0517AN
ORDINANCE approving and authorizing the execution
and delivery of "CITY OF SOUTHLAKE, TEXAS,
PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATIONS,
SERIES 1990"; specifying the
contracts; making provisions
thereof; and resolving other
and related to the execution,
payment of such contracts,
approval and execution of a
Deposit Agreement for the
terms of such
for the payment
matters incident
performance and
including the
Special Escrow
acquisition of
property and the approval of an Offering
Memorandum; and providing an effective date.
WHEREAS, pursuant to V.T.C.A., Local Government Code,
Subchapter A of Chapter 271 (the Public Property Finance Act),
the City Council is authorized and empowered to execute,
perform and make payments under contracts with any person for
the use, acquisition or purchase of personal property; and
WHEREAS, in accordance with the provisions of the Public
Property Finance Act, the City Council hereby finds and
determines that the acquisition, use or purchase of certain
items of personal property identified in Exhibit A attached
hereto, or such other personal property, appliances, equipment,
furnishings, or interests therein, considered by the City
Council to be necessary, useful and/or appropriate for purposes
of the City, should be financed under and pursuant to one or
more contractual obligations to be executed and delivered on
the terms and in the form hereinafter prescribed; now,
therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
SOUTHLAKE, TEXAS:
SECTION 1: Contract Authorization - Contract Amount -
Property Identification. Contracts, aggregating in amount
$200,000 (the "Aggregate Contract Amount") and entitled "City
of Southlake, Texas, Public Property Finance Contractual
Obligations, Series 1990" (the "Contractual Obligations" Qr the
"Contracts") shall be and are hereby authorized to be executed
and delivered with the Initial Contracting Party (hereinafter
identified in Section 14 hereof), and the assigns thereof, to
finance the use or the purchase or other acquisition of
personal property identified in Exhibit A attached hereto and
incorporated herein by reference as a part of this Ordinance
for all purposes, or such other personal property, appliances,
equipment, furnishings, or interests therein, considered by the
City Council to be necessary, useful and/or appropriate for
purposes of the City (the "Property"); all in accordance with
and pursuant to authority conferred by the laws of the State of
Texas, particularly the Public Property Finance Act.
SECTION 2: Fully Reqistered Form Contract Date -
Authorized Amounts-Installment Payments-Interest Rates. The
Contracts shall be made, executed and delivered in fully
registered form, bear a date of August 1, 1990 (the "Contract
Date"), and, except for the Initial Contracts authorized in
Section 7 hereof, shall be in authorized amounts of $5,000 or
any integral multiple thereof (not to exceed an Installment
Amount), and the Aggregate Contract Amount shall be payable in
annual installments (the "Installment Amounts") on February 1
in the amounts and interest shall accrue on such Installment
Amounts at per annum rate(s) as follows:
Payment Date
Installment Amount
Interest
Rate(s)
1992 $ 35,000 %
1993 35,000 %
1994 40,000 %
1995 45,000 %
1996 45,000 %
Interest on the unpaid Installment Amounts shall accrue
from the Contract Date (calculated on the basis of a 360-day
year of twelve 30-day months) and such interest shall be
payable on February 1 and August 1 in each year, commencing
February 1, 1991.
SECTION 3: Terms of Payment-Paying Agent/Registrar.
The Installment Amounts on each Contract and the interest
thereon shall be payable only to the registered contracting
party or person (hereinafter called the "Contracting Party")
appearing on the registration and transfer books (the "Contract
Register") maintained by the Paying Agent/Registrar and such
Installment Amounts and the interest payable thereon shall be
payable in 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 without exchange or collection
charges to the Contracting Party.
The selection and appointment of Ameritrust Texas National
Association to serve as Paying Agent/Registrar for the
Contracts is hereby approved and confirmed. The City covenants
to maintain and provide a Paying Agent/Registrar at all times
until the Contracts are paid and discharged, and any successor
Paying Agent/Registrar shall be a bank, trust company,
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financial institution or other entity qualified to perform the
duties and services of Paying Agent/Registrar. Upon any
change in the Paying Agent/Registrar for the Contracts, the
City agrees to promptly cause a written notice thereof to be
sent to each Contracting Party by United States Mail, first
class postage prepaid, which notice shall also give the address
of the new Paying Agent/Registrar.
The Installment Amounts shall be payable when due only
upon the presentation and surrender of the Contracts to the
Paying Agent/Registrar at its principal offices in Dallas,
Texas (the "Designated Payment/Transfer Office"). Interest on
the Installment Amounts shall be paid to the Contracting
Parties which appear in the Contract Register at the close of
business on the Record Date (the 15th day of the month next
preceding each interest payment date) and shall be paid by the
Paying Agent/Registrar (i) by check sent United States Mail,
first class postage prepaid, to the address of the Contracting
Party recorded in the Contract Register or (ii) by such other
method, acceptable to the Paying Agent/Registrar, requested by,
and at the risk and expense of, the Contracting Party. If the
date for the payment of an Installment Amount or interest
thereon shall be a Saturday, Sunday, a legal holiday, or a day
when banking institutions in the city where the office of the
Paying Agent/Registrar designated for the payment and
assignment of the Contracts 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 "Special Record Date") will
be established by the Paying Agent/ Registrar, if and when
funds for the payment of such interest have been received.
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 Contracting
Party appearing on the Contract Register at the close of
business on the last business day next preceding the date of
mailing of ~uch notice.
SECTION 4: Non-Optional.
subject to prepayment prior
option of the City.
The Contracts shall not be
to their Payment Dates at the
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SECTION 5: Assiqnment- Registration-Transfer-Exchange
of Contracts. A Contract Register relating to the
registration, payment, and assignment and transfer or exchange
of the Contracts 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 provisions of an agreement
with the Paying Agent/Registrar and such rules and regulations
as the Paying Agent/Registrar and the City may prescribe. The
Paying Agent/Registrar shall obtain, record, and maintain in
the Contract Register the name and address of each and every
Contracting Party to a Contract executed and delivered under
and pursuant to the provisions of this Ordinance, or if
appropriate, the nominee thereof. Any Contract may be
assigned, transferred or exchanged for Contracts of other
authorized amounts by the Contracting Party, in person or by
his duly authorized agent, upon surrender of such Contract to
the Paying Agent/Registrar for cancellation, accompanied by a
written instrument of assignment and transfer or request for
exchange duly executed by the Contracting Party or by his duly
authorized agent, in form satisfactory to the Paying
Agent/Registrar.
Any Contract to be assigned and transferred shall be
surrendered to the Paying Agent/Registrar and, upon its receipt
and cancellation, the Paying Agent/Registrar shall register and
deliver, in the name of the designated assignee or transferee,
one or more new Contracts of authorized amounts and, except for
the assignment and transfer of the Initial Contract by the
Initial Contracting Party, having the same Payment Date and of
a like Installment Amount as the Contract or Contracts
surrendered for assignment and transfer.
