 executed by the City and the Developer (the
"Landowner Agreement");
(ii) to issue, sell, and deliver the Bonds to the Underwriter as provided
herein; and
(iii) to carry out and consummate the transactions on its part described
in (1) the Authorizing Documents, (2) this Agreement, (3) the Development
Agreement, (4) the CFA Agreement, (5) the City Continuing Disclosure
Agreement, (6) the Landowner Agreement, (7) the Limited Offering
Memorandum, and (8) any other documents and certificates described in any of the
foregoing (the documents described by subclauses (1) through (6) being referred to
collectively herein as the "City Documents").
(b) Due Authorization and Approval of City. By all necessary official action
of the City, the City has duly authorized and approved the adoption or execution and
delivery by the City of, and the performance by the City of the obligations on its part
contained in, the City Documents and, as of the date hereof, such authorizations and
approvals are in full force and effect and have not been amended, modified or rescinded,
except as may have been approved by the Underwriter. When validly executed and
delivered by the other parties thereto, the City Documents will constitute the legally valid
and binding obligations of the City enforceable upon the City in accordance with their
respective terms, except insofar as enforcement may be limited by principles of
governmental immunity, bankruptcy, insolvency, reorganization, moratorium, or similar
laws or equitable principles relating to or affecting creditors' rights generally. The City
has complied, and will at the Closing (as defined herein) be in compliance, in all material
respects, with the obligations on its part to be performed on or prior to the Closing Date
under the City Documents.
(c) Due Authorization for Issuance of the Bonds. The City has duly
authorized the issuance and sale of the Bonds pursuant to the Bond Ordinance, the
Indenture, and the Act. The City has, and at the Closing Date will have, full legal right,
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power and authority (i) to enter into, execute, deliver, and perform its obligations under
this Agreement and the other City Documents, (ii) to issue, sell and, deliver the Bonds to
the Underwriter pursuant to the Indenture, the Bond Ordinance, the Act, and as provided
herein, and (iii) to carry out, give effect to and consummate the transactions on the part of
the City described by the City Documents and the Bond Ordinance.
(d) No Breach or Default. As of the time of acceptance hereof, and to its
knowledge, the City is not, and as of the Closing Date the City will not be, in breach of or
in default in any material respect under any applicable constitutional provision, law or
administrative rule or regulation of the State or the United States, or any applicable
judgment or decree or any trust agreement, loan agreement, bond, note, resolution,
ordinance, agreement or other instrument related to the Bonds and to which the City is a
party or is otherwise subject, and no event has occurred and is continuing which, with the
passage of time or the giving of notice, or both, would constitute a default or event of
default under any such instrument which breach, default or event could have a material
adverse effect on the City's ability to perform its obligations under the Bonds or the City
Documents; and, as of such times, the authorization, execution and delivery of the Bonds
and the City Documents and compliance by the City with obligations on its part to be
performed in each of such agreements or instruments does not and will not conflict with
or constitute a breach of or default under any applicable constitutional provision, law or
administrative rule or regulation of the State or the United States, or any applicable
judgment, decree, license, permit, trust agreement, loan agreement, bond, note,
resolution, ordinance, agreement or other instrument to which the City (or any of its
officers in their respective capacities as such) is subject, or by which it or any of its
properties are bound, nor will any such authorization, execution, delivery or compliance
result in the creation or imposition of any lien, charge or other security interest or
encumbrance of any nature whatsoever upon any of its assets or properties or under the
terms of any such law, regulation or instrument, except as may be permitted by the City
Documents.
(e) No Litigation. At the time of acceptance hereof there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court,
government agency, public board or body (collectively and individually, an "Action")
pending against the City with respect to which the City has been served with process, nor
to the knowledge of the City is any Action threatened against the City, in which any such
Action (i) in any way questions the existence of the City or the rights of the members of
the City Council to hold their respective positions, (ii) in any way questions the formation
or existence of the District, (iii) affects, contests or seeks to prohibit, restrain or enjoin the
issuance or delivery of any of the Bonds, or the payment or collection of any amounts
pledged or to be pledged to pay the principal of and interest on the Bonds, or in any way
contests or affects the validity of the City Documents or the consummation of the
transactions on the part of the City described therein, or contests the exclusion of the
interest on the Bonds from federal income taxation, or (iv) which may result in any
material adverse change in the financial condition of the City; and, as of the time of
acceptance hereof, to the City's knowledge, there is no basis for any action, suit,
proceeding, inquiry, or investigation of the nature described in clauses (i) through (iv) of
this sentence.
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(f) Bonds Issued Pursuant to Indenture. The City represents that the Bonds,
when issued, executed, and delivered in accordance with the Indenture and sold to the
Underwriter as provided herein, will be validly issued and outstanding obligations of the
City subject to the terms of the Indenture, entitled to the benefits of the Indenture and the
security of the pledge of the proceeds of the levy of the Assessments received by the
City, all to the extent provided for in the Indenture. The Indenture creates a valid pledge
of the monies in certain funds and accounts established pursuant to the Indenture to the
extent provided for in the Indenture, including the investments thereof, subject in all
cases to the provisions of the Indenture permitting the application thereof for the
purposes and on the terms and conditions set forth therein.
(g) Assessments. The Assessments constituting the security for the Bonds
have been levied by the City in accordance with the Act on those parcels of land
identified in the Improvement Zone A Assessment Roll (as defined in the Service and
Assessment Plan). According to the Act, such Assessments constitute a valid and legally
binding first and prior lien against the properties assessed, superior to all other liens and
claims, except liens or claims for state, county, school district, or municipality ad
valorem taxes.
(h) Consents and Approvals. All authorizations, approvals, licenses, permits,
consents, elections, and orders of or filings with any governmental authority, legislative
body, board, agency, or commission having jurisdiction in the matters which are required
by the Closing Date for the due authorization of, which would constitute a condition
precedent to or the absence of which would adversely affect the due performance by the
City of, its obligations in connection with the City Documents have been duly obtained or
made and are in full force and effect, except the approval of the Bonds by the Attorney
General of the State, registration of the Bonds by the Comptroller of Public Accounts of
the State, and the approvals, consents and orders as may be required under Blue Sky or
securities laws of any jurisdiction.
(i) Public Debt. Prior to the Closing, the City will not offer or issue any
bonds, notes or other obligations for borrowed money or incur any material liabilities,
direct or contingent, payable from or secured by a pledge of the Assessments which
secure the Bonds without the prior approval of the Underwriter.
0) Preliminary Limited Offering Memorandum. The information contained
in the Preliminary Limited Offering Memorandum is true and correct in all material
respects, and such information does 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, in the light of the circumstances under which they were made, not
misleading; provided, however, that the City makes no representations with respect to the
Non -City Disclosures.
(k) Limited Offering Memorandum. At the time of the City's acceptance
hereof and (unless the Limited Offering Memorandum is amended or supplemented
pursuant to paragraph (d) of Section 4 of this Agreement) at all times subsequent thereto
during the period up to and including the 25th day subsequent to the "end of the
underwriting period," the information contained in the Limited Offering Memorandum
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 circumstances under which they were made, not misleading; provided,
however, that the City makes no representations with respect to the Non -City Disclosures
and further provided, however, that if the City notifies the Underwriter of any fact or
event as required by Section 4(d) hereof, and the Underwriter determines that such fact or
event does not require preparation and publication of a supplement or amendment to the
Limited Offering Memorandum, then the Limited Offering Memorandum in its then -
current form shall be conclusively deemed to be complete and correct in all material
respects.
(1) Supplements or Amendments to Limited Offering Memorandum. If the
Limited Offering Memorandum is supplemented or amended pursuant to paragraph (d) of
Section 4 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 the 25th day subsequent to
the "end of the underwriting period," the Limited Offering Memorandum as so
supplemented or amended 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 circumstances under which they were made, not misleading;
provided, however, that if the City notifies the Underwriter of any fact or event as
required by Section 4(d) hereof, and the Underwriter determines that such fact or event
does not require preparation and publication of a supplement or amendment to the
Limited Offering Memorandum, then the Limited Offering Memorandum in its then -
current form shall be conclusively deemed to be complete and correct in all material
respects.
(m) Compliance with Rule 15c2-12. During the past five years, the City has
complied in all material respects with its previous continuing disclosure undertakings
made by it in accordance with Rule 15c2-12.
(n) Use of Bond Proceeds. The City will apply, or cause to be applied, the
proceeds from the sale of the Bonds as provided in and subject to all of the terms and
provisions of the Indenture and will not take or omit to take any action which action or
omission will adversely affect the exclusion from gross income for federal income tax
purposes of the interest on the Bonds.
(o) Blue Sky and Securities Laws and Regulations. The City will furnish such
information and execute such instruments and take such action in cooperation with the
Underwriter as the Underwriter may reasonably request, at no expense to the City, (i) to
(y) qualify the Bonds for offer and sale under the Blue Sky or other securities laws and
regulations of such states and other jurisdictions in the United States as the Underwriter
may designate and (z) determine the eligibility of the Bonds for investment under the
laws of such states and other jurisdictions and (ii) to continue such qualifications in effect
so long as required for the initial distribution of the Bonds by the Underwriter (provided,
however, that the City will not be required to qualify as a foreign corporation or to file
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any general or special consents to service of process under the laws of any jurisdiction)
and will advise the Underwriter immediately of receipt by the City of any notification
with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction
or the initiation or threat of any proceeding for that purpose.
(p) Certificates of the City. Any certificate signed by any official of the City
authorized to do so in connection with the transactions described in this Agreement shall
be deemed a representation and warranty by the City to the Underwriter as to the
statements made therein and can be relied upon by the Underwriter as to the statements
made therein.
(q) Intentional Actions Regarding Representations and Warranties. The City
covenants that between the date hereof and the Closing it will not intentionally take
actions which will cause the representations and warranties made in this Section to be
untrue as of the Closing.
(r) Financial Advisor. The City has engaged Hilltop Securities Inc., as its
financial advisor in connection with its offering and issuance of the Bonds.
By delivering the Limited Offering Memorandum to the Underwriter, the City shall be
deemed to have reaffirmed, with respect to the Limited Offering Memorandum, the
representations, warranties and covenants set forth above.
6. Developer Letter of Representations. At the signing of this Agreement, the City
and Underwriter shall receive from the Developer, an executed Developer Letter of
Representations (the "Developer Letter of Representations") in the form of Appendix A hereto,
and at the Closing, a certificate signed by the Developer as set for in Section 9(e) hereof.
7. The Closing. At 10:00 a.m., Central time, on the Closing Date, or at such other
time or on such earlier or later business day as shall have been mutually agreed upon by the City
and the Underwriter, (i) the City will deliver or cause to be delivered to DTC through its "FAST"
System, the Bonds in the form of one fully registered Bond for each maturity, registered in the
name of Cede & Co., as nominee for DTC, duly executed by the City and authenticated by the
Trustee as provided in the Indenture, and (ii) the City will deliver the closing documents
hereinafter mentioned to Norton Rose Fulbright US LLP ("Bond Counsel"), or a place to be
mutually agreed upon by the City and the Underwriter. Settlement will be through the facilities
of DTC. The Underwriter will accept delivery and pay the purchase price of the Bonds as set
forth in Section 1 hereof by wire transfer in federal funds payable to the order of the City or its
designee. These payments and deliveries, together with the delivery of the aforementioned
documents, are herein called the "Closing." The Bonds will be made available to the
Underwriter for inspection not less than twenty-four (24) hours prior to the Closing.
8. Underwriter's Closing Conditions. The Underwriter has entered into this
Agreement in reliance upon the representations and covenants herein and the performance by the
City of its obligations under this Agreement, both as of the date hereof and as of the date of the
Closing. Accordingly, the Underwriter's obligations under this Agreement to purchase, accept
delivery of, and pay for the Bonds shall be conditioned upon the performance by the City of its
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obligations to be performed hereunder at or prior to Closing and shall also be subject to the
following additional conditions:
(a) Bring -Down Representations of the City. The representations and
covenants of the City contained in this Agreement shall be true and correct in all material
respects as of the date hereof and at the time of the Closing, as if made on the Closing
Date.
(b) Executed Agreements and Performance Thereunder. At the time of the
Closing (i) the City Documents shall be in full force and effect, and shall not have been
amended, modified, or supplemented except with the written consent of the Underwriter;
(ii) the Authorizing Documents shall be in full force and effect; (iii) there shall be in full
force and effect such other resolutions or actions of the City as, in the opinion of Bond
Counsel and Counsel to the Underwriter, shall be necessary on or prior to the Closing
Date in connection with the transactions on the part of the City described in this
Agreement and the City Documents; (iv) there shall be in full force and effect such other
resolutions or actions of the Developer as, in the opinion of Miklos Cinclair, PLLC
("Developer's Counsel"), shall be necessary on or prior to the Closing Date in connection
with the transactions on the part of the Developer described in the Developer Letter of
Representations, the Development Agreement, the CFA Agreement, the Landowner
Agreement, the "City of North Richland Hills, Texas, Special Assessment Revenue
Bonds, Series 2019 (City Point Public Improvement District Improvement Zone A
Project) Continuing Disclosure Agreement of the Developer" with respect to the Bonds,
dated as of December 1, 2019 executed and delivered by the Developer, P3Works, LLC
as PID Administrator, and HTS Continuing Disclosure Services, a division of Hilltop
Securities, Inc. as dissemination agent (the "Continuing Disclosure Agreement of the
Developer,") the "Collateral Assignment and Assumption Agreement" dated as of
December 20, 2019 executed and delivered by the Developer and the Trustee (the
"Collateral Assignment,") and the "Completion Agreement" dated as of December 20,
2019 executed and delivered by the Developer and the Trustee (the "Completion
Agreement," and together with the Developer Letter of Representations, the Development
Agreement, the CFA Agreement, the Landowner Agreement, the Continuing Disclosure
Agreement of the Developer, and the Collateral Assignment, the "Developer
Documents"); and (v) the City shall perform or have performed its obligations required or
specified in the City Documents to be performed at or prior to Closing.
(c) No Default. At the time of the Closing, no default shall have occurred or
be existing and no circumstances or occurrences that, with the passage of time or giving
of notice, shall constitute an event of default under this Agreement, the Indenture, the
City Documents, the Developer Documents or other documents relating to the financing
and construction of the Improvement Zone A Public Improvements and the Development,
and the Developer shall not be in default in the payment of principal or interest on any of
its indebtedness which default shall materially adversely impact the ability of such
Developer to pay the Assessments when due.
(d) Concurrent Closing of the Improvement Zone B Bonds. The City shall
issue concurrently with the issuance of the Bonds its "City of North Richland Hills,
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Texas, Special Assessment Revenue Bonds, Series 2019 (City Point Public Improvement
District Improvement Zone B Project)" Bonds.
(e) Closing Documents. At or prior to the Closing, the Underwriter or
counsel to the Underwriter shall have received each of the documents required under
Section 9 below.
(f) Termination Events. The Underwriter shall have the right to cancel its
obligation to purchase the Bonds and to terminate this Agreement without liability
therefor by written notification to the City if, between the date of this Agreement and the
Closing, in the Underwriter's sole and reasonable judgment, the market price or
marketability of the Bonds, or the ability of the Underwriter to enforce contracts for the
sale of the Bonds, shall be materially adversely affected by the occurrence of any of the
following:
(i) legislation shall have been introduced in or enacted by the Congress
of the United States or adopted by either House thereof, or legislation pending in
the Congress of the United States shall have been amended, or legislation shall
have been recommended to the Congress of the United States or otherwise
endorsed for passage (by press release, other form of notice, or otherwise) by the
President of the United States, the Treasury Department of the United States, or the
Internal Revenue Service or legislation shall have been proposed for consideration
by either the U.S. Senate Committee on Finance or the U.S. House of
Representatives Committee on Ways and Means or legislation shall have been
favorably reported for passage to either House of the Congress of the United States
by a Committee of such House to which such legislation has been referred for
consideration, or a decision by a court of the United States or the Tax Court of the
United States shall be rendered or a ruling, regulation, or official statement (final,
temporary, or proposed) by or on behalf of the Treasury Department of the United
States, the Internal Revenue Service, or other federal agency shall be made, which
would result in federal taxation of revenues or other income of the general
character expected to be derived by the City or upon interest on securities of the
general character of the Bonds or which would have the effect of changing,
directly or indirectly, the federal income tax consequences of receipt of interest on
securities of the general character of the Bonds in the hands of the holders thereof,
and which in either case, makes it, in the reasonable judgment of the Underwriter,
impracticable or inadvisable to proceed with the offer, sale, or delivery of the
Bonds on the terms and in the manner described in the Limited Offering
Memorandum; or
(ii) legislation shall be enacted by the Congress of the United States, or
a decision by a court of the United States shall be rendered, or a stop order, ruling,
regulation or official statement by, or on behalf of, the Securities and Exchange
Commission ("SEC") or any other governmental agency having jurisdiction of the
subject matter shall be issued or made to the effect that the issuance, offering or
sale of obligations of the general character of the Bonds, or the issuance, offering
or sale of the Bonds, including all underlying obligations, as described herein or by
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the Limited Offering Memorandum, is in violation or would be in violation of, or
that obligations of the general character of the Bonds, or the Bonds, are not exempt
from registration under, any provision of the federal securities laws, including the
Securities Act of 1933, as amended and as then in effect (the "Securities Act"), or
that the Indenture needs to be qualified under the Trust Indenture Act of 1939, as
amended and as then in effect (the "Trust Indenture Act"); or
(iii) a general suspension of trading in securities on the New York Stock
Exchange, the establishment of minimum prices on such exchange, the
establishment of material restrictions (not in force as of the date hereof) upon
trading securities generally by any governmental authority or any national
securities exchange, a general banking moratorium declared by federal, State of
New York, or State officials authorized to do so; or
(iv) there shall have occurred any outbreak of hostilities (including,
without limitation, an act of terrorism) or other national or international calamity
or crisis, including, but not limited to, an escalation of hostilities that existed prior
to the date hereof, and the effect of any such event on the financial markets of the
United States shall be such as would make it impracticable, in the reasonable
judgment of the Underwriter, for it to sell the Bonds on the terms and in the
manner contemplated by the Limited Offering Memorandum; or
(v) there shall have occurred since the date of this Agreement any
materially adverse change in the affairs or financial condition of the City, except as
disclosed in or contemplated by the Limited Offering Memorandum; or
(vi) any state blue sky or securities commission or other governmental
agency or body in any state in which more than 10% of the Bonds have been
offered and sold shall have withheld registration, exemption or clearance of the
offering of the Bonds as described herein, or issued a stop order or similar ruling
relating thereto; or
(vii) any amendment to the federal or state Constitution or action by any
federal or state court, legislative body, regulatory body, or other authority
materially adversely affecting the tax status of the City, its property, income,
securities (or interest thereon), or the validity or enforceability of the Assessments
to pay principal of and interest on the Bonds; or
(viii) the New York Stock Exchange or other national securities exchange
or any governmental authority shall impose, as to the Bonds or as to obligations of
the general character of the Bonds, any material restrictions not now in force, or
increase materially those now in force, with respect to the extension of credit by,
or the charge to the net capital requirements of, the Underwriter; or
(ix) any event occurring, or information becoming known which, in the
reasonable judgment of the Underwriter, makes untrue in any material respect any
statement or information contained in the Limited Offering Memorandum, or has
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the effect that the Limited Offering Memorandum contains any untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, which change shall occur subsequent to the
date of this Agreement and shall not be due to the malfeasance, misfeasance or
nonfeasance of the Underwriter; or
(x) any fact or event shall exist or have existed that, in the
Underwriter's reasonable judgment, requires or has required an amendment of or
supplement to Limited Offering Memorandum; or
(xi) a general banking moratorium shall have been declared by federal
or State authorities having jurisdiction and be in force; or
(xii) a material disruption in securities settlement, payment or clearance
services shall have occurred; or
(xiii) a decision by a court of the United States shall be rendered, or a
stop order, release, regulation or no -action letter by or on behalf of the SEC or any
other governmental agency having jurisdiction of the subject matter shall have
been issued or made, to the effect that the issuance, offering or sale of the Bonds,
including the underlying obligations as contemplated by this Agreement or by the
Limited Offering Memorandum, or any document relating to the issuance, offering
or sale of the Bonds, is or would be in violation of any provision of the federal
securities laws on the date of Closing, including the Securities Act, the Securities
Exchange Act of 1934 (the "Securities Exchange Act") and the Trust Indenture
Act; or
(xiv) the purchase of and payment for the Bonds by the Underwriter, or
the resale of the Bonds by the Underwriter, on the terms and conditions herein
provided shall be prohibited by any applicable law, governmental authority, board,
agency or commission, which prohibition shall occur subsequent to the date hereof
and shall not be due to the malfeasance, misfeasance, or nonfeasance of the
Underwriter.
With respect to the conditions described in subparagraphs (viii), (xiii) and (xiv) above,
the Underwriter is not aware of any current, pending or proposed law or government
inquiry or investigation as of the date of execution of this Agreement which would permit
the Underwriter to invoke its termination rights hereunder.
9. Closing Documents. At or prior to the Closing, the Underwriter or counsel to the
Underwriter shall receive the following documents:
(a) Bond Opinion. The approving opinion of Bond Counsel, dated the
Closing Date and substantially in the form included as Appendix C to the Limited
Offering Memorandum, together with a reliance letter from Bond Counsel, dated the date
of the Closing and addressed to the Underwriter, which may be included in the
supplemental opinion required by Section 9(b), to the effect that the foregoing opinion
14
may be relied upon by the Underwriter to the same extent as if such opinion were
addressed to it.
(b) Supplemental Opinion. A supplemental opinion of Bond Counsel dated
the Closing Date and addressed to the City and the Underwriter, in form and substance
acceptable to counsel for the Underwriter, to the following effect:
(i) Except to the extent noted therein, Bond Counsel has not verified
and is not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements and information contained in the
Limited Offering Memorandum but that such firm has reviewed the information
describing the Bonds in the Limited Offering Memorandum under the captions or
subcaptions "PLAN OF FINANCE The Bonds", "DESCRIPTION OF THE
BONDS," "SECURITY FOR THE BONDS" (except for the last paragraph under
the subcaption "General"), "ASSESSMENT PROCEDURES" (except for the
subcaptions "Assessment Methodology" and "Assessment Amounts"), "THE
DISTRICT," "TAX MATTERS," "LEGAL MATTERS Legal Proceedings,"
"LEGAL MATTERS Legal Opinions," "SUITABILITY FOR
INVESTMENT," "CONTINUING DISCLOSURE" (except for the subcaption
"The Developer"), "REGISTRATION AND QUALIFICATION OF BONDS FOR
SALE," "LEGAL INVESTMENT AND ELIGIBILITY TO SECURE PUBLIC
FUNDS IN TEXAS" and APPENDIX A and Bond Counsel is of the opinion that
the information relating to the Bonds and legal issues contained under such
captions and subcaptions is an accurate and fair description of the laws and legal
issues addressed therein and, with respect to the Bonds, such information conforms
to the Bond Ordinance and Indenture;
(ii) The Bonds are not subject to the registration requirements of the
Securities Act, and the Indenture is exempt from qualification pursuant to the Trust
Indenture Act;
(iii) The City has full power and authority to adopt the Creation
Resolution, the Assessment Ordinance, and the Bond Ordinance (collectively, the
foregoing documents are referred to herein as the "City Actions") and perform its
obligations thereunder and the City Actions have been duly adopted, are in full
force and effect and have not been modified, amended or rescinded; and
(iv) The Indenture, the Development Agreement, the CFA Agreement,
the Landowner Agreement, the City Continuing Disclosure Agreement and the
Bond Purchase Agreement have been duly authorized, executed and delivered by
the City and, assuming the due authorization, execution and delivery of such
instruments, documents, and agreements by the other parties thereto, constitute the
legal, valid, and binding agreements of the City, enforceable in accordance with
their respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, or other laws affecting enforcement of creditors' rights, or
by the application of equitable principles if equitable remedies are sought and to
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the application of Texas law relating to governmental immunity applicable to local
governmental entities.
(c) City Legal Opinion. An opinion of an attorney for the City, dated the
Closing Date and addressed to the Underwriter, the City and the Trustee, with respect to
matters relating to the City, substantially in the form of Appendix C hereto or in form
otherwise agreed upon by the Underwriter.
(d) Opinion of Developer's Counsel. An opinion of Developer's Counsel,
substantially in the form of Appendix D hereto, dated the Closing Date and addressed to
the City, Bond Counsel, the Attorney for the City, the Underwriter, Underwriter's
Counsel and the Trustee.
(e) Developer Certificate. The certificate of the Developer dated as of the
Closing Date, signed by an authorized officer of the Developer in substantially the form
of Appendix E hereto.
(f) City Certificate. A certificate of the City, dated the Closing Date, to the
effect that, to an authorized City official's knowledge:
(i) the representations and warranties of the City contained herein and
in the City Documents are true and correct in all material respects on and as of the
Closing Date as if made on the date thereof,
(ii) the Authorizing Documents and City Documents are in full force
and effect and have not been amended, modified, or supplemented;
(iii) except as disclosed in the Limited Offering Memorandum, no
litigation or proceeding against the City is pending or, to the knowledge of such
person, threatened in any court or administrative body nor is there a basis for
litigation which would (a) contest the right of the members or officials of the City
to hold and exercise their respective positions, (b) contest the due organization and
valid existence of the City or the establishment of the District, (c) contest the
validity, due authorization and execution of the Bonds or the City Documents, or
(d) attempt to limit, enjoin or otherwise restrict or prevent the City from levying
and collecting the Assessments pledged to pay the principal of and interest on the
Bonds, or the pledge thereof, and
(iv) the City has, to such person's knowledge, complied with all
agreements and covenants and satisfied all conditions set forth in the City
Documents, on its part to be complied with or satisfied hereunder at or prior to the
Closing.
(g) Trustee's Certificate. A certificate of the Trustee, dated the date of
Closing, in form and substance acceptable to counsel for the Underwriter to the following
effect:
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(i) The Trustee is duly organized and validly existing as a national
banking association organized under the laws of the United States of America,
having the full power and authority, including trust powers, to accept and perform
its duties under the Indenture; and
(ii) No consent, approval, authorization or other action by any
governmental authority having jurisdiction over the Trustee that has not been
obtained is or will be required for the authentication of the Bonds or the
consummation by the Trustee of the other transactions contemplated to be
performed by the Trustee in connection with the authentication of the Bonds and
the acceptance and performance of the obligations created by the Indenture;
(iii) The Trustee is authorized to enter into the Completion Agreement
and the Collateral Assignment.
