HomeMy WebLinkAboutResolution 1992-057
RESOLUTION NO. 92-57
A RESOLUTION by the City Council of the City of North
Richland Hills, Texas, relating to the "North
Richland Hills Park and Recreation Facilities
Development Corporation Sales Tax Revenue Bonds,
Series 1992"; approving (i) the resolution of the
Corporation authorizing the issuance of such Bonds
and (ii) the execution, on behalf of the City, of
the Financing/Use Agreement relating to such
financing by the Corporation; resolving other
matters incident and related to the issuance, sale
and delivery of such Bonds; and providing an
effective date.
WHEREAS, North Richland Hills Park and Recreation Facilities
Development Corporation (the "Issuer") was created by the City of
North Richland Hills, Texas (the "City"), pursuant to the
provisions of section 4B of the Development Corporation Act of
1979, Article 5190.6, Vernon's Texas Civil Statutes, as amended
(the "Act"); and
WHEREAS. the Issuer is empowered, on behalf of the City, to
issue bonds for the purpose of providing parks and park facilities,
bail parks, open space improvements, and other facilities permitted
by section 4B of the Act; and
WHEREAS, the Board of Directors of the Issuer has determined
that $7,500,000 in principal amount of Bonds should be sold and
issued at this time to finance the costs of land, buildings,
equipment, facilities and improvements suitable for use for amateur
(including children's) sports, athletic, entertainment and public
park purposes and events, including (i) the construction of phase
I of an athletic complex which includes an aquatic and tennis
center, (ii) the acquisition of land and its development as soccer
and baseball facilities and (iii) the payment of the costs of
issuance related to the Bonds (the "Project"); and
WHEREAS, the Issuer and the City has each found the project to
be required or suitable for the use for sports, entertainment and
pUblic park purposes; and
WHEREAS, section 25(f) of the Act requires the City council of
the City approve the resolution of the Issuer providing for the
issuance of the Bonds no more than sixty (60) days prior to the
delivery of the Bonds; now, therefore,
0CIG4J 01
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of November 23, 1992 (this
"Agreement"), by and between the North Richland Hills Park and
Recreation Facilities Development Corporation (the "Issuer"), and
Team Bank, Fort Worth, Texas, a banking association duly organized
and existing under the laws of the State of Texas, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
execution and delivery of its "North Richland Hills Park and
Recreation Facilities Development Corporation Sales Tax Revenue
Bonds, Series 1992" (the "Securities"), dated November 15, 1992,
such Securities to be issued in fully registered form only as to
the payment of principal and interest thereon; and
WHEREAS, the Securities are scheduled to be delivered to the
initial purchasers thereof on or about December 29, 1992; 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
"Bond Resolution" (hereinafter defined). The Issuer hereby
appoints the Bank as Registrar with respect to the Securities and,
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as Registrar for the Securities, the Bank shall keep and maintain
for and on behalf of the Issuer books and records as to the
ownership of said Securities and with respect to the transfer and
exchange thereof as provided herein and in the "Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
section 1.02. Compensation.
As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees
and amounts set forth in Annex A attached hereto.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) .
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal offices of
located at the address appearing on page 12 hereof.
will notify the Issuer in writing of any change in
of the Bank Office.
the Bank
The Bank
location
"Bond Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer,
ending september 30th.
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"Holder" and "Security Holder" each means the Person in
whose name a Security is registered in the Security Register.
"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
President, Vice President, Secretary, or Treasurer, anyone
or more of said officials, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is
required or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to section 4.06 hereof and the
Resolution).
"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.
"Responsible Off icer" when used with respect to the Bank
means the Chairman or Vice-Chairman of the Board of
Directors, the Chairman or vice-Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
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section 2.02. Other Definitions.
The terms "Bank," "Issuer," and "Securities (Security)" have
the meanings assigned to them in the recital paragraphs of this
Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
section 3.01. Duties of Paying Agent.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the principal of each
Security at its Stated Maturity, Redemption Date, or Acceleration
Date, to the Holder upon surrender of the Security to the Bank
Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the interest on each
Security when due, by computing the amount of interest to be paid
each Holder and making payment thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date.