Contracts may be exchanged for Contracts of other
authorized amounts and having the same Payment Date, bearing
the same rate of interest and of like aggregate Installment
Amount as the Contracts surrendered for exchange, upon
surrender of the Contracts to be exchanged to the Paying
Agent/Registrar. Whenever any Contracts are surrendered for
exchange, the Paying Agent/Registrar shall register and deliver
new Contracts to the Contracting Party requesting the exchange.
When a Contract has been duly assigned and transferred or
exchanged, the new Contract or Contracts registered in such
assignment and transfer or exchange shall be delivered to the
Contracting Party at the Designated Payment/Transfer Office of
the Paying Agent/Registrar or sent by United States Mail, first
class, post~ge prepaid to the Contracting Party, and, upon the
registration and delivery thereof, such Contracts 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 Contracts surrendered in such assignment and transfer or
exchange.
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Ail transfers or exchanges of Contracts pursuant to this
Section shall be made without expense or service charge to the
Contracting Party, except as otherwise herein provided, and
except that the Paying Agent/Registrar shall require payment by
the Contracting Party requesting such transfer or exchange of
any tax or other governmental charges required to be paid with
respect to such transfer or exchange.
Contracts cancelled by reason of an exchange or transfer
pursuant to the provisions hereof are hereby defined to be
"Predecessor Contracts, evidencing all or a portion, as the
case may be, of the same obligation to pay evidenced by the new
Contract or Contracts registered and delivered in the exchange
or transfer therefor. Additionally, the term "Predecessor
Contracts" shall include any mutilated, lost, destroyed, or
stolen Contract for which a replacement Contract has been
registered and delivered in lieu thereof pursuant to the
provisions of Section 10 hereof and such new replacement
Contract shall be deemed to evidence the same obligation as the
mutilated, lost, destroyed, or stolen Contract.
SECTION 6: Execution - Registration. The Contracts
shall be executed on behalf of the City by the Mayor or Mayor
Pro Tem, with the seal of the City reproduced or impressed
thereon and countersigned by the City Secretary. The signature
of such officers on the Contracts may be manual or facsimile.
Contracts bearing the manual or facsimile signatures of the
persons holding such offices on the Contract Date shall be
deemed to be duly executed on behalf of the City,
notwithstanding a change in persons holding such offices at the
time of delivery of the Contracts to the Initial Contracting
Party and with respect to Contracts delivered in subsequent
assignments and transfers or exchanges.
No Contract shall be entitled to any right or benefit
under this Ordinance, or be valid or obligatory for any
purpose, unless the registration certificate appearing on the
Contracts to be signed by the Comptroller of Public Accounts of
the State of Texas (substantially in the form provided in
Section 8C) and/or the Paying Agent/Registrar (substantially in
the form provided in Section SD), either or both such
certificates, as the case may be, are manually executed by an
authorized officer, employee or representative of the
Comptroller of Public Accounts and/or the Paying
Agent/Registrar, and such registration certificate, either or
both, upon any Contract when duly executed by the Comptroller
of Public Accounts and/or the Paying Agent/Registrar, as the
case may be, shall be conclusive evidence, and the only
evidence, that such Contract has been duly certified,
registered and delivered.
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SECTION 7: Initial Contracts. The Contracts herein
authorized may be initially executed and delivered as a single
fully registered Contract in the Aggregate Contract Amount with
Installment Amounts to become due and payable as provided in
Section 2 hereof and numbered T-1 and registered in the name of
the Initial Contracting Party or the designee thereof. Such
single fully registered Contract shall be submitted to the
Office of the Attorney General of the State of Texas for
approval, certified and registered by the Office of the
Comptroller of Public Accounts of the State of Texas and
delivered to the Initial Contracting Party. Any time after the
delivery of such single fully registered Contract, the Paying
Agent/Registrar, pursuant to written instructions from the
Initial Contracting Party, shall cancel such obligation and
exchange therefor Contracts of authorized amounts and in
Installment Amounts with Payment Dates and bearing applicable
interest rates for transfer and delivery to the Contracting
Parties named at the addresses identified therefor; all
pursuant to and in accordance with such written instructions
from the initial Contracting Party and such other information
and documentation as the Paying Agent/Registrar may reasonably
require.
SECTION 8: Forms. A. Forms Generally. The
Contracts, 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 the Contracts, 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 and such legends and endorsements (including
insurance legends in the event the Contracts, or any
installment amounts thereof, are purchased with insurance and
any reproduction of an opinion of counsel) thereon as may,
consistently herewith, be determined by the officers executing
and delivering such Contracts as evidenced by their execution.
The Contracts shall be printed, lithographed, or engraved
or produced in any other similar manner, all as determined by
the officers executing such Contracts as evidenced by their
execution, but the single fully registered obligation
authorized in Section 7 hereof may be typewritten or
photocopied or otherwise reproduced.
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B. General Contract Form.
REGISTERED
NO.
REGISTERED
$
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF SOUTHLAKE, TEXAS,
PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATION
SERIES 1990
Contract Date:
August 1, 1990
Interest Rate:
Payment Date:
CUSIP NO:
Contracting Party:
Installment Amount:
DOLLARS
The City of Southlake (hereinafter referred to as the
"City"), a body corporate and municipal corporation in the
County of Tarrant, State of Texas, hereby agrees and promises
to pay to the order of the Contracting Party named above, or
the registered assigns thereof, the Installment Amount
hereinabove stated on the Payment Date specified above (without
right of prepayment) and to pay interest on such unpaid
Installment Amount from the Contract 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 1 and August 1 in each year, commencing February 1,
1991. The Installment Amount is payable on the Payment Date
noted above to the Contracting Party upon presentation and
surrender of this Contract to the Designated Payment/Transfer
Office of the Paying Agent/Registrar executing the registration
certificate appearing hereon, or its successor. Interest is
payable to the Contracting Party of this obligation (or one or
more Predecessor Contracts, as defined in the Ordinance
hereinafter referenced) who appears on the "Contract Register"
maintained by the Paying Agent/Registrar at the close of
business on the "Record Date", which is the 15th day of the
month next preceding each interest payment date, and interest
sha]l be paid by the Paying Agent/Registrar by check sent
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United States Mail, first class postage prepaid, to the address
of such Contracting Party recorded in the Contract Register or
by such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the Contracting
Party. The Installment Amount of this Contract and interest
thereon shall be paid without exchange or collection charges to
the Contracting Party 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 Contract is one of a number of contracts aggregating
in amount $200,000 (herein referred to as the "Contracts"),
executed and delivered to finance the acquisition, use or
purchase of personal property, under and in strict conformity
with the Constitution and laws of the State of Texas,
particularly the Public Property Finance Act (V.T.C.A., Local
Government Code, Subchapter A of Chapter 271) and pursuant to
an Ordinance adopted by the City Council of the City (herein
referred to as the "Ordinance").
