HomeMy WebLinkAboutOrdinance 2303
ORDINANCE NO.
2303
AN ORDINANCE authorizing the issuance of IICITY OF NORTH
RICHLAND HILLS, TEXAS, TAX AND WATERWORKS AND SEWER
SYSTEM (LIMITED PLEDGE) REVENUE CERTIFICATES OF
OBLIGATION, SERIES 1998"; specifying the terms and
features of said certificates; providing for the
payment of said certificates of obligation by the
levy of an ad valorem tax upon all taxable property
within the City and a limited pledge of the net
revenues from the operation of the City's
Waterworks and Sanitary Sewer System; and resolving
other matters incident and relating to the
issuance, payment, security, sale and delivery of
said Certificates, including the approval and
execution of a Paying Agent/Registrar Agreement and
the approval and distribution of an Official
Statement; and providing an effective date.
WHEREAS, notice of the City Council's intention to issue
certificates of obligation in the maximum principal amount of
$8,180,000 for the purpose of paying contractual obligations to be
incurred for (i) the purchase of equipment, machinery and vehicles
for city departments and facilities, (ii) improvements to municipal
buildings, to wit: recreation center and library, (iii)
improvements and extensions to the City's combined Waterworks and
Sewer System, (iv) flood control improvements, (v) municipal park
improvements, including improvements to the aquatic park, baseball
fields and electric trails, and (vi) professional services rendered
in relation to such projects and the financing thereof, has been
duly published in the Fort Worth Star-Telegram, a newspaper hereby
found and determined to be of general circulation in the City of
North Richland Hills, Texas, on April 20, 1998 and April 27, 1998,
the date of the first publication of such notice being not less
than fifteen (15) days prior to the tentative date stated therein
for the passage of the ordinance authorizing the issuance of such
certificates; and
WHEREAS, no petition protesting the issuance of the
certificates of obligation and bearing valid petition signatures of
5% or more of the qualified electors of the City, has been
presented to or filed with the Mayor, City Secretary or any other
official of the City on or prior to the date of the passage of this
ordinance; and
WHEREAS, the Council hereby finds and determines that all of
the certificates of obligation described in such notice should be
issued and sold at this time; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH
RICHLAND HILLS, TEXAS:
701905
SECTION 1: Authorization, Desiqnation, Principal Amount,
Purpose. Certificates of obligation of the City shall be and are
hereby authorized to be issued in the aggregate principal amount of
$8,180,000, to be designated and bear the title "CITY OF NORTH
RICHLAND HILLS, TEXAS, TAX AND WATERWORKS AND SEWER SYSTEM (LIMITED
PLEDGE) REVENUE CERTIFICATES OF OBLIGATION, SERIES 1998"
(hereinafter referred to as the "Certificates"), for the purpose of
paying contractual obligations to be incurred for (i) the purchase
of equipment, machinery and vehicles for city departments and
facili ties, (ii) improvements to municipal buildings, to wit:
recreation center and library, (iii) improvements and extensions to
the City's combined Waterworks and Sewer System, (iv) flood control
improvements, (v) municipal park improvements, including
improvements to the aquatic park, baseball fields and electric
trails, and (vi) professional services rendered in relation to such
projects and the financing thereof, pursuant to authority conferred
by and in conformity with the Constitution and laws of the State of
Texas, including V.T.C.A., Local Government Code, Subchapter C of
Chapter 271, as amended.
SECTION 2: Fully Reqistered Obliqations - Authorized
Denominations-Stated Maturities-Date. The Certificates are
issuable in fully registered form only; shall be dated May 1, 1998
(the "Certificate Date II ) and, other than the single fully
registered Initial Certificate referenced in Section 8 hereof,
shall be in denominations of $5,000 or any integral multiple
thereof (within a Stated Maturity) and the Certificates shall
become due and payable on February 15 in each of the years and in
principal amounts (the "Stated Maturities") and bear interest at
per annum rates in accordance with the following schedule:
Year of Principal Interest
Stated Maturity Amount Rate
1999 $690,000 5.125%
2000 690,000 5.125%
2001 690,000 5.125%
2002 690,000 5.125%
2003 690,000 5.125%
2004 340,000 5.125%
2005 340,000 5.125%
2006 340,000 5.125%
2007 340,000 5.125%
2008 340,000 5.125%
2009 305,000 4.75%
2010 305,000 4.80%
2011 305,000 4.85%
2012 305,000 5.00%
2013 305,000 5.00%
2014 305,000 5.00%
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2015
2016
2017
2018
300,000
300,000
300,000
300,000
5.00%
5.00%
5.00%
5.00%
The Certificates shall bear interest on the unpaid principal
amounts from the Certificate Date at the rate per annum shown
above in this Section (calculated on the basis of a 360-day year
of twelve 30-day months). Interest on the Certificates shall be
payable on February 15 and August 15 of each year, commencing
February 15, 1999.
SECTION 3: Terms of Pavrnent-Payinq Aqent/Reqistrar. The
principal of, premium, if any, and the interest on the
Certificates, due and payable by reason of maturity, redemption or
otherwise, shall be payable only to the registered owners or
holders of the Certificates (hereinafter called the IIHoldersll)
appearing on the registration and transfer books maintained by the
Paying Agent/Registrar and the payment thereof shall be in any
coin or currency of the United States of America, which at the
time of payment is legal tender for the payment of public and
private debts, and shall be without exchange or collection charges
to the Holders.
The selection and appointment of Bank One, Texas, N.A., Fort
Worth, Texas to serve as Paying Agent/Registrar for the
Certificates is hereby approved and confirmed. Books and records
relating to the registration, payment, transfer and exchange of
the Certificates (the "Security Register") shall at all times be
kept and maintained on behalf of the City by the Paying
Agent/Registrar, as provided herein and in accordance with the
terms and provisions of a "Paying Agent/ Registrar Agreement",
substantially in the form attached hereto as Exhibit A and such
reasonable rules and regulations as the Paying Agent/Registrar and
the City may prescribe. The Mayor and City Secretary are
authorized to execute and deliver such Agreement in connection
with the delivery of the Certificates. The City covenants to
maintain and provide a Paying Agent/Registrar at all times until
the Certificates are paid and discharged, and any successor Paying
Agent/Registrar shall be a bank, trust company, financial
institution or other entity qualified and authorized to serve in
such capacity and perform the duties and services of Paying
Agent/Registrar. Upon any change in the Paying Agent/Registrar
for the Certificates, the City agrees to promptly cause a written
notice thereof to be sent to each Holder by United States Mail,
first class postage prepaid, which notice shall also give the
address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Certificates shall be
payable at the Stated Maturities or redemption only upon
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presentation and surrender of the Certificates to the Paying
Agent/Registrar at its des,ignated offices in Westerville, Ohio
(the "Designated Payment/Transfer Office"). Interest on the
Certificates shall be paid to the Holders whose names appear in
the Security Register at the close of business on the Record Date
(the last business day of the month next preceding each interest
payment date) and shall be paid by the Paying Agent/Registrar (i)
by check sent United States Mail, first class postage prepaid, to
the address of the Holder recorded in the Security Register or
(ii) by such other method, acceptable to the Paying
Agent/Registrar, requested by, and at the risk and expense of, the
Holder. If the date for the payment of the principal of or
interest on the Certificates shall be a Saturday, Sunday, a legal
holiday, or a day when banking institutions in the City where the
Designated Payment/Transfer Office of the Paying Agent/Registrar
is located are authorized by law or executive order to close, then
the date for such payment shall be the next succeeding day which
is not such a Saturday, Sunday, legal holiday, or day when banking
institutions are authorized to close; and payment on such date
shall have the same force and effect as if made on the original
date payment was due.
In the event of a nonpayment of interest on a scheduled
payment date, and for thirty (30) days thereafter, a new record
date for such interest payment (a IISpecial Record Date") will be
established by the Paying Agent/Registrar, if and when funds for
the payment of such interest have been received from the City.
Notice of the Special Record Date and of the scheduled payment
date of the past due interest (which shall be 15 days after the
Special Record Date) shall be sent at least five (5) business days
prior to the Special Record Date by United States Mail, first
class postage prepaid, to the address of each Holder appearing on
the Security Register at the close of business on the last
business day next preceding the date of mailing of such notice.
SECTION 4: Redemption. (a) Optional Redemption. The
Certificates having Stated Maturities on and after February 15,
2009, shall be subject to redemption prior to maturity, at the
option of the City, in whole or in part in principal amounts of
$5,000 or" any integral multiple thereof (and if within a Stated
Maturity by lot by the Paying Agent/Registrar), on February 15,
2008, or on any date thereafter at the redemption price of par
plus accrued interest to the date of redemption.
(b) Exercise of Redemption Option. At least forty-five (45)
days prior to a redemption date for the Certificates (unless a
shorter notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar
of the decision to redeem Certificates, the principal amount of
each Stated Maturity to be redeemed, and the date of redemption
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therefor. The decision of the City to exercise the right to
redeem Certificates shall be entered in the minutes of the
governing body of the City.
(c) Selection øf Certificates for Redemption. If less than
all Outstanding Certificates of the same Stated Maturity are to be
redeemed on a redemption date, the Paying Agent/ Registrar shall
treat such Certificates as representing the number of Certificates
Outstanding which is obtained by dividing the principal amount of
such Certificates by $5,000 and shall select the Certificates to
be redeemed within such Stated Maturity by lot.
(d) Notice of Redemçtion. Not less than thirty (30) days
prior to a redemption date for the Certificates, a notice of
redemption shall be sent by United States Mail, first class
postage prepaid, in the name of the City and at the City's
expense, to each Holder of a Certificate to be redeemed in whole
or in part at the address of the Holder appearing on the Security
Register at the close of business on the business day next
preceding the date of mailing such notice, and any notice of
redemption so mailed shall be conclusively presumed to have been
duly given irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of
redemption for the Certificates, (ii) identify the Certificates to
be redeemed and, in the case of a portion of the principal amount
to be redeemed, the principal amount thereof to be
redeemed, (iii) state the redemption price, (i v) state that the
Certificates, or the portion of the principal amount thereof to be
redeemed, shall become due and payable on the redemption date
specified and the interest thereon, or on the portion of the
principal amount thereof to be redeemed, shall cease to accrue
from and after the redemption date, provided moneys sufficient for
the payment of such Certificate (or the principal amount thereof
to be redeemed) at the then applicable redemption price are held
for the purpose of such payment by the Paying Agent/Registrar and
(v) specify that payment of the redemption price for the
Certificates, or the principal amount thereof to be redeemed,
shall be made at the Designated Payment/Transfer Office of the
Paying Ag~nt/Registrar only upon presentation and surrender of the
Certificates. If a Certificate is subject by its terms to prior
redemption and has been called for redemption and notice of
redemption has been duly given as hereinabove provided, such
Certificate (or the principal amount thereof to be redeemed) shall
become due and payable and interest thereon shall cease to accrue
from and after the redemption date therefor.