All payments of principal and/or interest on the Securities to the
registered owners shall be accomplished (1) by the issuance of
checks, payable to the registered owners, drawn on the fiduciary
account provided in section 5.05 hereof, sent by united States
mail, first class, postage prepaid, to the address appearing on
the Security Register or (2) by such other method, acceptable to
the Bank, requested in writing by the Holder at the Holder's risk
and expense.
section 3.02. Payment Dates.
The Issuer hereby instructs the Bank to pay the principal of
and interest on the Securities at the dates specified in the Bond
Resolution.
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ARTICLE FOUR
REGISTRAR
section 4.01. Security Register - Transfers and Exchanges.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
referred to as the "Security Register") for recording the names
and addresses of the Holders of the securities, the transfer,
exchange and replacement of the Securities and the payment of the
principal of and interest on the Securities to the Holders and
containing such other information as may be reasonably required by
the Issuer and subject to such reasonable regulations as the
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
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
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for which it serves as registrar, or that is maintained for its
own securities.
section 4.03. Form of Security Register.
The Bank, as Registrar, will maintain the Security Register
relating to the registration, payment, transfer and exchange of
the Securities in accordance with the Bank's general practices and
procedures in effect from time to time. The Bank shall not be
obligated to maintain such Security Register in any form other
than those which the Bank has currently available and currently
utilizes at the time.
The Security Register may be maintained in written form or in
any other form capable of being converted into written form within
a reasonable time.
section 4.04. List of Security Holders.
The Bank will provide the Issuer at any time requested by the
Issuer, upon payment of the required fee, a copy of the
information contained in the Security Register. The Issuer may
also inspect the information contained in the security Register at
any time the Bank is customarily open for business, provided that
reasonable time is allowed the Bank to provide an up-to-date
listing or to convert the information into written form.
The Bank will not release or disclose the contents of the
security Register to any person other than to, or at the written
request of, an authorized off icer 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.
.. ~ D~,,~
section 4.05. Return of Cancelled certificates. ~ð' ~.
The Bank will, a~ a.8ft 1!c'-&.....uu_hle. iRt:er\P~llii A8 ":"L ù~1 "'~.HI..t:nws,
S\iyrCm.l~L to Llu::: !;:t;:tt1ðr, Securities in lieu of which or in
exchange for which other Securities have been issued, or which
have been paid.
section 4.06. Mutilated. Destroved. Lost or Stolen Securi-
ties.
The Issuer hereby instructs the Bank, subject to the
provisions of section 27 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
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destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed, lost or stolen Security, only
upon the approval of the Issuer and after (i) the filing by the
Holder thereof with the Bank of evidence satisfactory to the Bank
of the destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
section 4.07. Transaction Information to Issuer.
The Bank will, within a reasonable time after receipt of
written request from the Issuer, furnish the Issuer information as
to the Securities it has paid pursuant to Section 3.01, Securities
it has delivered upon the transfer or exchange of any Securities
pursuant to section 4.01, and Securities it has delivered in
exchange for or in lieu of mutilated, destroyed, lost, or stolen
Securities pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
section 5.01. Duties of Bank.
The Bank undertakes to perform the duties set forth herein
and agrees to use reasonable care in the performance thereof.
section 5.02. Reliance on Documents. Etc.
(a) The Bank may conclusively rely, as to the truth of the
statements and correctness of the opinions expressed therein, on
certificates or opinions furnished to the Bank.
(b) The Bank shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Bank was negligent in ascertaining the pertinent
facts.
(c) No prov1s10ns of this Agreement shall require the Bank
to expend or risk its own funds or otherwise incur any financial
00IH3S3
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liability for performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security, or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties. without limiting the
generality of the foregoing statement, the Bank need not examine
the ownership of any Securities, but is protected in acting upon
receipt of Securities containing an endorsement or instruction of
transfer or power of transfer which appears on its face to be
signed by the Holder or an agent of the Holder. The Bank shall
not be bound to make any investigation into the facts or matters
stated in a resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
note, security, or other paper or document supplied by Issuer.