This Contract is an obligation of the City payable from
the pledged proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the
City and, until disbursed for the acquisition of Property,
amounts held in a special escrow account created and to be
maintained under and pursuant to a Special Escrow Deposit
Agreement, dated August 1, 1990 (the "Special Escrow Deposit
Agreement") by and between the City and Ameritrust Texas
National Association. 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 of the provisions of which the Contracting Party by the
acceptance hereof hereby agrees, for definitions of terms; the
description of and the nature and extent of the taxes pledged
for the payment of the Contracts; the provisions of the Special
Escrow Deposit Agreement relating to the receipt, safekeeping
and disbursement of funds for the acquisition of the Property;
the terms and conditions relating to the assignment and
transfer of this Contract; the conditions upon which the
Ordinance may be amended or supplemented with or without the
consent of the Contracting Parties; the rights, duties, and
obligations of the City and the Paying Agent/Registrar; the
terms and provisions upon which this Contract may be discharged
at or prior to its Payment Date, and the obligation evidenced
by the Contracts cease to exist as an obligation of the City;
and ~or other teems and provisions contained therein.
Capitalized terms used herein have the meanings assigned in the
Ordinance.
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This Contract, subject to certain limitations contained in
the Ordinance, may be assigned and transferred on the Contract
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 party hereof, or his duly authorized agent. When
a transfer on the Contract Register occurs, one or more new
fully registered Contracts with the same Payment Date, in
authorized amounts, bearing the same rate of interest, and of
the same Installment Amount will be delivered by the Paying
Agent/Registrar to the designated assignee or assignees.
The City and the Paying Agent/Registrar, and any agent of
either, shall treat the registered party whose name appears on
the Contract Register (i) on the Record Date as the Contracting
Party entitled to payment of interest hereon, (ii) on the date
of surrender of this Contract as the Contracting Party entitled
to payment of the Installment Amounts on the Payment Date, and
(iii) on any other date as the Contracting Party to notify 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
"Special Record Date") will be established by the Paying
Agent/Registrar, if and when funds for the payment of such
interest have been received. 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 Contracting Party appearing on the
Contract Register at the close of business on the last business
day next preceding the date of mailing of such notice.
It is hereby certified, recited, represented and declared
that the City is a body corporate and political subdivision
duly organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the execution
and delivery of the Contracts is duly authorized by law; that
all acts, conditions and things required to exist and be done
precedent to and in the execution and delivery of the Contracts
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;
and that due provision has been made for the payment of the
Contracts and interest thereon as aforestated. In case any
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provision in this Contract 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 Contract
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 Contract to be duly executed under the official
seal of the City as of the Contract Date.
ATTEST:
CITY OF SOUTHLAKE, TEXAS
(SEAL)
C. *Form of Registration Certificate of Comptroller
of Public Accounts to appear on Initial Contract
only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
THE STATE OF TEXAS
REGISTER NO.
I HEREBY CERTIFY that this Contract has been examined,
certified as to validity and approved by the Attorney General
of the State of Texas, and duly registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS my signature and seal of office
this
(SEAL)
Comptroller of Public Accounts
of the State of Texas
*NOTE TO PRINTER: Omit on definitive Contracts
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D. Form of Certificate of Paying Agent/Registrar to
appear on definitive Contracts.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Contract has been duly delivered and registered under
the provisions of the within-mentioned Ordinance; the contract
or contracts initially executed and delivered by the City
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 principal offices of the Paying
located in Dallas, Texas, is the "Designated
Office" for this Contract.
Agent/Registrar
Payment/Transfer
Registration Date:
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
By
Authorized Signature
Form of Assignment.
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 Contract and all rights
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Contract on the books kept
for registration thereof, with full power of substitution in
the premises.
DATED:
Signature guaranteed:
NOTICE: The signature on this
assignment must correspond with
the name of the registered party
as it appears on the face of the
within Contract in every
particular.
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F. The Initial Contract shall be in the form set forth in
paragraph B of this Section, except that the form of the
sinqle fully registered Initial Contract shall be modified
as follows:
(i)
immediately under the headings "Interest Rate
and "Payment Date " shall both be omitted;
(ii) Paragraph one shall read as follows:
Contracting Party:
Contract Amount:
Dollars
The City of Southlake (hereinafter referred to as the
"City"), a body corporate and municipal corporation in the
County of Tarrant, State of Texas, hereby agrees and promises
to pay to the order of the Contracting Party named above, or
the registered assigns thereof, the Contract Amount hereinabve
stated on the Payment Dates and in Installment Amounts in
accordance with the following schedule:
PAYMENT DATES
INSTALLMENT AMOUNTS
INTEREST
RATE
(Information to be inserted from
schedule in Section 2 hereof).
(without right of prepayment) and to pay interest on such
unpaid Annual Installment Amounts from the Contract Date at the
per annum rates of interest specified above computed on the
basis of a 360-day year of twelve 30-day months; such
interest being payable on February 1 and August 1 in each
year, commencing February 1, 1991. The Installment Amounts are
payable on the Payment Dates noted above to the Contracting
Party named above or the assigns thereof by Ameritrust Texas
National Association (the "Paying Agent/Registrar"), upon the
presentation and surrender of this obligation, at its principal
offices in Dallas, Texas (the "Designated Payment/Transfer
Office"). Interest is payable to the Contracting Party whose
name appears on the "Contract Register" maintained by the
Paying Agent/Registrar at the close of business on the "Record
Date", which is the 15th 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 Contracting Party
recorded in the Contract Register or by such other method,
acceptable to the Paying Agent/Registrar, requested by, and at
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the risk and expense of, the Contracting Party. The
Installment Amounts of this Contract and interest thereon shall
be paid without exchange or collection charges to the
Contracting Party 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 9: Levy of Taxes. TO provide for the payment
of the Installment Amounts to become due and payable and the
payment of the interest thereon, there is hereby levied, and
there shall be annually assessed and collected in due time,
form, and manner, a tax on all taxable property in the City,
within the limitations prescribed by law, and such tax hereby
levied on each one hundred dollars' valuation of taxable
property in the City shall be at a rate from year to year as
will be ample and sufficient to provide funds each year to pay
(i) the Installment Amounts to become due and payable or an
amount equal to 2% of the Aggregate Contract Amount (whichever
is the greater) and (ii) the accrued interest on the
Installment Amounts to become due and payable; full allowance
being made for delinquencies and costs of collection. Full,
complete and accurate books and records relating to the receipt
and disbursement of taxes levied, assessed and collected for
and on account of the Contracts shall be kept and maintained by
the City at all times while the Contracts are Outstanding, and
the taxes collected annually for the payment of the Contracts
shall be deposited to the credit of a "Special 1990 Contracts
Fund" (the "Sinking Fund") maintained on the records of the
City and at an official depository of the City's funds; and
such tax hereby levied, and to be assessed and collected
annually, is hereby pledged to the payment of the Contracts.
Proper officers of the City are hereby authorized and
directed to cause to be transferred to the Paying Agent/
Registrar, from funds on deposit in the Sinking Fund, amounts
sufficient to fully pay and discharge promptly each Installment
Amount and interest on the Contracts as the same accrues or
becomes due and payable; such transfer of funds to be made in
such manner as will cause collected funds to be deposited with
the Paying Agent/Registrar on or before each Payment Date and
each interest payment date for the Contracts.