SECTION 5: Reqistration Transfer - Exchanqe of
Certificates-Predecessor Certificates. The Paying Agent/Registrar
shall obtain, record, and maintain in the Security Register the
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name and address of each and every owner of the Certificates
issued under and pursuant to the provisions of this Ordinance, or
if appropriate, the nominee thereof. Any Certificate may be
transferred or "exchanged for Certificates of other authorized
denominations by thé Holder, in person or by his duly authorized
agent, upon surrender of such Certificate to the Paying
Agent/Registrar for cancellation, accompanied by a written
instrument of transfer or request for exchange duly executed by
the Holder or by his duly authorized agent, in a form satisfactory
to the Paying Agent/Registrar.
Upon surrender of any Certificate (other than the Initial
Certificate(s) authorized in Section 8 hereof) for transfer at the
Designated Payment/Transfer Office of the Paying Agent/Registrar,
the Paying Agent/Registrar shall register and deliver, in the name
of the designated transferee or transferees, one or more new
Certificates of authorized denominations, having the same Stated
Maturity and of a like aggregate principal amount as the
Certificate or Certificates surrendered for transfer.
At the option of the Holder, Certificates (other than the
Initial Certificate (s) authorized in Section 8 hereof) may be
exchanged for other Certificates of authorized denominations,
having the same Stated Maturity, bearing the same rate of interest
and of like aggregate principal amount as the Certificates
surrendered for exchange, upon surrender of the Certificates to be
exchanged at the Designated Payment/Transfer Office of the Paying
Agent/Registrar. Whenever any Certificates are surrendered for
exchange, the Paying Agent/Registrar shall register and deliver
new Certificates to the Holder requesting the exchange.
All Certificates issued in any transfer or exchange of
Certificates shall be delivered to the Holders at the Designated
Payment/Transfer Office of the Paying Agent/Registrar or sent by
United States Mail, first class, postage prepaid to the Holders,
and, upon the registration and delivery thereof, the same shall be
the valid obligations of the City, evidencing the same obligation
to pay, and entitled to the same benefits under this Ordinance, as
the Certificates surrendered in such transfer or exchange.
All transfers or exchanges of Certificates pursuant to this
Section shall be made without expense or service charge to the
Holder, except as otherwise herein provided, and except that the
Paying Agent/Registrar shall require payment by the Holder
requesting such transfer or exchange of any tax or other
governmental charges required to be paid with respect to such
transfer or exchange.
Certificates cancelled by reason of an exchange or transfer
pursuant to the provisions hereof are hereby defined to be
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"Predecessor Certificates, II evidencing all or a portion, as the
case may be, of the same oþligation to pay evidenced by the new
Certificate or Certificates registered and delivered in the
exchange or t·ransfer therefor. Additionally, the term
"Predecessor Certif.icates" shall include any mutilated, lost,
destroyed, or stolen Certificate for which a replacement
Certificate has been issued, registered and delivered in lieu
thereof pursuant to the provisions of Section 19 hereof and such
new replacement Certificate shall be deemed to evidence the same
obligation as the mutilated, lost, destroyed, or stolen
Certificate.
Neither the City nor the Paying Agent/ Registrar shall be
required to issue or transfer to an assignee of a Holder any
Certificate called for redemption, in whole or in part, within 45
days of the date fixed for the redemption of such Certificate;
provided, however, such limitation on transferability shall not be
applicable to an exchange by the Holder of the unredeemed balance
of a Certificate called for redemption in part.
SECTION 6: Book-Entry Only Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3, 4 and 5
hereof relating to the payment and transfer/exchange of the
Certificates, the City hereby approves and authorizes the use of
"Book-Entry Only" securities clearance, settlement and transfer
system provided by The Depository Trust Company (DTC), a limited
purpose trust company organized under the laws of the State of New
York, in accordance with the requirements and procedures
identified in the Letter of Representation by and between the
City, the Paying Agent/Registrar and DTC (the IIDepository
Agreement") relating to the Certificates.
Pursuant to the Depository Agreement and the rules of DTC, the
Certificates shall be deposited with DTC who shall hold said
Certificates for its participants (the "DTC Participantsll) and,
while the Certificates are held by DTC under the Depository
Agreement, the Holder of the Certificates on the Security Register
for all purposes, including payment and notices, shall be Cede &
Co., as nominee of DTC, notwithstanding the ownership of each
actual purchaser' or owner of each Certificate (the "Beneficial
Owners") being recorded in the records of DTC and DTC
Participants.
In the event DTC determines to discontinue serving as
securities depository for the Certificates or otherwise ceases to
provide book-entry clearance and settlement of securities
transactions in general or the City determines that DTC is
incapable of properly discharging its duties as securities
depository for the Certificates, the City covenants and agrees
with the Holders of the Certificates to cause Certificates to be
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printed in definitive form and provide for the Certificates to be
issued and delivered to DTC,Participants and Beneficial Owners, as
the case may be. Thereafter, the Certificates in definitive form
shall be assigned, transferred and exchanged on the Security
Register maintained'by the Paying Agent/Registrar and payment of
such Certificates shall be made in accordance with the provisions
of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Reqistration. The Certificates
shall be executed on behalf of the City by the Mayor under its
seal reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Certificates may
be manual or facsimile. Certificates bearing the manual or
facsimile signatures of individuals who are or were the proper
officers of the City on the date of adoption of this Ordinance
shall be deemed to be duly executed on behalf of the City,
notwithstanding that one or more of the individuals executing the
same shall cease to be such officer at the time of delivery of the
Certificates to the initial purchaser (s) and with respect to
Certificates delivered in subsequent exchanges and transfers, all
as authorized and provided in the Bond Procedures Act of 1981, as
amended.
No Certificate shall be entitled to any right or benefit
under this Ordinance, or be valid or obligatory for any purpose,
unless there appears on such Certificate either a certificate of
registration substantially in the form provided in Section 9C,
manually executed by the Comptroller of Public Accounts of the
State of Texas, or his duly authorized agent, or a certificate of
registration substantially in the form provided in Section 9D,
manually executed by an authorized officer, employee or
representative of the Paying Agent/Registrar, and either such
certificate duly signed upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been
duly certified, registered and delivered.
SECTION 8: Initial Certificate(s). The Certificates
herein authorized shall be initially issued either (i) as a single
fully registered certificate in the total principal amount of
$8,180,000 with principal installments to become due and payable
as provided in Section 2 hereof and numbered T-1, or (ii) as
twenty (20) fully registered certificates, being one certificate
for each year of maturity in the applicable principal amount and
denomination and to be numbered consecutively from T-1 and upward
(hereinafter called the IIInitial Certificate(s)") and, in either
case, the Initial Certificate(s) shall be registered in the name
of the initial purchaser(s) or the designee thereof. The Initial
Certificate(s) shall be the Certificates submitted to the Office
of the Attorney General of the State of Texas for approval,
certified and registered by the Office of the Comptroller of
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Public Accounts of the State of Texas and delivered to the initial
purchaser (s) . Any time ,after the delivery of the Initial
Certificate(s), the Paying Agent/Registrar, pursuant to written
instructions from the initial purchaser (s), or the designee
thereof, shall cancel the Initial Certificate(s) delivered
hereunder and exchange therefor definitive Certificates of
authorized denominations, Stated Maturities, principal amounts and
bearing applicable interest rates for transfer and delivery to the
Holders named at the addresses identified therefor; all pursuant
to and in accordance with such written instructions from the
initial purchaser(s), or the designee thereof, and such other
information and documentation as the Paying Agent/Registrar may
reasonably require.
SECTION 9: Forms. A. Forms Generally. The Certificates,
the Registration Certificate of the Comptroller of Public Accounts
of the State of Texas, the Registration Certificate of Paying
Agent/Registrar, and the form of Assignment to be printed on each
of the Certificates, shall be substantially in the forms set forth
in this Section with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required
by this Ordinance and may have such letters, numbers, or other
marks of identification (including identifying numbers and letters
of the Committee on Uniform Securities Identification Procedures
of the American Bankers Association) and such legends and
endorsements (including insurance legends in the event the
Certificates, or any maturities thereof, are purchased with
insurance and any reproduction of an opinion of counsel) thereon
as may, consistently herewith, be established by the City or
determined by the officers executing such Certificates as
evidenced by their execution. Any portion of the text of any
Certificates may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the certificate.
The Certificates, including the Initial Certificate (s), shall
be typewritten, printed, lithographed, or photocopied, or produced
in any other similar manner, all as determined by the officers
executing such Certificates as evidenced by their execution.
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B.
Form of Certificates.
REGISTERED
NO.