(h) Underwriter Counsel's Opinion. An opinion, dated the Closing Date and
addressed to the Underwriter, of Winstead PC, counsel to the Underwriter, to the effect
that:
(i) based on (A) such counsel's review of the Bond Ordinance, the
Indenture, and the Limited Offering Memorandum; (B) its discussions with Bond
Counsel and with the Underwriter; (C) its review of the documents, certificates,
opinions and other instruments delivered at the closing of the sale of the Bonds on
the date hereof, and (D) such other matters as it deems relevant, such counsel is of
the opinion that the Bonds are exempt securities under the Securities Act, and the
Trust Indenture Act, and it is not necessary, in connection with the offering and
sale of the Bonds, to register the Bonds under the Securities Act and the Indenture
is not required to be qualified under the Trust Indenture Act;
(ii) based upon (A) such counsel's review of Rule 15c2-12 and
interpretive guidance published by the SEC relating thereto; (B) its review of the
continuing disclosure undertaking of the City contained in the City Continuing
Disclosure Agreement; and (C) the inclusion in the Limited Offering
Memorandum of a description of the specifics of such undertaking, and assuming
that the Bond Ordinance, the Indenture, and the City Continuing Disclosure
Agreement have been duly adopted by the City and are in full force and effect,
such undertaking provides a suitable basis for the Underwriter, to make a
reasonable determination that the City has met the qualifications of paragraph
(b)(5)(i) of Rule 15c2-12; and
(iii) although such counsel has not verified and is not passing upon, and
does not assume any responsibility for, the accuracy, completeness or fairness of
the information contained in the Limited Offering Memorandum, it has
participated in the preparation of the Limited Offering Memorandum and without
independent verification, no facts came to its attention that caused it to believe that
the Limited Offering Memorandum (except for the Appendices as well as any
other financial, engineering and statistical data contained therein or included
17
therein by reference or any litigation disclosed therein, as to which it expresses no
view) as of its date contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.
(i) Limited Offering Memorandum. The Limited Offering Memorandum and
each supplement or amendment, if any, thereto.
0) Delivery of City Documents and Developer Documents. The City
Documents and Developer Documents shall have been executed and delivered in form
and content satisfactory to the Underwriter.
(k) Form 8038-G. Evidence that the federal tax information form 8038-G has
been prepared by Bond Counsel for filing.
(1) Federal Tax Certificate. A certificate of the City in form and substance
satisfactory to Bond Counsel and counsel to the Underwriter setting forth the facts,
estimates and circumstances in existence on the date of the Closing, which establish that
it is not expected that the proceeds of the Bonds will be used in a manner that would
cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"), and any applicable regulations
(whether final, temporary or proposed), issued pursuant to the Code.
(m) Attorney General Opinion and Comptroller Registration. The approving
opinion of the Attorney General of the State regarding the Bonds and the Comptroller of
the State's Certificate of Registration for the Initial Bond.
(n) Continuing Disclosure Agreements. The City Continuing Disclosure
Agreement and the Continuing Disclosure Agreement of the Developer, shall have been
executed by the parties thereto in substantially the forms attached to the Preliminary
Limited Offering Memorandum as Appendix D-1 and Appendix D-2.
(o) Letter of Representation of the Appraiser. (i) Letter of Representation of
the Appraiser, substantially in the form of Appendix F hereto, addressed to the City,
Bond Counsel, the Underwriter, and the Trustee, or in form otherwise agreed upon by the
Underwriter, and (ii) a copy of the real estate appraisal of the property within
Improvement Zone A of the District dated November 5, 2019.
(p) Letter of Representation of Assessment Consultant and Administrator.
Letter of Representation of the Assessment Consultant and Administrator, substantially in
the form of Appendix G hereto, addressed to the City, Bond Counsel, the Underwriter,
and the Trustee, or in form otherwise agreed upon by the Underwriter.
(q) Evidence of Filing of Creation Resolution, Assessment Ordinance, and
Landowner Agreement. Evidence that (i) the Creation Resolution, including legal
description of the District by metes and bounds, (ii) the Assessment Ordinance, including
the Improvement Zone A Assessment Roll and a statement indicating the contact for and
In
address of where a copy of the Service and Assessment Plan, and any updates thereto
may be obtained or viewed, and (iii) the Landowner Agreement has been filed of record
in the real property records of Tarrant County, Texas.
(r) Lender Consent Certificate. Lender Consent Certificate of Trez Capital
(2015) Corporation and any other lienholder on land in Improvement Zone A of the
District, consenting to and acknowledging the creation of the District, the adoption of the
Assessment Ordinance, the levy of the Assessments, and the subordination of its lien to
the lien created by the Assessments in a form acceptable to the Underwriter.
(s) Evidence of Ownership of Property. Evidence that on the date that the
Assessment Ordinance was adopted, all of the Improvement Zone A Assessed Property
was owned by the Developer or other development entities and that such landowners are
not entities that may claim a homestead right under Texas law.
(t) Rule 15c2-12 Certification. A resolution or certificate of the City whereby
the City has deemed the Preliminary Limited Offering Memorandum "final" as of its
date, except for permitted omissions, as contemplated by Rule 15c2-12 in connection
with the offering of the Bonds.
(u) Dissemination Agent. Evidence acceptable to the Underwriter in its sole
discretion that the City has engaged a dissemination agent acceptable to the Underwriter
for the Bonds, with the execution of the City Continuing Disclosure Agreement and the
Continuing Disclosure Agreement of the Developer by other parties thereto being
conclusive evidence of such acceptance by the Underwriter.
(v) BLOR. A copy of the Blanket Letter of Representation to DTC relating to
the Bonds and signed by the City.
(w) Additional Documents. Such additional legal opinions, certificates,
instruments, and other documents as the Underwriter or their counsel may reasonably
deem necessary.
10. City's Closing Conditions. The obligation of the City hereunder to deliver the
Bonds shall be subject to receipt on or before the date of the Closing of the purchase price set
forth in Section 1 hereof, and the opinion of Bond Counsel described in Section 9(a) hereof.
11. Establishment of Issue Price.
(a) The Underwriter agrees to assist the City in establishing the issue price of
the Bonds and shall execute and deliver to the City on or before Closing an "issue price"
or similar certificate, together with the supporting pricing wires or equivalent
communications, substantially in the form attached hereto as Appendix B, with such
modifications as may be appropriate or necessary, in the reasonable judgment of the
Underwriter, the City and Bond Counsel, to accurately reflect, as applicable, the sales
price or prices or the initial offering price or prices to the public of the Bonds. All
actions to be taken by the City under this Section to establish the issue price of the Bonds
may be taken on behalf of the City by the City's Financial Advisor identified herein and
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any notice or report to be provided to the City may be provided to the City's Financial
Advisor or Bond Counsel.
(b) The Underwriter confirms that it has offered all the Bonds of each
maturity to the public on or before the date of this Agreement at the respective offering
price (the "initial offering price"), or at the corresponding yield or yields, set forth in
Schedule I attached hereto, except as otherwise set forth therein. At or promptly after the
execution of this Agreement, the Underwriter shall report to the City as of the sale date
the first price at which the Underwriter has sold to the public at least 10% of each
maturity of Bonds (the "10% test"), and shall identify to the City as of the sale date those
maturities of the Bonds for which the 10% test has not been satisfied. If different interest
coupons apply within a maturity, each separate CUSIP number within that maturity will
be treated as a separate maturity for this purpose.
(c) The City and the Underwriter agree that the restrictions set forth in the
next sentence shall apply to those maturities of the Bonds for which the 10% test has not
been met as of the sale date, which will allow the City to treat the initial offering price to
the public of each such maturity as of the sale date as the issue price of that maturity (the
"hold -the -offering -price rule"). So long as the hold -the -offering -price rule remains
applicable to any maturity of the Bonds, the Underwriter will neither offer nor sell unsold
Bonds of that maturity to any person at a price that is higher than the initial offering price
to the public during the period starting on the sale date and ending on the earlier of the
following:
(1) the close of the fifth (5th) business day after the sale date; or
(2) the date on which the Underwriter has sold at least 10% of that maturity
of the Bonds to the public at a price that is no higher than the initial
offering price to the public.
The Underwriter shall promptly advise the City when the Underwriter has sold 10% of
that maturity of the Bonds to the public at a price that is no higher than the initial
offering price to the public, if such sale occurs prior to the close of the fifth (5th)
business day after the sale date.
(d) The Underwriter confirms that any selling group agreement and each
third -party distribution agreement relating to the initial sale of the Bonds to the public,
together with the related pricing wires, contains or will contain language obligating each
dealer who is a member of the selling group, and each broker -dealer that is a party to
such third -party distribution agreement, as applicable, to (A) comply with the hold -the -
offering -price rule, if applicable, if and for so long as directed by the Underwriter and as
set forth in the related pricing wires, (B) promptly notify the Underwriter of any sales of
Bonds that, to its knowledge, are made to a purchaser who is a related party to an
underwriter participating in the initial sale of the Bonds to the public, and (C)
acknowledge that, unless otherwise advised by the dealer or broker -dealer, the
Underwriter shall assume that each order submitted by the dealer or broker -dealer is a
sale to the public. The City acknowledges that, in making the representation set forth in
20
this subsection, the Underwriter will rely on (i) in the event a selling group has been
created in connection with the initial sale of the Bonds to the public, the agreement of
each dealer who is a member of the selling group to comply with the requirements for
establishing issue price of the Bonds, including, but not limited to, its agreement to
comply with the hold -the -offering -price rule, if applicable to the Bonds, as set forth in a
selling group agreement and the related pricing wires and (ii) in the event that the
Underwriter is a party to a third -party distribution agreement that was employed in
connection with the initial sale of the Bonds to the public, the agreement of each broker -
dealer that is a party to such agreement to comply with the requirements for establishing
issue price of the Bonds, including, but not limited to, its agreement to comply with the
hold -the -offering -price rule, if applicable to the Bonds, as set forth in the third -party
distribution agreement and the related pricing wires. The City further acknowledges that
the Underwriter shall not be liable for the failure of any dealer who is a member of a
selling group or of any broker -dealer that is a party to a third -party distribution
agreement, to comply with its corresponding agreement to comply with the requirements
for establishing issue price of the Bonds, including, but not limited to, its agreement to
comply with the hold -the -offering -price rule, if applicable to the Bonds.
(e) The Underwriter acknowledges that sales of any Bonds to any person that
is a related party to the Underwriter shall not constitute sales to the public for purposes of
this Section. Further, for purposes of this Section:
(i) "public" means any person other than an underwriter or a related
party,
(ii) "underwriter" means (A) any person that agrees pursuant to a
written contract with the City (or with the lead underwriter to form an underwriting
syndicate) to participate in the initial sale of the Bonds to the public and (B) any
person that agrees pursuant to a written contract directly or indirectly with a person
described in clause (A) to participate in the initial sale of the Bonds to the public
(including a member of a selling group or a party to a retail distribution agreement
participating in the initial sale of the Bonds to the public),
(iii) a purchaser of any of the Bonds is a "related party to an underwriter
if the underwriter and the purchaser are subject, directly or indirectly, to (i) at least
50% common ownership of the voting power or the total value of their stock, if
both entities are corporations (including direct ownership by one corporation of
another), (ii) more than 50% common ownership of their capital interests or profits
interests, if both entities are partnerships (including direct ownership by one
partnership of another), or (iii) more than 50% common ownership of the value of
the outstanding stock of the corporation or the capital interests or profit interests of
the partnership, as applicable, if one entity is a corporation and the other entity is a
partnership (including direct ownership of the applicable stock or interests by one
entity of the other), and
parties.
(iv) "sale date" means the date of execution of this Agreement by all
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12. Consequences of Termination. If the City shall be unable to satisfy the conditions
contained in this Agreement or if the obligations of the Underwriter shall be terminated for any
reason permitted by this Agreement, this Agreement shall terminate and the Underwriter and the
City shall have no further obligation hereunder, except as further set forth in Sections 13, 15 and
16 hereof.
13. Costs and Exbenses
(a) The Underwriter shall be under no obligation to pay, and the City shall
cause to be paid from proceeds of the Bonds the following expenses incident to the
issuance of the Bonds and performance of the City's obligations hereunder: (i) the costs
of the preparation and printing of the Bonds; (ii) the cost of preparation, printing, and
mailing of the Preliminary Limited Offering Memorandum, the final Limited Offering
Memorandum and any supplements and amendments thereto; (iii) the fees and
disbursements of the City's financial advisor and legal counsel, the Trustee's counsel,
Bond Counsel, Developer's Counsel, and the Trustee relating to the issuance of the
Bonds, (iv) the Attorney General's review fees, (v) the fees and disbursements of
accountants, advisers and any other experts or consultants retained by the City or the
Developer, including but not limited to the fees and expenses of the Appraiser and the
Assessment Consultant, and (vi) the expenses incurred by or on behalf of City employees
and representatives that are incidental to the issuance of the Bonds and the performance
by the City of its obligations under this Agreement.
(b) The Underwriter shall pay the following expenses: (i) all advertising
expenses in connection with the limited offering of the Bonds; (ii) fees of Underwriter's
Counsel; and (iii) all other expenses, including CUSIP fees (including out-of-pocket
expenses and related regulatory expenses), incurred by it in connection with its offering
and distribution of the Bonds, except as noted in Subsection 13(a) above.
(c) The City acknowledges that the Underwriter will pay from the
Underwriter's expense allocation of the underwriting discount the applicable per bond
assessment charged by the Municipal Advisory Council of Texas, a nonprofit corporation
whose purpose is to collect, maintain and distribute information relating to issuing
entities of municipal securities.
14. Notice. Any notice or other communication to be given to the City under this
Agreement may be given by delivering the same in writing to: City of North Richland Hills,
Texas, 4301 City Point Drive, North Richland Hills, Texas 76180, Attention: City Manager.
Any notice or other communication to be given to the Underwriter under this Agreement may be
given by delivering the same in writing to: FMSbonds, Inc., 5 Cowboys Way, Suite 300-V,
Frisco, Texas 75034, Attention: Tripp Davenport, Director.
15. Entire Agreement. This Agreement is made solely for the benefit of the City and
the Underwriter (including their respective successors and assigns), and no other person shall
acquire or have any right hereunder or by virtue hereof. All of the City's representations,
warranties, and agreements contained in this Agreement shall remain operative and in full force
and effect regardless of: (i) any investigations made by or on behalf of the Underwriter,
22
provided the City shall have no liability with respect to any matter of which the Underwriter has
actual knowledge prior to the purchase of the Bonds; or (ii) delivery of any payment for the
Bonds pursuant to this Agreement. The agreements contained in this Section and in Sections 16
and 18 shall survive any termination of this Agreement.
16. Survival of Representations and Warranties. All representations and warranties of
the parties made in, pursuant to or in connection with this Agreement shall survive the execution
and delivery of this Agreement, notwithstanding any investigation by the parties. All statements
contained in any certificate, instrument, or other writing delivered by a party to this Agreement
or in connection with the transactions described in by this Agreement constitute representations
and warranties by such party under this Agreement to the extent such statement is set forth as a
representation and warranty in the instrument in question.
17. Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
18. Severability. In case any one or more of the provisions contained herein shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof.
19. State Law Governs. The validity, interpretation, and performance of this
Agreement shall be governed by the laws of the State of Texas.
20. No Assignment. The rights and obligations created by this Agreement shall not
be subject to assignment by the Underwriter or the City without the prior written consent of the
other parties hereto.
21. No Personal Liability. None of the members of the City Council, nor any officer,
representative, agent, or employee of the City, shall be charged personally by the Underwriter
with any liability, or be held liable to the Underwriter under any term or provision of this
Agreement, or because of execution or attempted execution, or because of any breach or
attempted or alleged breach of this Agreement.
22. Form 1295. Submitted herewith or on a date prior hereto is a completed Form
1295 in connection with the Underwriter's participation in the execution of this Agreement
generated by the Texas Ethics Commission's (the "TEC") electronic filing application in
accordance with the provisions of Section 2252.908 of the Texas Government Code and the rules
promulgated by the TEC (the "Form 1295"). The City hereby confirms receipt of the Form 1295
from the Underwriter. The Underwriter and the City understand and agree that, with the
exception of information identifying the City and the contract identification number, neither the
City nor its consultants are responsible for the information contained in the Form 1295; that the
information contained in the Form 1295 has been provided solely by the Underwriter; and,
neither the City nor its consultants have verified such information.
23. Anti -Boycott Verification. The Underwriter hereby verifies that it and its parent
company, wholly- or majority -owned subsidiaries, and other affiliates, if any, do not boycott
Israel and, to the extent this Agreement is a contract for goods or services, will not boycott Israel
23
during the term of this Agreement. The foregoing verification is made solely to comply with
Section 2270.002, Texas Government Code, and to the extent such Section does not contravene
applicable federal law. As used in the foregoing verification, "boycott Israel" means refusing to
deal with, terminating business activities with, or otherwise taking any action that is intended to
penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with
a person or entity doing business in Israel or in an Israeli -controlled territory, but does not
include an action made for ordinary business purposes. The Underwriter understands "affiliate"
to mean an entity that controls, is controlled by, or is under common control with the
Underwriter and exists to make a profit.
24. Iran, Sudan and Foreign Terrorist Organizations. The Underwriter represents that
neither it nor any of its parent company, wholly- or majority -owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer's internet website:
https:Hcomptroller.texas.gov/purchasing/docs/sudan-list.pdf,
https:Hcomptroller.texas.gov/purchasing/docs/iran-list.pdf, or
https:Hcomptroller.texas.gov/purchasing/docs/fto-list.pdf.
The foregoing representation is made solely to comply with Section 2252.152, Texas
Government Code, and to the extent such Section does not contravene applicable federal law and
excludes the Underwriter and its parent company, wholly- or majority -owned subsidiaries, and
other affiliates, if any, that the United States government has affirmatively declared to be
excluded from its federal sanctions regime relating to Sudan or Iran or any federal sanctions
regime relating to a foreign terrorist organization. The Underwriter understands "affiliate" to
mean any entity that controls, is controlled by, or is under common control with the Underwriter
and exists to make a profit.
25. Indemnification. The Underwriter will indemnify and hold harmless the City
against any losses, claims, damages or liabilities to which the City may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Limited Offering Memorandum, or any amendment or
supplement thereto, or arise out of or are based upon any untrue statement or alleged untrue
statement of material fact, or any omission or alleged omission of any material fact necessary to
make the statements therein in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission was made in the Limited Offering Memorandum or any
such amendment or supplement in reliance upon and in conformity with information under the
heading "UNDERWRITING" in the Limited Offering Memorandum, and will reimburse the
City for any legal or other expenses reasonably incurred by the City in connection with
investigating or defending any such actions or claims as such expenses are incurred.
[Remainder of this page intentionally left blank]
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first set forth above.
FMSbonds, Inc.,
as Underwriter
Name: Theodore A. Swinarski
Title: Senior Vice President - Trading
S-1
Accepted at a.m./p.m. central time on the
date first stated above.
CITY OF NORTH RICHLAND HILLS,
TEXAS
Mayor
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SCHEDULE I
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A PROJECT)
Interest Accrues From: Date of Delivery
$400,000 4.875% Term Bonds, Due September 1, 2025, Priced to Yield 4.875%(a), (c)
$530,000 5.250% Term Bonds, Due September 1, 2030, Priced to Yield 5.250%(a), (c)
$1,685,000 5.625% Term Bonds, Due September 1, 2040, Priced to Yield 5.625%(a), (b), (c)
(a) The initial prices or yields of the Bonds are furnished by the Underwriter, have been determined in
accordance with the "10% test", and represent the initial offering prices or yields to the public, which may
be changed by the Underwriter at any time.
(b) The Bonds maturing on September 1, 2040 are subject to redemption at the option of the City, before their
scheduled maturity date, in whole or in part, on any date on or after September 1, 2030, at the redemption
price of par plus accrued interest to the date of redemption, as set forth in the Limited Offering
Memorandum under "DESCRIPTION OF THE BONDS — Redemption Provisions."
°> The Bonds are also subject to extraordinary optional redemption as described in the Limited Offering
Memorandum under "DESCRIPTION OF THE BONDS — Redemption Provisions."
The Bonds are subject to mandatory sinking fund redemption on the dates and in the respective Sinking
Fund Installments as set forth in the following schedule.
$400,000 Term Bonds Maturing September 1, 2025
Redemption Date
Sinking Fund Installment
September 1, 2021
$70,000
September 1, 2022
80,000
September 1, 2023
80,000
September 1, 2024
85,000
September 1, 2025T
85,000
$530,000 Term Bonds Maturing September 1, 2030
Redemption Date
Sinking Fund Installment
September 1, 2026
$95,000
September 1, 2027
100,000
September 1, 2028
105,000
September 1, 2029
115,000
September 1, 2030T
115,000
Schedule I-1
$1,685,000 Term Bonds Maturing September 1, 2040
Redemption Date
September 1, 2031
September 1, 2032
September 1, 2033
September 1, 2034
September 1, 2035
September 1, 2036
September 1, 2037
September 1, 2038
September 1, 2039
September 1, 2040T
fi Final Maturity
Sinking Fund Installment
$125,000
130,000
140,000
150,000
160,000
170,000
180,000
195,000
210,000
225,000
APPENDIX A
FORM OF DEVELOPER LETTER OF REPRESENTATIONS
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A
PROJECT)
DEVELOPER LETTER OF REPRESENTATIONS
December 9, 2019
City of North Richland Hills, Texas
4301 City Point Drive
North Richland Hills, Texas 76180
FMSbonds, Inc.
5 Cowboys Way, Suite 300-V
Frisco, Texas 75034
Ladies and Gentlemen:
This letter is being delivered to the City of North Richland Hills, Texas (the "City") and
FMSbonds, Inc. (the "Underwriter"), in consideration for your entering into the Bond Purchase
Agreement dated the date hereof (the "Bond Purchase Agreement") for the sale and purchase of
the $2,615,000 "City of North Richland Hills, Texas, Special Assessment Revenue Bonds, Series
2019 (City Point Public Improvement District Improvement Zone A Project)" (the "Bonds").
Pursuant to the Bond Purchase Agreement, the Underwriter has agreed to purchase from the
City, and the City has agreed to sell to the Underwriter, the Bonds. In order to induce the City to
enter into the Bond Purchase Agreement and as consideration for the execution, delivery, and
sale of the Bonds by the City and the purchase of them by the Underwriter, the undersigned, NM
City Point 53, LLC, a Texas limited liability company (the "Developer"), makes the
representations, warranties, and covenants contained in this Developer Letter of Representations.
Unless the context clearly indicates otherwise, each capitalized term used in this Developer
Letter of Representations will have the meaning set forth in the Bond Purchase Agreement.
1. Purchase and Sale of Bonds. Inasmuch as the purchase and sale of the Bonds
represents a negotiated transaction, the Developer understands, and hereby confirms, that the
Underwriter is not acting as a fiduciary of the Developer, but rather is acting solely in its
capacity as Underwriter of the Bonds for its own account.
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2. Updating of the Limited Offering Memorandum. If, after the date of this
Developer Letter of Representations, up to and including the date the Underwriter is no longer
required to provide a Limited Offering Memorandum to potential customers who request the
same pursuant to Rule 15c2-12 (the earlier of (i) ninety (90) days from the "end of the
underwriting period" (as defined in Rule 15c2-12) and (ii) the time when the Limited Offering
Memorandum is available to any person from the MSRB, but in no case less than twenty-five
(25) days after the "end of the underwriting period" for the Bonds), the Developer becomes
aware of any fact or event which might or would cause the Preliminary Limited Offering
Memorandum or the Limited Offering Memorandum, as then supplemented or amended, to
contain any untrue statement of a material fact or to omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if it is necessary to amend or supplement the
Preliminary Limited Offering Memorandum or the Limited Offering Memorandum to comply
with law, the Developer will notify the Underwriter (and for the purposes of this clause provide
the Underwriter with such information as it may from time to time request); however, that for the
purposes of this Developer Letter of Representations and any certificate delivered by the
Developer in accordance with the Bond Purchase Agreement, the Developer makes no
representations with respect to (i) the descriptions in the Preliminary Limited Offering
Memorandum or the Limited Offering Memorandum of The Depository Trust Company, New
York, New York, or its book -entry -only system and (ii) the information in the Preliminary
Limited Offering Memorandum and the Limited Offering Memorandum under the captions
"THE CITY," "THE DISTRICT," `BONDHOLDERS' RISKS" (except as it pertains to the
Developer, the Improvement Zone A Public Improvements and the Development, as defined in
the Preliminary Limited Offering Memorandum and the Limited Offering Memorandum), "TAX
MATTERS," "LEGAL MATTERS Litigation The City," "CONTINUING DISCLOSURE
The City" and "INFORMATION RELATING TO THE TRUSTEE."
3. Developer Documents. The Developer has executed or caused the execution of
and delivered each of the below listed documents (individually, a "Developer Document" and
collectively, the "Developer Documents") in the capacity provided for in each such Developer
Document, and each such Developer Document constitutes a valid and binding obligation of
Developer, enforceable against Developer in accordance with its terms:
(a) this Developer Letter of Representations;
(b) that certain "City Point Development Agreement" among the City, and the
Developer effective as of October 25, 2019 (the "Development Agreement");
(c) that certain "City Point Public Improvement District Improvement Zone A
Construction, Funding, and Acquisition Agreement" between the Developer and the City
dated December 9, 2019 (the "CFA Agreement");
(d) that certain "Improvement Zone A Landowner Agreement" dated as of
December 9, 2019 executed by the City and the Developer (the "Landowner
Agreement");
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(e) that certain "City of North Richland Hills, Texas, Special Assessment
Revenue Bonds, Series 2019 (City Point Public Improvement District Improvement Zone
A Project) Continuing Disclosure Agreement of the Developer", dated as of December 1,
2019 made by and among the Developer, P3Works, LLC, as Administrator and HTS
Continuing Disclosure Services, a division of Hilltop Securities, Inc., as Dissemination
Agent;
(f) that certain "Collateral Assignment and Assumption Agreement" dated as
of December 20, 2019 executed and delivered by the Developer and the Trustee (the
"Collateral Assignment"); and
(g) that certain "Completion Agreement" dated as of December 20, 2019
executed and delivered by the Developer and the Trustee (the "Completion Agreement").
The Developer has complied in all material respects with all of the Developer's
agreements and covenants and satisfied all conditions required to be complied with or satisfied
by the Developer under the Developer Documents on or prior to the date hereof.
4. Developer Representations, Warranties and Covenants. The Developer
represents, warrants, and covenants to the City and the Underwriter that:
(a) Due Organization and Existence. The Developer is duly formed and
validly existing as a limited liability company under the laws of the State of Texas.