SECTION 10: Mutilated Destroyed - Lost and Stolen
Contracts. In case a Contract shall be mutilated, or
destroyed, lost or stolen, the Paying Agent/Registrar may
execute and deliver a replacement Contract of like form and
tenor, and in the same authorized amount and bearing a number
not contemporaneously outstanding, in exchange and substitution
for such mutilated Contract, or in lieu of and in substitution
for such destroyed, lost or stolen Contract, only upon the
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approval of the City and after (i) the filing by the
Contracting Party with the Paying Agent/Registrar of evidence
satisfactory to the Paying Agent/Registrar of the destruction,
loss or theft of such Contract, 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
Contract shall be borne by the Contracting Party of the
Contract mutilated, or destroyed, lost or stolen.
Every replacement Contract 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 Contracts; notwithstanding the
enforceability of payment by anyone of the destroyed, lost, or
stolen Contracts.
SECTION 11: Satisfaction of Obligation of City. If the
City shall pay or cause to be paid, or there shall otherwise be
paid to the Contracting Parties, the Installment Amounts,
together with the accrued interest thereon, at the times and in
the manner stipulated in this Ordinance, then the pledge of
taxes levied under this Ordinance and all covenants,
agreements, and other obligations of the City to the
Contracting Parties shall thereupon cease, terminate, and be
discharged and satisfied.
The Contracts 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 the Installment
Amounts as the same shall become due and payable on the Payment
Dates, 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 Installment Amounts and accrued
interest on and prior to each Payment Date. The City covenants
that no deposit of moneys or Government Securities will be made
under th~s Section and no use made of any such deposit which
would cause the Contracts to be treated as "arbitrage
obligations" within the meaning of Section 148 of the Internal
Revenue Code of 1986, as amended, or regulations adopted
pursuant thereto.
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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 in
excess of the amounts required for the payment of the Contracts
in accordance with the defeasance provisions shall be remitted
to the City or deposited as directed by the City.
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.
The term "Government Securities", as used herein, means
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of America, which are non-callable prior to the
respective Payment Dates, as the case may be, for the Contracts
and may be United States Treasury Obligations such as the State
and Local Government Series and may be in book-entry form.
SECTION 12: Ordinance a Contract -Amendments - Outstanding
Contracts. This Ordinance shall constitute an agreement with
the Contracting Parties from time to time, be binding on the
City, and shall not be amended or repealed by the City so long
as any of the Contracts remain Outstanding except as permitted
in this Section. The City may, without the consent of or
notice to any Contracting Parties, from time to time and at any
time, amend this Ordinance in any manner not detrimental to the
interests of the Contracting Parties, including the curing of
any ambiguity, inconsistency, or formal defect or omission
herein. In addition, the City may, with the consent of
Contracting Parties to Contracts which are Outstanding and
represent 51% or more of the aggregate Installment Amounts
affected thereby, amend, add to, or rescind any of the
provisions of this Ordinance; provided that, without the
consent of Contracting Parties of all Contracts which are
Outstanding, no such amendment, addition, or rescission shall
(1) extend the time or times of payment of the Installment
Amounts and interest on the Contracts, reduce the Installment
Amounts, or the rate of interest thereon, or in any other way
modify the terms of payment of the Contracts, (2) give any
preference to any Contract over any other Contract, or
(3) reduce the aggregate Installment Amount of Contracts
required to be held for consent to any such amendment,
addition, or rescission.
The term "Outstanding" when used in this Ordinance with
respect to Contracts means, as of the date of determination,
all Contracts theretofore delivered and registered under this
Ordinance, except:
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(1) those Contracts cancelled or delivered to
the Paying Agent/Registrar for cancellation;
(2) those Contracts for which the
Installment Amounts and all interest payable
thereon has been paid or is deemed to be fully
paid in accordance with the provisions of
Section 11 hereof; and
(3) those mutilated, destroyed, lost, or
stolen Contracts for which replacement obligations
have been registered and delivered in lieu thereof
as provided in Section 10 hereof.
SECTION 13: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section 13,
following terms have the following meanings:
"Code" means the Internal
as amended by all legislation,
before the Issue Date.
Revenue Code of 1986,
if any, enacted on or
"Computation Date" has the meaning stated in
Treas. Reg. ~ 1.148-8T(b)(1).
"Gross Proceeds" has the meaning stated in
Treas.Reg. § 1.148-8T(d).
"Investment" has the meaning stated in Treas.
Reg. § 1.148-8T(e).
"Issue Date" means the date the Contracts are
first authenticated and delivered to the Initial
Contracting Party.
"Nonpurpose Investment" means any Investment in
which Gross Proceeds of the Contracts are invested
and which is not acquired to carry out the
governmental purpose of the Contracts.
"Yield of"
(1) any Investment shall be computed in
accordance with Treas. Reg. ~1.148-2T, and
(2) the Contracts has the meaning stated
in Treas. Reg. ~ 1.148-3T.
the
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(b) Not to Cause Interest to Become Taxable. The City
shall not use, permit the use of, or omit to use Gross Proceeds
or any other amounts (or any property the acquisition,
construction, or improvement of which is to be financed
directly or indirectly with Gross Proceeds) in a manner which,
if made or omitted, respectively, would cause the interest on
any Contract 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 Contract from gross income for federal income
tax purposes pursuant to Section 103(a) of the Code, 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 Contracts,
(1) exclusively own, operate, and possess all
property the acquisition, construction, or
improvement of which is to be financed directly or
indirectly with Gross Proceeds of the Contracts and
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) not directly or indirectly impose or accept
any charge or other payment for use of Gross Proceeds
of the Contracts or any property the acquisition,
construction, or improvement of which is to be
financed 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
Contracts 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
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"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 Contracts, directly or
indirectly invest Gross Proceeds of the Contracts 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 Contracts.
(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 Contracts 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 with
the Secretary of the Treasury the information required by
section 149(e) of the Code with respect to the Contracts on
such form and in such place as such Secretary may prescribe.
(h) No Rebate Required. The City warrants and represents
that it satisfies the requirements of paragraph (2) and (3) of
section 148(f) of the Code with respect to the Contracts
without making the payments for the United States described in
such section. Specifically, the City warrants and represents
that
(1) the City is a governmental unit with
general taxing powers;
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(2) at least 95% of the Gross Proceeds of the
Contracts will be used for the local governmental
activities of the City;
(3) the aggregate face amount of all tax-exempt
obligations issued or expected to be issued by the
City (and all subordinate entities thereof) in the
calendar year in which the Contracts are issued is
not reasonably expected to exceed $5,000,000.
SECTION 14: Contracting Party - Special Escrow Deposit
Agreement. The Contracts herein authorized shall be initially
executed and delivered to
(herein referred to as the "Initial'
Contracting Party") against payment of the Aggregate Contract
Amount plus accrued interest thereon from the Contract Date to
the date of payment of such Aggregate Contract Amount.