REGISTERED
$
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF NORTH RICHLAND HILLS, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM
(LIMITED PLEDGE) REVENUE
CERTIFICATE OF OBLIGATION,
SERIES 1998
Certificate Date:
May 1, 1998
Interest Rate: Stated Maturity:
CUSIP NO:
Registered Owner:
Principal Amount:
DOLLARS
The City of North Richland Hills (hereinafter referred to as
the "City"), a body corporate and municipal corporation in the
County of Tarrant, State of Texas, for value received,
acknowledges itself indebted to and hereby promises to pay to the
order of the Registered Owner named above, or the registered
assigns thereof, on the Stated Maturity date specified above the
Principal Amount hereinabove stated (or so much thereof as shall
not have been paid upon prior redemption), and to pay interest on
the unpaid principal amount hereof from the Certificate Date at
the per annum rate of interest specified above computed on the
basis of a 360-day year of twelve 30-day months; such interest
being payable on February 15 and August 15 in each year,
commencing February 15, 1999. Principal of this Certificate is
payable at its Stated Maturity or redemption to the registered
owner hereof, upon presentation and surrender, at the Designated
Payment/Transfer Office of the Paying Agent/Registrar executing
the registration certificate appearing hereon, or its successor;
provided, however, while this Certificate is registered to Cede &
Co., the payment' ·of principal upon a partial redemption of the
principal amount hereof may be accomplished without presentation
and surrender of this Certificate. Interest is payable to the
registered owner of this Certificate (or one or more Predecessor
Certificates, as defined in the Ordinance hereinafter referenced)
whose name appears on the "Security Register" maintained by the
Paying Agent/Registrar at the close of business on the "Record
Date II , which is the last business day of the month next
preceding each interest payment date, and interest shall be paid
by the Paying Agent/Registrar by check sent United States Mail,
first class postage prepaid, to the address of the registered
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owner recorded in the Security Register or by such other method,
acceptable to the Paying Agent/Registrar, requested by, and at the
risk and expense of, the registered owner. All payments of
principal of, premium, if any, and interest on this Certificate
shall be without exchange or collection charges to the owner
hereof and in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of
public and private debts.
This Certificate is one of the series specified in its title
issued in the aggregate principal amount of $8,180,000 (herein
referred to as the "Certificates") for the purpose of paying
contractual obligations to be incurred for (i) the purchase of
equipment, machinery and vehicles for city departments and
facilities, (ii) improvements to municipal buildings, to wit:
recreation center and library, (iii) improvements and extensions
to the City's combined Waterworks and Sewer System, (iv) flood
control improvements, (v) municipal park improvements, including
improvements to the aquatic park, baseball fields and electric
trails, and (vi) professional services rendered in relation to
such proj ects and the financing thereof, under and in strict
conformity with the Constitution and laws of the State of Texas,
particularly V.T.C.A., Local Government Code, Subchapter C of
Chapter 271, as amended, and pursuant to an Ordinance adopted by
the City Council of the City (herein referred to as the
"Ordinance") .
The Certificates maturing on and after February 15, 2009, may
be redeemed prior to their Stated Maturities, at the option of the
City, in whole or in part in principal amounts of $5,000 or any
integral multiple thereof (and if within a Stated Maturity by lot
by the Paying Agent/Registrar), on February 15, 2008, or on any
date thereafter, at the redemption price of par, together with
accrued interest to the date of redemption.
At least thirty days prior to a redemption date, the City
shall cause a written notice of such redemption to be sent by
United States Mail, first class postage prepaid, to the registered
owners of each Certificate to be redeemed at the address shown on
the Security Register and subject to the terms and provisions
relating thereto contained in the Ordinance. If a Certificate (or
any portion of its principal sum) shall have been duly called for
redemption and notice of such redemption duly given, then upon the
redemption date such Certificate (or the portion of its principal
sum to be redeemed) shall become due and payable, and, if moneys
for the payment of the redemption price and the interest accrued
on the principal amount to be redeemed to the date of redemption
are held for the purpose of such payment by the Paying
Agent/Registrar, interest shall cease to accrue and be payable
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from and after the redemption date on the principal amount
redeemed.
In the event a portion of the principal amount of a
Certificate is to be redeemed and the registered owner is someone
other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon
presentation and surrender of such Certificate to the Designated
Payment/Transfer Office of the Paying Agent/Registrar, and a new
Certificate or Certificates of like maturity and interest rate in
any authorized denominations provided by the Ordinance for the
then unredeemed balance of the principal sum thereof will be
issued to the registered owner, without charge. If a Certificate
is selected for redemption, in whole or in part, the City and the
Paying Agent/Registrar shall not be required to transfer such
Certificate to an assignee of the registered owner within 45 days
of the redemption. date therefor; provided, however, such
limitation on transferability shall not be applicable to an
exchange by the registered owner of the unredeemed balance of a
Certificate redeemed in part.
The Certificates are payable from the proceeds of an ad
valorem tax levied, within the limitations prescribed by law, upon
all taxable property in the City and from a limited pledge of the
Net Revenues (as defined in the Ordinance) of the City's combined
Waterworks and Sanitary Sewer System (the IISystemJl), such pledge
of the Net Revenues for the payment of the Certificates being
limited to an amount not in excess of $1,000 and, together with a
pari ty pledge securing the payment of the Previously Issued
Certificates, being junior and subordinate to the lien on and
pledge of such Net Revenues securing the payment of IIPrior Lien
ObligationsJl (as defined in the Ordinance) now outstanding and
hereafter issued by the City. In the Ordinance, the City
reserves and retains the right to issue Prior Lien Obligations
without limitation as to principal amount but subj ect to any
applicable terms, conditions or restrictions under law or
otherwise.
Reference is hereby made to the Ordinance, a copy of which is
on file in the Designated Payment/Transfer Office of the Paying
Agent/Registrar, and to all the provisions of which the owner or
holder of this Certificate by the acceptance hereof hereby
assents, for definitions of terms; the description of and the
nature and extent of the tax levied for the payment of the
Certificates; the· properties constituting the System; the Net
Revenues pledged to the payment of the principal of and interest
on the Certificates; the nature and extent and manner of
enforcement of the pledge; the terms and conditions relating to
the transfer or exchange of this Certificate; the conditions upon
which the Ordinance may be amended or supplemented with or without
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the consent of the Holders; the rights, duties, and obligations of
the City and the Paying Age9t/Registrar; the terms and provisions
upon which the tax levy and the pledges, charges and covenants
made therein may be discharged at or prior to the maturity of this
Certificate, and this Certificate deemed to be no longer
Outstanding thereunder; and for the other terms and provisions
contained therein. Capitalized terms used herein have the
meanings assigned in the Ordinance.
This Certificate, subject to certain limitations contained in
the Ordinance, may be transferred on the Security Register only
upon its presentation and surrender at the Designated
Payment/Transfer Office of the Paying Agent/Registrar, with the
Assignment hereon duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Paying
Agent/Registrar duly executed by, the registered owner hereof, or
his duly authorized agent. When a transfer on the Security
Register occurs, one or more new fully registered Certificates of
the same Stated Maturity, of authorized denominations, bearing the
same rate of interest, ,and of the same aggregate principal amount
will be issued by the Paying Agent/Registrar to the designated
transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of
either, shall treat the registered owner whose name appears on the
Security Register (i) on the Record Date as the owner entitled to
payment of interest hereon, (ii) on the date of surrender of this
Certificate as the owner entitled to payment of principal hereof
at its Stated Maturity or its redemption, in whole or in part, and
(iii) on any other date as the owner for all other purposes, and
neither the City nor the Paying Agent/Registrar, or any agent of
either, shall be affected by notice to the contrary. In the event
of nonpayment of interest on a scheduled payment date and for
thirty (30) days thereafter, a new record date for such interest
payment (a IISpecial Record Daten) will be established by the
Paying Agent/Registrar, if and when funds for the payment of such
interest have been received from the City. Notice of the Special
Record Date and of the scheduled paYment date of the past due
interest (which shall be 15 days after the Special Record Date)
shall be ~ent at least five (5) business days prior to the Special
Record Date by United States Mail, first class postage prepaid, to
the address of each Holder appearing on the Security Register at
the close of business on the last business day next preceding the
date of mailing of such notice.
701906
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It is hereby certified, recited, represented and declared
that the City is a body co~porate and political subdivision duly
organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of
the Certificates is duly authorized by law; that all acts,
conditions and things required to exist and be done precedent to
and in the issuance of the Certificates to render the same lawful
and valid obligations of the City have been properly done, have
happened and have been performed in regular and due time, form and
manner as required by the Constitution and laws of the State of
Texas, and the Ordinance; that the Certificates do not exceed any
Constitutional or statutory limitation; and that due provision has
been made for the payment of the principal of and interest on the
Certificates as aforestated. In case any provision in this
Certificate shall be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. The terms
and provisions of this Certificate and the Ordinance shall be
construed in accordance with and shall be governed by the laws of
the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused
this Certificate to be duly executed under the official seal of
the City.
CITY OF NORTH RICHLAND HILLS,
TEXAS
COUNTERSIGNED:
Mayor
City Secretary
(SEAL)
701906
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C. *Form of Reqistration Certificate of Comptroller
of Public Accounts to appear on Initial Certificate(s)
only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Certificate has been examined,
certified as to validity and approved by the Attorney General of
the State of Texas, and duly registered by the Comptroller of
Public Accounts of the State of Texas.
WITNESS
my
signature
and
seal
of
office
this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
*NOTE TO PRINTER:
Do Not Print on Definitive Certificates
D. Form of Certificate of Payinq Agent/Reqistrar to
appear on Definitive Certificates only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Certificate has been duly issued and registered under
the provisions of the within-mentioned Ordinance; the certificate
or certificates of the above entitled and designated series
originally delivered having been approved by the Attorney General
of the State of Texas and registered by the Comptroller of Public
Accounts, as shown by the records of the Paying Agent/Registrar.
The designated offices of the Paying Agent/Registrar located
in Westerville, Ohio, is the "Designated Payment/Transfer Officell
for this Certificate.
Registration Date:
BANK ONE, TEXAS, N.A.,
Fort Worth, Texas,
as Paying Agent/Registrar
By
Authorized Signature
701906
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E. Form of Assiqnment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns,
and transfers unto (Print or typewrite name, address, and
zip code of transferee:) .....................
· . . . . . . . . . . . . . . . '" . . '" . . . . . . . . '" . '" . . . . '" . '" . . . '" . . . . '" . . . . . . . . . '" . . .
· . . . . . . . . . . . . . . . . '" . . . '" . . '" . . . . . '" . '" . . '" . . . '" . . '" '" . . . . '" . . . . . . . . . . .
(Social Security or other identifying number:
· . . . . . . . . . . . . . . .) the within Certificate and
thereunder, and hereby irrevocably constitutes
. '" . . . . . . . . . . .
all rights
and appoints
· . '" . '" . . . . . . . . . . '" . . '" . . . . . . . . . '" . . . . . '" . . . . . '" . . . '" . . . . . . . . . . '" . . '" .
attorney to transfer the within Certificate on the books kept
for registration thereof, with full power of substitution in the
premises.
DATED:
. . '" . . . '" . '" . . . . . . '" . .