(b) Organizational Documents. The copies of the organizational documents
of the Developer provided by the Developer (the "Developer Organizational
Documents") to the City and the Underwriter are fully executed, true, correct, and
complete copies of such documents and such documents have not been amended or
supplemented and are in full force and effect as of the date hereof.
(c) No Breach. The execution and delivery of the Developer Documents by
Developer does not violate any judgment, order, writ, injunction or decree binding on
Developer or any indenture, agreement, or other instrument to which Developer is a
party.
(d) No Litigation. Other than as described in the Preliminary Limited
Offering Memorandum or the Limited Offering Memorandum, there are no proceedings
pending or threatened in writing before any court or administrative agency against
Developer that is either not covered by insurance or which singularly or collectively
would have a material, adverse effect on the ability of Developer to perform its
obligations under the Developer Documents in all material respects or that would
reasonably be expected to prevent or prohibit the development of the Development in
accordance with the description thereof in the Preliminary Limited Offering
Memorandum or the Limited Offering Memorandum.
(e) Information. The information prepared and submitted by the Developer to
the City or the Underwriter in connection with the preparation of the Preliminary Limited
Offering Memorandum and the Limited Offering Memorandum was, and is, as of this
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date, and will be as of the date of the Limited Offering Memorandum, true and correct in
all material respects.
(f) Preliminary Limited Offering Memorandum. The Developer represents
and warrants that the information set forth in the Preliminary Limited Offering
Memorandum under the captions "PLAN OF FINANCE Development Plan and Plan
of Finance," "THE IMPROVEMENT ZONE A PUBLIC IMPROVEMENTS" "THE
DEVELOPMENT," "THE DEVELOPER" "CONTINUING DISCLOSURE — The
Developer", and, to the best of the Developer's knowledge after due inquiry, under the
captions `BONDHOLDERS' RISKS" (only as it pertains to the Developer, the
Improvement Zone A Public Improvements and the Development, as defined in the
Limited Offering Memorandum) and "LEGAL MATTERS Litigation The
Developer" is true and correct and does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The Developer agrees
to provide a certificate dated the Closing Date affirming, as of such date, the
representations contained in this subsection (f) with respect to the Preliminary Limited
Offering Memorandum and the Limited Offering Memorandum.
(g) Events of Default. No "Event of Default" or "event of default" by the
Developer under any of the Developer Documents, any documents to which Developer is
a party described in the Preliminary Limited Offering Memorandum or the Limited
Offering Memorandum, or under any material documents relating to the financing and
construction of the Improvement Zone A Public Improvements to which the Developer is
a party, or event that, with the passage of time or the giving of notice or both, would
constitute such "Event of Default" or "event of default," by the Developer has occurred
and is continuing.
5. Indemnification.
(a) The Developer will indemnify and hold harmless the City and the
Underwriter and each of their officers, directors, employees and agents against any
losses, claims, damages or liabilities to which any of them may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained or incorporated by reference in the
Preliminary Limited Offering Memorandum and the Limited Offering Memorandum
under the captions "PLAN OF FINANCE Development Plan," "THE
IMPROVEMENT ZONE A PUBLIC IMPROVEMENTS," "THE DEVELOPMENT,"
"THE DEVELOPER," "BONDHOLDERS' RISKS" (only as it pertains to the Developer,
the Improvement Zone A Public Improvements, and the Development), "LEGAL
MATTERS Litigation — The Developer," and "CONTINUING DISCLOSURE — The
Developer" or any amendment or supplement to the Limited Offering Memorandum
amending or supplementing the information contained under the aforementioned captions
(as qualified above), or arise out of or are based upon the omission or alleged untrue
statement or omission to state therein a material fact necessary to make the statements
under the aforementioned captions (as qualified above) not misleading under the
circumstances under which they were made and will reimburse any indemnified party for
any reasonable legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are incurred.
(b) Promptly after receipt by an indemnified party under subsection (a) above
of notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof, but the omission so to
notify the indemnifying party shall not relieve the indemnifying party from any liability
which it may have to the indemnified party otherwise than under such subsection, unless
such indemnifying party was prejudiced by such delay or lack of notice. In case any such
action shall be brought against an indemnified party, it shall promptly notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation. The
indemnifying party shall not be liable for any settlement of any such action effected
without its consent, but if settled with the consent of the indemnifying party or if there is
a final judgment for the plaintiff in any such action, the indemnifying party will
indemnify and hold harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment. The indemnity herein shall survive delivery of
the Bonds and shall survive any investigation made by or on behalf of the City, the
Developer or the Underwriter.
6. Survival of Representations, Warranties and Covenants. All representations,
warranties, and agreements in this Developer Letter of Representations will survive regardless of
(a) any investigation or any statement in respect thereof made by or on behalf of the Underwriter,
(b) delivery of any payment by the Underwriter for the Bonds hereunder, and (c) any termination
of the Bond Purchase Agreement.
7. Binding on Successors and Assigns. This Developer Letter of Representations
will be binding upon the Developer and its successors and assigns and inure solely to the benefit
of the Underwriter and the City, and no other person or firm or entity will acquire or have any
right under or by virtue of this Developer Letter of Representations.
[Signature pages to follow]
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DEVELOPER:
MM CITY POINT 53, LLC,
a Texas limited liability company
By: MMM Ventures, LLC,
a Texas limited liability company
Its Manager
By: 2M Ventures, LLC,
a Delaware limited liability company
Its Manager
M.
Name: Mehrdad Moayedi
Its: Manager
we
APPENDIX B
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS, SPECIAL ASSESSMENT
REVENUE BONDS, SERIES 2019 (CITY POINT PUBLIC IMPROVEMENT
DISTRICT IMPROVEMENT ZONE A PROJECT)
ISSUE PRICE CERTIFICATE
The undersigned, on behalf of FMSbonds, Inc. ("FMS"), hereby certifies as set forth below with
respect to the sale and issuance of the above -captioned obligations (the "Bonds") of the City of North
Richland Hills, Texas (the "Issuer").
1. Sale of the General Rule Maturities. As of the date of this certificate, for each Maturity
of the General Rule Maturities, the first price at which at least 10% of such Maturity was sold to the
Public is the respective price listed in Schedule A.
2. Initial Offering Price of the Hold -the -Offering -Price Maturities.
(a) FMS offered the Hold -the -Offering -Price Maturities to the Public for purchase at the
respective initial offering prices listed in Schedule A (the "Initial Offering Prices") on or before the Sale
Date. A copy of the pricing wire or equivalent communication for the Bonds is attached to this certificate
as Schedule B.
(b) As set forth in the Bond Purchase Agreement, FMS agreed in writing on or prior to the
Sale Date that, (i) for each Maturity of the Hold -the -Offering -Price Maturities, it would neither offer nor
sell any of the Bonds of such Maturity to any person at a price that is higher than the Initial Offering Price
for such Maturity during the Holding Period for such Maturity (the "hold -the -offering -price rule"), and
(ii) any selling group agreement shall contain the agreement of each dealer who is a member of the selling
group, and any retail or other third -parry distribution agreement shall contain the agreement of each
broker -dealer who is a party to the retail or other third -parry distribution agreement, to comply with the
hold -the -offering -price rule. Pursuant to such agreement, no Underwriter (as defined below) offered or
sold any Maturity of the Hold -the -Offering -Price Maturities at a price that is higher than the respective
Initial Offering Price for that Maturity of the Bonds during the Holding Period.
Defined Terms.
(a) General Rule Maturities means those Maturities of the Bonds listed in Schedule A hereto
as the "General Rule Maturities."
(b) Hold -the -Offering -Price Maturities means those Maturities of the Bonds listed in
Schedule A hereto as the "Hold -the -Offering -Price Maturities."
(c) Holding Period means, with respect to a Hold -the -Offering -Price Maturity, the period
starting on the Sale Date and ending on the earlier of (i) the close of the fifth business day after the Sale
Date, or (ii) the date on which FMS sold at least 10% of such Hold -the -Offering -Price Maturity to the
Public at prices that are no higher than the Initial Offering Price for such Hold -the -Offering -Price
Maturity.
(d) Maturity means Bonds with the same credit and payment terms. Bonds with different
maturity dates, or Bonds with the same maturity date but different stated interest rates, are treated as
separate maturities.
(e) Public means any person (including an individual, trust, estate, limited liability company,
association, company, or corporation) other than an Underwriter or a related party to an Underwriter. The
term "related party" for purposes of this certificate generally means any two or more persons who have
greater than 50 percent common ownership, directly or indirectly.
(f) Sale Date means the first day on which there is a binding contract in writing for the sale
of a Maturity of the Bonds. The Sale Date of the Bonds is December 9, 2019.
(g) Underwriter means (i) any person that agrees pursuant to a written contract with the
Issuer (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of
the Bonds to the Public, and (ii) any person that agrees pursuant to a written contract directly or indirectly
with a person described in clause (i) of this paragraph to participate in the initial sale of the Bonds to the
Public (including a member of a selling group or a party to a retail distribution agreement participating in
the initial sale of the Bonds to the Public).
The representations set forth in this certificate are limited to factual matters only. Nothing in this
certificate represents FMS's interpretation of any laws, including specifically Sections 103 and 148 of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder. The undersigned
understands that the foregoing information will be relied upon by the Issuer with respect to certain of the
representations set forth in the Certificate as to Tax Exemption with respect to the Bonds and with respect
to compliance with the federal income tax rules affecting the Bonds, and by Norton Rose Fulbright US
LLP in connection with rendering its opinion that the interest on the Bonds is excluded from gross income
for federal income tax purposes, the preparation of the Internal Revenue Service Form 8038-G, and other
federal income tax advice that it may give to the Issuer from time to time relating to the Bonds.
lim
EXECUTED and DELIVERED this .2019.
FMSbonds, Inc.
LO-A
Name:
Title:
SCHEDULE A
SALE PRICES OF THE GENERAL RULE MATURITIES AND INITIAL OFFERING PRICES
OF THE HOLD -THE -OFFERING MATURITIES
(Attached)
SCHEDULE B
PRICING WIRE OR EQUIVALENT WRITTEN COMMUNICATION
(Attached)
APPENDIX C
[LETTERHEAD OF CITY ATTORNEY]
FMSbonds, Inc.
5 Cowboys Way, Suite 300-V
Frisco, Texas 75034
Winstead PC
500 Winstead Building
2728 N. Harwood Street
Dallas, Texas 75201
December 20, 2019
Wilmington Trust, National Association
15950 North Dallas Parkway, Suite 550
Dallas, Texas 75248
City of North Richland Hills
Attn: City Manager
4301 City Point Drive
North Richland Hills, Texas 76180
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A PROJECT)
Ladies and Gentlemen:
I am the City Attorney of the City of North Richland Hills, Texas (the "City") and render
this opinion in connection with the issuance and sale of $2,615,000 "City of North Richland
Hills, Texas, Special Assessment Revenue Bonds, Series 2019 (City Point Public Improvement
District Improvement Zone A Project)" (the "Bonds"), by the City, a political subdivision of the
State of Texas (the "State").
The Bonds are authorized pursuant to Ordinance No. [ ] and enacted by the
City Council of the City (the "City Council") on December 9, 2019 (the "Bond Ordinance") and
shall be issued pursuant to the provisions of Subchapter A of the Public Improvement District
Assessment Act, Chapter 372, Texas Local Government Code, as amended (the "Act") and the
Indenture of Trust dated as of December 1, 2019 (the "Indenture") by and between the City and
Wilmington Trust, National Association, as trustee (the "Trustee"). Capitalized terms not
defined herein shall have the same meanings as in the Indenture, unless otherwise stated herein.
In connection with rendering this opinion, I have reviewed the:
(a) The Resolution No. 2019-035 (the "Creation Resolution"), enacted by the City
Council on September 9, 2019;
(b) The Ordinance No. approved by the City Council on December
9, 2019, and the Service and Assessment Plan (the "Service and Assessment Plan") attached as
an exhibit thereto (the "Assessment Ordinance");
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(c) The Bond Ordinance;
(d) The Indenture;
(e) That certain "City Point Development Agreement" among the City, and MM City
Point 53, LLC (the "Developer") effective as of October 25, 2019 (the "Development
Agreement");
(f) That certain Continuing Disclosure Agreement of Issuer with respect to the
Bonds, dated as of December 1, 2019 (the "City Continuing Disclosure Agreement"), executed
and delivered by the City, P3Works, LLC, (the "Administrator"), and HTS Continuing
Disclosure Services, a division of Hilltop Securities, Inc., (the "Dissemination Agent");
(g) That certain Improvement Zone A Landowner Agreement dated as of December 9,
2019, executed and delivered by the City and MM City Point 53, LLC (the "Landowner") (the
"Landowner Agreement");
(h) That certain City Point Public Improvement District Improvement Zone A
Construction, Funding, and Acquisition Agreement between the Developer and the City dated
December 9, 2019 (the "CFA Agreement"); and
(i) Ordinance No. 3617 creating Reinvestment Zone Number Three, City of North
Richland Hills, Texas ("the TIRZ Creation Ordinance") pursuant to Chapter 311 of the Texas
Tax Code (the "TMZ Act") and the Preliminary Project and Financing Plan, dated as of October
14, 2019, the Final Project and Finance Plan dated as of 2019, and as further
amended (the "TMZ Project and Finance Plan").
0) Such other documents, records, agreements or certificates as we have deemed
necessary or appropriate to enable us to render the opinions expressed below.
The Creation Resolution, the Assessment Ordinance, the Indenture and the Bond
Ordinance shall hereinafter be collectively referred to as the "Authorizing Documents" and the
remaining documents shall hereinafter be collectively referred to as the "City Documents."
In all such examinations, I have assumed that all signatures on documents and
instruments executed by the City are genuine and that all documents submitted to me as copies
conform to the originals. In addition, for purposes of this opinion, I have assumed the due
authorization, execution and delivery of the City Documents by all parties other than the City.
Based upon and subject to the foregoing and the additional qualifications and
assumptions set forth herein, I am of the opinion that:
1. The City is a Texas political subdivision and has all necessary power and
authority to enter into and perform its obligations under the Authorizing Documents and the City
Documents. The City has taken or obtained all actions, approvals, consents and authorizations
required of it by applicable laws in connection with the execution of the Authorizing Documents
and the City Documents and the performance of its obligations thereunder.
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2. To the best of my knowledge, there is no action, suit, proceeding, inquiry or
investigation at law or in equity, before or by any court, public board or body, pending, or
threatened against the City: (a) affecting the existence of the City or the titles of its officers to
their respective offices, (b) in any way questioning the formation or existence of the District, (c)
affecting, contesting or seeking to prohibit, restrain or enjoin the delivery of any of the Bonds, or
the payment, collection or application of any amounts pledged or to be pledged to pay the
principal of and interest on the Bonds, including the Assessments in Improvement Zone A of the
District pursuant to the provisions of the Assessment Ordinance and the Service and Assessment
Plan referenced therein, (d) contesting or affecting the validity or enforceability or the City's
performance of the City Documents, (e) contesting the exclusion of the interest on the Bonds
from federal income taxation, or (f) which may result in any material adverse change relating to
the financial condition of the City.
3. The Authorizing Documents were duly enacted by the City and remain in full
force and effect on the date hereof.
4. The City Documents have been duly authorized, executed and delivered by the
City and are legal, valid and binding obligations of the City enforceable against the City in
accordance with their respective terms. However, the enforceability of the obligations of the
City under such City Documents may be limited or otherwise affected by (a) bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally,
(b) principles of equity, whether considered at law or in equity, or (c) the application of State law
relating to action by future councils and relating to governmental immunity applicable to
governmental entities.
6. No further consent, approval, authorization, or order of any court or governmental
agency or body or official is required to be obtained by the City as a condition precedent to the
performance by the City of its obligations under the Authorizing Documents and the City
Documents (other than those that have been or will be obtained prior to the delivery of the
Bonds, including the opinion of the Texas Attorney General).
7. The City has duly authorized and delivered the Preliminary Limited Offering
Memorandum and the Limited Offering Memorandum.
8. Based upon my limited participation in the preparation of the Preliminary Limited
Offering Memorandum and the Limited Offering Memorandum (collectively, the "Limited
Offering Memorandum"), the statements and information contained in the Preliminary Limited
Offering Memorandum and the Limited Offering Memorandum with respect to the City under
the captions and subcaptions "ASSESSMENT PROCEDURES — Assessment Methodology" and
" — Assessment Amounts," "THE CITY," "THE DISTRICT," "THE DEVELOPMENT
AGREEMENT," "LEGAL MATTERS — Litigation — The City," "CONTINUING
DISCLOSURE — The City" and "APPENDIX A" are a fair and accurate summary of the laws
and the documents and facts summarized therein.
9. The adoption of the Authorizing Documents, the execution and delivery of the
City Documents and the compliance with the provisions of the Authorizing Documents and the
City Documents under the circumstances contemplated thereby, to the best of my knowledge: (a)
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do not and will not in any material respect conflict with or constitute on the part of the City a
breach of or default under any agreement to which the City is a party or by which it is bound,
and (b) do not and will not in any material respect conflict with or constitute on the part of the
City a violation, breach of or default under any existing law, regulation, constitutional provision,
court order or consent decree to which the City is subject.
I express no opinion as to the laws of any jurisdiction other than the laws of Texas and
the laws of the United States of America. The opinions expressed above concern only the effect
of the laws (excluding the principles of conflict of laws) of Texas and the United States of
America as currently in effect.
I assume there are no material misstatements in the legal opinions delivered by the other
parties and entities to this transaction; and further specifically rely upon Bond Counsel to the
City with regard to the Bond Ordinance, Indenture, bond purchase agreement or other documents
prepared, delivered or executed in connection with the Bonds and Bond documents, and the
Attorney General's review and approval of the transaction.
This opinion letter has been rendered solely for the benefit of the addressees named
above in connection with the transactions described therein, and may not be used, circulated,
quoted, relied upon or otherwise referred to for any other purpose or by any other person without
our prior written consent. This opinion letter does not constitute a warranty or guarantee or an
opinion as to matters of fact and should not be construed or relied upon as such. This opinion
letter is as of the date hereof only, and I undertake no, and hereby disclaim any, obligation to
advise you of any change in any matter set forth herein.
Very truly yours,
MALESHIA MCGINNIS,
CITY ATTORNEY, CITY OF NORTH RICHLAND HILLS, TEXAS
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APPENDIX D
[LETTERHEAD OF MIKLOS CINCLAIR]
December 20, 2019
City of North Richland Hills, Texas FMSbonds, Inc.
4301 City Point Drive 5 Cowboys Way, Suite 300-V
North Richland Hills, Texas 76180 Frisco, Texas 75034
Wilmington Trust, National Association
15950 North Dallas Parkway, Suite 550
Dallas, Texas 75248
Norton Rose Fulbright US LLP
2200 Ross Avenue, Suite 3600
Dallas, Texas 75201
Winstead PC
2728 N. Harwood Street
Dallas, Texas 75201
$2,615,000
CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A
PROJECT)
Ladies & Gentlemen:
We have acted as special counsel to MM City Point 53, LLC, a Texas limited
liability company (the "Developer') in connection with the issuance and sale by the City of
North Richland Hills, Texas (the "City'), of $2,615,000 City of North Richland Hills,
Texas, Special Assessment Revenue Bonds, Series 2019 (City Point Public Improvement
District Improvement Zone A Project) (the `Bonds'), pursuant to the Indenture of Trust
dated as of December 1, 2019 (the `Indenture'), by and between the City and Wilmington
Trust, National Association, as trustee (the "Trustee'). Proceeds from the sale of the Bonds
will be used, in part, to fund certain public infrastructure improvements in the development
known as "City Point" (the "Development') located in the City of North Richland Hills,
Texas (the "City").
The Bonds are being sold by FMSbonds, Inc. (the "Underwriter'), pursuant to that
certain Bond Purchase Agreement dated December 9, 2019 (the `Bond Purchase
Agreement'), between the City and the Underwriter.
All capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Bond Purchase Agreement.
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In our capacity as special counsel to the Developer, and for purposes of rendering the
opinions set forth herein, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of:
(a) The following documents (collectively, the "Material Documents'):
(1) the "City Point Development Agreement" among the City, and the Developer
effective as of October 25, 2019 (the "Development Agreement");
(2) the City Point Public Improvement District Improvement Zone A
Construction, Funding, and Acquisition Agreement between the Developer and the City
dated December 9, 2019 (the "CFA Agreement");
(3) the Improvement Zone A Landowner Agreement dated as of December 9,
2019 executed by the City and the Developer (the "Landowner Agreement");
(4) the City of North Richland Hills, Texas, Special Assessment Revenue
Bonds, Series 2019 (City Point Public Improvement District Improvement Zone A
Project) Continuing Disclosure Agreement of the Developer dated as of December 1,
2019 among the Developer, P3Works, LLC, as Administrator and HTS Continuing
Disclosure Services, a division of Hilltop Securities, Inc., as Dissemination Agent;
(5) the Developer Letter of Representations dated as of December 9, 2019;
(6) the Collateral Assignment and Assumption Agreement dated as of December
20, 2019 executed and delivered by the Developer and the Trustee (the "Collateral
Assignment");
(7) the Completion Agreement dated as of December 20, 2019 executed and
delivered by the Developer and the Trustee (the "Completion Agreement");
(b) General Certificate of the Developer and the Closing Certificate of the
Developer, each dated as of the date hereof (together, the "Developer Certificate');
(c) The Preliminary Limited Offering Memorandum, dated November 7, 2019, as
supplemented on November 11, 2019 and December 2, 2019, relating to the issuance of the
Bonds (the "Preliminary Limited Offering Memorandum');
(d) The final Limited Offering Memorandum, dated December 9, 2019, relating to
the issuance of the Bonds (collectively with the Preliminary Limited Offering
Memorandum, the "Limited Offering Memorandum'); and
(e) Such other documents, records, agreements and certificates of the Developer as
we have deemed necessary or appropriate to render the opinions expressed below.
In basing the opinions and other matters set forth herein on "our knowledge," the words
"our knowledge" signify that, in the course of our representation of the Developer the principal
attorneys in this firm involved in the current actual transaction do not have actual knowledge or
actual notice that any such opinions or other matters are not accurate or that any of the
documents, certificates, reports and information on which we have relied are not accurate and
[W-J
complete. Except as otherwise stated herein, we have undertaken no independent investigation
or certification of such matters. The words "our knowledge" and similar language used herein
are intended to be limited to the knowledge of the attorneys within our firm who have worked on
the matters contemplated by our representation as special counsel.
In rendering the opinions set forth herein, we have assumed, without independent
investigation (other than the Developer), that: (i) the due authorization, execution, and
delivery of each of the documents referred to in this opinion letter by all parties thereto and
that each such document constitutes a valid, binding, and enforceable obligation of each
party thereto, (ii) all of the parties to the documents referred to in this opinion letter are duly
organized, validly existing, in good standing and have the requisite power, authority
(corporate, limited liability company, partnership or other) and legal right to execute,
deliver, and perform its obligations under such documents (except to the extent set forth in
our opinions set forth herein regarding valid existence and power and authority of the
Developer to execute, deliver, and perform its obligations under the Material Documents),
(iii) each certificate from governmental officials reviewed by us is accurate, complete, and
authentic, and all official public records are accurate and complete, (iv) the legal capacity of
all natural persons, (v) the genuineness of all signatures (other than those of the Developer
in respect of the Material Documents), (vi) the authenticity and accuracy of all documents
submitted to us as originals, (vii) the conformity to original documents of all documents
submitted to us as photostatic or certified copies, (viii) that no laws or judicial,
administrative, or other action of any governmental authority of any jurisdiction not
expressly opined to herein would adversely affect the opinions set forth herein, and (ix) that
the execution and delivery by each party of, and performance of its agreements in, the
Material Documents do not breach or result in a default under any existing obligation of
such party under any agreements, contracts or instruments to which such party is a party to
or otherwise subject to or any order, writ, injunction or decree of any court applicable to
such party.
In addition, we have assumed that the Material Documents accurately reflect the
complete understanding of the parties with respect to the transactions contemplated thereby and
the rights and obligations of the parties thereunder. We have also assumed that the terms and
conditions of the transaction as reflected in the Material Documents have not been amended,
modified or supplemented, directly or indirectly, by any other agreement or understanding of the
parties or waiver of any of the material provisions of the Material Documents.
We assume that none of the parties to the Material Documents (other than Developer) is a
party to any court or regulatory proceeding relating to or otherwise affecting the Material
Documents or is subject to any order, writ, injunction or decree of any court or federal, state or
local governmental agency or commission that would prohibit the execution and delivery of the
Material Documents, or the consummation of the transactions therein contemplated in the
manner therein provided, or impair the validity or enforceability thereof. We assume that each
of the parties to the Material Documents (other than Developer) has full authority to close this
transaction in accordance with the terms and provisions of the Material Documents.
We assume that neither the Underwriter nor the City nor their respective counsel has any
current actual knowledge of any facts not known to us or any law or judicial decision which
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would make the opinions set forth herein incorrect, and that no party upon whom we have relied
for purposes of this opinion letter has perpetrated a fraud.
We have only been engaged by our clients in connection with the Material Documents
(and the transactions contemplated in the Material Documents) and do not represent these clients
generally.
Opinions and Assurances
Based solely upon the foregoing, and subject to the assumptions and limitations set
forth herein, we are of the opinion that:
1. The execution and delivery by the Developer of the Material Documents and
the performance by the Developer of its obligations under the Material Documents will not
(i)violate any applicable law; or (ii) conflict with or result in the breach of any court decree
or order of any governmental body identified in the Developer Certificate or otherwise
actually known to the lawyers who have provided substantive attention to the representation
reflected in this opinion binding upon or affecting the Developer, the conflict with which or
breach of which would have a material, adverse effect on the ability of the Developer to
perform its obligations under the Material Documents to which it is a party.
2. To our knowledge, no governmental approval which has not been obtained or
taken is required to be obtained or taken by the Developer on or before the date hereof as a
condition to the performance by the Developer of its obligations under the Material
Documents to which it is a party, except for governmental approvals that may be required to
comply with certain covenants contained in the Material Documents (including, without
limitation, covenants to comply with applicable laws).
3. The Developer has duly executed and delivered each of the Material
Documents to which it is a party, and each of the Material Documents constitute the legal,
valid, and binding obligations of the Developer, enforceable against the Developer in
accordance with their respective terms, subject to the following qualifications: (i) the effect
of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally, and (ii) the effect of the exercise of judicial
discretion in accordance with general principles of equity (whether applied by a court of law
or of equity), and (iii) the effect that enforceability of the indemnification provisions therein
may be limited, in whole or in part. The execution, delivery, and performance by the
Developer of its obligations under the Material Documents do not violate any existing laws
of the State of Texas applicable to the Developer.