(e) The Bank may consult with counsel, and the written
advice of such counselor any opinion of counsel shall be full and
complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
section 5.03. Recitals of Issuer.
The recitals contained herein with respect to the Issuer and
in the Securities shall be taken as the statements of the Issuer,
and the Bank assumes no responsibility for their correctness.
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.
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section 5.05. Monevs
Collateralization.
Held by Bank - Fiduciarv Account/
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.
Subject to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any Security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
Section 5.06. Indemnification.
To the extent permitted by law, the Issuer agrees to
indemnify the Bank for, and hold it harmless against, any loss,
liability, or expense incurred without negligence or bad faith on
its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including the cost and
expense against any claim or liability in connection with the
exercise or performance of any of its powers or duties under this
Agreement.
Section 5.07. 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 certif ied or
registered mail, return receipt requested, to the address referred
to in Section 6.03 of this Agreement shall constitute adequate
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service. The Issuer and the Bank further agree that the Bank has
the right to file a Bill of Interpleader in any court of competent
jurisdiction to determine the rights of any Person claiming any
interest herein.
section 5.08.
DT Services.
It is hereby represented and warranted that, in the event the
Securities are otherwise qualified and accepted for "Depository
Trust Company" services or equivalent depository trust services by
other organizations, the Bank has the capability and, to the
extent within its control, will comply with the "Operational
Arrangements", effective August 1, 1987, which establishes
requirements for securities to be eligible for such type
depository trust services, including, but not limited to,
requirements for the timeliness of payments and funds
availability, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
section 6.01. Amendment.
This Agreement may be amended only by an agreement in writing
signed by both of the parties hereto.
section 6.02. Assignment.
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 12.
section 6.04. Effect of Headinqs.
The Article and section headings herein are for convenience
only and shall not affect the construction hereof.
section 6.05. Successors and Assigns.
All covenants and agreements herein by the Issuer shall bind
its successors and assigns, whether so expressed or not.
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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 Agreement.
Nothing herein, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy, or claim
hereunder.
section 6.08. Entire Aqreement.
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.
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.
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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. Governing 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.
[SEAL]
Attest: , \
è- ~
Title:r~:: :,)..G'·~;--~ _,,,
Mailing Address:
"1:'f:,'"'rr
P. O. Box 2604
Fort Worth, Texas 76113
Delivery Address:
500 Throckmorton
Fort Worth, Texas 76102
NORTH RICHLAND HILLS PARK AND
RECREATION FACILITIES DEVELOPMENT
CORPORATION
BY
K~~~
President
(CORPOR~T:ON SEAL)
Attest:
Address: P. O. Box 820609
North Richland Hills, Texas
76180
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cretary
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0064338
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53-329
Annex Þ..
TEAMßANK
Trust Management
Services
FEES
$7,500,000
NORTH RICHLAND HILLS
PARK & RECREATIONAL FACILITIES
DEVELOPMENT CORPORATION
SALES TAX REVENUE BONDS
SERIES 1992
PAYING AGENT/REGISTRAR
BOOK-ENTRY -ONLY
FEE SCHEDULE
ACCEPTANCE FEE:
$500.00
These fees cover our services for the initial set up of records, review of documents, working
with the Underwriters, Bond Counsel, Financial Advisor, and the Bond Printer prior to the
closing, attendance at closing (excluding travel expense), and the issuance, authentication and
delivery of bonds at closing.
SEMI-ANNUAL ADMINISTRATIVE FEE:
$250.00
Fee Includes:
Issuance of semi-annual wire to DTC
Maintenance of Bondholder records
Replacement of lost, stolen, or mutilated certificates
Timely notification to the Issuer of interest and/or principal due
Correspondence with underlying DTC participants
All normal out-of-pocket expenses are included in the Administration Fee. Any legal and
extraordinary expenses incurred by the Paying Agent/Registrar will be billed at cost.