. '" '" . '" '" . '" . . '" '" . . '" '" . '" . . '" . . . . . . . . . . '"
· . . . . . . . . '" '" . '" '" . . . '" '" . .
NOTICE: The signature on this assign-
ment must correspond with the
name of the registered owner as it
appears on the face of the within
Certificate in every particular.
Signature guaranteed:
F. The Initial Certificate(s) shall be in the form set forth
in paragraph B of this Section, except that the form of
a sinqle fully reqistered Initial Certificate shall be
modified as follows:
(i) immediately under the name
headings "Interest Rate
" shall both be omitted;
of the
" and
certificate the
"Stated Maturity
(ii) paragraph one shall read as follows:
Registered Owner:
Principal Amount:
Dollars
The City of 'North Richland Hills (hereinafter referred to as
the "City"), a body corporate and municipal corporation in the
County of Tarrant, State of Texas, for value received,
acknowledges itself indebted to and hereby promises to pay to the
order of the Registered Owner named above, or the registered
assigns thereof ,the Principal Amount hereinabove stated on
February 15 in each of the years and in principal installments in
accordance with the following schedule:
701900
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YEAR
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
"(Information to be inserted from
schedule in Section 2 hereof) .
(or so much thereof as shall not have been prepaid prior to
maturity) and to pay interest on the unpaid principal amounts
hereof from the Certificate Date at the per annum rate (s) of
interest specified above computed on the basis of a 360-day year
of twelve 30-day months; such interest being payable on
February 15 and August 15 of each year, commencing February 15,
1999. Principal installments of this Certificate are payable at
its Stated Maturity or on a prepayment date to the registered
owner hereof by Bank One, Texas, N.A., Fort Worth, Texas (the
"Paying Agent/Registrar"), upon presentation and surrender, at its
designated offices in Westerville, Ohio (the "Designated
Payment/Transfer Office"). Interest is payable to the registered
owner of this Certificate whose name appears on the "Security
Registerll maintained by the Paying Agent/Registrar at the close of
business on the IIRecord Datell, which is the last business day of
the month next preceding each interest payment date hereof and
interest shall be paid by the Paying Agent/Registrar by check sent
United States Mail, first class postage prepaid, to the address of
the registered owner recorded in the Security Register or by such
other method, acceptable to the Paying Agent/ Registrar, requested
by, and at the risk and expense of, the registered owner. All
payments of principal of, premium, if any, and interest on this
Certificate shall be without exchange or collection charges to the
owner hereof and in any coin or currency of the United States of
America which at the time of payment is legal tender for the
payment of public and private debts.
SECTION 10: Definitions. That for purposes of this
Ordinance and for clarity with respect to the issuance of the
Certificates herein authorized, and the levy of taxes and
appropriation of Net Revenues therefor, the following words or
terms, whenever the same appears herein without qualifying
language, are defined to mean as follows:
(a) The term "Certificates" shall mean the
$8,180,000 "City of North Richland Hills, Texas, Tax and
Waterworks and Sewer System (Limited Pledge) Revenue
Certificates of Obligation, Series 1998" authorized by
thi s Ordinance.'
(b) The term "Certificate Fund II shall mean the
special Fund created and established under the
provisions of Section 11 of this Ordinance.
70190ð
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70190li
(c) The term "Collection Date" shall mean, when
reference is being made to the levy and collection of
annual ad valorem taxes, the date the annual ad valorem
taxes leviéd each year by the City become delinquent.
(d) The term "Fiscal Yearll shall mean the twelve
month financial accounting period for the System ending
September 30th of each year; provided, however, the
City, by ordinance, may change the Fiscal Year to
another period of not less than twelve calendar months.
(e) The term "Government Securities" shall mean
direct obligations of the United States of America,
including obligations the principal of and interest on
which are unconditionally guaranteed by the United
States of America, and United States Treasury
obligations such as its State and Local Government
Series in book-entry form.
(f) The term IIGross Revenues II shall mean all
income and revenues of every nature derived or received
from the operation and ownership (excluding refundable
meter deposits, restricted gifts and grants in aid of
construction, impact fees charged developers and special
assessments against landowners) of the System, including
earnings and income derived from the investment or
deposit of moneys in any special funds or accounts
created and established for the payment and security of
the Prior Lien Obligations and other obligations payable
solely from and secured only by a lien on and pledge of
the Net Revenues.
(g) The term IIOperating and Maintenance Expenses"
shall mean all current expenses of operating and
maintaining the System, including all salaries, labor,
materials, repairs and extensions necessary to render
efficient service; provided, however, that only such
repairs and extensions, as in the judgment of the City
Council, reasonably and fairly exercised, are necessary
to maintain the operations and render adequate service
to the City and the inhabitants thereof, or such as
might be necessary to meet some physical accident or
condition which would otherwise impair obligations
payable from Net Revenues shall be deducted in
determining "Net Revenues". Depreciation charges shall
not be considered Operating and Maintenance Expenses.
Operating and Maintenance Expenses shall include
payments under contracts for the purchase of water
supply, treatment of sewage or other materials, goods or
-18-
services for the System to the extent authorized by law
and the provisions of "such contract.
(h) "The term IINet Revenues" shall mean Gross
Revenues of the System, with respect to any period,
after deducting the System's Operating and Maintenance
Expenses during such period.
(i) The term "Outstanding" when used in this
Ordinance with respect to Certificates means, as of the
date of determination, all Certificates theretofore
issued and delivered under this Ordinance, except:
(1) those Certificates cancelled by the
Paying Agent/Registrar or delivered to the
Paying Agent/Registrar for cancellation;
(2) those Certificates for which
payment has been duly provided by the City in
accordance with the provisions of Section 20
hereof; and
(3) those Certificates that have been
mutilated, destroyed, lost, or stolen and
replacement Certificates have been registered
and delivered in lieu thereof as provided in
Section 19 hereof.
(j) The term "Previously Issued Certificatesll
shall mean the outstanding (i) "City of North Richland
Hills, Texas, Tax and Waterworks and Sewer System
(Limited Pledge) Revenue Certificates of Obligation,
Series 1992", dated February 1, 1992, originally issued
in the principal amount of $900,000, and (ii) "City of
North Richland Hills, Texas, Tax and Waterworks and
Sewer System (Limited Pledge) Revenue Certificates of
Obligation, Series 1997", dated April 15, 1997,
originally issued in the principal amount of $2,755,000.
~ (k) The term "Prior Lien Obligations" shall mean
all revenue bonds or other obligations, now outstanding
and hereafter issued, payable from and secured, in whole
or in part, by a lien on and pledge of the Net Revenues
of the System, including, but not limited to, the
outstanding and unpaid: "City of North Richland Hills,
Texas, Waterworks and Sewer System Revenue Refunding
701906
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Bonds, Series 1996", dated December 1, 1996, and
originally issued in the principal amount of $5,135,000.
(l) The term "Systemll shall mean all properties,
facilities and plants currently owned, operated and
maintained by the City for the supply, treatment and
transmission of treated potable water and the
collection, treatment and disposal of water-carried
wastes, together with all future extensions,
improvements, replacements and additions thereto;
provided, however, that notwithstanding the foregoing,
and to the extent now or hereafter authorized or
permitted by law, the term "System" shall not mean to
include facilities of any kind which are declared not to
be a part of the System and which are acquired or
constructed by or on behalf of the City with the
proceeds from the issuance of II Special Facilities
Bonds" , which are hereby defined as being special
revenue obligations of the City which are not Prior Lien
Obligations but which are payable from and secured by
other liens on and pledges of any revenues, sources or
payments, not pledged to the payment of the Prior Lien
Obligations including, but not limited to, special
contract revenues or payments received from any other
legal entity in connection with such facilities.
SECTION 11: Certificate Fund. That, for the purpose of
paying the interest on and to provide a sinking fund for the
payment, redemption and retirement of the Certificates, there
shall be and is hereby created a special account or fund on the
books and records of the City known as the IISPECIAL SERIES 1998
TAX AND REVENUE CERTIFICATE OF OBLIGATION FUND", and all moneys
deposited to the credit of such Fund shall be kept and maintained
in a banking account at the City's depository bank. Authorized
officials of the City are hereby authorized and directed to make
withdrawals from said Fund sufficient to pay the principal of and
interest on the Certificates as the same become due and payable,
and, shall cause to be transferred to the paying Agent/Registrar
from moneys on deposit in the Certificate Fund an amount
sufficient to pay the amount of principal and/or interest falling
due on the Certificates, such transfer of funds to the Paying
Agent/Registrar to be made in such manner as will cause
immediately available funds to be deposited with the Paying
Agent/Registrar on or before the last business day next preceding
each interest and principal payment date for the Certificates.
Pending the transfer of funds to the Paying Agent/Registrar,
money in the Certificate Fund may, at the option of the City, be
invested in obligations identified in, and in accordance with the
provisions of the "Public Funds Investment Act" (V.T.C.A.,
7019011
-20-
Government Code, Chapter 2256) relating to the investment of "bond
proceedsll; provided that all such investments shall be made in
such a manner that the money required to be expended from said
Fund will be available at the proper time or times. All interest
and income derived from deposits and investments in said
Certificate Fund shall be credited to, and any losses debited to,
the said Certificate Fund. All such investments shall be sold
promptly when necessary to prevent any default in connection with
the Certificates.
SECTION 12: Tax Levy. That, to provide for the payment of
the IIDebt Service Requirements" on the Certificates being (i) the
interest on said Certificates and (ii) a sinking fund for their
redemption at maturity or a sinking fund of 2% (whichever amount
shall be the greater), there shall be and there is hereby levied
for the current year and each succeeding year thereafter while
said Certificates or any interest thereon shall remain
Outstanding, a sufficient tax on each one hundred dollars'
valuation of taxable property in said City, adequate to pay such
Debt Service Requirements, full allowance being made for
delinquencies and costs of collection; said tax shall be assessed
and collected each year and applied to the payment of the Debt
Service Requirements, and the same shall not be diverted to any
other purpose. The taxes so levied and collected shall be paid
into the Certificate Fund. The City Council hereby declares its
purpose and intent to provide and levy a tax legally and fully
sufficient to pay the said Debt Service Requirements, it having
been determined that the existing and available taxing authority
of the City for such purpose is adequate to permit a legally
sufficient tax in consideration of all other outstanding
indebtedness.