Immediately following the delivery of the Contracts to the
Initial Contracting Party and in consideration of the
advancement of the Aggregate Contract Amount for the
acquisition or purchase of the Property by the Initial
Contracting Party, the Aggregate Contract Amount shall be
deposited in an escrow fund for safekeeping and disbursement in
accordance with the provisions of the "Special Escrow Deposit
Agreement" (the "Agreement") by and between the City and
Ameritrust Texas National Association (the "Escrow Agent"),
attached hereto as Exhibit B and incorporated herein by
reference as a part of this Ordinance for all purposes, and
such Agreement in substantially the form and substance attached
hereto, together with such changes or revisions as may be
necessary to provide for the safekeeping of such funds and the
disposition thereof for the purchase or acquisition of the
Property identified in Exhibit A, is hereby approved and
authorized to be executed by the Mayor and City Secretary for
and on behalf of the City and as the act and deed of this City
Council; and such Agreement as executed by said officials shall
be deemed approved by the City Council and constitute the
Agreement herein approved. The accrued interest received from
the Initial Contracting Party shall be deposited to the credit
of the Sinking Fund and expended to pay the initial interest
payment on the Contracts.
SECTION 15: Offering Memorandum. The Offering
Memorandum prepared in the initial offering of the Contracts 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
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finds that the information and data contained in said Offering
Memorandum pertaining to the City and its financial affairs is
true and correct in all material respects and no material facts
have been 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 Offering
Memorandum in the reoffering of the Contracts by the Initial
Contracting Party is hereby approved and authorized.
SECTION 16: Control and Custody of Records and Contract
Documents. The Mayor of the City shall be and is hereby
authorized to take and have charge and control of all necessary
orders, records, proceedings, including the Contracts, pending
the investigation and approval of such documents by the
Attorney General of the State of Texas, the registration of the
Contracts by the Comptroller of Public Accounts and their
delivery to the Initial Contracting Party.
Furthermore, the Mayor, City Secretary, City Manager and
Finance Director, any one or more of said officials, are hereby
authorized and directed to furnish and execute such documents
and certifications relating to the City and the execution and
delivery of the Contracts, including certifications as to
facts, estimates, circumstances and reasonable expectations
pertaining to the use, expenditure and investment of the
proceeds thereof, as may be necessary for the approval of the
Attorney General, the registration by the Comptroller of Public
Accounts and the delivery of the Contracts to the Initial
Contracting Party, and, together with the City's financial
advisor, bond counsel and the Paying Agent/Registrar, make the
necessary arrangements for the delivery of such obligations to
the Initial Contracting Party.
SECTION 17: Qualified Tax Exempt Obligations. That in
accordance with the provisions of paragraph (3) of subsection
(b) of Section 265 of the Code, the City hereby designates the
Contracts to be "qualified tax exempt obligations" in that the
Contracts are not "private activity bonds" as defined in the
Code and the reasonably anticipated amount of "qualified tax
exempt obligations" to be issued by the City (including all
subordinate entities of the City) for the calendar year 1990
will not exceed $10,000,000.
SECTION 18: Notices to Contracting Parties-Waiver.
Wherever this Ordinance provides for notice to Contracting
Parties of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
sent by United States Mail, first class postage prepaid, to the
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address of each Contracting Party appearing in the Contract
Register at the close of business on the business day next
preceding the mailing of such notice.
In any case where notice to Contracting Parties is given
by mail, neither the failure to mail such notice to any
particular Contracting Party, nor any defect in any notice so
mailed, shall affect the sufficiency of such notice with
respect to all other Contracts. Where this Ordinance provides
for notice in any manner, such notice may be waived in writing
by the Contracting Party 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 a Contracting Party 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 19: Cancellation. Ail Contracts surrendered
for payment, prepayment, 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 Contracts
previously certified or registered and delivered which the City
may have acquired in any manner whatsoever, and all Contracts
so delivered shall be promptly cancelled by the Paying
Agent/Registrar° All cancelled Contracts held by the Paying
Agent/Registrar shall be returned to the City.
SECTION 20: Printed Opinion. The Initial Contracting
Party's obligation to accept delivery of the Contracts is
subject to being furnished a final opinion of Fulbright &
Jaworski, Attorneys, Dallas, Texas, approving the Contracts as
to their validity, said opinion to be dated and delivered as of
the date of delivery and payment for the Contracts. Printing
of a true and correct reproduction of said opinion on the
reverse side of each of the definitive Contracts is hereby
approved and authorized.
SECTION 21: CUSIP Numbers. CUSIP numbers may be
printed or typed on the definitive Contracts. It is expressly
provided, however, that the presence or absence of CUSIP
numbers on the definitive Contracts shall be of no significance
or effect as regards the legality thereof and neither the City
nor a~orneys approving the Con%rac~s as to legality are to be
held responsible for CUSIP numbers incorrectly printed or typed
on the definitive Contracts.
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SECTION 22: 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 Contracting Parties, 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 Contracting Parties.
SECTION 23: Inconsistent Provisions. Ail 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 24: Governing Law. This Ordinance and the
Contracts authorized to be executed and delivered hereunder
shall be construed and enforced in accordance with the laws of
the State of Texas and the United States of America.
SECTION 25: Effect of Headings. The Section headings
herein are for convenience only and shall not affect the
construction hereof.
SECTION 26: 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 27: Severabilit¥. 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 28: Public Meeting. It is officially found,
determined, and declared that the meeting at which this
Ordinance is adopted was open to the public and public notice
of the time, place, and subject matter of the public business
to be considered at such meeting, including this Ordinance, was
given, all as required by Article 6252-17, Vernon's Texas Civil
Statutes, as amended.
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SECTION 29: Effective Date. This Ordinance shall take
effect and be in full force immediately from and after its date
of adoption shown below.
PASSED ON FIRST READING, August 21, 1990.
PASSED ON SECOND READING AND ADOPTED, this September 4,
1990.
CITY OF SOUTHLAKE, TEXAS
ATTEST:
C ty Secretary
(City Seal)
APPROVED AS TO LEGALITY:
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EXHIBIT "A"
LIST OF PROPERTY
Number of Items to be
Purchased or Acquired
Description of Estimated Acquisition
Property Cost Date
EXHIBIT "B"
Payment Request Form No.
To: AMERITRUST TEXAS NATIONAL ASSOCIATION
As Escrow Agent, you are hereby requested to pay from
the Escrow Fund established by the Special Escrow Deposit
Agreement, dated as of August 1, 1990 between the City of
Southlake, Texas (the "City") and the Escrow Agent (the "Escrow
Agent") to the person, corporation or other entity designated
below as Payee, being someone other than an employee or officer
of the City, the sum set forth below such designation. The
City, acting by and through its Authorized Representative,
hereby certifies that [check one or more as appropriate]:
[ ]
such amount represents [full] [partial] payment
for an item of "Property" (as defined in the
Escrow Agreement) being
[ ]
[ ]
and such item of Property [has not
been] [has been] the subject of prior Payment
Request Forms [Nos. ]. Attached
hereto, unless supplied with a previous Payment
Request, is a copy of the invoice, winning bid
form or contract relating to the purchase or
acquisition of such Property.
such amount represents a cost incurred in
connection with the execution and delivery of the
Contracts (as defined in the Special Escrow
Deposit Agreement).
such amounts represents the unexpended balance of
the funds held in the Escrow Fund not needed for
the payment of the costs of acquiring or
purchasing Property and should be transferred to
the Sinking Fund established by the Ordinance.