TRANSACTION FEES:
As long as the issue is maintained as Book-Entry-Only registration via DTC with one "global"
bond or one bond per maturity, the Paying Agent and Registrar Service transaction fees will not
be charged. If the issue ceases to be maintained as Book-Entry-Only via DTC, our standard
Paying Agent and Registrar Services Fee Schedule then in existence will be charged.
a:jsii.nrich.fee
BE IT RESOLVED BY' THE CITY COUNCIL OF THE CITY' OF NORTH
RICHLAND HILLS, TEXAS:
section 1: The Resolution authorizing the issuance of
$7,500,000 "North Richland Hills Park and Recreation Facilities
Development Corporation Sales Tax Revenue Bonds, Series 1992 ", to
be adopted by the Issuer (the "Issuer Resolution") on November 23,
1992, as presented and submitted to the City Council, is hereby
approved in all respects. The Bonds are being issued to finance
the construction of the Project, which will be located within the
city of North Richland Hills, and the City agrees that upon receipt
of the proceeds of sale of the Bonds from the Issuer, the City will
construct the project and thereafter be fully responsible for the
upkeep, maintenance and use of the Project.
Section 2: . The approvals herein given are in accordance with
section 25(f) of the Act and section 6 of Article IV of the Bylaws
of the corporation, and the Bonds shall never be construed an
indebtedness or pledge of the City, or the State of Texas (the
"state"), within the meaning of any constitutional or statutory
provision, and the owner of the Bonds shall never be paid in whole
or in part out of any funds raised or to be raised by taxation
(other than sales tax proceeds as authorized pursuant to Section 4B
of the Act) or any other revenues of the Issuer, the City, or the
State, except those revenues assigned and pledged by the Issuer
Resolution.
section 3: The city hereby agrees to promptly collect and
remit to the Issuer the Gross Sales Tax Revenues (as defined in
the Issuer Resolution) in accordance with the terms of the Issuer
Resolution and the Act to provide for the prompt payment of the
Bonds, and to assist and cooperate with the Issuer in the
enforcement and collection of sales and use taxes imposed on
behalf of the Issuer.
section 4: The Financing/Use Agreement by and between the
City and the Issuer in relation to the Project, attached hereto as
Exhibit A and incorporated by reference as a part of this
resolution for all purposes, with respect to the duties,
responsibilities and obligations of the City and Issuer during the
time the Bonds are outstanding, is hereby approved as to form and
substance, and the Mayor and the ci ty Secretary are hereby
authorized to execute and deliver such agreement for and on behalf
of the City and as the act and deed of this City Council.
Furthermore, the Mayor and the ci ty Secretary and the other
officers of the city are hereby authorized, jointly and severally,
to execute and deliver such endorsements, instruments,
certif icates, documents, or papers necessary and advisable to
carry out the intent and purposes of this Resolution.
section 5: The city hereby acknowledges and recognizes that
the Bonds are being issued as tax exempt obligations under and
pursuant to section 103(a) of the Code (as defined below) and the
proceeds of sale of such Bonds are to be deposited with the City
following their receipt by the Issuer and the city shall have full
control and responsibility with respect to the construction of the
project and the investment and disbursement of the proceeds of
sale of the Bonds. Therefore, as a result of the foregoing, the
city hereby makes the following representations and warranties to
the Issuer:
(a) Definitions. When used in this Section, the following
terms have the following meanings:
"Code" means the Internal Revenue Code of 1986, as
amended by all legislation, if any, enacted on or before
the Issue Date.
"computation Date" has the meaning stated in Treas.
Reg. S 1. 148 - 8 (b) (1) .
"Gross Proceeds" has the meaning stated in Treas.
Reg. S 1.148-8(d).
"Investment" has the meaning stated in Treas.
Reg. S 1.148-8(e).
"Issue Date" means the date on which the Bonds are
first authenticated and delivered to the initial
purchasers against payment therefor.
"Nonpurpose Investment" means any Investment in
which Gross Proceeds of the Bonds are invested and which
is not acquired to carry out the governmental purpose of
the Bonds.