Accrued interest and premium, if any, received from the
purchasers of the Certificates shall be deposited to the
Certificate Fund. In addition, any surplus proceeds from the sale
of the Certificates not expended for authorized purposes shall be
deposited in the Certificate Fund, and such amounts so deposited
shall reduce the sums otherwise required to be deposited in said
Fund from ad valorem taxes.
SECTÍON 13: Limi ted Pledge of Net Revenues. The City
hereby covenants and agrees that, subject to the prior lien on and
pledge of the Net Revenues of the System to the payment and
security of Prior Lien Obligations, the Net Revenues of the System
in an aggregate amount not to exceed $1,000 are hereby irrevocably
pledged to the payment of the principal of and interest on the
Certificates, and the limited pledge of $1,000 of the Net Revenues
of the System herein made for the payment of the Certificates
shall constitute a lien on the Net Revenues of the System in
accordance with the terms and provisions hereof and shall be on an
701906
-21-
parity in all respects with the lien on the Net Revenues securing
the payment of the Previously Issued Certificates. Furthermore,
such lien on and pledge of the Net Revenues securing the payment
of the Certificates shall be valid and binding without further
action by the City and without any filing or recording except for
the filing of this Ordinance in the records of the City.
SECTION 14: System Fund. The City covenants and agrees
that revenues derived from the operation of the System shall be
accounted for separate and apart from all other funds, accounts
and moneys of the City, and all such revenues shall be deposited
as collected into a fund maintained at an official depository of
the City and known on the books of the City as the "Water and
Sewer System Fund" (hereinafter called the "System Fund"). All
moneys deposited to the credit of the System Fund shall be
allocated, appropriated and budgeted to the extent required for
the following purposes and in the order of priority shown, to wit:
First: To the payment of all necessary and reasonable
Operating and Maintenance Expenses of the System as
defined herein or required by statute to be a first
charge on and claim against the Gross Revenues of the
System,
Second: To the payment of all amounts required to be
deposited in the special Funds created and established
for the payment, security and benefit of Prior Lien
Obligations in accordance with the terms and provisions
of the ordinances authorizing the issuance of Prior Lien
Obligations.
Third: To the payment, equally and ratably, of the
limited amounts pledged to the payment of the Previously
Issued Certificates and the Certificates.
Any Net Revenues remaining in the System Fund after
satisfying the foregoing payments, or making adequate and
sufficient provision for the payment thereof, may be appropriated
and used for any other City purpose now or hereafter permitted by
law.
SECTION 15: Security of Funds. All moneys on deposit in
the Funds for which this Ordinance makes provision (except any
portion thereof as may be at any time properly invested) shall be
secured in the manner and to the fullest extent required by the
laws of Texas for the security of public funds, and moneys on
deposit in such Funds shall be used only for the purposes
permitted by this Ordinance.
701906
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SECTION 16: Special Covenants.
covenants as follows:
The City hereby further
(a) It has the lawful power to pledge the Net
Revenues of 'the System to the payment of the
Certificates in the manner herein contemplated and has
lawfully exercised such power under the Constitution and
laws of the State of Texas, including said power
existing under Articles 1111 et seq., V.A.T.C.S. and
V.T.C.A., Local Government Code, Sections 271.041, et
seq.
(b) Other than for the payment of the
Certificates, the Previously Issued Certificates
identified in Section 10(j), and the Prior Lien
Obligations identified in Section 10(k) hereof, the Net
Revenues of the System have not in any manner been
pledged to the payment of any debt or obligation of the
City or of the System.
SECTION 17: Issuance of Prior Lien Obliqations. The City
expressly reserves the right to hereafter issue Prior Lien
Obligations, without limitation as to principal amount but subject
to any terms, conditions or restrictions applicable thereto under
law or otherwise. Prior Lien Obligations hereafter issued may be
payable, in whole or in part, from the Net Revenues (without
impairment of the obligation of contract with the Holders of the
Certificates) upon such terms and conditions as the City Council
may determine. Additionally, the City reserves the right to issue
obligations payable, in whole or in part, from the Net Revenues of
the System and, to the extent provided, secured by a lien on and
pledge of the Net Revenues of equal rank and dignity with the lien
and pledge securing the payment of the Certificates and the
Previously Issued Certificates.
SECTION 18: Application of Prior Lien Obliqations
Covenants and Aqreements. It is the intention of this governing
body and accordingly hereby recognized and stipulated that the
provisions, agreements and covenants contained herein bearing upon
the management and operations of the System, and the administering
and application of revenues derived from the operation thereof,
shall to the extent possible be harmonized with like provisions,
agreements and covenants contained in the ordinances authorizing
the issuance of the Prior Lien Obligations, and to the extent of
any irreconcilable conflict between the provisions contained
herein and in the ordinances authorizing the issuance of the Prior
Lien Obligations, the provisions, agreements and covenants
contained therein shall prevail to the extent of such conflict and
be applicable to this Ordinance but in all respects subject to the
priority of rights and benefits, if any, conferred thereby to the
70190ð
-23-
holders of the Prior Lien Obligations. Notwithstanding the above,
any change or modification affecting the application of revenues
derived from the operation of the System shall not impair the
obligation of c:ontract with respect to the limited pledge of
revenues herein made for the payment and security of the
Certificates.
SECTION 19: Mutilated - Destroyed - Lost and Stolen
Certificates. In case any Certificate shall be mutilated, or
destroyed, lost or stolen, the Paying Agent/Registrar may execute
and deliver a replacement Certificate of like form and tenor, and
in the same denomination and bearing a number not
contemporaneously outstanding, in exchange and substitution for
such mutilated Certificate, or in lieu of and in substitution for
such destroyed, lost or stolen Certificate, only upon the approval
of the City and after (i) the filing by the Holder thereof with
the Paying Agent/Registrar of evidence satisfactory to the Paying
Agent/Registrar of the destruction, loss or theft of such
Certificate, and of the authenticity of the ownership thereof and
(ii) the furnishing to the Paying Agent/Registrar of
indemnification in an amount satisfactory to hold the City and the
Paying Agent/Registrar harmless. All expenses and charges
associated with such indemnity and with the preparation, execution
and delivery of a replacement Certificate shall be borne by the
Holder of the Certificate mutilated, or destroyed, lost or stolen.
Every replacement Certificate issued pursuant to this Section
shall be a valid and binding obligation, and shall be entitled to
all the benefits of this Ordinance equally and ratably with all
other Outstanding Certificates; notwithstanding the enforceability
of paYment by anyone of the destroyed, lost, or stolen
Certificates.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement and payment of mutilated, destroyed,
lost or stolen Certificates.
SECTION 20: Satisfaction of Obliqation of City. If the
City shall payor cause to be paid, or there shall otherwise be
paid to the Holders, the principal of, premium, if any, and
interest on the Certificates, at the times and in the manner
stipulated in this Ordinance, then the pledge of taxes levied
under this Ordinance and the Net Revenues of the System (to the
extent such limited pledge of Net Revenues shall not have been
discharged or terminated by prior payment of principal of or
interest on the Certificates) and all covenants, agreements, and
other obligations of the City to the Holders shall thereupon
cease, terminate, and be discharged and satisfied.
701906
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Certificates or any principal amount (s) thereof shall be
deemed to have been paid within the meaning and with the effect
expressed above in this Section when (i) money sufficient to pay
in full such Certificates or the principal amount(s) thereof at
maturity or the redemption date therefor, together with all
interest due thereon, shall have been irrevocably deposited with
and held in trust by the Paying Agent/Registrar, or an authorized
escrow agent, or (ii) Government Securities shall have been
irrevocably deposited in trust with the Paying Agent/Registrar, or
an authorized escrow agent, which Government Securities have been
certified by an independent accounting firm to mature as to
principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient
money, together with any moneys deposited therewith, if any, to
pay when due the principal of and interest on such Certificates,
or the principal amount(s) thereof, on and prior to the Stated
Maturity thereof or (if notice of redemption has been duly given
or waived or if irrevocable arrangements therefor acceptable to
the Paying Agent/ Registrar have been made) the redemption date
thereof. The City covenants that no deposit of moneys or
Government Securities will be made under this Section and no use
made of any such deposit which would cause the Certificates to be'
treated as "arbitrage bonds" within the meaning of Section 148 of
the Internal Revenue Code of 1986, as amended, or regulations
adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or
an authorized escrow agent, and all income from Government
Securities held in trust by the Paying Agent/Registrar, or an
authorized escrow agent, pursuant to this Section which is not
required for the payment of the Certificates, or any principal
amount(s) thereof, or interest thereon with respect to which such
moneys have been so deposited shall be remitted to the City or
deposited as directed by the City. Furthermore, any money held by
the Paying Agent/Registrar for the payment of the principal of and
interest on the Certificates and remaining unclaimed for a period
of four (4) years after the Stated Maturity, or applicable
redemption date, of the Certificates such moneys were deposited
and are held in trust to pay shall upon the request of the City be
remitted ,to the. City against a written receipt therefor.
Notwithstanding the above and foregoing, any remittance of funds
from the Paying Agent/Registrar to the City shall be subject to
any applicable unclaimed property laws of the State of Texas.
SECTION 21: Ordinance a Contract -Amendments. This
Ordinance shall constitute a contract with the Holders from time
to time, be binding on the City, and shall not be amended or
repealed by the City so long as any Certificate remains
Outstanding except as permitted in this Section. The City may,
without the consent of or notice to any Holders, from time to time
701906
-25-
and at any time, amend this Ordinance in any manner not
detrimental to the interest$ of the Holders, including the curing
of any ambiguity, inconsistency, or formal defect or omission
herein. In addition, the City may, with the consent of Holders
holding a majority in aggregate principal amount of the
Certificates then Outstanding affected thereby, amend, add to, or
rescind any of the provisions of this Ordinance; provided that,
without the consent of all Holders of Outstanding Certificates, no
such amendment, addition, or rescission shall (1) extend the time
or times of payment of the principal of, premium, if any, and
interest on the Certificates, reduce the principal amount thereof,
the redemption price, or the rate of interest thereon, or in any
other way modify the terms of payment of the principal of,
premium, if any, or interest on the Certificates, (2) give any
preference to any Certificate over any other Certificate, or
(3) reduce the aggregate principal amount of Certificates required
to be held by Holders for consent to any such amendment, addition,
or rescission.