Payee:
Address:
Amount:
CITY OF SOUTHLAKE, TEXAS
Authorized Representative
EXHIBIT
SPECIAL ESCROW DEPOSIT AGREEMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
THIS SPECIAL ESCROW DEPOSIT AGREEMENT, dated as of
August 1, 1990, made by and between the City of Southlake,
Texas, a body corporate and political subdivision of the State
of Texas in Tarrant County, Texas, (the "City") acting by and
through the Mayor and City Secretary and Ameritrust Texas
National Association (the "Escrow Agent"), a banking
association organized and existing under the laws of the United
States of America,
W I T N E S S E T H :
WHEREAS, pursuant to V.T.C.A., Local Government Code,
Subchapter A of Chapter 271 (the Public Property Finance Act),
the City Council is authorized and empowered to execute,
perform and make payments under contracts with any person for
the use, acquisition or purchase of personal property; and
WHEREAS, the City Council of the City has finally
adopted an ordinance (the "Ordinance") on the 4th day of
September, 1990, providing for the execution and delivery of
"City of Southlake, Texas, Public Property Finance Contractual
Obligations, Series 1990" (the "Contracts"), aggregating in
amount $200,000 (the "Aggregate Contract Amount"), and in
return for the execution and delivery of such Contracts, the
Aggregate Contract Amount will be advanced for the purchase or
acquisition of personal property identified in Exhibit A
attached hereto, or such other personal property, appliances,
equipment, furnishings or interests therein, considered by the
City Council to be necessary, useful and/or appropriate for
purposes of the City (the "Property"); and
WHEREAS, the Ordinance further approved and authorized
the execution of this Agreement to provide for the deposit,
safekeeping and disbursement of the Aggregate Contract Amount
advanced by the parties contracting with the City for the
purpose of the acquisition or purchase of the Property; and
WHEREAS, the Escrow Agent is a banking association
organized and existing under the laws of the United States of
America, possessing trust powers and is fully qualified and
empowered to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual
undertakings, promises and agreements herein contained and in
consideration of an escrow fee of $ to be paid by the
City to the Escrow Agent, the City and the Escrow Agent
mutually agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.01. Definitions. Unless the context clearly
indicates otherwise, the following terms shall have the
meanings assigned to them below when they are used in this
Agreement:
"Authorized Representative" shall mean with respect to
the City, the Mayor, City Secretary or City Manager or such
other official or employee of the City as may be designated in
a resolution adopted by the City Council of the City and filed
with the Escrow Agent.
"Authorized Investments" shall mean those securities or
obligations identified and specified in the "Public Funds
Investment Act of 1987", including all amendments thereto.
"Escrow Fund" means the special fund or account
established with the Escrow Agent pursuant to the provisions of
this Agreement for the deposit and safekeeping of the
"Aggregate Contract Amount".
SECTION 1.02. Other Definitions. The terms
"Agreement", "City", "Escrow Agent", "Aggregate Contract
Amount", "Contracts", "Ordinance", and "Property", when they
are used in this Agreement, shall have the meanings assigned to
them in the preamble of this Agreement. Furthermore,
capitalized terms not otherwised defined herein shall have the
same meanings assigned thereto in the Ordinance.
SECTION 1.03. Interpretations. The titles and headings
of the articles and sections of this Agreement have been
inserted for convenience and reference only and are not to be
considered a part thereof and shall not in any way modify or
restrict the terms hereof. Words of the singular number shall
be considered to include the plural, words of the plural number
shall be construed to include the singular and words of the
masculine, feminine and neuter genders shall be construed to
include the other genders. This Agreement and all of the terms
and provisions hereof shall be liberally construed to
effectuate the purposes set forth herein and to achieve the
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intended purpose of providing for (i) the receipt and
safekeeping of the Aggregate Contract Amount advanced by the
Contracting Parties to the City and (ii) the disbursement of
such Aggregate Contract Amount in accordance with the terms of
this Agreement.
ARTICLE II
ESCROW FUND
SECTION 2.01. Escrow Fund Creation. A special
segregated and irrevocable trust fund to be known as the
"Special Public Property Contractual Obligation Escrow
Fund/City of Southlake, Texas/Series 1990" (hereinafter called
the "Escrow Fund") shall be and is hereby established and shall
be maintained by the Escrow Agent for the receipt, deposit,
administration and safekeeping of the Aggregate Contract Amount
pending its use, disbursement and withdrawal; all in accordance
with and in strict conformity with the provisions of this
Agreement.
SECTION 2.02. Escrow Fund Deposit. Immediately
following the receipt of the Aggregate Contract Amount, the
City agrees and covenants to deposit to the credit of the
Escrow Fund all of the Aggregate Contract Amount and the Escrow
Agent agrees to receive and deposit such Aggregate Contract
Amount to the credit of the Escrow Fund and hold such funds for
application and disbursement for the purposes and in the manner
prescribed in this Agreement.
SECTION 2.03. Escrow Fund Characterization. (a) The
Escrow Agent shall hold such Aggregate Contract Amount,
together with income, profits and interest realized from
investing such funds, at all times as a special and separate
trust fund wholly segregated from other moneys and securities
on deposit with the Escrow Agent; shall never commingle the
funds held in the Escrow Fund with other moneys or securities
of the Escrow Agent; and shall hold and dispose of the assets
therein only as set forth herein. Nothing herein contained
shall be construed as requiring the Escrow Agent to keep the
identical moneys, or any part thereof, in said Escrow Fund, if
it is impractical, but moneys of an equal amount, except to the
extent such are represented by the Authorized Investments,
shall always be maintained on deposit in the Escrow Fund by the
Escrow Agent, as trustee; and a special account evidencing such
fact~ shall at all times be maintained on the books of the
Escrow Agent.
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(b) Legal ownership of or title to all funds or the
Authorized Investments deposited or held for the account of the
Escrow Fund shall be in the Contracting Parties to the
Contracts with equitable or beneficial ownership or title
vested in the vendors or sellers of the Property, and such
legal and beneficial owners as their respective interests may
be determined shall be entitled to a preferred claim and shall
have a first lien upon such funds and Authorized Investments in
the Escrow Fund until paid out, used and applied in accordance
with this Agreement. The funds and Authorized Investments
received by the Escrow Agent under this Agreement shall not be
considered as a banking deposit and the Escrow Agent and the
City shall have no right or title with respect thereto, except
as otherwise provided herein.