"Rebatable Arbitrage" has the meaning stated in
Treas. Reg. S 1.148-2.
"Yield of"
(1) any Investment shall be computed in
accordance with Treas. Reg. Sl.148-2, and
(2) the Bonds has the meaning stated in
Treas. Reg. S 1.148-3.
(b) Not to Cause Interest to Become Taxable. The City shall
not use, permit the use of, or omit to use Gross Proceeds or any
other amounts (or any property the acquisition, construction, or
improvement of which is to be financed directly or indirectly with
Gross Proceeds) in a manner which, if made or omitted,
respectively, would cause the interest on any Bond to become
includable in the gross income, as defined in section 61 of the
Code, of the owner thereo~ for federal income tax purposes.
Without limiting the general1ty of the foregoing, unless and until
e city shall have received a written opinion of counsel
ationally recognized in the field of municipal bond law to the
ffect that failure to comply with such covenant will not
dversely affect the exclusion of interest on any Bond from gross
ncome for federal income tax purposes pursuant to Section 103 of
the code, the city shall comply with each of the specific
covenants in this section.
(c) No
y section
ereunder,
Maturity of
Private Use or Private Payments. Except as permitted
141 of the Code and the regulations and rulings
the City, at all times prior to the last Stated
Bonds,
(1) shall exclusively own, operate, and possess
all property acquired, constructed or improved directly
or indirectly with Gross Proceeds of the Bonds and shall
not use or permit the use of such Gross Proceeds or any
property acquired, constructed, or improved with such
Gross Proceeds in any activity carried on by any person
or entity other than a state or local government, unless
such use is solely as a member of the general public, or
(2) shall not directly or indirectly impose or
accept any charge or other payment for use of Gross
Proceeds of the Bonds or for any property acquired,
constructed or improved 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 Bonds to
make or finance loans to any person or entity other than a state
or local government. For purposes of the foregoing covenant, sllch
Gross Proceeds are considered to be "loaned" to a person or entity
if (1) property acquired, constructed, or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes,
(2) capacity in or service from such property is committed to such
person or entity under a take-or-pay, output, or similar contract
or arrangement, or (3) indirect benefits, or burdens and benefits
of ownership, of such Gross Proceeds or any property acquired,
constructed, or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of
a loan.
(e) Not to Invest at 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 Bonds, directly or indirectly invest
Gross Proceeds of the Bonds in any Investment (or use such Gross
OO6oUOl
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Proceeds to replace money so invested), if as a result of such
investment the Yield of all Investments allocated to such Gross
proceeds whether then held or previously disposed of, exceeds the
Yield of the Bonds.
(f) Not FederallY Guaranteed. Except to the extent
permitted by section 149(b) of the Code and the regulations and
rulings thereunder, the City shall not take or omit to take any
action which would cause the Bonds to be federally guaranteed
within the meaning of Section 149(b) ·of the Code and the
regulations and rulings thereunder.
(g) Payment of Rebatable Arbitrage. Except to the extent
otherwise provided in section 148(f) of the Code and the
regulations and rulings thereunder,
(1) The city shall account for all Gross Proceeds
of the Bonds (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
maintain all records of such accounting until six years
after the final Computation Date. The City may, however,
to the extent permitted by section 148(f) of the Code
and the regulations thereunder, commingle Gross Proceeds
of the Bonds with other moneys, provided that the City
separately accounts for each receipt and expenditure of
such Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation
Date, the City shall either (i) cause to be calculated
by a nationally recognized accounting or financial
advisory firm or (ii) calculate and cause its
calculations to be verifiðd by a nationally recognized
accounting or financial advisory firm, in either case in
accordance with rules set forth in section 148 (f) of the
Code and Treas. Reg. S 1.148-2 and rulings thereunder,
the Rebatable Arbitrage with respect to the Bonds. The
City shall maintain such calculations relating to the
Bonds until six years after the final Computation Date.