SECTION 22: Covenants to Maintain Tax-Exempt Status.
When used in this Section, the following terms have the following
meanings:
"Closing Date" means the date on which the
Certificates are first authenticated and delivered to
the initial purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as
amended by all legislation, if any, effective on or
before the Closing Date.
"Computation Date" has the meaning set forth in
Section 1.148-1(b) of the Regulations.
"Gross Proceeds" means any proceeds as defined in
Section 1.148-1(b) of the Regulations, and any
replacement proceeds as defined in Section 1.148-1 (c) of
the Regulations, of the Certificates.
. "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 Certificates are invested
and which is not acquired to carry out the governmental
purposes of the Certificates.
"Rebate Amount" has the meaning set forth in
Section 1.148-1(b) of the Regulations.
701901í
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"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 Certificates. 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
Certificates 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 Certificate 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
Certificate, 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 Certificates:
(1) exclusively own, operate and possess all
property the acquisition, construction or improvement of
which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Certificates, 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
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(2) not directly or indirectly impose or accept
any charge or other payment by any person or entity who
is treated as using Gross Proceeds of the Certificates
or any property the acquisition, construction or
improvement of, which is to be financed or refinanced
directly or indirectly with such Gross Proceeds, other
than taxes of general application within the City or
interest earned on investments acquired with such Gross
Proceeds pending application for their intended
purposes.
(d) No Private Loan. Except to the extent permitted by
section 141 of the Code and the Regulations and rulings
thereunder, the City shall not use Gross Proceeds of the
Certificates 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
"loanedll to a person or entity if: (1) property acquired,
constructed or improved with such Gross Proceeds is sold or leased
to such person or entity in a transaction which creates a debt for
federal income tax purposes; (2) capacity in or service from such
property is committed to such person or entity under a
take-or-pay, output or similar contract or arrangement; or (3)
indirect benefits, or burdens and benefits of ownership, of such
Gross Proceeds or any property acquired, constructed or improved
with such Gross Proceeds are otherwise transferred in a
transaction which is the economic equivalent of a loan.
(e) Not to Invest at Hiqher 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 Certificates 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 Certificates.
(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 Certificates 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.
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(h) Rebate of Arbitraqe Profits.
otherwise provided in section 148(f)
Regulations and rulings thereunder:
Except
of the
to the extent
Code and the
(1) The City shall account for all Gross Proceeds
(including all receipts, expenditures and investments
thereof) on its books of account separately and apart
from all other funds (and receipts, expenditures and
investments thereof) and shall retain all records of
accounting for at least six years after the day on which
the last Outstanding Certificate is discharged.
However, to the extent permitted by law, the City may
commingle Gross Proceeds of the Certificates with other
money of the City, provided that the City separately
accounts for each receipt and expenditure of Gross
Proceeds and the obligations acquired therewith.
(2) Not less frequently than each Computation
Date, the City shall calculate the Rebate Amount in
accordance with rules set forth in section 148(f) of the
Code and the Regulations and rulings thereunder. The
City shall maintain such calculations with its official
transcript of proceedings relating to the issuance of
the Certificates until six years after the final
Computation Date.
(3) As additional consideration for the purchase
of the Certificates by the Purchasers and the loan of
the money represented thereby and in order to induce
such purchase by measures designed to insure the
excludability of the interest thereon from the gross
income of the owners thereof for federal income tax
purposes, the City shall pay to the United States out of
the Certificate Fund or its general fund, as permitted
by applicable Texas statute, regulation or opinion of
the Attorney General of the State of Texas, the amount
that when added to the future value of previous rebate
payments made for the Certificates equals (i) in the
case of a Final Computation Date as defined in Section
1.148-3(~) (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.
701906
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(4) The City shall exercise reasonable diligence
to assure that no errors are made in the calculations
and payments required by paragraphs (2) and (3), and if
an error i~ 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 Arbitraqe 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
Certificates, 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
Certificates not been relevant to either party.
(j) Elections. The City hereby directs and authorizes the
Mayor, City Secretary, Ci ty Manager, Deputy Ci ty Manager, and
Director of Finance, 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 Certificates, in the Certificate as to Tax
Exemption or similar or other appropriate certificate, form or
document.
SECTION 23: Sale of Certificates. Pursuant to a public
sale for the Certificates, the bid submitted by First Southwest
Company (herein referred to as the "Purchasers") is declared to be
the best bid received producing the lowest true interest cost rate
to the City, and the sale of the Certificates to said Purchasers
at the price of par and accrued interest to the date of delivery,
plus a premium of $-0-, is hereby approved and confirmed.
Delivery of the Certificates to the Purchasers shall occur as soon
as possible upon. payment being made therefor in accordance with
the terms' of sale:
SECTION 24: Official Statement. The Official Statement
prepared in the initial offering and sale of the Certificates by
the City, together with all addendas, supplements and amendments
thereto issued on 'behalf of the City, is hereby approved as to
form and content, and the City Council hereby finds that the
information and data contained in said Official Statement
pertaining to the City and its financial affairs is true and
correct in all material respects and no material facts have been
7019015
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omitted therefrom which are necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The use of such Official Statement in the
reoffering of the Certificates by the Purchasers is hereby
approved and authorized.
SECTION 25: Proceeds of Sale. The proceeds of sale of the
Certificates, excluding the accrued interest received from the
Purchasers, shall be deposited in a construction fund maintained
at the City's depository bank. Pending expenditure for authorized
projects and purposes, such proceeds of sale may be invested in
authorized investments and, subject to the provisions of Section
22(h) hereof, any investment earnings realized shall be expended
for such authorized projects and purposes or deposited in the
Certificate Fund as shall be determined by the City Council.
Accrued interest and premium, if any, as well as all surplus
proceeds of sale of the Certificates, including investment
earnings, remaining after completion of all authorized projects or
purposes and paying or making provision for the payment of the
amounts owed pursuant to Section 22(h) hereof shall be deposited
to the credit of the Certificate Fund.
SECTION 26: Control and Custody of Proceedinqs. The Mayor
of the City shall be and is hereby authorized to take and have
charge of all necessary orders and records pending the sale of the
Certificates, the investigation by the Attorney General of the
State of Texas, including the printing and supply of definitive
Certificates, and shall take and have charge and control of the
Initial Certificate(s) pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, City Secretary, Director of Finance,
Deputy City Manager, and City Manager, anyone or more of said
officials, are hereby authorized and directed to furnish and
execute such documents and certifications relating to the City and
the issuance of the Certificates, including a certification as to
facts, estimates, circumstances and reasonable expectations
pertaining to the use and expenditure and investment of the
proceeds of the Certificates as may be necessary for the approval
of the Attorney General and their registration by the Comptroller
of Public Accounts. In addition, such officials, together with
the City's financial advisor, bond counsel and the Paying
Agent/Registrar, are authorized and directed to make the necessary
arrangements for the delivery of the Initial Certificate (s) to the
Purchasers and the initial exchange thereof for definitive
Certificates.
SECTION 27: Notices to Holders-Waiver. Wherever this
Ordinance provides for notice to Holders of any event, such notice
701906
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shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first
class postage prepaid, to the address of each Holder appearing in
the Security Register at the close of business on the business day
next preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice to any particular Holders, nor any
defect in any notice so mailed, shall affect the sufficiency of
such notice with respect to all other Certificates. Where this
Ordinance provides for notice in any manner, such notice may be
waived in writing by the Holder entitled to receive such notice,
either before or after the event with respect to which such notice
is given, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Paying
Agent/Registrar, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
SECTION 28: Cancellation. All Certificates surrendered
for payment, redemption, transfer, exchange, or replacement, if
surrendered to the Paying Agent/Registrar, shall be promptly
cancelled by it and, if surrendered to the City, shall be
delivered to the Paying Agent/Registrar and, if not already
cancelled, shall be promptly cancelled by the Paying
Agent/Registrar. The City may at any time deliver to the paying
Agent/Registrar for cancellation any Certificates previously
certified or registered and delivered which the City may have
acquired in any manner whatsoever, and all Certificates so
delivered shall be promptly cancelled by the Paying
Agent/Registrar. All cancelled Certificates held by the Paying
Agent/Registrar shall be returned to the City.
SECTION 29: Market Opinion. The Purchasers' obligation to
accept delivery of the Certificates is subject to being furnished
a final opinion of Fulbright & Jaworski L.L.P., Dallas, Texas,
approving the Certificates as to their validity, said opinion to
be dated and delivered as of the date of delivery and payment for
the Certificates. An executed counterpart of said opinion shall
accompany, the global certificates deposited with The Depository
Trust Company or a reproduction thereof shall be printed on the
definitive Certificates in the event the book entry only system
shall be discontinued.
SECTION 30: CUSIP Numbers. CUSIP numbers may be printed
or typed on the definitive Certificates. It is expressly
provided, however, that the presence or absence of CUSIP numbers
on the definitive Certificates shall be of no significance or
effect as regards the legality thereof and neither the City nor
attorneys approving the Certificates as to legality are to be held
70190ð
-32-
responsible for CUSIP numbers incorrectly printed or typed on the
definitive Certificates.
SECTION 31~ Benefits of Ordinance. Nothing in this
Ordinance, expressed or implied, is intended or shall be construed
to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim,
legal or equitable, under or by reason of this Ordinance or any
provision hereof, this Ordinance and all its provisions being
intended to be and being for the sole and exclusive benefit of the
City, the Paying Agent/Registrar and the Holders.
SECTION 32: Inconsistent Provisions. All ordinances,
orders or resolutions, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of
this Ordinance shall be and remain controlling as to the matters
contained herein.
SECTION 33: Governing Law. This Ordinance shall be
construed and enforced in accordance with the laws of the State of
Texas and the United States of America.
SECTION 34: Effect of Headinqs.
herein are for convenience only and
construction hereof.
The
shall
Section headings
not affect the
SECTION 35: Construction of Terms. If appropriate in the
context of this Ordinance, words of the singular number shall be
considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 36: Severability. If any provision of this
Ordinance or the application thereof to any circumstance shall be
held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be
valid, and the City Council hereby declares that this Ordinance
would have been enacted without such invalid provision.