4. To our knowledge after reasonable inquiry, there are no actions, suits or
proceedings pending or threatened against the Developer identified in the Developer
Certificate or otherwise actually known to the lawyers who have provided substantive
attention to the representation reflected in this opinion in any court of law or equity, or
before or by any governmental instrumentality with respect to the validity or enforceability
against it of such Material Documents or the transactions described therein.
5. The execution and delivery of the Material Documents do not, and the
transactions described therein may be consummated and the terms and conditions thereof
may be observed and performed in a manner that does not, conflict with or constitute a
breach of or default under any loan agreement, Indenture, bond note, resolution, agreement
or other instrument to which the Developer is a party or is otherwise subject and which have
been identified in the Developer Certificate which violation, breach or default would
materially adversely affect the Developer or its performance of its obligations under the
transactions described in the Material Documents; nor will any such execution, delivery,
adoption, fulfillment, or compliance result in the creation or imposition of any lien, charge,
or other security interest or encumbrance of any nature whatsoever upon any of the property
or assets of the Developer, except as expressly described in the Material Documents (a)
under applicable law or (b) under any such loan agreement, indenture, bond note, resolution,
agreement, or other instrument.
6. The information set forth in the Limited Offering Memorandum under the
captions "PLAN OF FINANCE Development Plan and Plan of Finance, " "THE
IMPROVEMENT ZONE A PUBLIC IMPROVEMENTS, " "THE DEVELOPMENT, " "THE
DEVELOPER, " `BONDHOLDERS' RISKS" (only as it pertains to the Developer, the
Improvement Zone A Public Improvements, and the Development, as defined in the Limited
Offering Memorandum)," `LEGAL MATTERS Litigation The Developer," and
"CONTINUING DISCLOSURE The Developer, " adequately and fairly describe the
information summarized under such captions and are correct as to matters of law.
7. Subject to the below qualifications and based upon our participation in the
preparation of the Limited Offering Memorandum and our participation at conferences with
representatives of the Underwriter and its Counsel, of the City and its counsel, and with
representatives of the Developer at which the Limited Offering Memorandum and related
matters were discussed, and although we have not independently verified the information in
the Limited Offering Memorandum and are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the
Limited Offering Memorandum and any amendment or supplement thereto, no facts have
come to our attention that lead us to believe that the information set forth under the captions
referenced in the preceding paragraph as of the date of the Limited Offering Memorandum
and the date hereof, contained or contains any untrue statement of a material fact, or omitted
or omits to state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
Qualifications
In addition to any assumptions, qualifications and other matters set forth elsewhere
herein, the opinions set forth above are subject to the following assumptions and qualifications:
(a) We have not examined any court dockets, agency files or other public records
regarding the entry of any judgments, writs, decrees or orders or the pendency of any actions,
proceedings, investigations or litigation.
(b) We have relied upon the Developer Certificates, as well as the representations of
the Developer contained in the Material Documents, with respect to certain facts material to our
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opinion. Except as otherwise specifically indicated herein, we have made no independent
investigation regarding any of the foregoing documents or the representations contained therein.
(c) Our opinion delivered pursuant to Section 3 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other
laws affecting creditors' rights generally and to the effect of general principles of equity,
including (without limitation) remedies of specific performance and injunctive relief and
concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(d) Except for the Material Documents, we have not reviewed, and express no
opinion as to, any other contracts or agreements to which the Developer is a party or by which
the Developer is or may be bound.
(e) The opinions expressed herein are based upon and limited to the applicable laws
of the State of Texas and the laws of the United States of America, excluding the principles of
conflicts of laws thereof, as in effect as of the date hereof, and our knowledge of the facts
relevant to such opinions on such date. In this regard, we note that we are members of the Bar of
the State of Texas, we do not express any opinion herein as to matters governed by the laws of
any other jurisdiction, except the United States of America, we do not purport to be experts in
any other laws and we can accept no responsibility for the applicability or effect of any such
laws. In addition, we assume no obligation to supplement the opinions expressed herein if any
applicable laws change after the date hereof, or if we become aware of any facts or
circumstances that affect the opinions expressed herein.
(f) This letter is strictly limited to the matters expressly set forth herein and no
statements or opinions should be inferred beyond such matters.
(g) Notwithstanding anything contained herein to the contrary, we express no opinion
whatsoever concerning the status of title to any real or personal property.
(h) The opinions expressed herein regarding the enforceability of the Material
Documents are subject to the qualification that certain of the remedial, waiver or other provisions
thereof may not be enforceable; but such unenforceability will not, in our judgment, render the
Material Documents invalid as a whole or substantially interfere with the practical realization of
the principal legal benefits provided in the Material Documents, except to the extent of any
economic consequences of any procedural delays which may result therefrom.
(i) The opinion expressed herein as to the enforceability of the Material Documents
is specifically subject to the qualification that enforceability of the Material Documents is limited
by the following: (i) the rights of the United States under the Federal Tax Lien Act of 1966, as
amended; (ii) principles of equity, public policy and unconscionability which may limit the
availability of certain remedies; (iii) bankruptcy, insolvency, reorganization, fraudulent
conveyance, liquidation, probate, conservatorship and other laws applicable to creditors' rights
or the collection of debtors' obligations generally; and (iv) requirements of due process under the
United States Constitution, the Constitution of the State of Texas and other laws or court
decisions limiting the rights of creditors to repossess, foreclose or otherwise realize upon the
property of a debtor without appropriate notice or hearing or both.
[we
0) We express no opinion as to whether a court would grant specific performance or
any other equitable remedy with respect to the enforcement of the Material Documents.
(k) We express no opinion as to the validity, binding effect, or enforceability of: (i)
provisions which purport to waive rights or notices, including rights to trial by jury,
counterclaims or defenses, jurisdiction or venue; (ii) provisions relating to consent judgments,
waivers of defenses or the benefits of statutes of limitations, marshaling of assets, the
transferability of any assets which by their nature are nontransferable, sales in inverse order of
alienation, or severance; (iii) provisions purporting to waive the benefits of present or of future
laws relating to exemptions, appraisement, valuation, stay of execution, redemption, extension of
time for payment, setoff and similar debtor protection laws; or (iv) provisions requiring a party to
pay fees and expenses regardless of the circumstances giving rise to such fees or expenses or the
reasonableness thereof.
(1) The opinions expressed herein are subject to the effect of generally applicable
rules of law that provide that forum selection clauses in contracts are not necessarily binding on
the court(s) in the forum selected.
(m) We express no opinion as to the enforceability of any provisions in the Material
Documents purporting to entitle a party to indemnification in respect of any matters arising in
whole or in part by reason of any negligent, illegal or wrongful act or omission of such party.
This opinion is furnished to those parties addressed in this letter solely in connection with
the transactions, for the purposes and on the terms described above and may not be relied upon
for any other purpose or by any other person in any manner or for any purpose.
Very truly yours,
J. Prabha Cinclair
D-7
APPENDIX E
CLOSING CERTIFICATE OF DEVELOPER
MM City Point 53, LLC, a Texas limited liability company ("Developer"), DOES
HEREBY CERTIFY the following as of the date hereof. All capitalized terms not otherwise
defined herein shall have the meaning given to such term in the Limited Offering Memorandum.
1. Developer is a limited liability company organized, validly existing and in good
standing under the laws of the State of Texas.
2. Representatives of Developer have provided information to the City of North
Richland Hills, Texas (the "City") and FMSbonds, Inc. (the "Underwriter") to be used in
connection with the offering by the City of its $2,615,000 aggregate principal amount of Special
Assessment Revenue Bonds, Series 2019 (City Point Public Improvement District Improvement
Zone A Project) (the "Bonds"), pursuant to the City's Preliminary Limited Offering
Memorandum, dated November 7, 2019, as supplemented on November 11, 2019 and December
2, 2019, and Limited Offering Memorandum dated December 9, 2019 (together, the "Limited
Offering Memorandum").
3. The Developer has delivered to the Underwriter and the City true, correct,
complete and fully executed copies of the Developer's organizational documents, and such
documents have not been amended or supplemented and are in full force and effect as of the date
hereof.
4. The Developer has delivered to the Underwriter and the City a (i) Certificate of
Status from the Texas Secretary of State and (ii) verification of franchise tax account status from
the Texas Comptroller of Public Accounts for the Developer.
5. Developer has executed or caused the execution of, and delivered each of the
below listed documents (individually, a "Developer Document" and collectively, the "Developer
Documents") in the capacity provided for in each such Developer Document, and each such
Developer Document constitutes a valid and binding obligation of Developer, enforceable
against Developer in accordance with its terms:
(a) that certain Developer Letter of Representation dated December 9, 2019;
(b) that certain "City Point Development Agreement" among the City, and
Developer effective as of October 25, 2019 (the "Development Agreement");
(c) that certain City Point Public Improvement District Improvement Zone A
Construction, Funding, and Acquisition Agreement between the Developer and the City
dated December 9, 2019 (the "CFA Agreement");
(d) that certain Improvement Zone A Landowner Agreement dated as of
December 9, 2019 executed by the City and the Developer (the "Landowner
Agreement");
E-1
(e) that certain City of North Richland Hills, Texas, Special Assessment
Revenue Bonds, Series 2019 (City Point Public Improvement District Improvement Zone
A Project) Continuing Disclosure Agreement of the Developer", dated as of December 1,
2019 made by and among the Developer, HTS Continuing Disclosure Services, a division
of Hilltop Securities, Inc. as dissemination agent and P3Works, LLC, as Administrator;
(f) that certain Collateral Assignment and Assumption Agreement dated as of
December 20, 2019 executed and delivered by the Developer and the Trustee (the
"Collateral Assignment"); and
(g) that certain Completion Agreement dated as of December 20, 2019
executed and delivered by the Developer and the Trustee (the "Completion Agreement"),
6. The Developer has complied in all material respects with all of the Developer's
agreements and covenants and satisfied all conditions required to be complied with or satisfied
by the Developer under the Developer Documents on or prior to the date hereof.
7. The execution and delivery of the Developer Documents by Developer does not
violate any judgment, order, writ, injunction or decree binding on Developer or any indenture,
agreement, or other instrument to which Developer is a party. To the Developer's knowledge,
after due inquiry, there are no proceedings pending or threatened in writing before any court or
administrative agency against Developer that is either not covered by insurance or which
singularly or collectively would have a material, adverse effect on the ability of Developer to
perform its obligations under the Developer Documents in all material respects or that would
reasonably be expected to prevent or prohibit the development of the Development in accordance
with the description thereof in the Limited Offering Memorandum.
8. Developer has reviewed and approved the information contained in the Limited
Offering Memorandum under the captions "PLAN OF FINANCE — Development Plan," "THE
IMPROVEMENT ZONE A PUBLIC IMPROVEMENTS," "THE DEVELOPMENT," "THE
DEVELOPER," `BONDHOLDERS' RISKS" (only as it pertains to the Developer, the
Improvement Zone A Public Improvements, and the Development), "LEGAL MATTERS
Litigation The Developer," and "CONTINUING DISCLOSURE — The Developer", and
certifies that the same does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading respecting such Developer and the
portion of the Development owned by such Developer, provided, however, that the foregoing
certification is not a certification as to the accuracy, completeness or fairness of any of the other
statements contained in the Limited Offering Memorandum.
9. Developer is in compliance in all material respects with all provisions of
applicable law in all material respects relating to Developer in connection with the Development.
Except as otherwise described in the Limited Offering Memorandum: (a) there is no default of
any zoning condition, land use permit or development agreement binding upon Developer or any
portion of the Development that would materially and adversely affect Developer's ability to
complete or cause to be completed the development of such portion of the Development as
described in the Limited Offering Memorandum; and (b) we have no reason to believe that any
E-2
additional permits, consents and licenses required to complete the Development as and in the
manner described in the Limited Offering Memorandum will not be reasonably obtainable in due
course.
10. Developer is not insolvent and has not made an assignment for the benefit of
creditors, filed or consented to a petition in bankruptcy, petitioned or applied (or consented to
any third party petition or application) to any tribunal for the appointment of a custodian,
receiver or any trustee or commenced any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction.
11. The levy of the Assessments (as defined in the Limited Offering Memorandum)
on property in Improvement Zone A of the District owned by Developer will not conflict with or
constitute a breach of or default under any agreement, indenture or other instrument to which
Developer is a party or to which Developer or any of its property or assets is subject.
12. Developer is not in default under any mortgage, trust indenture, lease or other
instrument to which it or any of its assets is subject, which default would have a material and
adverse effect on the Bonds or the development of the Development.
13. Developer has no knowledge of any physical condition of the Development
owned or to be developed by Developer that currently requires, or currently is reasonably
expected to require in the process of development investigation or remediation under any
applicable federal, state or local governmental laws or regulations relating to the environment in
any material and adverse respect.
Dated: 2019
DEVELOPER:
MM CITY POINT 53, LLC,
a Texas limited liability company
By: MMM Ventures, LLC,
a Texas limited liability company
Its Manager
By: 2M Ventures, LLC,
a Delaware limited liability company
Its Manager
Bv:
Name: Mehrdad Moayedi
Its: Manager
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APPENDIX F
[LETTERHEAD OF INTEGRA REALTY RESOURCES]
City of North Richland Hills, Texas
4301 City Point Drive
North Richland Hills, Texas 76180
Norton Rose Fulbright US LLP
2200 Ross Avenue, Suite 3600
Dallas, TX 75201
December 20, 2019
FMSbonds, Inc.
5 Cowboys Way, Suite 300-V
Frisco, Texas 75034
Wilmington Trust, National Association
15950 North Dallas Parkway, Suite 550
Dallas, Texas 75248
Re: City of North Richland Hills, Texas, Special Assessment Revenue Bonds, Series
2019 (City Point Public Improvement District Improvement Zone A Project) (the
"Bonds")
Ladies and Gentlemen:
The undersigned, , appraiser of (i) the property contained in
Improvement Zone A of the City Point Public Improvement District (the "District"), does hereby
represent the following:
1. On behalf of Integra Realty Resources DFW, I have supplied certain information
contained in the Preliminary Limited Offering Memorandum for the Bonds, dated November 7,
2019, as supplemented on November 11, 2019 and December 2, 2019, and the Limited Offering
Memorandum for the Bonds, dated on or about December 9, 2019 (together, the "Limited
Offering Memorandum"), relating to the issuance of the Bonds by the City of North Richland
Hills, Texas, as described above. The information I have provided is the real estate appraisal of
the property in Improvement Zone A of the District, located in APPENDIX E to the Limited
Offering Memorandum, and the description thereof, set forth under the caption "APPRAISAL
OF PROPERTY WITHIN IMPROVEMENT ZONE A OF THE DISTRICT — The Appraisal".
2. To the best of my professional knowledge and belief, as of the date of my
appraisal report, the portion of the Limited Offering Memorandum described above does not
contain an untrue statement of a material fact as to the information and data set forth therein, and
does not omit to state a material fact necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
3. I agree to the inclusion of the Appraisal in the Limited Offering Memorandum
and the use of the name of my firm in the Limited Offering Memorandum for the Bonds.
4. I agree that, to the best of my ability, I will inform you immediately should I learn
of any event(s) or information of which you are not aware subsequent to the date of this letter
and prior to the actual time of delivery of the Bonds (anticipated to occur on or about December
20, 2019) which would render any such information in the Limited Offering Memorandum
F-1
untrue, incomplete, or incorrect, in any material fact or render any statement in the appraisal
materially misleading.
5. The undersigned hereby represents that he has been duly authorized to execute
this letter of representations.
Sincerely yours,
By:
Its:
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APPENDIX G
[LETTERHEAD OF ASSESSMENT CONSULTANT AND ADMINISTRATOR]
City of North Richland Hills, Texas
4301 City Point Drive
North Richland Hills, Texas 76180
Norton Rose Fulbright US LLP
2200 Ross Avenue, Suite 3600
Dallas, TX 75201
December 20, 2019
FMSbonds, Inc.
5 Cowboys Way, Suite 300-V
Frisco, Texas 75034
Wilmington Trust, National Association
15950 North Dallas Parkway, Suite 550
Dallas, Texas 75248
Re: City of North Richland Hills, Texas, Special Assessment Revenue Bonds, Series
2019 (City Point Public Improvement District Improvement Zone A Project) (the
"Bonds")
Ladies and Gentlemen:
The undersigned, , of P3Works, LLC, consultant in connection with
the creation by the City of North Richland Hills, Texas (the "City"), of the City Point Public
Improvement District (the "District"), does hereby represent the following:
1. On behalf of P3Works, LLC, I have supplied certain information contained in the
Preliminary Limited Offering Memorandum, dated November 7, 2019, as supplemented on
November 11, 2019 and December 2, 2019, (the "Preliminary Limited Offering Memorandum"),
and the final Limited Offering Memorandum, dated on or about December 9, 2019 (together with
the Preliminary Limited Offering Memorandum, the "Limited Offering Memorandum"), both in
connection with the Bonds, relating to the issuance of the Bonds by the City, as described above.
The information I provided for the Limited Offering Memorandum is located (a) under the
captions "ASSESSMENT PROCEDURES Assessment Methodology" and "— Assessment
Amounts", and "THE ASSESSMENT CONSULTANT AND ADMINISTRATOR — Assessment
Consultant," and (b) in the Service and Assessment Plan (the "SAP") for the City located in
APPENDIX B to the Limited Offering Memorandum.
2. To the best of my professional knowledge and belief, the portions of the Limited
Offering Memorandum described above do not contain an untrue statement of a material fact as
to the information and data set forth therein, and do not omit to state a material fact necessary to
make the statements made therein, in the light of the circumstances under which they were made,
not misleading.
3. I agree to the inclusion of the SAP in the Limited Offering Memorandum and to
the use of the name of my firm in the Limited Offering Memorandum for the Bonds.
4. I agree that, to the best of my ability, I will inform you immediately should I learn
of any event(s) or information of which you are not aware subsequent to the date of this letter
G-1
and prior to the actual time of delivery of the Bonds (anticipated to occur on or about December
20, 2019) which would render any such information in the Limited Offering Memorandum
untrue, incomplete, or incorrect, in any material fact or render any such information materially
misleading.
5. The undersigned hereby represents that he has been duly authorized to execute
this letter of representation.
Sincerely yours,
P3WORKS, LLC
By:
Its:
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EXHIBIT C
CONTINUING DISCLOSURE AGREEMENT
CITY OF NORTH RICHLAND HILLS, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A PROJECT)
CONTINUING DISCLOSURE AGREEMENT OF THE ISSUER
This Continuing Disclosure Agreement of the Issuer dated as of December 1, 2019 (this
"Disclosure Agreement") is executed and delivered by and between the City of North Richland Hills,
Texas (the "Issuer"), P3 Works, LLC (the "Administrator"), and HTS Continuing Disclosure Services,
a division of Hilltop Securities Inc. (the "Dissemination Agent"), with respect to the Issuer's "Special
Assessment Revenue Bonds, Series 2019 (City Point Public Improvement District Improvement Zone
A Project)" (the "Bonds"). The Issuer, the Administrator, and the Dissemination Agent covenant and
agree as follows:
Section 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is being
executed and delivered by the Issuer, the Administrator and the Dissemination Agent for the benefit of
the Owners (defined below) and beneficial owners of the Bonds. Unless and until a different filing
location is designated by the MSRB (defined below) or the SEC (defined below), all filings made by
the Dissemination Agent pursuant to this Agreement shall be filed with the MSRB through EMMA
(defined below).
Section 2. Definitions. In addition to the definitions set forth above and in the Indenture of
Trust dated as of December 1, 2019, between the Issuer and the Trustee relating to the Bonds (the
"Indenture"), which apply to any capitalized term used in this Disclosure Agreement unless otherwise
defined in this Section, the following capitalized terms shall have the following meanings:
"Administrative Expenses" shall have the meaning assigned to such term in the Indenture.
"Administrator" shall mean P3 Works, LLC, or an officer or employee of the City, or third
party designee of the City who is not an officer or employee thereof, identified in any indenture of trust
relating to the Bonds, the District's Service and Assessment Plan, or any other agreement or document
approved by the Issuer related to the duties and responsibilities of the administration of the District.
"Affiliate" shall mean an entity that owns property within Improvement Zone A of the District
and is controlled by, controls, or is under common control with the Developer, including any
Subsequent Third Party Owner.
"Annual Financial Information" shall mean annual financial information as such term is used in
paragraph (b)(5)(i) of the Rule and specified in Section 4(a) of this Disclosure Agreement.
"Annual Installment" shall have the meaning assigned to such term in the Indenture.
"Annual Issuer Report" shall mean any Annual Issuer Report provided by the Issuer pursuant
to, and as described in, Sections 3 and 4 of this Disclosure Agreement.
"Assessments" shall mean the "Improvement Zone A Assessments" as defined in the Indenture.
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4829-7951-1209v.4
"Business Day" shall mean any day other than a Saturday, Sunday, or legal holiday in the State
of Texas observed as such by the Issuer or the Trustee.
"Developer" shall mean MM City Point 53, LLC, a Texas limited liability company, and its
successors and assigns, including any Affiliate.
"Disclosure Agreement of the Developer" shall mean the Continuing Disclosure Agreement of
the Developer dated as of December 1, 2019 executed and delivered by the Developer, the
Administrator, and the Dissemination Agent.
"Disclosure Representative" shall mean the Finance Director of the Issuer or his or her
designee, or such other officer or employee as the Issuer may designate in writing to the Dissemination
Agent from time to time.
"Dissemination Agent" shall mean HTS Continuing Disclosure Services, a division of Hilltop
Securities Inc., or any successor Dissemination Agent designated in writing by the Issuer and which
has filed with the Trustee a written acceptance of such designation.
"District" shall mean City Point Public Improvement District.
"EMMA" shall mean the Electronic Municipal Market Access System administered by the
MSRB which, as of the date of this Disclosure Agreement, is available on the internet at
http://emma.msrb.org.
"Fiscal Year" shall mean the calendar year from October 1 through September 30.
"Listed Events" shall mean any of the events listed in Section 5(a) of this Disclosure
Agreement.
"MSRB" shall mean the Municipal Securities Rulemaking Board or any other entity
designated or authorized by the SEC to receive reports pursuant to the Rule.
"Outstanding" shall have the meaning given to it in the Indenture.
"Owner(s)" shall mean the registered owner(s) of any Bonds, as shown on the register
maintained by the Trustee.
"Participating Underwriter" means FMSbonds, Inc. and its successors and assigns.
"Prepayment" shall mean the payment of all or a portion of an Assessment before the due date
thereof. Amounts received at the time of a Prepayment which represent a principal, interest or penalties
on a delinquent installment of an Assessment are not to be considered a Prepayment, but rather are to
be treated as the payment of the regularly scheduled Assessment.
"Rule" shall mean Rule 15c2-12 adopted by the SEC under the Securities Exchange Act of
1934, as the same may be amended from time to time.
"SEC" shall mean the United States Securities and Exchange Commission.
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"Service and Assessment Plan" shall have the meaning assigned to such term in the Indenture.
"Subsequent Third Party Owner" shall have the meaning assigned to such term in Section 3(f)
of the Disclosure Agreement of the Developer.
"Trust Estate" shall have the meaning assigned to such term in the Indenture.
"Trustee" shall mean Wilmington Trust, National Association, or any successor trustee
pursuant to the Indenture.
Section 3. Provision of Annual Issuer Reports.
(a) The Issuer shall cause and hereby directs the Administrator to compile and prepare the
Annual Issuer Report. The Administrator shall provide such Annual Issuer Report to the Issuer and the
Dissemination Agent no later than 10 Business Days before the expiration of six months after the end
of each Fiscal Year.
(b) The Issuer shall cause and hereby directs the Dissemination Agent to provide or cause
to be provided to the MSRB, in the electronic or other format required by the MSRB, commencing
with the Fiscal Year ended September 30, 2019, an Annual Issuer Report provided to the
Dissemination Agent which is consistent with the requirements of and within the time periods
specified in Section 4 of this Disclosure Agreement; provided that the audited financial statements of
the Issuer, if prepared and available, may be submitted separately from the Annual Financial
Information, and later than the date required in this paragraph for the filing of the Annual Issuer Report
if audited financial statements are not available by such date; provided further, however, that the
Annual Issuer Report must be submitted not later than six months after the end of the Issuer's Fiscal
Year, commencing with the Fiscal Year ended September 30, 2019. The Issuer will provide the
audited financial statements in connection with the requirements of the Rule; notwithstanding such
requirements, the Bonds are special obligations of the Issuer payable solely from the Pledged
Revenues and other funds comprising the Trust Estate, as and to the extent provided for and defined in
the Indenture. The Bonds do not give rise to a charge against the general credit or taxing power of the
Issuer and are payable solely from the sources identified in the Indenture.
The Annual Issuer Report may be submitted as a single document or as separate documents
comprising a package and may include by reference other information as provided in Section 4 of this
Disclosure Agreement. If the Issuer's Fiscal Year changes, it shall give notice of such change in the
same manner as for a Listed Event under Section 5(a). All documents provided to the MSRB shall be
accompanied by identifying information as prescribed by the MSRB.
(c) The Issuer shall or shall cause the Dissemination Agent to:
(1) determine the filing address or other filing location of the MSRB each year
within ten (10) Business Days prior to filing the Annual Issuer Report on the date required in
Section 4;
(2) file the Annual Issuer Report (excluding the audited financial statements of the
Issuer, if any, which shall be filed by the Issuer or the Dissemination Agent upon receipt from
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the Issuer) containing or incorporating by reference the information set forth in Section 4
hereof,
(3) file audited financial statements of the Issuer pursuant to Section 4(b) herein;
and
(4) if the Issuer has provided the Dissemination Agent with the completed Annual
Issuer Report and the Dissemination Agent has filed such Annual Issuer Report with the
MSRB, then the Dissemination Agent shall file a report with the Issuer certifying that the
Annual Issuer Report has been provided pursuant to this Disclosure Agreement, stating the date
it was provided and that it was filed with the MSRB.
Section 4. Content and Timing of Annual Issuer Reports. The Annual Issuer Report for the
Bonds shall contain or incorporate by reference, and the Issuer agrees to provide or cause to be
provided to the Dissemination Agent to file, the following:
(a) Within six months after the end of each Fiscal Year the following Annual Financial
Information (any or all of which may be unaudited):
(i) Tables setting forth the following information, as of the end of such Fiscal Year:
(A) For the Bonds, the maturity date or dates, the interest rate or rates, the
original aggregate principal amount and principal amount remaining
Outstanding;
(B) The amounts in the funds and accounts securing the Bonds; and
(ii) The principal and interest paid on the Bonds during the most recent Fiscal Year and
the minimum scheduled principal and interest required to be paid on the Bonds in the
next Fiscal Year.