(3) As additional consideration for the Issuer
financing the costs of the Project and the loan of the
money represented by the Bonds from the initial
purchasers, and in order to induce such purchase by
measures designed to result in the excludability of the
interest thereon from the gross income of the owners
thereof for federal income tax purposes, the City shall
remit to the Issuer on a timely basis the amounts
necessary to pay to the united states the amount
described in paragraph (2) above and the amount
described in paragraph (4) below, at the times, in the
0064101
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...
installments, to the place, in the manner, and
accompanied by such forms or other information as is or
may be required by section 148 (f) of the Code and
Treas. Reg. SS 1.148-1 through 1.148-9 and rulings
thereunder.
(4) The City shall exercise reasonable diligence
to assure that no errors are made in the calculations
required by paragraph (2) and, if such error is made, to
discover and promptly to correct such error within a
reasonable amount of time thereafter, including the
amount remitted to the Issuer for payment to the united
states of any Correction Amount as described in Treas.
Reg. S 1.148-1(C) (2) and any penalty under Treas. Reg.
S 1.148-1(C) (3) (ii) (B).
section 6: It is officially found, determined, and declared
that the meeting at which this Ordinance is adopted was open to the
public and public notice of the time, place, and subject matter of
the public business to be considered at such meeting, including
this Ordinance, was given, all as required by Article 6252-17,
Vernon's Texas civil statutes, as amended.
section 7: This Resolution shall be in force and effect
from and after its passage on the date shown below.
PASSED AND ADOPTED, this November 23, 1992.
CITY OF NORTH RICHLAND HILLS, TEXAS
'- 1
Mayor
.~.- /
ATTEST:
~J¡P;:; ;f!.<.k.
ity secretáry
(city Seal)
0064.1 01
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~
FINANCING/USE AGREEMENT
This Financing/Use Agreement (this "Agreement') is made to be
effective as of the 23rd day of November, 1992, by and between the
city of North Richland Hills, Texas, a duly incorporated and
existing municipal corporation and political subdivision of the
state of Texas (the "City") and the North Richland Hills Parks and
Recreation Facilities Development Corporation, a non-profit
industrial development corporation organized and existing under the
laws of the state of Texas, including Vernon's Ann. ci v. st.,
section 4B of Article 5190.6, (the "Corporation")
R B C I '1' A L 8
WHEREAS, the corporation on behalf of the City is to finance the
costs of land, buildings, equipment, facilities and improvements
suitable for use for amateur (including children's) sports,
athletic, entertainment and public park purposes and events,
including (i) the construction of phase I of an athletic complex
which includes an aquatic and tennis center and (ii) the
acquisition of land and its development as soccer and baseball
facilities(the "Project"); and
WHEREAS, such financing contemplates the issuance and sale of
the Corporation's tax exempt bonds in the principal amount of
$7,500,000, and the proceeds of sale are to be used by the City to
design and construct the Project; and
WHEREAS, the City will have full responsibility for the design
and construction of the Project and the corporation shall have no
duties or responsibilities with respect to the Project other than
to provide for the financing of its costs;
A G R B B K B H '1'
1. Financinq of proiect: For and in consideration of the
City's covenants and agreements herein contained and subject to the
terms contained herein, the corporation hereby agrees to issue and
sale a series of obligations to be known as "North Richland Hills
Park and Recreation Facilities Development corporation Sales Tax
Revenue Bonds, Series 1992", hereinafter called the "Bonds", and
deposit the proceeds of sale of the Bonds to a construction fund or
account to be designated by the City, and the City hereby agrees
and covenants that all proceeds of sale deposited to the credit of
such construction account shall be used solely to pay the costs of
the Project.
2. Use of Project. until all the Bonds have been fully paid,
discharged and retired, the upkeep and maintenance of the Project
will be the responsibility of the City and the Corporation shall
have no responsibility with respect to the operation, upkeep and
maintenance of the Project.