SECTION 2.04. Escrow Fund Security. The Escrow Agent
shall continuously secure the monies in the Escrow Fund not
invested in Authorized Investments by a pledge of direct
obligations of the United States of America, in the par or face
amount at least equal to the amount of such uninvested monies
and to the extent such money is not insured by the Federal
Deposit Insurance Corporation. Such securities shall be
deposited with the Escrow Agent or, with the approval of the
City, may be held in safekeeping and custody by a third party
banking institution or trust company.
SECTION 2.05. Escrow Fund Withdrawal. (a) The
Aggregate Contract Amount, together with the income, earnings
and receipts thereon from Authorized Investments, held in the
Escrow Fund shall be disbursed or withdrawn only for one of the
following purposes: (i) the payment of the acquisition or
purchase price of Property, (ii) the payment of fees and costs
incurred in connection with the execution and delivery of the
Contracts or (iii) deposited to the credit of the Sinking Fund
for the payment of the Contracts, and only upon receipt of a
written requisition from an Authorized Representative in
substantially the form and substance of Exhibit B attached
hereto, duly executed and completed in all respects. The
Escrow Agent shall retain on file copies of such written
requisitions for which a disbursement or withdrawal of funds is
made. The Aggregate Contract Amount, together with the income,
earnings and interest received from Authorized Investments,
shall not be subject to checks, drafts or warrants drawn by the
City.
(b) The City shall have the right to make additions or
changes to the items of Property identified in Exhibit A
attached hereto whenever the City Council of the City deems
such additions or changes are necessary and appropriate and
that the costs of acquiring or purchasing such additional or
substituted Property will not cause a shortage of funds in the
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Escrow Fund for any items of Property in process of being
acquired or purchased and the payment of which is dependent
upon having sufficient funds in the Escrow Fund. Prior to a
disbursement or withdrawal of funds from the Escrow Fund to pay
for an item of Property not listed or identified in Exhibit A,
a certified copy of a resolution or order by the City Council
of the City making the findings and determinations noted above
and approving the purchase or acquisition of such additional or
substituted Property shall be filed with the Escrow Agent,
together with the written requisition from an Authorized
Representative required in subparagraph (a) above of this
section. Any substituted Property or additional Property shall
be "Personal Property" within the meaning of, and as defined
in, the Public Property Finance Act.
SECTION 2.06. Escrow Fund Authorized Investments. Ail
money held by the Escrow Agent pursuant to this Agreement shall
be deposited or invested only in Authorized Investments and
only at the direction of the Authorized Representative of the
City. The City intends that such funds shall be invested in
Authorized Investments so as to obtain the highest yield
practicable, having due regard for the maintenance of the
tax-exempt status of interest on the Contracts from federal
income taxes, the safety of such funds and the date when such
funds will be required for uses and purposes specified in this
Agreement. The City shall direct any investments made by the
Escrow Agent by letter from an Authorized Representative.
All interest and other income received from the
investment of moneys held in the Escrow Fund shall be retained
in the Escrow Fund until disbursed or withdrawn in accordance
with Section 2.05 hereof.
The Escrow Agent shall not be liable for any loss
resulting from the making or disposition of any investment
pursuant to this section, and any such losses shall be charged
to the Escrow Fund.
ARTICLE III
RECORDS AND REPORTS
SECTION 3.01. Records. The Escrow Agent will keep
books of record and account in which complete and correct
entries shall be made of all transactions relating to the
receipts, disbursements, allocations and application of the
money and Authorized Investments deposited to the Escrow Fund
and all proceeds thereof, and such books shall be available for
inspection at reasonable hours and under reasonable conditions
by the City and the Contracting Parties to the Contracts.
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SECTION 3.02. Reports. While this Agreement remains in
effect, the Escrow Agent annually shall prepare and send to the
City a written report summarizing all transactions relating to
the Escrow Fund during the preceding year, together with a
detailed statement of all Authorized Investments and the cash
balance on deposit in the Escrow Fund as of the end of such
period.
ARTICLE IV
CONCERNING THE ESCROW AGENT
SECTION 4.01. Representations. The Escrow Agent hereby
represents that it has all necessary power and authority to
enter into this Agreement and undertake the obligations and
responsibilities imposed upon it herein, and that it will carry
out all of its obligations hereunder.
SECTION 4.02. Limitation on Liability. The Escrow
Agent makes no representations as to the value, conditions or
sufficiency of the Escrow Fund, or any part thereof, or as to
the title of the City thereto, or as to the security afforded
thereby or hereby, and the Escrow Agent shall not incur
liability or responsibility in respect to any of such matters.
It is the intention of the parties hereto that the
Escrow Agent shall never be required to use or advance its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or the exercise of any of its
rights and powers hereunder.
The Escrow Agent shall not be liable for any action
taken or neglected to be taken by it in good faith in any
exercise of reasonable care and believed by it to be within the
discretion or power conferred upon it by this Agreement, nor
shall the Escrow Agent be responsible for the consequences of
any error of judgment; and the Escrow Agent shall not be
answerable except for its own action, neglect or default, nor
for any loss unless the same shall have been through its
negligence or want of good faith.
Unless it is specifically otherwise provided herein, the
Escrow Agent has no duty to determine or inquire into the
happening or occurrence of any event or contingency or the
performance or failure of performance of the City with respect
to arrangements or contracts with others, with the Escrow
Agent's sole duty hereunder being to safeguard the Escrow Fund,
to dispose of and deliver the same in accordance with this
Agreement. If, however, the Escrow Agent is called upon by the
terms of this Agreement to determine the occurrence of any
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event or contingency, the Escrow Agent shall be obligated, in
making such determination, only to exercise reasonable care and
diligence, and in event of error in making such determination
the Escrow Agent shall be liable only for its own misconduct or
its negligence. In determining the occurrence of any such
event or contingency the Escrow Agent may request from the City
or any other person such reasonable additional evidence as the
Escrow Agent in its discretion may deem necessary to determine
any fact relating to the occurrence of such event or
contingency, and in this connection may make inquiries of, and
consult with, among others, the City at any time.
SECTION 4.03. Rights of Interpleader. In the event of
any disagreement or controversy hereunder or if conflicting
demands or notices are made upon the Escrow Agent growing out
of or relating to this Agreement or in the event that the
Escrow Agent in good faith is in doubt as to what action should
be taken hereunder, the City expressly agrees and consents that
the Escrow Agent shall have the absolute right at its election
to:
(a) Withhold and stop all further
proceedings in, and performance of, this Agreement
with respect to the issue in question and of all
instructions received hereunder in regard to such
issue; and
(b) File a suit in interpleader and obtain
an order from a court of appropriate jurisdiction
requiring all persons involved to interplead and
litigate in such court their several claims and
rights among themselves.