(iii) Any changes to the land use designation for the property in Improvement Zone A of
the District from the purposes identified in the Service and Assessment Plan.
(iv) Updates to the information in the Service and Assessment Plan as most recently
amended or supplemented (a "SAP Update"), including any changes to the
methodology for levying the Assessments in Improvement Zone A of the District.
(v) The aggregate taxable assessed valuation for parcels or lots within Improvement
Zone A of the District based on the most recent certified tax roll available to the
Issuer.
(vi) With respect to single-family residential lots, until building permits have been issued
for parcels or lots representing, in the aggregate, 95% of the total Assessments levied
within Improvement Zone A of the District, such SAP Update shall include the
following:
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(A) the number of new homes in Improvement Zone A of the District for
which a certificate of occupancy has been issued during such Fiscal
Year; and
(B) the aggregate number of new homes within Improvement Zone A of the
District for which a certificate of occupancy has been issued since filing
the initial Annual Issuer Report for Fiscal Year ended September 30,
2019.
(vii) With respect to commercial parcels, until a building permit has been issued for each
commercial parcel in Improvement Zone A of the District, the number of building
permit(s) issued for any such commercial parcels; and
(viii) Listing of any property or property owners in Improvement Zone A of the
District representing more than twenty percent (20%) of the levy of
Assessments, the amount of the levy of Assessments against such landowners,
and the percentage of such Assessments relative to the entire levy of
Assessments within Improvement Zone A of the District, all as of the October 1
billing date for the Fiscal Year.
(ix) Collection and delinquency history of the Assessments within Improvement
Zone A of the District for the past five Fiscal Years, in the following format:
Collection and Delinquent History of Assessments in Improvement Zone A of the District
Collected in Delinquent Delinquent Delinquent Delinquent Total
Fiscal Year Assessment Parcels Amount Percentage Amount Percentage Assessments
Ending 9/30 Billed Levied as of 3/1 as of 3/1 as of 9/1 as of 9/1 Collected')
20 $ $
Collected as of , 20 . Includes $ attributable to Prepayments.
(x) Total amount of Prepayments collected, as of the March 1 of the calendar year
immediately succeeding such Fiscal Year, in each case with respect to the most
recent billing period (generally, October 1 of the preceding calendar year
through January 31 of the current calendar year).
(xi) The amount of delinquent Assessments by Fiscal Year:
(A) which are subject to institution of foreclosure proceedings (but as to
which such proceedings have not been instituted);
(B) which are currently subject to foreclosure proceedings which have not
been concluded;
(C) which have been reduced to judgment but not collected;
(D) which have been reduced to judgment and collected; and
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(E) the result of any foreclosure sales of assessed property within
Improvement Zone A of the District if the assessed property represents
more than one percent (1%) of the total amount of Assessments.
(xii) A description of any amendment to this Disclosure Agreement and a copy of
any restatements to the Issuer's audited financial statements during such Fiscal
Year.
(b) If not provided with the financial information provided under subsection 4(a) above, if
prepared and when available, the audited financial statements of the Issuer for the most
recently ended Fiscal Year, prepared in accordance with generally accepted accounting
principles applicable from time to time to the Issuer. If audited financial statements are
not included with the financial information provided under subsection 4(a) above,
unaudited financial statements shall be included with such financial information within
twelve months of the end of the Issuer's fiscal year.
See Exhibit B hereto for a form for submitting the information set forth in the preceding
paragraphs. The Issuer has designated P3Works, LLC as the initial Administrator. The Administrator,
and if no Administrator is designated, Issuer's staff, shall prepare the Annual Financial Information.
Any or all of the items listed above may be included by specific reference to other documents,
including disclosure documents of debt issues of the Issuer, which have been submitted to and are
publicly accessible from the MSRB. If the document included by reference is a final offering
document, it must be available from the MSRB. The Issuer shall clearly identify each such other
document so included by reference.
Section 5. Reporting of Significant Events.
(a) Pursuant to the provisions of this Section 5, each of the following is a Listed Event with
respect to the Bonds:
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 IRS of proposed or final
determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices
or determinations 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 Owners, if material.
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material.
8. Bond calls, if material.
9. Defeasances.
10. Release, substitution, or sale of property securing repayment of the Bonds, if
11. Rating changes.
12. Bankruptcy, insolvency, receivership, or similar event of the Issuer.
13. The consummation of a merger, consolidation, or acquisition of the Issuer, or
the sale of all or substantially all of the assets of the Issuer, other than in the ordinary course of
business, the entry into 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.
14. Appointment of a successor or additional trustee under the Indenture or the
change of name of a trustee, if material.
15. Incurrence of a financial obligation of the obligated person, if material, or
agreements to covenants, events of default, remedies, priority rights, or other similar terms of a
financial obligation of the obligated person, any of which affect security holders if material.
16. Default, event of acceleration, termination event, modification of terms, or other
similar events under the terms of a financial obligation of the obligated person, any of which reflect
financial difficulties.
The Issuer does not intend for any sale by the Developer of real property within Improvement
Zone B of the District to be considered a significant event for the purposes of paragraph (10) above.
For these purposes, "financial obligation" means (i) a debt obligation; (ii) derivative instrument
entered into in connection with, or pledged as security or a source of payment for, an existing or
planned debt obligation; or (iii) guarantee of (i) or (ii). The term "financial obligation" shall not
include municipal securities as to which a final official statement has been provided to the Municipal
Securities Rulemaking Board consistent with the Rule. The Issuer intends the words used in
paragraphs (15) and (16) and the definition of "financial obligation" to have the meanings ascribed to
them in SEC Release No. 34-83885 (August 20, 2018).
For these purposes, any event described in the immediately preceding paragraph (12) is
considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or
similar officer for the Issuer 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 Issuer, or if such jurisdiction has been
assumed 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 Issuer.
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Whenever the Issuer obtains knowledge of the occurrence of a Listed Event, the Issuer shall
promptly notify the Dissemination Agent in writing and the Issuer shall direct the Dissemination Agent
to file a notice of such occurrence with the MSRB. The Dissemination Agent shall file such within ten
(10) Business Days of the occurrence of such Listed Event upon the receipt of such notice from the
Issuer; provided that the Dissemination Agent shall not be liable for the filing of notice of any Listed
Event more than ten (10) Business Days after the occurrence of such Listed Event if notice of such
Listed Event is received from the Issuer more than ten (10) Business Days after the occurrence of such
Listed Event.
Additionally, the Dissemination Agent shall notify the MSRB, in a timely manner, of any
failure by the Issuer to provide annual audited financial statements or Annual Financial Information as
required under this Disclosure Agreement. The form for submitting such notice is attached hereto as
Exhibit A.
Any notice under the preceding paragraphs shall be accompanied with the text of the disclosure
that the Issuer desires to make, the written authorization of the Issuer for the Dissemination Agent to
disseminate such information as provided herein, and the date the Issuer desires for the Dissemination
Agent to disseminate the information (which date shall not be more than ten (10) Business Days after
the occurrence of the Listed Event or failure to file).
In all cases, the Issuer shall have the sole responsibility for the content, design, and other
elements comprising substantive contents of all disclosures. In addition, the Issuer shall have the sole
responsibility to ensure that any notice required to be filed under this Section 5 is filed within ten (10)
Business Days of the occurrence of the Listed Event.
(b) The Dissemination Agent shall, within three (3) Business Days of obtaining actual
knowledge of the occurrence of any Listed Event with respect to the Bonds, notify the Disclosure
Representative of such Listed Event. The Dissemination Agent shall not be required to file a notice of
the occurrence of such Listed Event with the MSRB unless and until it receives written instructions
from the Disclosure Representative to do so. The Issuer acknowledges the duty to make or cause to be
made the disclosures herein is that of the Issuer and not that of the Trustee or the Dissemination Agent.
It is agreed and understood that the Dissemination Agent has agreed to give the foregoing notice to the
Issuer as an accommodation to assist it in monitoring the occurrence of such event, but is under no
obligation to investigate whether any such event has occurred. As used above, "actual knowledge"
means the actual fact or statement of knowing, without a duty to make any investigation with respect
thereto. In no event shall the Dissemination Agent be liable in damages or in tort to the Issuer or any
Owner or beneficial owner of any interests in the Bonds as a result of its failure to give the foregoing
notice or to give such notice in a timely fashion.
(c) If in response to a notice from the Dissemination Agent under subsection (b), the Issuer
determines that the Listed Event under number 2, 7, 8, 10, 13, 14 or 15 of subsection (a) above is not
material under applicable federal securities laws, the Issuer shall promptly, but in no case more than
five (5) Business Days after the occurrence of the event, notify the Dissemination Agent and the
Trustee (if the Dissemination Agent is not the Trustee) in writing and instruct the Dissemination Agent
not to report the occurrence pursuant to subsection (d).
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(d) If the Dissemination Agent has been instructed by the Issuer to report the occurrence of
a Listed Event, the Dissemination Agent shall immediately file a notice of such occurrence with the
MSRB (which date shall not be more than ten (10) Business Days after the occurrence of the Listed
Event or failure to file).
Section 6. Termination of Reporting Obligations. The obligations of the Issuer and the
Dissemination Agent under this Disclosure Agreement shall terminate upon the legal defeasance, prior
redemption, or payment in full of all of the Bonds, when the Issuer is no longer an obligated person
with respect to the Bonds, or upon delivery by the Disclosure Representative to the Dissemination
Agent of an opinion of nationally recognized bond counsel to the effect that continuing disclosure is no
longer required. So long as any of the Bonds remain Outstanding, the Dissemination Agent may
assume that the Issuer is an obligated person with respect to the Bonds until it receives written notice
from the Disclosure Representative stating that the Issuer is no longer an obligated person with respect
to the Bonds, and the Dissemination Agent may conclusively rely upon such written notice with no
duty to make investigation or inquiry into any statements contained or matters referred to in such
written notice. If such termination occurs prior to the final maturity of the Bonds, the Issuer shall give
notice of such termination in the same manner as for a Listed Event with respect to such series of
Bonds under Section 5(a).
Section 7. Dissemination Agent. The Dissemination Agent agrees to perform the duties set
forth in this Agreement. The Issuer may, from time to time, appoint or engage a Dissemination Agent
or successor Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Agreement, and may discharge such Dissemination Agent with or without appointing a successor
Dissemination Agent. If at any time there is not any other designated Dissemination Agent, the Issuer
shall be the Dissemination Agent. The initial Dissemination Agent appointed hereunder is set forth in
Section 2.
Section 8. Amendment; Waiver. Notwithstanding any other provisions of this Disclosure
Agreement, the Issuer and the Dissemination Agent may amend this Disclosure Agreement (and the
Dissemination Agent shall not unreasonably withhold its consent to any amendment so requested by
the Issuer), and any provision of this Disclosure Agreement may be waived, provided that the
following conditions are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a), 4, or 5(a), it may
only be made in connection with a change in circumstances that arises from a change in legal
requirements, change in law, or change in the identity, nature, or status of an obligated person with
respect to the Bonds, or the type of business conducted;
(b) The undertaking, as amended or taking into account such waiver, would, in the opinion
of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of
the delivery of the Bonds, after taking into account any amendments or interpretations of the Rule, as
well as any change in circumstances; and
(c) The amendment or waiver either (i) is approved by the Owners of the Bonds in the same
manner as provided in the Indenture for amendments to the Indenture with the consent of Owners, or
(ii) does not, in the opinion of nationally recognized bond counsel, materially impair the interests of
the Owners or beneficial owners of the Bonds.
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In the event of any amendment or waiver of a provision of this Disclosure Agreement, the
Issuer shall describe such amendment in the next related Annual Issuer Report, and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the
type (or in the case of a change of accounting principles, on the presentation) of financial information
or operating data being presented by the Issuer. In addition, if the amendment relates to the accounting
principles to be followed in preparing financial statements, (i) notice of such change shall be given in
the same manner as for a Listed Event under Section 5(a), and (ii) the Annual Issuer Report for the
year in which the change is made should present a comparison (in narrative form and also, if feasible,
in quantitative form) between the financial statements as prepared on the basis of the new accounting
principles and those prepared on the basis of the former accounting principles. No amendment which
adversely affects the Dissemination Agent may be made without its prior written consent (which
consent will not be unreasonably withheld or delayed).
Section 9. Additional Information. Nothing in this Disclosure Agreement shall be deemed
to prevent the Issuer from disseminating any other information, using the means of dissemination set
forth in this Disclosure Agreement or any other means of communication, or including any other
information in any Annual Issuer Report or notice of occurrence of a Listed Event, in addition to that
which is required by this Disclosure Agreement. If the Issuer chooses to include any information in
any Annual Issuer Report or notice of occurrence of a Listed Event in addition to that which is
specifically required by this Disclosure Agreement, the Issuer shall have no obligation under this
Disclosure Agreement to update such information or include it in any future Annual Issuer Report or
notice of occurrence of a Listed Event.
Section 10. Default. In the event of a failure of the Issuer to comply with any provision of
this Disclosure Agreement, the Dissemination Agent may (and, at the request of any Participating
Underwriter or the Owners of at least 25% aggregate principal amount of Outstanding Bonds, shall,
upon being indemnified to its satisfaction as provided in the Indenture), or any Owner or beneficial
owner of the Bonds may, take such actions as may be necessary and appropriate to cause the Issuer, as
the case may be, to comply with its obligations under this Disclosure Agreement. A default under this
Disclosure Agreement shall not be deemed an Event of Default under the Indenture with respect to the
Bonds, and the sole remedy under this Disclosure Agreement in the event of any failure of the Issuer to
comply with this Disclosure Agreement shall be an action for mandamus or specific performance. A
default under this Disclosure Agreement by the Issuer shall not be deemed a default under the
Disclosure Agreement of the Developer by the Developer, and a default under the Disclosure
Agreement of the Developer by the Developer shall not be deemed a default under this Disclosure
Agreement by the Issuer.
Section 11. Duties, Immunities and Liabilities of Dissemination Agent. The Dissemination
Agent shall not have any duty with respect to the content of any disclosures made pursuant to the terms
hereof. The Dissemination Agent shall have only such duties as are specifically set forth in this
Disclosure Agreement, and no implied covenants shall be read into this Disclosure Agreement with
respect to the Dissemination Agent. To the extent permitted by law, the Issuer agrees to hold harmless
the Dissemination Agent, its officers, directors, employees, and agents, but only with funds to be
provided by the Developer or from Assessments collected from the property owners in Improvement
Zone A of the District against any loss, expense and liabilities which it may incur arising out of or in
the exercise or performance of its powers and duties hereunder, including the costs and expenses
(including attorneys' fees) of defending against any claim of liability, but excluding liabilities due to
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the Dissemination Agent's negligence or willful misconduct; provided, however, that nothing herein
shall be construed to require the Issuer to indemnify the Dissemination Agent for losses, expenses, or
liabilities arising from information provided to the Dissemination Agent by the Developer or the
failure of the Developer to provide information to the Dissemination Agent as and when required
under the Disclosure Agreement of the Developer. The obligations of the Issuer under this Section
shall survive resignation or removal of the Dissemination Agent and payment in full of the Bonds.
Nothing in this Disclosure Agreement shall be construed to mean or to imply that the Dissemination
Agent is an "obligated person" under the Rule. The Dissemination Agent is not acting in a fiduciary
capacity in connection with the performance of its respective obligations hereunder. The fact that the
Dissemination Agent may have a banking or other business relationship with the Issuer or any person
with whom the Issuer contracts in connection with the transaction described in the Indenture, apart
from the relationship created by the Indenture or this Disclosure Agreement, shall not be construed to
mean that the Dissemination Agent has actual knowledge of any event described in Section 5 above,
except as may be provided by written notice to the Dissemination Agent pursuant to this Disclosure
Agreement.
The Dissemination Agent may, from time to time, consult with legal counsel of its own
choosing in the event of any disagreement or controversy, or question or doubt as to the construction of
any of the provisions hereof or their respective duties hereunder, and the Dissemination Agent shall not
incur any liability and shall be fully protected in acting in good faith upon the advice of such legal
counsel.
The Administrator shall not have any responsibility for the (1) accuracy of any information
provided by third parties or the Issuer for the disclosures made pursuant to the terms hereof, or (2) the
untimeliness of any information provided by third parties or the Issuer for the disclosures made
pursuant to the terms hereof, except where such untimeliness is attributable to the actions or inactions
of the Administrator. The Administrator shall have only such duties as are specifically set forth in
Sections 3 and 4 of this Disclosure Agreement, and no implied covenants shall be read into this
Disclosure Agreement with respect to the Administrator. To the extent permitted by law, the Issuer
agrees to hold harmless the Administrator, its officers, directors, employees and agents, but only with
funds to be provided by the Developer or from Assessments collected from the property owners in
Improvement Zone A of the District against any loss, expense and liabilities which it may incur arising
out of or in the exercise or performance of its powers and duties hereunder, including the costs and
expenses (including attorneys' fees) of defending against any claim of liability resulting from
information provided to the Administrator by the Issuer, but excluding liabilities due to the
Administrator's negligence or willful misconduct; provided, however, that nothing herein shall be
construed to require the Issuer to indemnify the Administrator for losses, expenses or liabilities arising
from information provided to the Administrator by third parties or the Developer, or the failure of any
third party or the Developer to provide information to the Administrator as and when required under
this Agreement. The obligations of the Issuer under this Section shall survive resignation or removal of
the Administrator and payment in full of the Bonds. Nothing in this Disclosure Agreement shall be
construed to mean or to imply that the Administrator is an "obligated person" under the Rule. The
Administrator is not acting in a fiduciary capacity in connection with the performance of its respective
obligations hereunder. The Administrator shall not in any event incur any liability with respect to any
action taken or omitted to be taken in reliance upon any document delivered to the Administrator and
believed to be genuine and to have been signed or presented by the proper party or parties.
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The Administrator may, from time to time, consult with legal counsel of its own choosing in
the event of any disagreement or controversy, or question or doubt as to the construction of any of the
provisions hereof or their respective duties hereunder, and the Administrator shall not incur any
liability and shall be fully protected in acting in good faith upon the advice of such legal counsel.
UNDER NO CIRCUMSTANCES SHALL THE DISSEMINATION AGENT, THE
ADMINISTRATOR OR THE ISSUER BE LIABLE TO THE OWNER OR BENEFICIAL OWNER
OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES
RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE ISSUER, THE
ADMINISTRATOR OR THE DISSEMINATION AGENT, RESPECTIVELY, WHETHER
NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS
DISCLOSURE AGREEMENT, 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. NEITHER THE
DISSEMINATION AGENT NOR THE ADMINISTRATOR ARE UNDER ANY OBLIGATION
NOR ARE THEY REQUIRED TO BRING SUCH AN ACTION.
Section 12. Assessment Timeline. The basic expected timeline for the collection of
Assessments and the anticipated procedures for pursuing the collection of delinquent Assessments are
set forth in Exhibit C which is solely intended to illustrate the general procedures expected to generally
be followed in enforcing the payment of delinquent Assessments.
Section 13. No Personal Liability. No covenant, stipulation, obligation or agreement of the
Issuer, the Administrator or the Dissemination Agent contained in this Disclosure Agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or future council
members, officer, agent or employee of the Issuer, the Administrator or the Dissemination Agent in
other than that person's official capacity.
Section 14. Severability. In case any section or provision of this Disclosure Agreement, or
any covenant, stipulation, obligation, agreement, act or action, or part thereof made, assumed, entered
into, or taken thereunder or any application thereof, is for any reasons held to be illegal or invalid, such
illegality or invalidity shall not affect the remainder thereof or any other section or provision thereof or
any other covenant, stipulation, obligation, agreement, act or action, or part thereof made, assumed,
entered into, or taken thereunder (except to the extent that such remainder or section or provision or
other covenant, stipulation, obligation, agreement, act or action, or part thereof is wholly dependent for
its operation on the provision determined to be invalid), which shall be construed and enforced as if
such illegal or invalid portion were not contained therein, nor shall such illegality or invalidity of any
application thereof affect any legal and valid application thereof, and each such section, provision,
covenant, stipulation, obligation, agreement, act or action, or part thereof shall be deemed to be
effective, operative, made, entered into or taken in the manner and to the full extent permitted by law.
Section 15. Sovereign Immunity. The Dissemination Agent agrees that nothing in this
Disclosure Agreement shall constitute or be construed as a waiver of the Issuer's sovereign or
governmental immunities regarding liability or suit.
Section 16. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the
Issuer, the Administrator, the Dissemination Agent and the Owners and the beneficial owners from
-12-
time to time of the Bonds, and shall create no rights in any other person or entity. Nothing in this
Disclosure Agreement is intended or shall act to disclaim, waive or otherwise limit the duties of the
Issuer under federal and state securities laws.
Section 17. Dissemination Agent Compensation. The fees and expenses incurred by the
Dissemination Agent for its services rendered in accordance with this Disclosure Agreement constitute
Administrative Expenses and will be included in the Annual Installments as provided in the annual
updates to the Service and Assessment Plan. The Issuer shall pay or reimburse the Dissemination
Agent, but only with funds to be provided from Assessments collected from the property owners in
Improvement Zone A of the District, for its fees and expenses for the Dissemination Agent's services
rendered in accordance with this Disclosure Agreement.
Section 18. Governing Law. This Disclosure Agreement shall be governed by the laws of
the State of Texas.
Section 19. Counterparts. This Disclosure Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 20. Disclosure Agreement of the Developer. Concurrently with the execution and
delivery of this Disclosure Agreement, the Dissemination Agent and Administrator have entered into
the Disclosure Agreement of the Developer. Except as provided in Section 6 of the Disclosure
Agreement of the Developer, the parties agree that the Issuer has no obligation to assume any of the
duties of the Developer under the terms of the Disclosure Agreement of the Developer.
Section 21. Anti -Boycott Verification. The Dissemination Agent and the Administrator
each hereby verifies that it and its parent company, wholly- or majority -owned subsidiaries, and other
affiliates, if any, do not boycott Israel and, to the extent this Disclosure Agreement is a contract for
goods or services, will not boycott Israel during the term of this Disclosure Agreement. The foregoing
verification is made solely to comply with Section 2270.002, Texas Government Code, and to the
extent such Section does not contravene applicable Federal law. As used in the foregoing verification,
'boycott Israel' means refusing to deal with, terminating business activities with, or otherwise taking
any action that is intended to penalize, inflict economic harm on, or limit commercial relations
specifically with Israel, or with a person or entity doing business in Israel or in an Israeli -controlled
territory, but does not include an action made for ordinary business purposes. The Dissemination
Agent and the Administrator each understands 'affiliate' to mean an entity that controls, is controlled
by, or is under common control with the Administrator or the Dissemination Agent, respectively, and
exists to make a profit."
Section 22. Iran, Sudan and Foreign Terrorist Organizations. The Dissemination Agent and
the Administrator each represents that neither it nor any of its parent company, wholly- or majority -
owned subsidiaries, and other affiliates is a company identified on a list prepared and maintained by
the Texas Comptroller of Public Accounts under Section 2252.153 or Section 2270.0201, Texas
Government Code, and posted on any of the following pages of such officer's internet website:
https://comptroller.texas.gov/purchasing/docs/sudan-list.pdf, https://comptroller.
texas.gov/purchasing/docs/iran-list.pdf, or https://comptroller.texas.gov/purchasing/docs/fto-list.pdf.
The foregoing representation is made solely to comply with Section 2252.152, Texas Government
-13-
Code, and to the extent such Section does not contravene applicable Federal law and excludes
[the/each] Underwriter and each of its parent company, wholly- or majority -owned subsidiaries, and
other affiliates, if any, that the United States government has affirmatively declared to be excluded
from its federal sanctions regime relating to Sudan or Iran or any federal sanctions regime relating to a
foreign terrorist organization. The Dissemination Agent and the Administrator each understands
"affiliate" to mean any entity that controls, is controlled by, or is under common control with the
Administrator or the Dissemination Agent, respectively, and exists to make a profit."
Section 23. Forms 1295. Submitted by the Administrator and the Dissemination Agent
herewith is a completed Form 1295 in connection with the execution of this Agreement generated by
the Texas Ethics Commission's (the "TEC") electronic filing application in accordance with the
provisions of Section 2252.908 of the Texas Government Code and the rules promulgated by the TEC
(the "Form 1295"). The City hereby confirms receipt of the Form 1295 from the Administrator and the
Dissemination Agent, and the City agrees to acknowledge such form with the TEC through its
electronic filing application not later than the 30th day after the receipt of such form. The
Administrator, the Dissemination Agent and the City understand and agree that, with the exception of
information identifying the City and the contract identification number, neither the City nor its
consultants are responsible for the information contained in the Form 1295; that the information
contained in the Form 1295 has been provided solely by the Administrator and the Dissemination
Agent, respectively; and, neither the City nor its consultants have verified such information.
[Remainder of page intentionally left blank]
-14-
CITY OF NORTH RICHLAND HILLS,
TEXAS
Un
Mayor
DISSEMINATION AGENT:
HTS CONTINUING DISCLOSURE
SERVICES, a division of Hilltop Securities,
Inc.
Authorized Officer
ADMINISTRATOR:
P3 WORKS, LLC
By:
Name:
Title:
Signature Page of Continuing Disclosure Agreement of the Issuer
EXHIBIT A
NOTICE TO MSRB OF FAILURE TO FILE
ANNUAL ISSUER REPORT
Name of Issuer: City of North Richland Hills, Texas
Name of Bond Issue: Special Assessment Revenue Bonds, Series 2019
(City Point Public Improvement District Project)
Date of Delivery:
NOTICE IS HEREBY GIVEN that the City of North Richland Hills, Texas, has not
provided [an Annual Issuer Report][annual audited financial statements] with respect to the
above -named bonds as required by the Continuing Disclosure Agreement dated December 1,
2019, between the Issuer and HTS Continuing Disclosure Services, a division of Hilltop
Securities, Inc., as Dissemination Agent. The Issuer anticipates that [the Annual Issuer
Report][annual audited financial statements] will be filed by
Dated:
HTS Continuing Disclosure Services, a division
of Hilltop Securities, Inc., on behalf of the City
of North Richland Hills, Texas
(as Dissemination Agent)
By:
Title:
cc: City of North Richland Hills, Texas
A-1
EXHIBIT B
CITY OF NORTH RICHLAND HILLS, TEXAS
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2019
(CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A
PROJECT)
ANNUAL ISSUER REPORT*
Delivery Date: , 20
CUSIP NOSs: [insert CUSIP NOs.]