0048218
3. Collection and Transfer of Proceeds of Sales Tax. The
city agrees, in cooperation with the corporation, to take such
actions as are required to cause the "Gross Sales Tax Revenues" (as
such term is defined in the resolution authorizing thp. issuance of
the Bonds) received from the Comptroller of Public Accounts of the
State of Texas for and on behalf of the Corporation to be
transferred and deposited immediately upon receipt by the City to
the credit of the banking or monetary fund maintained at the
depository designated by the Corporation and known on the books and
records of the Corporation as the "Pledged Revenue Fund".
4. Recoqni tion of Tax Exempt F inancinq . The City hereby
acknowledges and recognizes that the Bonds are being issued as
"state or local bonds" under and pursuant to section 103(a) of the
Internal Revenue Code of 1986, as amended, and the City hereby
covenants and agrees with respect to the use of proceeds of sale of
the Bonds and the use of the Project as follows:
(a) Definitions. When used in this paragraph, the following
terms have the following meanings:
"Code" means the Internal Revenue Code of 1986, as
amended by all legislation, if any, enacted on or before
the Issue Date.
"Computation Date" has the meaning stated in Treas.
Reg. S 1.148-8(b) (1).
"Gross Proceeds" has the meaning stated in Treas.
Reg. S 1.148-8(d).
"Investment" has the meaning stated in Treas.
Reg. S 1.148-8(e).
"Issue Date" means the date on which the Bonds are
first authenticated and delivered to the initial
purchasers against payment therefor.
"Nonpurpose Investment" means any Investment in
which Gross Proceeds of the Bonds are invested and which
is not acquired to carry out the governmental purpose of
the Bonds. Obligations acquired with proceeds of the
Bonds that are to be used to discharge tha Refunded Bonds
are Nonpurpose Investments.
"Rebatable Arbitrage" has the meaning stated in
Treas. Reg. S 1.148-2.
"Yield of"
(i) any Investment shall be computed in
accordance with Treas. Reg. Sl.148-2, and
0048218
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(ii) the Bonds has the meaning stated in
Treas. Reg. S 1.148-3.
(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,
respecti vely, would cause the interest on any Bond to become
includable in the gross income, as defined in section 61 of the
code, of the owner thereof for federal income tax purposes.
without limiting the generality of the foregoing, unless and until
the City shall have received 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 exclusion of interest on any Bond from gross income for
federal income tax purposes pursuant to section 103 of the Code,
the City shall comply with each of the specific covenants in this
paragraph.
(c) No Private Use or Private Payments. The Bonds are being
issued to finance the Project and, except as permitted by section
141 of the Code and the regulations and rulings thereunder, the
project shall at all times prior to the last maturity of the Bonds:
(i) be exclusively owned, operated and maintained
by the City, and,the City shall not use or permit the use
of such Gross Proceeds or any property acquired,
constructed, or improved with such Gross Proceeds in any
activity carried on by any person or entity other than a
state or local government, unless such use is solely as
a member of the general public, and
(ii) the City shall not directly or indirectly
impose or accept any charge or other payment for use of
Gross Proceeds of the Bonds or for any property acquired,
constructed, or improved 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 Bonds to make or
finance loans to any person or entity other than a state or local
government. For purposes of the foregoing covenant, such Gross
Proceeds are considered to be "loaned" to a person or entity if (i)
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,
(ii) capacity in or service from such property is committed to such
person or entity under a take-or-pay, output, or similar contract
0048218
-3-
or arrangement, or (iii) 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
permi tted by section 148 of the Code and the regulations and
rulings thereunder, the City shall not, at any time prior to the
final stated Maturity of the Bonds, directly or indirectly invest
Gross Proceeds of the Bonds in any Investment (or use such Gross
proceeds to replace money so invested), if as a result of such
investment the Yield of all Investments allocated to such Gross
Proceeds whether then held or previously disposed of, exceeds the
Yield of the Bonds.
(f) Not FederallY Guaranteed. Except to the extent permitted
by section 149 (b) of the Code and the regulations and rulings
thereunder, the city shall not take or omit to take any action
which would cause the Bonds to be federally guaranteed within the
meaning of Section 149 (b) of the Code and the regulations and
rulings thereunder.