SECTION 37: Continuinq Disclosure Undertakinq. (a)
Definitions. As used in this Section, the following terms have
the meanings ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means each person whom the SEC or its staff has
determined to be a nationally recognized municipal securities
7019015
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information repository within the meaning of the Rule from time to
time.
"Rule'~ means SEC Rule 15c2 -12, as amended from time to
time.
"SEC" means the United States Securities and Exchange
Commission.
"SID" means any person designated by the State of Texas
or an authorized department, officer, or agency thereof as, and
determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
(b) Annual Reports. The City shall provide annually to each
NRMSIR and any SID, within six months after the end of each fiscal
year (beginning with the fiscal year ending September 30, 1998)
financial information and operating data with respect to the City
of the general type included in the final Official Statement
approved by Section 24 of this Ordinance, being the information
described in Exhibit B hereto. Financial statements to be
provided shall be (1) prepared in accordance with the accounting
principles described in Exhibit B hereto and (2) audited, if the
City commissions an audit of such statements and the audit is
completed within the period during which they must be provided.
If audited financial statements are not available at the time the
financial information and operating data must be provided, then
the City shall provide unaudited financial statements for the
applicable fiscal year to each NRMSIR and any SID with the
financial information and operating data and will file the annual
audit report, when and if the same becomes available.
If the City changes its fiscal year, it will notify each
NRMSIR and any SID of the change (and of the date of the new
fiscal year end) prior to the next date by which the City
otherwise would be required to provide financial information and
operating data pursuant to this Section.
The financial information and operating data to be
provided pursuant to this Section may be set forth in full in one
or more dõcumentsor may be included by specific reference to any
document (including an official statement or other offering
document, if it is available from the MSRB) that theretofore has
been provided to each NRMSIR and any SID or filed with the SEC.
(c) Material' Event Notices. The City shall notify any SID
and either each NRMSIR or the MSRB, in a timely manner, of any of
the following events with respect to the Certificates, if such
event is material within the meaning of the federal securities
laws:
701906
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1. Principal and interest payment delinquencies;
2. Non-payment ,related defaults;
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 or events affecting the tax-
exempt status of the Certificates;
7. Modifications to rights of holders of the
Certificates;
8. Certificate calls;
9. Defeasances;
10. Release, substitution, or sale of property securing
repaYment of the Certificates; and
11. Rating changes.
The City shall notify any SID and either each NRMSIR or
the MSRB, in a timely manner, of any failure by the City to
provide financial information or operating data in accordance with
subsection (b) of this Section by the time required by such'
Section.
(d) Limi tations, Disclaimers, and Amendments. The City
shall be obligated to observe and perform the covenants specified
in this Section while, but only while, the City remains an
lIobligated personll with respect to the Certificates within the
meaning of the Rule, except that the City in any event will give
the notice required by subsection (c) hereof of any Certificate
calls and defeasance that cause the City to be no longer such an
"obligated person."
The provisions of this Section are for the sole benefit
of the Holders and beneficial owners of the Certificates, and
nothing in this Section, express or implied, shall give any
benefit or any legal or equitable right, remedy, or claim
hereunder to any other person. The City undertakes to provide
only the financial information, operating data, financial
statements, and notices which it has expressly agreed to provide
pursuant to this Section and does not hereby undertake to provide
any other information that may be relevant or material to a
complete presentation of the City's financial results, condition,
or prospects or hereby undertake to update any information
provided in accordance with this Section or otherwise, except as
expressly provided herein. The City does not make any
representation or warranty concerning such information or its
usefulness to a decision to invest in or sell Certificates at any
future date.
701905
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UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE
HOLDER OR BENEFICIAL OWNER OF ANY CERTIFICATE OR ANY OTHER PERSON,
IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART
FROM ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON
ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY
RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR
ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR
MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its
obligations under this Section shall constitute a breach of or
default under this Ordinance for purposes of any other provision
of this Ordinance.
Nothing in this Section is intended or shall act to
disclaim, waive, or otherwise limit the duties of the City under
federal and state securities laws.
The provisions of this Section may be amended by the
City from time to time to adapt to changed circumstances resulting
from a change in legal requirements, a change in law, or a change
in the identity, nature, status, or type of operations of the
City, but only if (1) the provisions of this Section, as so
amended, would have permitted underwriters to purchase or sell
Certificates in the primary offering of the Certificates in
compliance with the Rule, taking into account any amendments or
interpretations of the Rule to the date of such amendment, as well
as such changed circumstances, and (2) either (a) the Holders of
a majority in aggregate principal amount (or any greater amount
required by any other provision of this Ordinance that authorizes
such an amendment) of the Outstanding Certificates consent to such
amendment or (b) a Person that is unaffiliated with the City (such
as nationally recognized bond counsel) determines that such
amendment will not materially impair the interests of the Holders
and beneficial owners of the Certificates. The provisions of this
Section may also be amended from time to time or repealed by the
City if the SEC amends or repeals the applicable provisions of the
Rule or a court of final jurisdiction determines that such
provisions are invalid, but only if and to the extent that
reservation of t.he City's right to do so would not prevent
underwriters of the initial public offering of the Certificates
from lawfully purchasing or selling Certificates in such offering.
If the City so amends the provisions of this Section, it shall
include with any amended financial information or operating data
next provided in accordance with subsection (b) an explanation, in
narrative form, of the reasons for the amendment and of the impact
of any change in the type of financial information or operating
data so provided.
701906
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SECTION 38: Public Meetinq. It is officially found,
determined, and declared that the meeting at which this Ordinance
is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered
at such meeting, including this Ordinance, was given, all as
required by V.T.C.A., Government Code, Chapter 551, as amended.
SECTION 39: Effective Date. This Ordinance shall be in
full force and effect from and after its passage on the date shown
below and it is so ordained.
PASSED AND ADOPTED, this May 11, 1998.
CITY OF NORTH RICHLAND HILLS,
TEXAS
C~~
Mayor
('
~~
ATTEST:
&dJív¡:¡¡Þ ~
City Secretary
APPR77 Tr.;GALI
CitY/A t ney
(City Seal)
701906
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."C: q"I'W A;...
"', ".'.' ~,r'\o, Ja. ~
iò.\...ó.'..(.~-Ä/;;>'..""j;..jV
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of May 11, 1998 (this
"Agreement"), by and between the City of North Richland Hills,
Texas (the "Issuer"), and Bank One Texas, N.A., Fort Worth, Texas,
a national association duly organized and existing under the laws
of the United States of America, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
issuance of its "City of North Richland Hills, Texas, Tax and
Waterworks and Sewer System (Limited Pledge) Revenue Certificates
of Obligation, Series 1998" (the "Securities") in the aggregate
principal amount of $8,180,000, which Securities are scheduled to
be delivered to the initial purchasers on or about June 16, 1998;
and
WHEREAS, the Issuer has selected the Bank to serve as Paying
Agent/Registrar in connection with the payment of the principal
of, premium, if any, and interest on said Securities and with
respect to the registration, transfer and exchange thereof by the
registered owners thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for
and on behalf of the Issuer and has full power and authority to
perform and serve as Paying Agent/Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment. The Issuer hereby appoints the
Bank to serve as Paying Agent with respect to the Securities, and,
as Paying-Agent for the Securities, the Bank shall be responsible
for paying on behalf of the Issuer the principal, premium (if
any), and interest on the Securities as the same become due and
payable to the registered owners thereof; all in accordance with
this Agreement and the IIBond Resolution" (hereinafter defined) .
The Issuer hereby appoints the Bank as Registrar with respect to
the Securities and, as Registrar for the Securities, the Bank
shall keep and maintain for and on behalf of the Issuer books and
records as to the ownership of said Securities and with respect to
the transfer and exchange thereof as provided herein and in the
IIBond Resolutionll.
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
701902
Section 1.02. Compensation. As compensation for the Bank's
services as Paying Agent/Re,gistrar, the Issuer hereby agrees to
pay the Bank the fees and amounts set forth in Annex A attached
hereto for the first year of this Agreement and thereafter the
fees and amounts set' forth in the Bank's current fee schedule then
in effect for services as Paying Agent/Registrar for
municipalities, which shall be supplied to the Issuer on or before
90 days prior to the close of the Fiscal Year of the Issuer, and
shall be effective upon the first day of the following Fiscal
Year.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance wi th any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) .
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
IIBank Office" means the offices of the Bank located in
Westerville, Ohio at the address appearing in Section 3.01
hereof. The Bank will notify the Issuer in writing of any
change in location of the Bank Office.
IIBond Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year II means the fiscal year of the Issuer,
ending September 30th.
"Holder" and IISecurity Holder" each means the Person in
whose name a Security is registered in the Security Register.
"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
Mayor, City Manager, Assistant City Manager, Director of
Finance, or City Secretary, anyone or more of said
officials, and delivered to the Bank.
701902
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EXHIBIT A
701902
ilLegal Holiday" means a day on which the Bank is
required or authorized to be closed.
"Persdn" means any individual, corporation, partnership,
joint venture,' association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
II Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the
Resolution) .
IIRecord Date" means the Record Date as defined in the
Bond Resolution.
"Redemption Date" when used with respect to any Security
to be redeemed means the date fixed for such redemption"
pursuant to the terms of the Bond Resolution.
IIResponsible Officer" when used with respect to the Bank
means the Chairman or Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" means the securities defined in the recital
paragraphs herein.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
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Section 2.02. Other Definitions. The terms IIBank, "
"Issuer, II and IISecurities (Security)" have the meanings assigned
to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Payinq Aqent. As Paying Agent, the
Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on
behalf of the Issuer the principal of each Security at its Stated
Maturity, Redemption Date, or Acceleration Date, to the Holder
upon surrender of the Security to the Bank at the following
offices:
Bank One, Texas, N.A.
Attention: Securities Transfer
235 West Schrock Road
Westerville, Ohio 43081-0393
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the interest on each
Security when due, by computing the amount of interest to be paid
each Holder and making payment thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date
(as defined in the Resolution). All payments of principal and/or
interest on the Securities to the registered owners shall be
accomplished (1) by the issuance of checks, payable to the
registered owners, drawn on the fiduciary account provided in
Section 5.05 hereof, sent by United States mail, first class,
postage prepaid, to the address appearing on the Security Register
or (2) by such other method, acceptable to the Bank, requested in
writing by the Holder at the Holder's risk and expense.