BONDS OUTSTANDING
Original Outstanding Outstanding
CUSIP Maturity Interest Principal Principal Interest
Number Date Rate Amount Amount Amount
INVESTMENTS
Fund/ Investment
Account Name Description Par Value Book Value Market Value
*Excluding Audited Financial Statements of the Issuer
BALANCE OF FUNDS AND ACCOUNTS SECURING THE BONDS
Bonds (Principal Balance)
Funds and Accounts [list]
TOTAL ASSETS
Form of Accounting ❑ Cash
❑ Accrual ❑ Modified Accrual
ITEMS REQUIRED BY SECTIONS 4(a)(ii) — (viii)
[Insert a line item for each applicable listing]
SECTION 4(a)(ix) COLLECTION AND DELINQUENCY HISTORY OF THE
ASSESSMENTS WITHIN IMPROVEMENT ZONE A OF THE DISTRICT FOR THE
PAST FIVE FISCAL YEARS, IN THE FOLLOWING FORMAT:
Collection and Delinquent History of Assessments in Improvement Zone A of the District
Collected in Delinquent
Fiscal Year Assessment Parcels Amount
Ending 9/30 Billed Levied as of 3/1
20 $
(1) Collected as of , 20 . Includes $
Delinquent Delinquent Delinquent Total
Percentage Amount Percentage Assessments
as of 3/1 as of 9/1 as of 9/1 Collected(')
attributable to Prepayments.
M.
EXHIBIT C
BASIC TIMELINE FOR ASSESSMENT COLLECTIONS
AND PURSUIT OF DELINQUENCIES'
Delinquency
Date
Clock (Days)
Activity
January 31
Assessments are due.
February 1
1
Assessments Delinquent if not received
February 15
15
Issuer forwards payment to Trustee for all collections
received as of February 15, along with detailed
breakdown. Subsequent payments and relevant details
will follow monthly thereafter.
Issuer and/or Administrator should be aware of actual and
specific delinquencies
Issuer and/or Administrator should be aware if Reserve
Fund needs to be utilized for debt service payment on
March 15. If there is to be a shortfall, the Trustee and
Dissemination Agent should be immediately notified.
Issuer and/or Administrator should also be aware if, based
on collections, there will be a shortfall for September
payment
At this point, if total delinquencies are under 5% and if
there is adequate funding for March and September
payments, no further action is anticipated for collection of
Assessments except that the Issuer or Administrator,
working with the City Attorney or an appropriate
designee, will begin process to cure deficiency. For
properties delinquent by more than one year or if the
delinquency exceeds $10,000 the matter will be
referred for commencement of foreclosure.
If there are over 5% delinquencies or if there is
inadequate funding in the Pledged Revenue Fund for
transfer to the Principal and Interest Account of such
amounts as shall be required for the full March and
September payments, the collection -foreclosure
procedure will proceed against all delinquent
properties.
March 1
28/29
Trustee pays bond interest payments to bondholders.
Reserve Fund payment to Bond Fund may be required if
Assessments are below approximately 50% collection
rate.
' Illustration of sequencing and thresholds of events only. Actual actions may differ from this timeline.
C-1
Delinquency
Date
Clock (Days)
Activity
Issuer, or the Trustee on behalf of the Issuer, to notify
Dissemination Agent of the occurrence of draw on the
Reserve Fund and, following receipt of such notice,
Dissemination Agent to notify MSRB of such draw or
Fund for debt service.
Use of Reserve Fund for debt service payment should
trigger commencement of foreclosure on delinquent
properties.
Issuer determines whether or not any Annual Installments
are delinquent and, if such delinquencies exist, the Issuer
commences as soon as practicable appropriate and legally
permissible actions to obtain such delinquent Annual
Installments.
March 20
47/48
Issuer and/or Administrator to notify Dissemination
Agent for disclosure to MSRB of all delinquencies in
the form of the Annual Issuer Report or otherwise.
If any property owner with ownership of property
responsible for more than $10,000 of the Assessments
is delinquent or if a total of delinquencies is over 5%,
or if it is expected that Reserve Fund moneys will need
to be utilized for either the March or September bond
payments, the Disclosure Representative shall work
with City Attorney's office, or the appropriate
designee, to satisfy payment of all delinquent
Assessments.
April15
74/75
Preliminary Foreclosure activity commences, and
Issuer to notify Dissemination Agent of the
commencement of preliminary foreclosure activity.
If Dissemination Agent has not received Foreclosure
Schedule and Plan of Collections, Dissemination Agent to
request same from the Issuer.
May 1
89/90
If the Issuer has not provided the Dissemination Agent
with Foreclosure Schedule and Plan of Collections, and if
instructed by the bondholders under Section 11.2 of the
Indenture, Dissemination Agent requests that the Issuer
commence foreclosure or provide plan for collection.
May 15
103/104
The designated lawyers or law firm will be preparing the
formal foreclosure documents and will provide periodic
updates to the Dissemination Agent for dissemination to
those bondholders who have requested to be notified of
collections progress. The goal for the foreclosure actions
is a filing by no later than June 1(day 120/121 .
June 1
120/121
Foreclosure action to be filed with the court.
C-2
Date
Delinquency
Clock (Days)
Activity
June 15
134/135
Issuer notifies Trustee and Dissemination Agent of
Foreclosure filing status. Dissemination Agent notifies
bondholders.
July 1
150/151
If bondholders and Dissemination Agent have not been
notified of a foreclosure action, Dissemination Agent will
notify the Issuer that it is appropriate to file action.
C-3
EXHIBIT D
CONSTRUCTION, FUNDING AND ACQUISITION AGREEMENT
CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT ZONE A
CONSTRUCTION, FUNDING, AND ACQUISITION AGREEMENT
THIS CITY POINT PUBLIC IMPROVEMENT DISTRICT IMPROVEMENT
ZONE A CONSTRUCTION, FUNDING, AND ACQUISITION AGREEMENT (this
"Agreement"), dated as of December 9, 2019 is by and between the CITY OF NORTH
RICHLAND HILLS, TEXAS, a home -rule municipality of the State of Texas (the "City"), and
MM CITY POINT 53 , LLC, a Texas limited liability company, (the "Developer"). The
Developer and the City are sometimes individually referred to as a "Party" and collectively as the
"Parties."
ARTICLE I
DEFINITIONS
The following terms shall have the meanings ascribed to them in this Article I for purposes
of this Agreement. Unless otherwise indicated, any other terms, capitalized or not, when used
herein shall have the meanings ascribed to them in the Indenture (as hereinafter defined).
"Act" means the Public Improvement District Assessment Act, Texas Local Government
Code, Chapter 372, as amended.
"Actual Costs" means the costs of the Authorized Improvements actually paid or incurred
for construction and installation of the Authorized Improvements.
"Administrator" means, initially, P3Works, LLC, or any other individual or entity
designated by the City to administer the District.
"Affiliate" means any entity that controls, is controlled by, or is under common control
with the Developer and exists to make a profit.
"Annual Service Plan Update" means the annual update to the Service and Assessment
Plan conducted by the Administrator pursuant to the Service and Assessment Plan.
"Authorized Improvements" means improvements authorized by Section 372.003 of the
Act, including those listed in Section III of the Service and Assessment Plan benefitting
Improvement Zone A. An individual Authorized Improvement, including a completed segment or
part, shall be referred to as an Authorized Improvement.
"Bond Ordinance" means the ordinance adopted by the City Council on December 9,
2019 authorizing the issuance of the Bonds pursuant to the Indenture.
CITY POINT PID IMPROVEMENT ZONE A CFA Pagel
"Bonds" means the City's bonds designated "City of North Richland Hills, Texas, Special
Assessment Revenue Bonds, Series 2019 (City Point Public Improvement District Improvement
Zone A Project)".
"Budgeted Costs" means the anticipated, agreed upon costs of the Authorized
Improvement as shown in Section III of the Service and Assessment Plan.
"Certification for Payment" means a certificate, substantially in the form attached as
Exhibit H of the Development Agreement or otherwise agreed to by the Developer, the
Administrator and the City Representative, executed by the Developer, as approved by the City
Representative, provided no more frequently than once per month to the City Representative and
the Trustee, specifying the amount of work performed and the amount charged for that work,
including materials and labor costs, presented to the Trustee to request payment from the
Improvement Zone A Public Improvement Account of the Project Fund for Actual Costs of
Authorized Improvements that have been paid by the Developer under the Indenture.
"City Representative" means that official or agent of the City authorized by the City
Council to undertake the action referenced herein. As of the date hereof, the Finance Director, the
City Manager, and/or designees are the authorized City Representatives.
"Closing Disbursement Request" means the certificate, substantially in the form of
Exhibit I of the Development Agreement or otherwise mutually agreed to by the Developer,
Administrator and City Representative, delivered to the City Representative and the Trustee at the
time of the Closing Date, specifying the costs incurred in the establishment, administration, and
operation of the District or issuing the Bonds, and requesting payment for such costs from money
on deposit in the Cost of Issuance Account or the Improvement Zone A Public Improvement
Account of the Project Fund.
"Commercial Tracts" means approximately 4.76 acres located within Improvement Zone
A of the District, which is more specifically described on Exhibit A-6 and depicted on Exhibit 13-
6 of the Service and Assessment Plan.
"Commercial Tracts Assessed Property" means any and all Parcels within the
Commercial Tracts other than Non-Benefitted Property.
"Construction Contracts" means the contracts for the construction of an Authorized
Improvement. "Construction Contract" means any one of the Construction Contracts.
"Cost" means the Budgeted Costs or the cost of an Authorized Improvement as reflected
in a Construction Contract, if greater than the Budgeted Costs.
"Cost Overrun" means, with respect to each Authorized Improvement, the Actual Cost,
as appropriate, of such Authorized Improvement in excess of the Budgeted Cost.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 2
"Development Agreement" means that certain City Point Development Agreement
executed by and between the City and the Developer, effective October 25, 2019.
"District" shall mean City Point Public Improvement District created September 9, 2019.
"Final Completion" means completion of an Authorized Improvement in compliance with
existing City standards for dedication under the City's ordinances and the Development
Agreement.
"Improvement Zone A" means approximately 41.88 acres of property to be developed
within the District, which includes the Single Family Tracts and the Commercial Tracts, as further
identified and described in the Service and Assessment Plan as "Improvement Zone A."
"Improvement Zone A Assessed Property" means, collectively, the Commercial Tracts
Assessed Property and the Single Family Tracts Assessed Property that is designated as a part of
Improvement Zone A within the District, against which an Improvement Zone A Assessment is
levied by the Improvement Zone A Assessment Ordinance in accordance with the Service and
Assessment Plan.
"Improvement Zone A Assessment Ordinance" means Ordinance No. 3625 adopted by
the City Council on December 9, 2019, that levied the Improvement Zone A Assessments on the
Improvement Zone A Assessed Property.
"Improvement Zone A Assessment Roll" means, the Improvement Zone A Assessment
Roll attached as Exhibit F-I to the Service and Assessment Plan or any other assessment roll for
Improvement Zone A in an amendment or supplement to the Service and Assessment Plan or in
an Annual Service Plan Update, showing the total amount of the Improvement Zone A Assessment
levied against Improvement Zone A Assessed Property, and/or the portion of the total
Improvement Zone A Assessment levied against each Single Family Tract and Commercial Tract
located within Improvement Zone A, related to the Bonds and the Authorized Improvements, as
updated, modified, or amended from time to time in accordance with the terms of the Service and
Assessment Plan and the PID Act.
"Improvement Zone A Assessments" means the aggregate assessments shown on the
Improvement Zone A Assessment Roll. The singular of such term means the assessment levied
against a specific tract of the Improvement Zone A Assessed Property, as shown on the
Improvement Zone A Assessment Roll, subject to reallocation upon the subdivision of
Improvement Zone A Assessed Property or reduction according to the provisions of the Service
and Assessment Plan and the PID Act.
"Indenture" means that certain Indenture of Trust between the City and Wilmington Trust,
National Association, as trustee, dated as of December 1, 2019 relating to the Bonds.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 3
"Inspector" means an individual employed by or an agent of the City whose job is, in part
or in whole, to inspect infrastructure to be owned by the City for compliance with all rules and
regulations applicable to the development and the infrastructure inspected.
"Non-Benefitted Property" means Parcels within Improvement Zone A of the District
that accrue no special benefit from the Authorized Improvements as determined by the City
Council.
"Parcel" means a specific property within the District identified by either a tax map
identification number assigned by the Tarrant Appraisal District for real property tax purpose, by
metes and bounds description, or by lot and block number in a final subdivision plat recorded in
the Official Public Records of Tarrant County, or by any other means determined by the City.
"Plans" means the plans, specifications, schedules and related construction contracts for
the Authorized Improvements, respectively, approved pursuant to the applicable standards,
ordinances, procedures, policies and directives of the City, the Development Agreement, and any
other applicable governmental entity.
"Project Fund" means the fund, including the accounts created and established under such
fund, where monies from the proceeds of the sale of the Bonds, excluding those deposited in other
funds in accordance with the Indenture, shall be deposited, and the fund by such name created
under the Indenture.
"Service and Assessment Plan" means the City Point Public Improvement District
Service and Assessment Plan adopted by Ordinance No. 3625 on December 9, 2019 by the City
Council, prepared pursuant to the Act.
"Single Family Tracts" means approximately 36.67 acres located within the District and
designated as a part of Improvement Zone A, which is more specifically described on Exhibit A-
4 and depicted on Exhibit B-4 of the Service and Assessment Plan.
"Single Family Tracts Assessed Property" means any and all Parcels within the Single
Family Tracts that are designated as a part of Improvement Zone A other than Non-Benefitted
Property.
"Substantial Completion" means the time at which the construction of an Authorized
Improvement (or specified segment, section or part thereof) has progressed to the point where such
Authorized Improvement (or a specified segment, section or part thereof) is sufficiently complete
in accordance with the Construction Contracts related thereto so that such Authorized
Improvement (or a specified segment, section or part thereof) can be utilized for the purposes for
which it is intended.
"Supplement" means a written document agreed upon by the parties to this Agreement
amending, supplementing or otherwise modifying this Agreement.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 4
ARTICLE II
RECITALS
Section 2.01. The District and the Authorized Improvements.
(a) The City has created the District under the Act for the financing of, among other
things, the acquisition, construction and installation of the Authorized Improvements.
(b) The City has authorized the issuance of the Bonds in accordance with the provisions
of the Act, the Bond Ordinance and the Indenture, a portion of the proceeds of which shall be used,
in part, to finance all or a portion of the Authorized Improvements in accordance with the terms
and limitations of the Development Agreement and the Service and Assessment Plan.
(c) It is anticipated that there shall be one bond issue for the Authorized Improvements.
(d) All Authorized Improvements are eligible to be financed with proceeds of the
Bonds to the extent specified in the Indenture and the Service and Assessment Plan and subject to
the provisions of the Development Agreement.
(e) The proceeds from the issuance and sale of the Bonds shall be deposited in
accordance with the Indenture.
(f) The Developer will undertake, oversee, or ensure the engineering, construction and
development of the Authorized Improvements for acquisition and acceptance by the City.
Section 2.02. Agreements. In consideration of the mutual promises and covenants set forth
herein, and for other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the City and the Developer agree that the foregoing recitals, as applicable to each,
are true and correct and further make the agreements set forth herein.
ARTICLE III
FUNDING
Section 3.01. Bonds.
(a) The City, in connection with this Agreement, is proceeding with the issuance and
delivery of the Bonds.
(b) Subject to the Cost Overrun provisions set forth in the Development Agreement
and Section 4.04 of this Agreement, the Bonds will finance all or a portion of the Actual Costs of
the Authorized Improvements as provided for in the Service and Assessment Plan, as may be
updated or amended. The payment of costs from the proceeds of the Bonds for such Authorized
Improvements shall be made from the Improvement Zone A Public Improvement Account of the
Project Fund established under the Indenture.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 5
(c) The City's obligation with respect to the payment of the Authorized Improvements
shall be limited to the Actual Costs, and shall be payable solely from amounts on deposit for the
payment of such costs as provided herein and in the Indenture. The Developer agrees and
acknowledges that it is responsible for all Cost Overruns, Actual Costs and all expenses related to
the Authorized Improvements, qualified, however, by the distribution of Cost Underrun (as defined
in Section 4.04 hereof) monies, as detailed in Section 4.04.
(d) The City shall have no responsibility whatsoever to the Developer with respect to
the investment of any funds held in the Project Fund by the Trustee under the provisions of the
Indenture, including any loss of all or a portion of the principal invested or any penalty for
liquidation of an investment. Any such loss may diminish the amounts available in the Project
Fund to pay the Costs of the Authorized Improvements in the District. The obligation of a property
owner in the District to pay Improvement Zone A Assessments is not in any way dependent on the
availability of amounts in the Project Fund to pay for all or any portion of the Costs of the
Authorized Improvements, including the Developer to the extent it owns any real property in the
District.
(e) The Developer acknowledges that any lack of availability of amounts in the funds
or accounts established in the Indenture to pay the Costs of the Authorized Improvements shall in
no way diminish any obligation of the Developer with respect to the construction of or
contributions for the Authorized Improvements required by this Agreement, the Development
Agreement, or any other agreement to which the Developer is a party or any governmental
approval to which the Developer or any land within the District is subject.
Section 3.02. Disbursements and Transfers at Bond Closinz.
(a) The City and the Developer agree that from the proceeds of the Bonds and upon
the presentation of evidence satisfactory to the City Representative and the approval of the Closing
Disbursement Request by the City Representative, the City will cause the Trustee to pay at closing
of the Bonds from the Cost of Issuance Account of the Project Fund and/or the Improvement Zone
A Public Improvement Account of the Project Fund, an amount not to exceed the amount set forth
in the Indenture to the persons entitled to the payment for costs of issuance and payment of costs
incurred in the establishment, administration, and operation of the District as of the delivery of the
Bonds, as described in the Service and Assessment Plan, as may be updated and amended.
Section 3.03 Accounts. In addition to the Cost of Issuance Account, there shall be the
Improvement Zone A Public Improvement Account, in the Project Fund administered by the
Trustee at the direction of the City Representative and in accordance with the Indenture:
(a) The Improvement Zone A Public Improvement Account of the Project Fund.
Certain proceeds from the issuance and sale of the Bonds attributable to the Authorized
Improvements shall be deposited into the Improvement Zone A Public Improvement Account of
the Project Fund in the amount shown in the Indenture.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 6
Section 3.04. Security for the Authorized Improvements. Prior to completion and
conveyance to the City of an Authorized Improvement, including a segment, section, or portion
thereof, the Developer or the Developer's contractor shall provide to the City a maintenance bond,
which maintenance bond shall be for a term of two years from the date of final acceptance of the
Authorized Improvement. Any surety company through which a bond is written shall be a Texas -
domestic surety company duly authorized to do business in the State of Texas, provided that the
City, through the City Attorney, shall retain the right to reject any surety company as a surety for
any work hereunder regardless of such company's authorization to do business in Texas.
Approvals by the City shall not be unreasonably withheld or delayed. The Developer shall
construct or cause to be constructed Authorized Improvements in accordance with the City's
established ordinances, regulations, policies, procedures, specifications, and the Development
Agreement. Prior to City accepting any Authorized Improvement and/or approving a final
disbursement for an Authorized Improvement, the Developer shall provide an "all bills paid/no
liens" affidavit, in the form provided by the City and shall also provide such supporting
documentation as required by the City, that affirms that all invoices and bills, other than statutory
ten percent (10%) retainage, were paid for the Authorized Improvement.
ARTICLE IV
CONSTRUCTION OF AUTHORIZED IMPROVEMENTS
Section 4.01. Duty of Developer to Construct.
(a) All Authorized Improvements shall be constructed by or at the direction of the
Developer in accordance with the Plans and in accordance with this Agreement and the
Development Agreement. The Developer shall perform, or cause to be performed, all of its
obligations and shall conduct, or cause to be conducted, all operations with respect to the
construction of Authorized Improvements in a good, workmanlike and commercially reasonable
manner, with the standard of diligence and care normally employed by duly qualified persons
utilizing their commercially reasonable efforts in the performance of comparable work and in
accordance with generally accepted practices appropriate to the activities undertaken. The
Developer shall employ at all times adequate staff or consultants with the requisite experience
necessary to administer and coordinate all work related to the design, engineering, acquisition,
construction and installation of all Authorized Improvements, to be acquired and accepted by the
City from the Developer as provided in this Agreement and the Development Agreement.
(b) The Developer shall not be relieved of its obligation to construct or cause to be
constructed each Authorized Improvement and, upon completion, inspection, and acceptance,
convey each such Authorized Improvement to the City in accordance with the terms hereof, even
if there are insufficient funds in the Project Fund to pay the Actual Costs thereof. In any event,
this Agreement shall not affect any obligation of the Developer under any other agreement to
which the Developer is a party or any governmental approval to which the Developer or any land
CITY POINT PID IMPROVEMENT ZONE A CFA Page 7
within the District is subject, with respect to the Authorized Improvements required in connection
with the development of the land within the District.
Section 4.02. No Competitive Bidding. The Authorized Improvements shall not require
competitive bidding pursuant to Sections 252.022(a)(9) and 252.022(a)(11) of the Texas Local
Government Code, as amended, based upon current cost estimates.
Section 4.03. Independent Contractor. In performing this Agreement, the Developer is
an independent contractor and not the agent or employee of the City with respect to the Authorized
Improvements.
Section 4.04. Remaining Funds After Completion of an Authorized Improvement. Upon
the Final Completion of an Authorized Improvement (or its completed segment or phase thereof)
and payment of all outstanding invoices for such Authorized Improvement (or its completed
segment or phase thereof), if the Actual Cost of such Authorized Improvement is less than the
Budgeted Cost (a "Cost Underrun"), any remaining Budgeted Cost may be made available to pay
Cost Overruns on any other Authorized Improvement (or its completed segment or phase thereof).
The City shall promptly confirm to the Administrator that such remaining amounts are available
to pay such Cost Overruns, and the Developer, the Administrator and the City Representative will
agree how to use such moneys to secure the payment and performance of the work for other
Authorized Improvements. Any Cost Underrun for any Authorized Improvement (or its completed
segment or phase thereof) is available to pay Cost Overruns on any other Authorized Improvement
(or its completed segment or phase thereof) and may be added to the amount approved for payment
in any Certification for Payment, as agreed to by the Developer, the Administrator, and the City
Representative.
Section 4.05. Contracts and Change Orders. The Developer shall be responsible for
entering into all contracts and any supplemental agreements (herein referred to as "Change
Orders") required for the construction of the Authorized Improvements. Developer or its
contractors may approve and implement any Change Orders, even if such Change Order would
increase the Cost of an Authorized Improvement, but the Developer shall be solely responsible for
payment of any Cost Overruns resulting from such Change Orders except to the extent amounts
are available pursuant to Section 4.04. If any Change Order is for work that requires changes to be
made by an engineer to the construction and design documents and plans previously approved
under Section 4.01, then such revisions made by an engineer must be submitted to the City for
approval by the City's engineer prior to execution of the Change Order.
ARTICLE V
ACQUISITION, CONSTRUCTION, AND PAYMENT
Section 5.01. Closing Disbursement Request. In order to receive the disbursement from
the Cost of Issuance Account or the Improvement Zone A Public Improvement Account of the
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Project Fund at closing of the Bonds described in Section 3.02, the Developer shall deliver a
Closing Disbursement Request, to be delivered to the City no less than five (5) business days prior
to the scheduled Closing Date for the Bonds for payment in accordance with the provisions of the
Indenture. Upon approval by the City, the City shall submit a Closing Disbursement Request to
the Trustee for disbursement to be made from the Cost of Issuance Account or the Improvement
Zone A Public Improvement Account of the Project Fund, as applicable, upon closing of the
Bonds.
Section 5.02. Certification for Payment for an Authorized Improvement.
(a) No payment hereunder shall be made from the Project Fund to the Developer for
work on an Authorized Improvement until a Certification for Payment is received (no more
frequently than once per month) from the Developer for work and payment with respect to an
Authorized Improvement (or its completed segment or phase thereof). Upon receipt of a
Certification for Payment (and all accompanying documentation executed by the Developer) from
the Developer, the Inspector shall conduct a review in order to confirm that such request is
complete, that the work with respect to such Authorized Improvement identified therein for which
payment is requested was completed in accordance with all applicable governmental laws, rules
and regulations and applicable Plans therefor and with the terms of this Agreement, the
Development Agreement, and to verify and approve the Actual Cost of such work specified in
such Certification for Payment (collectively, the "Developer Compliance Requirements"). The
approval of the Actual Costs and other matters set forth in the Certification for Payment by the
Inspector shall constitute a representation by the Inspector to the City and the Trustee that the
Developer Compliance Requirements have been satisfied with respect to the Authorized
Improvement identified therein. The Inspector and/or the City Representative shall also conduct
such review as is required in his discretion to confirm the matters certified in the Certification for
Payment. The Developer agrees to cooperate with the Inspector and/or City Representative in
conducting each such review and to provide the Inspector and/or City Representative with such
additional information and documentation as is reasonably necessary for the Inspector to conclude
each such review.
(b) Within fifteen (15) business days of receipt of any Certification for Payment, the
Inspector shall either (i) approve the Certification for Payment and forward the same to the City
Representative for his or her consideration and provided the City Representative does not require
any additional information regarding the Certification for Payment in accordance with Section
5.02(d) hereof, his or her approval and delivery to the Trustee for payment to the Developer in
accordance with Section 5.03(a) hereof or (ii) in the event the Inspector disapproves the
Certification for Payment, give written notification to the Developer of the Inspector's disapproval,
in whole or in part, of such Certification for Payment, specifying the reasons for such disapproval
and the additional requirements to be satisfied for approval of such Certification for Payment. If
a Certification for Payment seeking reimbursement is approved only in part, the Inspector shall
CITY POINT PID IMPROVEMENT ZONE A CFA Page 9
specify the extent to which the Certification for Payment is approved and shall deliver such
partially approved Certification for Payment to the City Representative for approval in accordance
with Section 5.02(c) hereof and delivery to the Trustee for payment to the Developer or its designee
in accordance with Section 5.03 hereof, and any such partial work shall be processed for payment
under Section 5.03 notwithstanding such partial denial.