(g) Payment of Rebatable Arbitrage. Except to the extent
otherwise provided in section 148(f) of the Code and the
regulations and rulings thereunder,
(i) The city shall account for all Gross Proceeds
of the Bonds (including all receipts, expenditures, and
investments thereof) on their respective books of account
separately and apart from all other funds (and receipts,
expenditures, and investments thereof) and shall maintain
all records of such accounting with other public records
relating to the project until six years after the final
Computation Date. The city may, however, to the extent
permitted by section 148(f) of the Code and the
regulations thereunder, commingle Gross Proceeds of the
Bonds with other money of the city, provided that the
city separately accounts for each receipt and expenditure
of such Gross Proceeds and the obligations acquired
therewith.
(ii) Not less frequently than each Computati':m Date,
the city shall either (aa) cause to be calculated by a
nationally recognized accounting or financial advisory
firm or (bb) calculate and cause its calculations to be
verified by a nationally recognized accounting or
financial advisory firm, in either case in accordance
with rules set forth in section 148(f) of the Code and
Treas. Reg. S 1.148-2 and rulings thereunder, the
Rebatable Arbitrage with respect to the Bonds. The City
shall maintain such calculations relating to the issuance
0048218
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Àh....
of the Bonds until six years after the final Computation
Date.
(iii) As additional consideration for the
issuance of the Bonds by the initial purchasers thereof
and the loan represented thereby, and in order to induce
such purchase by measures designed to result in the
excludability of the interest thereon from the gross
income of the owners thereof for federal income tax
purposes, the City shall remit to the corporation for
payment to the united states the amount described in
paragraph (g) (ii) above and the amount described in
paragraph (g) (iv) below, at the times, in the
installments, to the place, in the manner, and
accompanied by such forms or other information as is or
may be required by section 148 (f) of the Code and
Treas. Reg. 55 1.148-1 through 1.148-9 and rulings
thereunder.
(iv) The City shall exercise reasonable diligence to
assure that no errors are made in the calculations
required by paragraph (g) (ii) and, if such error is made,
to discover and promptly to correct such error within a
reasonable amount of time thereafter, including the
amount remitted to the Corporation for payment to the
United states of any Correction Amount as described in
Treas. Reg. 5 1.148-1(C) (2) and any penalty under Treas.
Reg. 5 1.148-1(c) (3) (ii) (B).
(v) The City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the
Bonds, enter into any transaction that reduces the amount
required to be paid to the United states pursuant to this
subparagraph (g) because such transaction results in a
smaller profit or a larger loss than would have resulted
if the transaction had been at arm's length and had the
Yield of the Bonds not been relevant to either party.
5. Modifications. This Agreement shall not be changed
orally, and no executory agreement shall be effective to waive,
change, modify or discharge this Agreement in whole or in part
unless such executory agreement is in writing and is signed by the
parties against whom enforcement of any waiver, change,
modification or discharge is sought.
6. Entire Aqreement. This Agreement, including the
Exhibits, contains the entire agreement between the parties
pertaining to the subject matter hereof and fully supersedes all
prior agreements and understandings between the parties pertaining
to such subject matter.
7. counter?arts. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute
0048218
-5-
the same agreement. It shall be necessary to account for only one
such counterpart in proving this Agreement.
8. Severabili tv. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement shall nonetheless
remain in full force and effect.
9. Applicable Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the substantive
federal laws of the united states and the laws of the state of
Texas.
10. captions. The section headings appearing in this
Agreement are for convenience of reference only and are not
intended, to any extent and for any purpose, to limit or define the
text of any section or any subsection hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement to be effective as of the date and year first above
written.
ATTEST:
~ ¿¿<GL~ ~¿¿U--:7'
// . Secretary
/
NORTH RICHLAND HILLS PARK AND RECREATION
FACILITIES KijZ ~RPORATIOII
President
(Corporation Seal)
CITY OP NORTH RICBLAND HILLS, TEXAS
<:::
1~-~,.~
Mayo
AT'l'ZST: /J
,IJ/;,¿ ~£?&j f::~~~
~secretary
(City Seal)
0048218
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