SECTION 4.04. Successor Escrow Agent. If at any time
the Escrow Agent or its legal successor or successors should be
unable, through operation of law or otherwise, to act as escrow
agent hereunder, or if its property or affairs shall be taken
under the control of any state or federal court or
administrative body because of insolvency or bankruptcy or for
any other reason, a vacancy shall forthwith exist in the office
of the Escrow Agent hereunder. In such event the City, by
appropriate action, promptly shall appoint an Escrow Agent to
fill such vacancy. If no successor escrow agent shall have
been appointed by the City within 60 days, a successor may be
appointed by the Contracting Parties to Contracts representing
at least 51% of unpaid Aggregate Contract Amount by an
instrument or instruments in writing filed with the City,
signed by such Contracting Parties or by their duly authorized
attorneys-in-fact. If, in a proper case, no appointment of a
successor escrow agent shall be made pursuant to the foregoing
provisions of this section within three months after a vacancy
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shall have occurred, the Contracting Party to any Contract may
apply to any court of competent jurisdiction to appoint a
successor escrow agent. Such court may thereupon, after such
notice, if any, as it may deem proper, prescribe and appoint a
successor escrow agent.
Any successor escrow agent shall be a corporation
organized and doing business under the laws of the United
States or the State of Texas, authorized under such laws to
exercise corporate trust powers, having its principal office
and place of business in the State of Texas, having a combined
capital and surplus of at least $5,000,000 and subject to the
supervision or examination by Federal or State authority.
Any successor escrow agent shall execute, acknowledge
and deliver to the City and the Escrow Agent an instrument
accepting such appointment hereunder, and the Escrow Agent
shall execute and deliver an instrument transferring to such
successor escrow agent, subject to the terms of this Agreement,
all the rights, powers and trusts of the Escrow Agent
hereunder. Upon the request of any such successor escrow
agent, the City shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming
to such successor escrow agent all such rights, powers and
duties.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Notice. Any notice, authorization,
request, or demand required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given
when mailed by registered or certified mail, postage prepaid
addressed to the City or the Escrow Agent as follows:
CITY:
City of Southlake, Texas
667 N. Carroll Avenue
Southlake, Texas 76092
Attention: City Manager
ESCROW AGENT:
Ameritrust Texas National Association
P. O. Box 2320
Dallas, Texas 75221-2320
Attention: Debt Administration
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The United States Post Office registered or certified mail
receipt showing delivery of the aforesaid shall be conclusive
evidence of the date and fact of delivery. Any party hereto
may change the address to which notices are to be delivered by
giving to the other parties not less than ten (10) days prior
notice thereof.
SECTION 5.02. Termination of Responsibilities. Upon
the taking of all the actions as described herein by the Escrow
Agent, the Escrow Agent shall have no further obligation or
responsibilities hereunder to the City, the Contracting Parties
to the Contracts or to any other person or persons in
connection with this Agreement.
SECTION 5.03. Binding Agreement. This Agreement shall
be binding upon the City and the Escrow Agent and their
respective successors and legal representatives, and shall
inure solely to the benefit of the Contracting Parties to the
Contracts, the City, the Escrow Agent and their respective
successors, assigns and legal representatives.
SECTION 5.04. Severability. In case any one or more of
the provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not
affect any other provisions of this Agreement, but this
Agreement shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein.
SECTION 5.05. Texas Law Governs. This Agreement shall
be governed exclusively by the provisions hereof and by the
applicable laws of the State of Texas.
SECTION 5.06. Time of the Essence. Time
the essence in the performance of obligations from
imposed upon the Escrow Agent by this Agreement.
shall be of
time to time
SECTION 5.07. Amendments. This Agreement shall not be
amended except to cure any ambiguity or formal defect or
omission in this Agreement. No amendment shall be effective
unless the same shall be in writing and signed by the parties
thereto. No such amendment shall adversely affect the rights
of the Contracting Parties to the Contracts.
SECTION 5.08. Counterparts. This Agreement may be
executed in several counterparts, all or any of which shall be
regarded for all purposes as one original and shall constitute
and be but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have each caused
this Agreement to be executed by their duly authorized officers
and their corporate seals to be hereunto affixed and attested
as of the date first above written.
EXECUTED as of the date first written above.
ATTEST:
City Secretary
ATTEST:
CITY OF SOUTHL~S
AMERITRUST TEXAS
ASSOCIATION
NATIONAL
By
Title:
Title:
(BANK SEAL)
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Fort Worth Star-Telegram
400W SEVENTH STREET•FORT WORTH,TEXAS 76102
E STATE OF TEXAS
unty of Tarrant
Before me , a Notary Public in and for said County and State , this day
personally appeared L7D►JA LRrm-"A Billing Specialist for the Fort Worth
Star-Telegram , published by the Star-Telegram Inc . at Fort Worth , in Tarrant
County , Texas ; and who , after being duly sworn, did depose and say that the
following clipping of an advertisement was published in the above named
paper on the following dates :
DATE DESCRIPTION AD SIZE TOTAL
INCH/LINE RATE AMOUNT
SEP 07 6583919 CL . 358 1X40 L 40 . 38 15 . 20
september 7
CITY OF
SOUTHLAKE,TEXAS
ORDINANCE NO.517
AN ORDINANCE approv-
ing and authorizingtheexe-
cution and delivery of"CI-
TY OF SOUTHLAKE,
TEXAS, PUBLIC PROP-
ERTY FINANCE CON-
TRACTUAL OBLIGA-
TIONS, SERIES 1990";
specifying the terms of
such contracts; making
provisions for thepayment
thereof; and resolving
other matters incident and
related to the execution,
Performance and payment
of such contracts, includ- /� �
Ingtheaporovalandexecu- SIGNED GC,J....._...
}inn of a Special Escrow 5' G1'Y)�'jer, J�I L.J
qu Slto of pn'enertvrand AND SWORN TO BEFORE ME, THIS THE • Y OF
?approval of an Offering NOTARY TAR Y ._P U 6 L I
-79:gkezmAs.c,
amorandum, and pro- ..-..._... .. -....viding an effective date. -
PASSEDANDAPPROVEDIN TARRANT..._.C..OJNTY, TEXAS_".
BER 1990. ,__,_,_,,,_,.
SECOND READING THIS
4TH DAY OF SEPTEM- ,• -.w;►C�i•a,�.,,.,,,,,.,•,•, ,
GARY FICK ES +' �r•
MAYOR OF SOUTHLAKE o :. BONNIE A. ADAMS
ATTEST: t:r NOTARY PUBLIC 01 AFFIDAVITS
SANDRA L.LEGRAND L• �•�
CITY SECRETARY , p t State of Texas APPROVED AS TO FORM: . ./
E.ALLEN TAYLOR JR. c pr��' Comm. Exp, 11-06•93
CITY ATTORNEY
TEA ALONG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT -�
REMIT TO : 400 W . SEVENTH , FW, TX 76102
brt Worth S
X XX X et � OW( �1Q�X�(]��X00(41)(X-10X'6197
ACCOUNT C I T 5 7 AMOUNT 15 . 20
6583919 4 NUMBER DUE
4.114,
PAGE 1
CITY OF SOUTHLAKE ORIGINA
lk
667 N CARROLL PLEASE PAY bib 15 . 20
SOUTHLAKE TX 76092 0 THIS AMOUNT
ATTN : SANDY LEGRAND
PLEASE WRITE IN AMOUNT ENCLOSED