(c) If the Inspector fails to act with respect to a Certification for Payment within the
time period therein provided, the Developer shall submit the Certification for Payment directly to
the City Representative for approval. Within fifteen (15) business days of receipt of any
Certification for Payment, the City Representative shall approve or deny the Certification for
Payment and provide notice to the Administrator and the Developer. Upon approval of a
Certification for Payment, the approval shall be forwarded to the Trustee for payment, and delivery
to the Developer in accordance with Section 5.03 hereof. The approval of the Certification for
Payment by the City Representative shall constitute a representation by the City Representative to
the Trustee of the Developer's compliance therein. Pursuant to the terms of Section 5.03 and the
Indenture, the Trustee shall make a payment to the Developer, or pursuant to the Developer's
directions, of an approved Certification for Payment.
(d) If the City Representative requires additional documentation, timely disapproves or
questions the correctness or authenticity of the Certification for Payment, the City shall deliver a
detailed notice to the Developer within ten (10) business days of receipt thereof, then payment
with respect to disputed portion(s) of the Certification for Payment shall not be made until the
Developer and the City have jointly settled such dispute or additional information has been
provided to the City's reasonable satisfaction. The denial may be appealed to the City Council by
the Developer in writing within thirty (30) days of being denied by the City Representative. Denial
of the Certification for Payment by the City Council shall be attempted to be resolved by half -day
mediation between the Parties in the event an agreement is not otherwise reached by the Parties,
with the mediator's fee being paid by Developer. The portion of the Certification for Payment in
dispute shall not be forwarded to the Trustee for payment until the dispute is resolved by the City
and the Developer.
(e) The Developer shall deliver the approved or partially approved Certification for
Payment to the Trustee for payment and the Trustee shall make such payment from the Project
Fund in accordance with Section 5.03 below.
Section 5.03. Payment for an Authorized Improvement.
(a) Upon receipt of a reviewed and approved Certification for Payment, the Trustee
shall make payment from the Improvement Zone A Public Improvement Account of the Project
Fund as designated in the Certification for Payment pursuant to the terms of the Certification for
Payment and the Indenture in an amount not to exceed the Budgeted Cost for the particular
Authorized Improvement (or its completed segment), unless a Cost Overrun amount has been
CITY POINT PID IMPROVEMENT ZONE A CFA Page 10
approved for a particular Authorized Improvement. If a Cost Overrun amount has been approved,
then the amount reimbursed shall not exceed the Budgeted Amount plus the approved Cost
Overrun amount.
(b) Amounts to be paid pursuant to approved Certification for Payment forms that
await reimbursement shall not accrue interest.
(c) Notwithstanding any other provisions of this Agreement, when payment is made,
the Trustee shall make payment directly to the person or entity specified by the Developer in an
approved Certification for Payment, including a general contractor or supplier of materials or
services or jointly to Developer (or any permitted assignee of the Developer) and the general
contractor or supplier of materials or services, as indicated in an approved Certification for
Payment, out of available funds in the Project Fund. If an unconditional lien release related to the
items referenced in the Certification for Payment is attached to such Certification for Payment, the
Trustee shall make such payment to the Developer or any permitted assignee of the Developer. In
the event the Developer provides a general contractor's or supplier of materials' unconditional lien
release for a portion of the work covered by a Certification for Payment, the Trustee will make
such payment directly to the Developer or any permitted assignee of the Developer to the extent
of such lien release.
(d) Withholding Payments.
Nothing in this Agreement shall be deemed to prohibit the Developer or the City from
contesting in good faith the validity or amount of any mechanic's or materialman's lien and/or
judgment nor limit the remedies available to the Developer or the City with respect thereto,
including the withholding of any payment that may be associated with the exercise of such remedy,
so long as such delay in performance shall not subject the Authorized Improvement to foreclosure,
forfeiture, or sale.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01. Representations, Covenants and Warranties of the Developer. The
Developer represents and warrants for the benefit of the City as follows:
(a) Organization. The Developer is a limited liability company duly formed, organized
and validly existing under the laws of the State of Texas, is in compliance with the laws of the
State of Texas, and has the power and authority to own its properties and assets and to fulfill its
obligations in this Agreement and to carry on its business in the State of Texas as now being
conducted as hereby contemplated.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 11
(b) Authority. The Developer has the power and authority to enter into this Agreement,
and has taken all action necessary to cause this Agreement to be executed and delivered, and this
Agreement has been duly and validly executed and delivered by the Developer.
(c) Binding Obligation. This Agreement is a legal, valid and binding obligation of the
Developer, enforceable against the Developer in accordance with its terms, subject to bankruptcy
and other equitable principles.
(d) Compliance with Law. The Developer shall not commit, suffer or permit any act
to be done in, upon or to the lands of the Developer in the District or the Authorized Improvements
in violation of any law, ordinance, rule, regulation or order of any governmental authority or any
covenant, condition or restriction now or hereafter affecting the lands in the District or the
Authorized Improvements.
(e) Requests for Payment. The Developer represents and warrants that (i) it will not
request payment from the Project Fund for the acquisition, construction or installation of any
improvements that are not part of the Authorized Improvements, and (ii) it will diligently follow
all procedures set forth in this Agreement with respect to the Certification for Payments.
(f) Financial Records. For a period of two years after completion of the Authorized
Improvements, the Developer covenants to maintain proper books of record and account for the
construction of the Authorized Improvements and all Actual Costs related thereto. Such
accounting books shall be maintained in accordance with generally accepted accounting principles
and shall be available for inspection by the City or its agents at any reasonable time during regular
business hours on reasonable notice.
(g) Plans. The Developer represents that it has obtained or will obtain approval of the
Plans from all appropriate departments of the City and from any other public entity or public utility
from which such approval must be obtained. The Developer further agrees that, subject to the
terms hereof, the Authorized Improvements have been or will be constructed in full compliance
with such Plans and any change orders thereto consistent with the Act, this Agreement and the
Development Agreement. Developer shall provide as -built plans for all Authorized Improvements
to the City.
(h) Additional Information. The Developer agrees to cooperate with all reasonable
written requests for nonproprietary information by the initial purchaser of the Bonds, the Inspector
and the City Representative related to the status of construction of Authorized Improvements
within the District, the anticipated completion dates for future improvements and any other matter
that the initial purchaser of the Bonds or City Representative deems material to the investment
quality of the Bonds.
(i) Continuing Disclosure Agreement. The Developer agrees to provide the
information required pursuant to the Continuing Disclosure Agreement executed by the Developer,
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the Administrator, and HTS Continuing Disclosure Services, a division of Hilltop Securities Inc.,
dated as of December 1, 2019 in connection with the Bonds.
0) Tax Certificate. The City will deliver a certificate relating to the Bonds (such
certificate, as it may be amended and supplemented from time to time, being referred to herein as
the "Tax Certificate") containing covenants and agreements designed to satisfy the requirements
of 26 U.S. Code Sections 103 and 141 through 150, inclusive, and the federal income tax
regulations issued thereunder relating to the use of the proceeds of the Bonds or of any monies,
securities or other obligations on deposit to the credit of any of the funds and accounts created by
the Indenture or this Agreement or otherwise that may be deemed to be proceeds of the Bonds
within the meaning of 26 U.S. Code Section 148 (collectively, "Bond Proceeds").
The Developer covenants to provide, or cause to be provided, such facts and estimates as
the City reasonably considers necessary to enable it to execute and deliver its Tax Certificate. The
Developer further covenants that (i) such facts and estimates will be based on its reasonable
expectations on the date of issuance of the Bonds and will be, to the best of the knowledge of the
officers of the Developer providing such facts and estimates, true, correct and complete as of that
date, and (ii) the Developer will make reasonable inquires to ensure such truth, correctness and
completeness. The Developer covenants that it will not make, or (to the extent that it exercises
control or direction) permit to be made, any use or investment of the Bond Proceeds (including,
but not limited to, the use of the Authorized Improvements) that would cause any of the covenants
or agreements of the City contained in the Tax Certificate to be violated or that would otherwise
have an adverse effect on the tax-exempt status of the interest payable on the Bonds for federal
income tax purposes.
(k) Financial Resources. The Developer represents and warrants that it has the
financial resources, or the ability to obtain sufficient financial resources, to meet its obligations
under this Agreement, the Service and Assessment Plan and the Development Agreement.
Section 6.02. Indemnification and Hold Harmless. THE DEVELOPER SHALL
INDEMNIFY AND HOLD HARMLESS THE INSPECTOR, THE CITY, ITS OFFICIALS,
EMPLOYEES, OFFICERS, REPRESENTATIVES AND AGENTS (EACH AN
"INDEMNIFIED PARTY"), FROM AND AGAINST ALL ACTIONS, DAMAGES, CLAIMS,
LOSSES OR EXPENSE OF EVERY TYPE AND DESCRIPTION TO WHICH THEY MAY BE
SUBJECTED OR PUT: (I) BY REASON OF, OR RESULTING FROM THE BREACH OF ANY
PROVISION OF THIS AGREEMENT BY THE DEVELOPER; (11) THE NEGLIGENT
DESIGN, ENGINEERING, AND/OR CONSTRUCTION BY THE DEVELOPER OR ANY
ARCHITECT, ENGINEER OR CONTRACTOR HIRED BY THE DEVELOPER OF ANY OF
THE AUTHORIZED IMPROVEMENTS ACQUIRED FROM THE DEVELOPER
HEREUNDER; (III) THE DEVELOPER'S NONPAYMENT UNDER CONTRACTS
BETWEEN THE DEVELOPER AND ITS CONSULTANTS, ENGINEERS, ADVISORS,
CONTRACTORS, SUBCONTRACTORS AND SUPPLIERS IN THE PROVISION OF THE
CITY POINT PID IMPROVEMENT ZONE A CFA Page 13
AUTHORIZED IMPROVEMENTS; (IV) ANY CLAIMS OF PERSONS EMPLOYED BY THE
DEVELOPER OR ITS AGENTS TO CONSTRUCT THE AUTHORIZED IMPROVEMENTS;
OR (V) ANY CLAIMS AND SUITS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED
TO DEVELOPER'S RESPECTIVE PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES
AND/OR TRUSTEES, REGARDING OR RELATED TO THE AUTHORIZED
IMPROVEMENTS OR ANY AGREEMENT OR RESPONSIBILITY REGARDING THE
AUTHORIZED IMPROVEMENTS, INCLUDING CLAIMS AND CAUSES OF ACTION
WHICH MAY ARISE OUT OF THE SOLE OR PARTIAL NEGLIGENCE OF AN
INDEMNIFIED PARTY (THE "CLAIMS"). NOTWITHSTANDING THE FOREGOING, NO
INDEMNIFICATION IS GIVEN HEREUNDER FOR ANY ACTION, DAMAGE, CLAIM,
LOSS OR EXPENSE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO
BE DIRECTLY ATTRIBUTABLE TO THE WILLFUL MISCONDUCT OF ANY
INDEMNIFIED PARTY, DEVELOPER IS EXPRESSLY REQUIRED TO DEFEND CITY
AGAINST ALL SUCH CLAIMS, AND CITY IS REQUIRED TO REASONABLY
COOPERATE AND ASSIST DEVELOPER IN PROVIDING SUCH DEFENSE.
IN ITS REASONABLE DISCRETION, CITY SHALL HAVE THE RIGHT TO
APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY DEVELOPER IN
FULFILLING ITS OBLIGATIONS HEREUNDER TO DEFEND AND INDEMNIFY THE
INDEMNIFIED PARTIES, UNLESS SUCH RIGHT IS EXPRESSLY WANED BY CITY IN
WRITING. THE INDEMNIFIED PARTIES RESERVE THE RIGHT TO PROVIDE A
PORTION OR ALL OF THEIR/ITS OWN DEFENSE, AT THEIR/ITS SOLE COST;
HOWEVER, INDEMNIFIED PARTIES ARE UNDER NO OBLIGATION TO DO SO. ANY
SUCH ACTION BY AN INDEMNIFIED PARTY IS NOT TO BE CONSTRUED AS A
WAIVER OF DEVELOPER'S OBLIGATION TO DEFEND INDEMNIFIED PARTIES OR AS
A WAIVER OF DEVELOPER'S OBLIGATION TO INDEMNIFY INDEMNIFIED PARTIES,
PURSUANT TO THIS AGREEMENT. DEVELOPER SHALL RETAIN CITY -APPROVED
DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF WRITTEN NOTICE FROM
AN INDEMNIFIED PARTY THAT IT IS INVOKING ITS RIGHT TO INDEMNIFICATION
UNDER THIS AGREEMENT. IF DEVELOPER FAILS TO RETAIN COUNSEL WITHIN
SUCH TIME PERIOD, INDEMNIFIED PARTIES SHALL HAVE THE RIGHT TO RETAIN
DEFENSE COUNSEL ON ITS OWN BEHALF, AND DEVELOPER SHALL BE JOINTLY
AND SEVERALLY LIABLE FOR ALL REASONABLE COSTS INCURRED BY
INDEMNIFIED PARTIES.
THIS SECTION 6.02 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
THE PARTIES AGREE AND STIPULATE THAT THIS INDEMNIFICATION
COMPLIES WITH THE CONSPICUOUSNESS REQUIREMENT AND THE EXPRESS
NEGLIGENCE TEST AND IS VALID AND ENFORCEABLE AGAINST THE DEVELOPER.
CITY POINT PID IMPROVEMENT ZONE A CFA Page 14
Section 6.03. Use of Monies by City; Changes to Indenture. The City agrees not to take
any action or direct the Trustee to take any action to expend, disburse or encumber the monies held
in the Project Fund and any monies to be transferred thereto for any purpose other than the
purposes permitted by the Indenture. Prior to the acceptance of all the Authorized Improvements,
the City agrees not to modify or supplement the Indenture without the approval of the Developer
if as a result or as a consequence of such modification or supplement: (a) the amount of monies
that would otherwise have been available under the Indenture for disbursement for the Costs of
the Authorized Improvements is reduced, delayed or deferred, (b) the obligations or liabilities of
the Developer are or may be substantially increased or otherwise adversely affected in any manner,
or (c) the rights of the Developer are or may be modified, limited, restricted or otherwise
substantially adversely affected in any manner.
Section 6.04. No Reduction of Assessments. The Developer agrees not to take any action
or actions to reduce the total amount of such Improvement Zone A Assessments to be levied as of
the Effective Date of this Agreement.
ARTICLE VII
TERMINATION
Section 7.01. Mutual Consent. This Agreement may be terminated by the mutual, written
consent of the City and the Developer, in which event the City may either execute contracts for or
perform any remaining work related to the Authorized Improvements not accepted by the City or
other appropriate entity and use all or any portion of funds on deposit in the Project Fund or other
amounts transferred to the Project Fund under the terms of the Indenture to pay for same, and the
Developer shall have no claim or right to any further payments for the Actual Costs of an
Authorized Improvement hereunder for any remaining work, except as otherwise may be provided
in such written consent.
Section 7.02. City's Election for Cause.
(a) The City, upon notice to Developer and the passage of the cure period identified in
subsection (b) below, may terminate this Agreement, without the consent of the Developer if the
Developer shall breach any material covenant or default in the performance of any material
obligation hereunder.
(b) If any such event described in Section 7.02(a) occurs, the City shall give written
notice of its knowledge of such event to the Developer, and the Developer agrees to promptly meet
and confer with the Inspector and other appropriate City staff and consultants as to options
available to assure timely completion, subject to the terms of this Agreement, of the Authorized
Improvements. Such options may include, but not be limited to, the termination of this Agreement
by the City. If the City elects to terminate this Agreement, the City shall first notify the Developer
CITY POINT PID IMPROVEMENT ZONE A CFA Page 15
(and any mortgagee or trust deed beneficiary specified in writing by the Developer to the City to
receive such notice) of the grounds for such termination and allow the Developer a minimum of
forty-five (45) days to eliminate or to mitigate to the satisfaction of the City the grounds for such
termination. Such period may be extended, at the sole discretion of the City, if the Developer, to
the reasonable satisfaction of the City, is proceeding with diligence to eliminate or mitigate such
grounds for termination. If at the end of such period (and any extension thereof), as determined
reasonably by the City, the Developer has not eliminated or completely mitigated such grounds to
the satisfaction of the City, the City may then terminate this Agreement. In the event of the
termination of this Agreement, the Developer is entitled to payment for work accepted by the City
related to an Authorized Improvement only as provided for under the terms of the Indenture and
this Agreement prior to the termination date of this Agreement and pursuant to a completed,
submitted, and accepted Certification for Payment. Notwithstanding the foregoing, so long as the
Developer has breached any material covenant or defaulted in the performance of any material
obligation hereunder, notice of which has been given by the City to the Developer, and such event
has not been cured or otherwise eliminated by the Developer, the City may in its discretion cause
the Trustee to cease making payments for the Actual Costs of Authorized Improvements, provided
that the Developer shall receive payment of the Actual Costs of any Authorized Improvements that
were accepted by the City at the time of the occurrence of such breach or default by the Developer
upon submission of the documents and compliance with the other applicable requirements of this
Agreement.
(c) If this Agreement is terminated by the City for cause, the City may either execute
contracts for or perform any remaining work related to the Authorized Improvements not accepted
by the City and use all or any portion of the funds on deposit in the Project Fund or other amounts
transferred to the Project Fund and the Developer shall have no claim or right to any further
payments for the Authorized Improvements hereunder, except as otherwise may be provided upon
the mutual written consent of the City and the Developer or as provided for in the Indenture. The
City shall have no obligation to perform any work related to an Authorized Improvement or to
incur any expense or cost in excess of the remaining balance of the Project Fund.
Section 7.03. Termination Upon Redemption or Defeasance of Bonds. This Agreement
will terminate automatically and with no further action by the City or the Developer upon the
redemption or defeasance of all outstanding Bonds issued under the Indenture.
Section 7.04. Construction of the Authorized Improvements Upon Termination of this
Agreement. Notwithstanding anything to the contrary contained herein, upon the termination of
this Agreement pursuant to this Article VII, the Developer shall perform its obligations with
respect to the Authorized Improvements in accordance with this Agreement and the Development
Agreement.
Section 7.05. Force Majeure. Whenever performance is required of a party hereunder,
that party shall use all due diligence and take all necessary measures in good faith to perform, but
CITY POINT PID IMPROVEMENT ZONE A CFA Page 16
if completion of performance is delayed by reasons of floods, earthquakes or other acts of God,
war, civil commotion, riots, strikes, picketing or other labor disputes, damage to work in progress
by casualty or by other cause beyond the reasonable control of the party (financial inability
excepted) ("Force Majeure"), then the specified time for performance shall be extended by the
amount of the delay actually so caused. The extension of time to perform allowed by this Section
7.05 shall not apply unless, upon the occurrence of an event of Force Majeure, the party needing
additional time to perform notifies the other party of the event of Force Majeure and the amount
of additional time reasonably required within ten (10) business days of the occurrence of the event
of Force Majeure.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Limited Liability of City. The Developer agrees that any and all obligations
of the City arising out of or related to this Agreement are special obligations of the City, and the
City's obligations to make any payments hereunder are restricted entirely to the moneys, if any, in
the Proj ect Fund and from no other source. Neither the City, the Inspector, the City Representative
nor any other City employee, officer, official or agent shall incur any liability hereunder to the
Developer or any other party in their individual capacities by reason of their actions hereunder or
execution hereof.
Section 8.02. Audit. The Inspector, the City Representative or a finance officer of the City
shall have the right, during normal business hours and upon the giving of three business days' prior
written notice to a Developer, to review all books and records of the Developer pertaining to costs
and expenses incurred by the Developer with respect to any of the Authorized Improvements and
any bids taken or received for the construction thereof or materials therefor.
Section 8.03. Notices. Any notice, payment or instrument required or permitted by this
Agreement to be given or delivered to any party shall be deemed to have been received when
personally delivered or transmitted by telecopy or facsimile transmission (which shall be
immediately confirmed by telephone and shall be followed by mailing an original of the same
within 24 hours after such transmission) or 72 hours following deposit of the same in any United
States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CITY POINT PID IMPROVEMENT ZONE A CFA Page 17
To the City: Attn: City Manager
City of North Richland Hills, Texas
4301 City Point Drive
North Richland Hills, Texas 76180
With a copy to: Attn: City Attorney
City of North Richland Hills, Texas
4301 City Point Drive
North Richland Hills, Texas 76180
And to: Attn: Bond Counsel
Norton Rose Fulbright US LLP
2200 Ross Avenue, Suite 3600
Dallas, Texas 75201
To the Owner: Attn: Mehrdad Moayedi
MM City Point 53, LLC
1800 Valley View Lane, Suite 300
Farmers Branch, Texas 75234
With a copy to: Attn: J. Prabha Cinclair
Miklos Cinclair, PLLC
1800 Valley View Lane, Suite 360
Farmers Branch, Texas 75234
Any party may change its address or addresses for delivery of notice by delivering written
notice of such change of address to the other party.
The City shall advise the Developer of the name and address of any Inspector who is to
receive any notice or other communication pursuant to this Agreement.
Section 8.04. Severability. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given
effect to the fullest extent possible.
Section 8.05. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto. Any receivables due under this
Agreement may be assigned by the Developer without the consent of, but upon written notice to
the City pursuant to Section 8.03 of this Agreement. The obligations, requirements, or covenants
of this Agreement shall be able to be assigned to an affiliate or related entity of the Developer, or
any lien holder on the Property, without prior written consent of the City. The obligations,
requirements, or covenants of this Agreement shall not be assigned by the Developer to a non -
affiliate or non -related entity of the Developer without prior written consent of the City Manager,
except pursuant to a collateral assignment to any person or entity providing construction financing
to the Developer for the Developer for an Authorized Improvement, provided such person or entity
expressly agrees to assume all obligations of the Developer hereunder if there is a default under
such financing and such Person elects to complete the Authorized Improvement. No such
CITY POINT PID IMPROVEMENT ZONE A CFA Page 18
assignment shall be made by the Developer or any successor or assignee of the Developer that
results in the City being an "obligated person" within the meaning of Rule 15c2-12 of the United
States Securities and Exchange Commission without the express written consent of the City. In
connection with any consent of the City, the City may condition its consent upon the acceptability
of the financial condition of the proposed assignee, upon the assignee's express assumption of all
obligations of the Developer hereunder and/or upon any other reasonable factor which the City
deems relevant in the circumstances. In any event, any such assignment shall be in writing, shall
clearly identify the scope of the rights and/or obligations assigned. The City may assign by a
separate writing certain rights as described in this Agreement and in the Indenture, to the Trustee
and the Developer hereby consents to such assignment.
Section 8.06. Other Agreements. The obligations of the Developer hereunder shall be
those of a party hereto and not as an owner of property in the District. Nothing herein shall be
construed as affecting the City's or the Developer's rights or duties to perform their respective
obligations under other agreements, use regulations, ordinances or subdivision requirements
relating to the development of the lands in the District, including the applicable Construction
Contracts and the Development Agreement. To the extent there is a conflict between this
Agreement and the Indenture, the Indenture shall control. To the extent there is a conflict between
this Agreement and the Development Agreement, this Agreement shall control.
Section 8.07. Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this Agreement by any other party, or the failure by a party to exercise its rights
upon the default of any other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by such other party with the terms of this Agreement thereafter.
Section 8.08. Merger. No other agreement, statement or promise made by any party or
any employee, officer or agent of any party with respect to any matters covered hereby that is not
in writing and signed by all the parties to this Agreement shall be binding.
Section 8.09. Parties in Interest. Nothing in this Agreement, expressed or implied, is
intended to or shall be construed to confer upon or to give to any person or entity other than the
City and the Developer any rights, remedies or claims under or by reason of this Agreement or any
covenants, conditions or stipulations hereof, and all covenants, conditions, promises and
agreements in this Agreement contained by or on behalf of the City or the Developer shall be for
the sole and exclusive benefit of the City and the Developer.
Section 8.10. Amendment. Except as otherwise provided in Section 8.05, upon agreement
by the parties, this Agreement may be amended, from time to time in a manner consistent with the
Act, the Indenture, and the Bond Ordinance by written supplement hereto and executed in
counterparts, each of which shall be deemed an original.
Section 8.11. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
Section 8.12. Effective Date. This Agreement has been dated as of the date first above
written solely for the purpose of convenience of reference and shall become effective upon its
execution and delivery, on the Closing Date of the Bonds, by the parties hereto. All representations
CITY POINT PID IMPROVEMENT ZONE A CFA Page 19
and warranties set forth therein shall be deemed to have been made on the Closing Date of the
Bonds.
Section 8.13 No Waiver of Powers or Immunity. The City does not waive or surrender
any of its governmental powers, immunities, or rights except as necessary to allow Developer to
enforce its remedies under this Agreement.
Section 8.14 Anti -Boycott Verification. The Developer hereby verifies that it and its
parent company, wholly- or majority -owned subsidiaries, and other Affiliates, if any, do not
boycott Israel and, to the extent this Agreement is a contract for goods or services, will not boycott
Israel during the term of this Agreement. The foregoing verification is made solely to comply with
Section 2270.002, Texas Government Code, and to the extent such Section does not contravene
applicable Federal law. As used in the foregoing verification, `boycott Israel' means refusing to
deal with, terminating business activities with, or otherwise taking any action that is intended to
penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with
a person or entity doing business in Israel or in an Israeli -controlled territory, but does not include
an action made for ordinary business purposes.
Section 8.15 Iran, Sudan and Foreign Terrorist Organizations. The Developer represents
that neither it nor any of its parent company, wholly- or majority -owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer's internet
website: https:Hcomptroller.texas.gov/purchasing/docs/sudan-list.pdf,
https:Hcomptroller.texas.gov/purchasing/docs/iran-list.pdf, or
https:Hcomptroller.texas.gov/purchasing/docs/fto-list.pdf. The foregoing representation is made
solely to comply with Section 2252.152, Texas Government Code, and to the extent such Section
does not contravene applicable Federal law and excludes the Developer and each of its parent
company, wholly- or majority -owned subsidiaries, and other Affiliates, if any, that the United
States government has affirmatively declared to be excluded from its federal sanctions regime
relating to Sudan or Iran or any federal sanctions regime relating to a foreign terrorist organization.
Section 8.16 Form 1295. Submitted herewith is a completed Form 1295 in connection
with the Developer's participation in the execution of this Agreement generated by the Texas
Ethics Commission's (the "TEC") electronic filing application in accordance with the provisions
of Section 2252.908 of the Texas Government Code and the rules promulgated by the TEC (the
"Form 1295"). The City hereby confirms receipt of the Form 1295 from the Developer, and the
City agrees to acknowledge such form with the TEC through its electronic filing application not
later than the 30th day after the receipt of such form. The Developer and the City understand and
agree that, with the exception of information identifying the City and the contract identification
number, neither the City nor its consultants are responsible for the information contained in the
Form 1295; that the information contained in the Form 1295 has been provided solely by the
Developer; and, neither the City nor its consultants have verified such information.
[Execution pages follow.]