Section 3.02. Payment Dates. The Issuer hereby instructs
the Bank tQ pay the principal of and interest on the Securities at
the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Security Reqister - Transfers and Exchanqes.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
referred to as the "Security Register") for recording the names
and addresses of the Holders of the Securities, the transfer,
exchange and replacement of the Securities and the payment of the
principal of and interest on the Securities to the Holders and
containing such other information as may be reasonably required by
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the Issuer and subj ect to such reasonable regulations as the
Issuer and Bank may prescribe. The Bank represents and warrants
its office in Fort Worth, Texas will at all times have immediate
access to the Security Register by electronic or other means and
will be capable at, all times of producing a hard copy of the
Security Register at its Fort Worth office for use by the Issuer.
All transfers, exchanges and replacement of Securities shall be
noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
Securities, the exchange or transfer by the Holders thereof will
be completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder, or his duly authorized
agent, in form and manner satisfactory to the Paying
Agent/Registrar.
Section 4.02. Certificates. The Issuer shall provide an
adequate inventory of printed Securities to facilitate transfers
or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use
and reasonable care will be exercised by the Bank in maintaining
such Securities in safekeeping, which shall be not less than the
care maintained by the Bank for debt securities of other
governments or corporations for which it serves as registrar, or
that is máintained for its own securities.
Section 4.03. Form of Security Reqister. The Bank, as
Registrar, will maintain the Security Register relating to the
registration, payment, transfer and exchange of the Securities in
accordance with the Bank's general practices and procedures in
effect from time to time. The Bank shall not be obligated to
maintain such Securi ty Register in any form other than those which
the Bank has currently available and currently utilizes at the
time.
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The Security Register may be maintained in written form or in
any other form capable of be,ing converted into written form within
a reasonable time.
Section 4.04. 'List of Security Holders. The Bank will
provide the Issuer at any time requested by the Issuer, upon
payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the
information contained in the Security Register at any time the
Bank is customarily open for business, provided that reasonable
time is allowed the Bank to provide an up-to-date listing or to
convert the information into written form.
The Bank will not release or disclose the contents of the
Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
Section 4.05. Return of Cancelled Certificates. The Bank
will, at such reasonable intervals as it determines, cancel and
destroy, pursuant to the Securities and Exchange Act of 1934, all
Securities in lieu of which or in exchange for which other
Securities have been issued, or which have been paid.
Section 4.06. Mutilated, Destroyed, Lost or Stolen Securi-
ties. The Issuer hereby instructs the Bank, subject to the
provisions of Section 19 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number, not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed lost or stolen Security, only upon
the approval of the Issuer and after (i) the filing by the Holder
thereof with the Bank of evidence satisfactory to the Bank of the
destruction, loss' or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
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Section 4.07. Transaction Information to Issuer. The Bank
will, within a reasonable ~ime after receipt of written request
from the Issuer, furnish the Issuer information as to the
Securities it has paid pursuant to Section 3.01, Securities it has
delivered upon the transfer or exchange of any Securities pursuant
to Section 4.01, and Securities it has delivered in exchange for
or in lieu of mutilated, destroyed, lost, or stolen Securities
pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01. Duties of Bank. The Bank undertakes to
perform the duties set forth herein and agrees to use reasonable
care in the performance thereof.
Section 5.02. Reliance on Documents, Etc.
may conclusively rely, as to the truth of the
correctness of the opinions expressed therein, on
opinions furnished to the Bank.
(a) The Bank
statements and
certificates or
(b) The Bank shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Bank was negligent in ascertaining the pertinent
facts.
(c) No provisions of this Agreement shall require the Bank
to expend or risk its own funds or otherwise incur any financial
liability for performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security, or other paper or
document believed by it to be genuine and to have been signed or
presentedcbythe'proper party or parties. Without limiting the
generality of the foregoing statement, the Bank need not examine
the ownership of any Securities, but is protected in acting upon
receipt of Securities containing an endorsement or instruction of
transfer or power of transfer which appears on its face to be
signed by the Holder or an agent of the Holder. The Bank shall
not be bound to make any investigation into the facts or matters
stated in a resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
note, security, or other paper or document supplied by Issuer.
(e) The Bank may consult wi th counsel, and the wri t ten
advice of such counselor any opinion of counsel shall be full and
complete authorization and protection with respect to any action
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taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties 'hereunder either directly or by or through
agents or attorneys of the Bank.
Section 5.03. Recitals of Issuer. The recitals contained
herein with respect to the Issuer and in the Securities shall be
taken as the statements of the Issuer, and the Bank assumes no
responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any
Holder or Holders of any Security, or any other Person for any
amount due on any Security from its own funds.
Section 5.04. May Hold Securities. The Bank, in its
individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Issuer with the same
rights it would have if it were not the Paying Agent/Registrar, or
any other agent.
Section 5.05. Moneys Held by Bank - Fiduciary Account/
Collateralization. A fiduciary account shall at all times be kept
and maintained by the Bank for the receipt, safekeeping and
disbursement of moneys received from the Issuer hereunder for the
payment of the Securities, and money deposited to the credit of
such account until paid to the Holders of the Securities shall be
continuously collateralized by securities or obligations which
qualify and are eligible under both the laws of the State of Texas
and the laws of the United States of America to secure and be
pledged as collateral for fiduciary accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
Payments made from such fiduciary account shall be made by check
drawn on such fiduciary account unless the owner of such
Securities shall, at its own expense and risk, request such other
medium of paYment.
The Bank shall be under no liability for interest on any
money received bY,it hereunder.
Subj ect to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any Security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
Section 5.06. Indemnification. To the extent permitted by
law, the Issuer agrees to indemnify the Bank for, and hold it
harmless against, any loss, liability, or expense incurred without
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negligence or bad faith on its part, arising out of or in
connection with its acceptance or administration of its duties
hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of
its powers or duties under this Agreement.
Section 5.07. Interpleader. The Issuer and the Bank agree
that the Bank may seek adjudication of any adverse claim, demand,
or controversy over its person as well as funds on deposit, in
either a Federal or State District Court located in the State and
County where either the Bank Office or the administrative offices
of the Issuer is located, and agree that service of process by
certified or registered mail, return receipt requested, to the
address referred to in Section 6.03 of this Agreement shall
constitute adequate service. The Issuer and the Bank further
agree that the Bank has the right to file a Bill of Interpleader
in any court of competent jurisdiction to determine the rights of
any Person claiming any interest herein.
Section 5.08. DTC Services. It is hereby represented and
warranted that, in the event the Securities are otherwise
qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the
Bank has the capability and, to the extent within its control,
will comply with the "Operational Arrangements", effective
December 12, 1994, which establishes requirements for securities
to be eligible for such type depository trust services, including,
but not limited to, requirements for the timeliness of payments
and funds availability, transfer turnaround time, and notification
of redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment. This Agreement may be amended only
by an agreement in writing signed by both of the parties hereto.
Section 6.02. Assiqnment. This Agreement may not be
assigned by either party without the prior written consent of the
other.
Section 6.03. Notices. Any request, demand, authorization,
direction, notice, consent, waiver, or other document provided or
permitted hereby to be given or furnished to the Issuer or the
Bank shall be mailed or delivered to the Issuer or the Bank,
respectively, at the addresses shown on page 11.
Section 6.04. Effect of Headinqs. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
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Section 6.05. Successors and Assiqns. All covenants and
agreements herein by the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section 6.06. 'Severability. In case any provision herein
shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 6.07. Benefits of Aqreement. Nothing herein,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any benefit or any
legal or equitable right, remedy, or claim hereunder.
Section 6.08. Entire Agreement. This Agreement and the Bond
Resolution constitute the entire agreement between the parties
hereto relative to the Bank acting as Paying Agent/Registrar and
if any conflict exists between this Agreement and the Bond
Resolution, the Bond Resolution shall govern.
Section 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same
Agreement.
Section 6.10. Termination. This Agreement will terminate
(i) on the date of final payment of the principal of and interest
on the Securities to the Holders thereof or (ii) may be earlier
terminated by either party upon sixty (60) days written notice;
provided, however, an early termination of this Agreement by
either party shall not be effective until (a) a successor Paying
Agent/Registrar has been appointed by the Issuer and such
appointment accepted and (b) notice given to the Holders of the
Securities of the appointment of a successor Paying
Agent/Registrar. Furthermore, the Bank and Issuer mutually agree
that the effective date of an early termination of this Agreement
shall not occur at any time which would disrupt, delay or
otherwise adversely affect the payment of the Securities.
The resigning Paying Agent/Registrar may petition any court
of competent jurisdiction for the appointment of a successor
Paying Agent/Registrar if an instrument of acceptance by a
successor Paying Agent/Registrar has not been delivered to the
resigning Paying Agent/Registrar within sixty (60) days after the
giving of such notice of resignation.
Upon an early termination of this Agreement, the Bank agrees
to promptly transfer and deliver the Security Register (or a copy
thereof), together with other pertinent books and records relating
to the Securities, to the successor Paying Agent/Registrar
designated and appointed by the Issuer.
""THmrr Ä
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The provisions of Section 1.02 and of Article Five shall
survive and remain in full force and effect following the
termination of this Agreement.
Section 6.11. Governinq Law. This Agreement shall be
construed in accordance with and governed by the laws of the State
of Texas.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
BANK ONE, TEXAS, N.A.,
Fort Worth, Texas
BY
Title:
[SEAL]
Attest:
Title:
Address: 500 Throckmorton
Suite 704-West Complex
Fort Worth, Texas 76102
CITY OF NORTH RICHLAND HILLS, TEXAS
BY
Mayor
(CITY SEAL)
Attest:
Address: P. O. Box 820609
North Richland Hills, Texas
76180
City Secretary
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Exhibit B
to
Ordinance
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 37
of this Ordinance.
Annual Financial Statements and Operating Data
The financial information and operating data with
respect to the City to be provided annually in accordance with
such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. The financial statements of the City appended to
the Official Statement as Appendix B, but for the most
recently concluded fiscal year.
2. The information contained in Tables 1 through 6 and
8 through 15 of the Official Statement.
Accounting Principles
The accounting principles referred to in such Section are the
generally accepted accounting principles as applicable to
governmental units as prescribed by The Government Accounting
Standards Board.
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