CITY POINT PID IMPROVEMENT ZONE A CFA Page 20
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
December 9, 2019.
ATTEST:
CITY OF NORTH RICHLAND HILLS, TEXAS
By:
Alicia Richardson Mark Hindman
City Secretary City Manager
Date:
APPROVED AS TO FORM
AND LEGALITY:
Maleshia B. McGinnis
City Attorney
RECOMMENDED:
Craig Hulse
Economic Development Director
S-1
DEVELOPER:
MM City Point 53, LLC,
a Texas limited liability company
By: MMM Ventures, LLC,
a Texas limited liability company
Its Manager
By: 2M Ventures, LLC,
a Delaware limited liability company
Its Manager
By:
Name: Mehrdad Moayedi
Its: Manager
S-2
EXHIBIT E
LANDOWNER AGREEMENT
IMPROVEMENT ZONE A LANDOWNER AGREEMENT
This IMPROVEMENT ZONE A LANDOWNER AGREEMENT (the "Agreement'),
is entered into as of December 9, 2019, among the City of North Richland Hills, Texas (the "City"),
a home -rule municipality of the State of Texas (the "State"), and NMI City Point 53, LLC, a Texas
limited liability company (the "Landowner").
RECITALS:
WHEREAS, capitalized terms used but not defined herein shall have the meanings given
to them in the Service and Assessment Plan (as defined herein); and
WHEREAS, Landowner owns the Improvement Zone A Assessed Property described by
a metes and bounds description attached as Exhibit I to this Agreement and which is incorporated
herein for all purposes, comprising all of the non-exempt, privately -owned land described in
Exhibit I (the "Landowner's Parcel") which is located within the City Point Public Improvement
District (the "District") in the corporate limits of the City; and
WHEREAS, the City Council has adopted an assessment ordinance (including all exhibits
and attachments thereto, the "Assessment Ordinance") for the Authorized Improvements and the
City Point Public Improvement District Service and Assessment Plan (as updated and amended,
the "Service and Assessment Plan") and which is incorporated herein for all purposes, and has
levied an assessment on the Improvement Zone A Assessed Property in the District that will be
pledged for the payment of certain infrastructure improvements and to pay the costs of constructing
the Authorized Improvements that will benefit the Improvement Zone A Assessed Property; and
WHEREAS, the Declaration of Covenants, Conditions and Restrictions attached to this
Agreement as Exhibit H and which are incorporated herein for all purposes includes the statutory
notification required by Texas Property Code, Section 5.014, as amended, to be provided by the
seller of residential property that is located in a public improvement district established under
Chapter 372 of the Texas Local Government Code, as amended (the "PID Act"), to the purchaser.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
obligations and benefits hereinafter set forth, the City and the Landowner hereby contract,
covenant and agree as follows:
DEFINITIONS; APPROVAL OF AGREEMENTS
Definitions. Capitalized terms used but not defined herein (including each exhibit hereto)
shall have the meanings ascribed to them in the Service and Assessment Plan.
Affirmation of Recitals. The findings set forth in the Recitals of this Agreement are hereby
incorporated as the official findings of the City Council.
I.
AGREEMENTS OF LANDOWNER
A. Affirmation and Acceptance of Agreements and Findings of Benefit. Landowner
hereby ratifies, confirms, accepts, agrees to, and approves:
(i) the creation and boundaries of the District, and the boundaries of the
Landowner's Parcel and the location and development of the Authorized
Improvements on the Landowner's Parcel and on the property within Improvement
Zone A of the District;
(ii) the determinations and findings as to the benefits by the City
Council in the Service and Assessment Plan and the Assessment Ordinance; and
(iii) the Assessment Ordinance and the Service and Assessment Plan.
B. Acceptance and Approval of Improvement Zone A Assessments and Lien on
Property. Landowner consents to, agrees to, acknowledges and accepts the following:
(i) each Assessment levied by the City on the Improvement Zone A Assessed
Property within the District (the "Improvement Zone A Assessments"), as shown on the
assessment roll attached as Exhibit F-1 to the Service and Assessment Plan (the
"Improvement Zone A Assessment Roll");
(ii) the Authorized Improvements specially benefit Improvement Zone A of the
District, and the Landowner's Parcel, in an amount at least equal to the Improvement Zone
A Assessment levied on the Improvement Zone A Assessed Property within Improvement
Zone A of the District, as such Improvement Zone A Assessment is shown on the
Improvement Zone A Assessment Roll;
(iii) each Improvement Zone A Assessment is final, conclusive and binding
upon Landowner and any subsequent owner of the Improvement Zone A Assessed
Property, regardless of whether such landowner may be required to prepay a portion of, or
the entirety of, such Improvement Zone A Assessment upon the occurrence of a mandatory
prepayment event as provided in the Service and Assessment Plan;
(iv) the obligation to pay the Improvement Zone A Assessment levied on the
Improvement Zone A Assessed Property owned by the Landowner and any subsequent
owner of an Improvement Zone A Assessed Property when due and in the amount required
by and stated in the Service and Assessment Plan and the Assessment Ordinance;
(v) each Improvement Zone A Assessment or reassessment, with interest, the
expense of collection, and reasonable attorney's fees, if incurred, is a first and prior lien
against the Improvement Zone A Assessed Property, superior to all other liens and
monetary claims except liens or monetary claims for state, county, school district, or
K
municipal ad valorem taxes, and is a personal liability of and charge against the owner of
the Improvement Zone A Assessed Property regardless of whether such owner is named;
(vi) the Improvement Zone A Assessment lien on the Improvement Zone A
Assessed Property is a lien and covenant that runs with the land and is effective from the
date of the Assessment Ordinance and continues until the Improvement Zone A
Assessment is paid and may be enforced by the governing body of the City in the same
manner that an ad valorem tax lien against real property may be enforced by the City;
(vii) delinquent installments of the Assessment shall incur and accrue interest,
penalties, and attorney's fees as provided in the PID Act;
(viii) the owner of an Improvement Zone A Assessed Property may pay at any
time the entire Improvement Zone A Assessment, with interest that has accrued on the
Improvement Zone A Assessment, on any parcel in the Landowner's Parcel;
(ix) the Annual Installments of the Improvement Zone A Assessments (as
defined in the Service and Assessment Plan and Improvement Zone A Assessment Roll)
may be adjusted, decreased and extended; and, the Landowner and any subsequent owner
of an Improvement Zone A Assessed Property shall be obligated to pay their respective
revised amounts of the Annual Installments, when due and without the necessity of further
action, Improvement Zone A Assessments or reassessments by the City, the same as though
they were expressly set forth herein; and
(x) Landowner has received, or hereby waives, all notices required to be
provided to it under Texas law, including the PID Act, prior to the Effective Date (defined
herein).
C. Mandatory Prepayment of Improvement Zone A Assessments. Landowner agrees
and acknowledges that Landowner or subsequent landowners may have an obligation to prepay an
Improvement Zone A Assessment upon the occurrence of a mandatory prepayment event, at the
sole discretion of the City and as provided in the Service and Assessment Plan, as amended or
updated.
D. Notice of Assessments. Landowner further agrees as follows:
(i) the Declaration of Covenants, Conditions and Restrictions in
the form attached hereto as Exhibit II shall be terms, conditions and
provisions running with the Landowner's Parcel and shall be recorded (the
contents of which shall be consistent with the Assessment Ordinance and
the Service and Assessment Plan as reasonably determined by the City), in
the records of the County Clerk of Tarrant County, as a lien and
encumbrance against such Improvement Zone A Assessed Property, and
Landowner hereby authorizes the City to so record such documents against
the Improvement Zone A Assessed Property owned by Landowner;
3
(ii) in the event of any subdivision, sale, transfer or other
conveyance by the Landowner of the right, title or interest of the Landowner
in the Landowner's Parcel or any part thereof, the Landowner's Parcel, or
any such part thereof, shall continue to be bound by all of the terms,
conditions and provisions of such Declaration of Covenants, Conditions and
Restrictions and any purchaser, transferee or other subsequent owner shall
take such Improvement Zone A Assessed Property subject to all of the
terms, conditions and provisions of such Declaration of Covenants,
Conditions and Restrictions; and
(iii) Landowner shall comply with, and shall contractually
obligate (and, upon City's request, promptly provide written evidence of
such contractual provisions to the City) any party who purchases any
Improvement Zone A Assessed Property owned by Landowner, or any
portion thereof, for the purpose of constructing residential properties that
are eligible for "homestead" designations under State law, to comply with,
the Homebuyer Education Program described on Exhibit III to this
Agreement. Such compliance obligation shall terminate as to each Lot if,
and when, (i) a final certificate of occupancy for a residential unit on such
Lot is issued by the City, and (ii) there is a sale of a Lot to an individual
homebuyer, it being the intent of the undersigned that the Homebuyer
Education Program shall apply only to a commercial builder who is in the
business of constructing and/or selling residences to individual home buyers
(a "Builder") but not to subsequent sales of such residence and Lot by an
individual home buyer after the initial sale by a Builder.
Notwithstanding the provisions of this Section, upon the Landowner's request and the
City's consent, in the City's sole and absolute discretion, the Declaration of Covenants, Conditions
and Restrictions may be included with other written restrictions running with the land on property
within Improvement Zone A of the District, provided they contain all the material provisions and
provide the same material notice to prospective property owners as does the document attached as
Exhibit II.
II.
OWNERSHIP AND CONSTRUCTION OF
AUTHORIZED IMPROVEMENTS
A. Ownership and Transfer of Authorized Improvements. Landowner acknowledges
that the portion of the Authorized Improvements benefitting the Landowner's Parcel and the land
(or easements, as applicable) needed therefor shall be owned by the City as constructed and/or
conveyed to the City and Landowner will execute such conveyances and/or dedications of public
rights of way and easements as may be reasonably required to evidence such ownership, as
generally described on the current plats of the property within the District.
B. Grant of Easement and License, Construction of Authorized Improvements.
:l
(i) Any subsequent owner of the Improvement Zone A Assessed Property
shall, upon the request of the City or Landowner, grant and convey to the City or
Landowner and its contractors, materialmen and workmen a temporary license and/or
easement, as appropriate, to construct the Authorized Improvements on the Landowner's
Parcel within the District, to stage on the Landowner's Parcel within the District
construction trailers, building materials and equipment to be used in connection with such
construction of the Authorized Improvements and for passage and use over and across parts
of the property within the District as shall be reasonably necessary during the construction
of the Authorized Improvements. Any subsequent owner of an Improvement Zone A
Assessed Property may require that each contractor constructing the Authorized
Improvements cause such owner of an Improvement Zone A Assessed Property to be
indemnified and/or named as an additional insured under liability insurance reasonably
acceptable to such owner of an Improvement Zone A Assessed Property. The right to use
and enjoy any easement and license provided above shall continue until the construction
of the Authorized Improvements is complete; provided, however, any such license or
easement shall automatically terminate upon the recording of the final plat for the
Landowner's Parcel in the real property records of Tarrant County, Texas.
(ii) Landowner hereby agrees that any right or condition imposed by the
Development Agreement between the City and the Landowner, effective as of October 25,
2019 (the "Development Agreement"), or other agreement, with respect to the
Improvement Zone A Assessment has been satisfied, and that Landowner shall not have
any rights or remedies against the City under any law or principles of equity concerning
the Improvement Zone A Assessments, with respect to the formation of the District,
approval of the Service and Assessment Plan and the City's levy and collection of the
Improvement Zone A Assessments.
III.
COVENANTS AND WARRANTIES; MISCELLANEOUS
A. Sbecial Covenants and Warranties of Landowner.
Landowner represents and warrants to the City as follows:
(i) Landowner is duly organized, validly existing and, as
applicable, in good standing under the laws of the state of its organization
and has the full right, power and authority to enter into this Agreement, and
to perform all the obligations required to be performed by Landowner
hereunder.
(ii) This Agreement has been duly and validly executed and
delivered by, and on behalf of, Landowner and, assuming the due
authorization, execution and delivery thereof by and on behalf of the City
and the Landowner, constitutes a valid, binding and enforceable obligation
of such party enforceable in accordance with its terms. This representation
and warranty is qualified to the extent the enforceability of this Agreement
5
may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or other similar laws of general application affecting the
rights of creditors in general.
(iii) Neither the execution and delivery hereof, nor the taking of
any actions contemplated hereby, will conflict with or result in a breach of
any of the provisions of, or constitute a default, event of default or event
creating a right of acceleration, termination or cancellation of any obligation
under, any instrument, note, mortgage, contract, judgment, order, award,
decree or other agreement or restriction to which Landowner is a party, or
by which Landowner or Landowner's Parcel is otherwise bound.
(iv) Landowner is, subject to all matters of record in the Tarrant
County, Texas Real Property Records, the sole owner of the Landowner's
Parcel.
(v) The Landowner's Parcel owned by Landowner is not subject
to, or encumbered by, any covenant, lien, encumbrance or agreement which
would prohibit (i) the creation of the District, (ii) the levy of the
Improvement Zone A Assessments, or (iii) the construction of the
Authorized Improvements on those portions of the property within
Improvement Zone A of the District which are to be owned by the City, as
generally described on the current plats of the property within the District
(or, if subject to any such prohibition, the approval or consent of all
necessary parties thereto has been obtained).
(vi) Landowner covenants and agrees to execute any and all
documents necessary, appropriate or incidental to the purposes of this
Agreement, as long as such documents are consistent with this Agreement
and do not create additional liability of any type to, or reduce the rights of,
such Landowner by virtue of execution thereof.
B. Waiver of Claims Concerning Authorized Improvements. The Landowner, with
full knowledge of the provisions, and the rights thereof pursuant to such provisions, of applicable
law, waives any claims against the City and its successors, assigns and agents, pertaining to the
installation of the Authorized Improvements.
C. Notices.
Any notice or other communication to be given to the City or Landowner under this
Agreement shall be given by delivering the same in writing to:
L
To the City: Attn: City Manager
4301 City Point Drive
North Richland Hills, Texas 76180
With a copy to: Attn: City Attorney
4301 City Point Drive
North Richland Hills, Texas 76180
To the Developer: Attn: Mehrdad Moayedi
MM City Point 53, LLC
1800 Valley View Lane, Suite 300
Farmers Branch, Texas 75234
With a copy to: Attn: J. Prabha Cinclair
Miklos Cinclair, PLLC
1800 Valley View Lane, Suite 360
Farmers Branch, Texas 75234
Any notice sent under this Agreement (except as otherwise expressly required) shall be
written and mailed, or sent by electronic or facsimile transmission confirmed by mailing written
confirmation at substantially the same time as such electronic or facsimile transmission, or
personally delivered to an officer of the recipient at the address set forth herein.
Each recipient may change its address by written notice in accordance with this Section.
Any communication addressed and mailed in accordance with this provision shall be deemed to
be given when so mailed, any notice so sent by electronic or facsimile transmission shall be
deemed to be given when receipt of such transmission is acknowledged, and any communication
so delivered in person shall be deemed to be given when receipted for, or actually received by, the
addressee.
D. Parties in Interest.
This Agreement is made solely for the benefit of the City and the Landowner and is not
assignable, except, in the case of Landowner, in connection with the sale or disposition of all or
substantially all of the parcels which constitute the Landowner's Parcel. However, the parties
expressly agree and acknowledge that the City, the Landowner, each current owner of any parcel
which constitutes the Landowner's Parcel, and the holders of or trustee for any bonds secured by
Improvement Zone A Assessment revenues of the City or any part thereof to finance the costs of
the Authorized Improvements, are express beneficiaries of this Agreement and shall be entitled to
pursue any and all remedies at law or in equity to enforce the obligations of the parties hereto. This
Agreement shall be recorded in the real property records of Tarrant County, Texas.
E. Amendments.
This Agreement may be amended only by written instrument executed by the City and the
Landowner. No termination or amendment shall be effective until a written instrument setting
forth the terms thereof has been executed by the then -current owners of the property within the
District and recorded in the Real Property Records of Tarrant County, Texas.
F. Effective Date.
This Agreement shall become and be effective (the "Effective Date") upon the date of final
execution by the latter of the City and the Landowner and shall be valid and enforceable on said
date and thereafter.
G. Estoppels.
Within ten (10) business days after written request from a party hereto, the other party shall
provide a written certification, indicating whether this Agreement remains in effect as to the
Improvement Zone A Assessed Property, and whether any party is then in default hereunder.
H. Termination.
This Agreement shall terminate and be of no further force and effect as to the Improvement
Zone A Assessed Property upon payment in full of the Improvement Zone A Assessment(s) against
such Improvement Zone A Assessed Property.
[Signature pages to follow]
E3
EXECUTED by the City and Landowner on the Effective Date.
ATTEST:
CITY OF NORTH RICHLAND HILLS, TEXAS
M.
Alicia Richardson Mark Hindman
City Secretary City Manager
Date:
APPROVED AS TO FORM
AND LEGALITY:
Maleshia B. McGinnis
City Attorney
STATE OF TEXAS §
COUNTY OF TARRANT §
RECOMMENDED:
Craig Hulse
Economic Development Director
This instrument was acknowledged before me on the day of , 2019
and executed by Mark Hindman, the City Manager of the City of North Richland Hills, Texas, a
home -rule municipality, on behalf of said home rule municipality.
Notary Public, State of Texas
[Signature Page Landowner Agreement]
9
LANDOWNER
MM City Point 53, LLC,
a Texas limited liability company
By: MMM Ventures, LLC,
a Texas limited liability company
Its Manager
By: 2M Ventures, LLC,
a Delaware limited liability company
Its Manager
By:
Name
Its:
STATE OF TEXAS
COUNTY OF DALLAS
Mehrdad Moayedi
Manager
This instrument was acknowledged before me on the day of ,
2019 by Mehrdad Moayedi, Manager of 2M Ventures, LLC, as Manager of MMM Ventures, LLC,
as Manager of MM City Point 53, LLC, a Texas limited liability company on behalf of said
company.
Notary Public, State of Texas
[Signature Page Landowner Agreement]
10
LANDOWNER AGREEMENT - EXHIBIT I
METES AND BOUNDS DESCRIPTION OF LANDOWNER'S PARCEL
11
LANDOWNER AGREEMENT - EXHIBIT II
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (as
it may be amended from time to time, this "Declaration") is made as of December 9, 2019 by NMI
City Point 53, LLC, a Texas limited liability company (the "Landowner").
RECITALS:
A. The Landowner holds record title to that portion of the real property located in Tarrant
County, Texas, which is described in the attached Exhibit I (the "Landowner's Parcel").
B. The City Council of the City of North Richland Hills (the "City Council") upon a petition
requesting the establishment of a public improvement district covering the property within
the District to be known as the City Point Public Improvement District (the "District") by
the then record owners taxable real property representing more than fifty percent (50%) of
the appraised value of the real property liable for assessment (as determined by the most
recent certified appraisal roll for Tarrant County) in the area requested to be included in
the District and the record owners of taxable real property that constitute more than fifty
percent (50 %) of all of the area of all taxable real property that are liable for assessment
within the area requested to be included in the District, created such District, in accordance
with the Public Improvement District Assessment Act, Chapter 372, Texas Local
Government Code, as amended (the "PID Act").
C. The City Council has adopted an assessment ordinance to levy assessments for certain
public improvements (including all exhibits and attachments thereto, the "Assessment
Ordinance") and the City Point Public Improvement District Service and Assessment Plan
included as an exhibit to the Assessment Ordinance (as amended from time to time, the
"Service and Assessment Plan"), and has levied the assessments (the "Assessments") on
property in Improvement Zone A (as defined in the Service and Assessment Plan) of the
District.
D. The statutory notification required by Texas Property Code, Section 5.014, as amended, to
be provided by the seller of residential property that is located in a public improvement
district established under Chapter 372 of the Texas Local Government Code, as amended,
to the purchaser, is incorporated into this Declaration.
DECLARATIONS:
NOW, THEREFORE, the Landowner hereby declares that the Landowner's Parcel is and
shall be subject to, and hereby imposes on the Landowner's Parcel, the following covenants,
conditions and restrictions:
1. Acceptance and Approval of Assessments and Lien on Property:
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(a) Landowner accepts each Assessment levied on the Landowner's Parcel owned by
such Landowner.
(b) The Assessment (including any reassessment, the expense of collection, and
reasonable attorney's fees, if incurred) is (a) a first and prior lien (the "Assessment
Lien") against the property assessed, superior to all other liens or claims except for
liens or claims for state, county, school district or municipality ad valorem property
taxes whether now or hereafter payable, and (b) a personal liability of and charge
against the owners of the property to the extent of their ownership regardless of
whether the owners are named. The Assessment Lien is effective from the date of
the Assessment Ordinance until the Assessments are paid and may be enforced by
the City in the same manner as an ad valorem property tax levied against real
property that may be enforced by the City. The owner of any assessed property
may pay, at any time, the entire Assessment levied against any such property.
Foreclosure of an ad valorem property tax lien on property within Improvement
Zone A of the District will not extinguish the Assessment or any unpaid but not yet
due Annual Installments of the Assessment, and will not accelerate the due date for
any unpaid and not yet due Annual Installments of the Assessment.
It is the clear intention of all parties to this Declaration, that the Assessments,
including any Annual Installments of the Assessments (as such Annual Installments
may be adjusted, decreased or extended), are covenants that run with the
Landowner's Parcel and specifically binds the Landowner, its successors and
assigns.
In the event of delinquency in the payment of any Annual Installment of the
Assessment, the City is empowered to order institution of an action in district court
to foreclose the related Assessment Lien, to enforce personal liability against the
owner of the real property for the Assessment, or both. In such action the real
property subject to the delinquent Assessment may be sold at judicial foreclosure
sale for the amount of such delinquent property taxes and Assessment, plus
penalties, interest and costs of collection.
2. Landowner or any subsequent owner of the Landowner's Parcel waives:
(a) any and all defects, irregularities, illegalities or deficiencies in the proceedings
establishing the District and levying and collecting the Assessments or the annual
installments of the Assessments;
(b) any and all notices and time periods provided by the PID Act including, but not
limited to, notice of the establishment of the District and notice of public hearings
regarding the levy of Assessments by the City Council concerning the Assessments;
(c) any and all defects, irregularities, illegalities or deficiencies in, or in the adoption
of, the Assessment Ordinance by the City Council;
13
(d) any and all actions and defenses against the adoption or amendment of the Service
and Assessment Plan, the City's finding of a `special benefit' pursuant to the PID
Act and the Service and Assessment Plan, and the levy of the Assessments; and
(e) any right to object to the legality of any of the Assessments or the Service and
Assessment Plan or to any of the previous proceedings connected therewith which
occurred prior to, or upon, the City Council's levy of the Assessments.
3. Amendments: This Declaration may be terminated or amended only by a document duly
executed and acknowledged by the then -current owner(s) of the Landowner's Parcel and
the City. No such termination or amendment shall be effective until a written instrument
setting forth the terms thereof has been executed by the parties by whom approval is
required as set forth above and recorded in the Real Property Records of Tarrant County,
Texas.
4. Third Party Beneficiary: The City is a third party beneficiary to this Declaration and
may enforce the terms hereof.
5. Notice to Subsequent Purchasers: Upon the sale of a dwelling unit within the District,
the purchaser of such property shall be provided a written notice that reads substantially
similar to the following:
TEXAS PROPERTY CODE SECTION 5.014
NOTICE OF OBLIGATION TO PAY PUBLIC IMPROVEMENT DISTRICT
ASSESSMENT TO THE CITY OF NORTH RICHLAND HILLS, TARRANT
COUNTY, TEXAS CONCERNING THE PROPERTY AT [Street Address]
As the purchaser of this parcel of real property, you are obligated to pay an assessment to
the City of North Richland Hills, Texas, for improvement projects undertaken by a public
improvement district under Chapter 372 of the Texas Local Government Code, as
amended. The assessment may be due in periodic installments.
The amount of the assessment against your property may be paid in full at any time together
with interest to the date of payment. If you do not pay the assessment in full, it will be due
and payable in annual installments (including interest and collection costs). More
information concerning the amount of the assessment and the due dates of that assessment
may be obtained from the City of North Richland Hills, 4301 City Point Drive, North
Richland Hills, Texas 76180.
Your failure to pay the assessment or the annual installments could result in a lien on and
in the foreclosure of your property.
Signature of Purchaser(s)
Date:
The seller shall deliver this notice to the purchaser before the effective date of an executory
contract binding the purchaser to purchase the property. The notice may be given
14
separately, as part of the contract during negotiations, or as part of any other notice the
seller delivers to the purchaser. If the notice is included as part of the executory contract
or another notice, the title of the notice prescribed by this section, the references to the
street address and date in the notice, and the purchaser's signature on the notice may be
omitted.
EXECUTED by the undersigned on the date set forth below to be effective as of the date first
above written.
LANDOWNER
MM City Point 53, LLC,
a Texas limited liability company
By: MMM Ventures, LLC,
a Texas limited liability company
Its Manager
By: 2M Ventures, LLC,
a Delaware limited liability company
Its Manager
By:
Name
Its:
STATE OF TEXAS §
COUNTY OF DALLAS §
Mehrdad Moayedi
Manager
This instrument was acknowledged before me on the day of ,
2019 by Mehrdad Moayedi, Manager of 2M Ventures, LLC, as Manager of MMM Ventures, LLC,
as Manager of MM City Point 53, LLC, a Texas limited liability company on behalf of said
company.
Notary Public, State of Texas
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LANDOWNER AGREEMENT - EXHIBIT III
HOMEBUYER EDUCATION PROGRAM
As used in this Exhibit III, the recorded Notice of the Authorization and Establishment of the City
Point Public Improvement District and the Declaration of Covenants, Conditions and Restrictions
in Exhibit II of this Agreement are referred to as the "Recorded Notices."
1. Any Landowner who is a Builder shall attach the Recorded Notices and the final
Improvement Zone A Assessment Roll for such Improvement Zone A Assessed Property (or if the
Improvement Zone A Assessment Roll is not available for such Improvement Zone A Assessed
Property, then a schedule showing the maximum 30-year payment for such Improvement Zone A
Assessed Property) as an addendum to any residential homebuyer's contract.
2. Any Landowner who is a Builder shall provide evidence of compliance with Paragraph 1
above, signed by such residential homebuyer, to the City.
3. Any Landowner who is a Builder shall prominently display signage in its model homes, if
any, substantially in the form of the Recorded Notices.
4. If prepared and provided by the City, any Landowner who is a Builder shall distribute
informational brochures about the existence and effect of the District in prospective homebuyer
sales packets.
5. Any Landowner who is a Builder shall include Assessments in estimated property taxes, if
such Builder estimates monthly ownership costs for prospective homebuyers.
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