Item 7GCity of Southlake, Texas
MEMORANDUM
TO: Billy Campbell, City Manager
FROM: Sharen Elam, Director of Finance Ext. 1713
SUBJECT: Ordinance No. 845 authorizing the issuance of "CITY OF SOUTHLAKE,
TEXAS, TAX AND TAX INCREMENT REVENUE CERTIFICATES OF
OBLIGATION, SERIES 2003 -A (REINVESTMENT ZONE NUMBER ONE)"
Action Requested: Approval of Ordinance No. 845 authorizes the issuance of certificates of
obligation for the purposes of paying contractual obligations related to Town
Square infrastructure.
Background
Information: On March 18, 2003, the Council approved Resolution No. 03 -022. This
authorized the publication of a notice in the newspaper of the city's intent to
issue certificates of obligation. The certificates are issued and approved by
adoption of an ordinance. Approval of Ordinance No. 845 will set in motion
the legal requirements to obtain the proceeds. After approval, the legal
documents must be reviewed by the Texas Attorney General's Office. The
City would receive funding in mid May. The proceeds from the bonds will be
used to reimburse the developer for infrastructure built within the TIF
boundaries, in accordance with the addendum to the Town Square Developer's
Agreement approved by Council on February 4, 2003 in the amount of
$3,925,000.
Financial
Considerations: The certificates of obligation will be issued with a dedicated pledge of
accumulated tax increment reinvestment zone revenues, and a backup pledge
of the City's ad valorem tax rate.
Citizen Input/
Board Review: Public Hearing is scheduled for April 15, 2003.
Legal Review: Ed Esquivel with the law firm Fulbright and Jaworski serves as the City's bond
counsel, and as such has prepared the ordinance.
Alternatives: None
Billy Campbell, City Manager
March 14, 2011
Page 2
Supporting
Documents: Ordinance No. 845
Staff
Recommendation: Approval of Ordinance No. 845
ORDINANCE NO. 845
AN ORDINANCE authorizing the issuance of "CITY OF SOUTHLAKE,
TEXAS, TAX AND TAX INCREMENT REVENUE CERTIFICATES OF
OBLIGATION, SERIES 2003 -A (REINVESTMENT ZONE NUMBER
ONE) "; specifying the terms and features of said certificates; providing for
the payment of said certificates of obligation by the levy of an ad valorem
tax upon all taxable property within the City and a lien on and pledge of
the certain tax increment revenues; and resolving other matters incident
and relating to the issuance, payment, security, sale and delivery of said
Certificates, including the approval and execution of a Paying
Agent/Registrar Agreement and the approval and distribution of an
Official Statement; and providing an effective date.
WHEREAS, notice of the City Council's intention to issue certificates of obligation in a
maximum principal amount of $4,050,000 for the purposes of paying contractual obligations to
be incurred for (a) the construction of public works in Reinvestment Zone Number One, to wit:
water and sewer improvements and extensions, and (b) professional services rendered in
relation to such project and the financing thereof, has been duly published in The Fort Worth
Star Telegram, a newspaper hereby found and determined to be of general circulation in the
City of Southlake, Texas, on , 2003 and , 2003, the date of the
first publication of such notice being not less than fifteen (15) days prior to the tentative date
stated therein for the adoption of the ordinance authorizing the issuance of such certificates;
and
WHEREAS, no petition protesting the issuance of the certificates of obligation and
bearing valid petition signatures of at least 5% of the qualified electors of the City, has been
presented to or filed with the Mayor, City Secretary or any other official of the City on or prior to
the date of the passage of this ordinance; and
WHEREAS, the Council hereby finds and determines that the certificates of obligation
described in the aforesaid notice should be issued and sold at this time in the amount and
manner as hereinafter provided; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS:
SECTION 1: Authorization, Designation, Principal Amount, Purpose Certificates of
obligation of the City shall be and are hereby authorized to be issued in the aggregate principal
amount of $ , to be designated and bear the title "CITY OF SOUTHLAKE, TEXAS, TAX
AND TAX INCREMENT REVENUE CERTIFICATES OF OBLIGATION, SERIES 2003 -A
(REINVESTMENT ZONE NUMBER ONE)" (hereinafter referred to as the "Certificates "), for the
purposes of paying contractual obligations to be incurred for (a) the construction of public works
in Reinvestment Zone Number One, to wit: water and sewer improvements and extensions, and
(b) professional services rendered in relation to such project and the financing thereof, pursuant
to authority conferred by and in conformity with the Constitution and laws of the State of Texas,
including V.T.C.A., Local Government Code, Subchapter C of Chapter 271, as amended.
SECTION 2: Fully Registered Obligations - Authorized Denominations - Stated
Maturities -Date. The Certificates are issuable in fully registered form only; shall be dated
April 15, 2003 (the "Certificate Date ") and shall be in denominations of $5,000 or any integral
multiple thereof (within a Stated Maturity) and the Certificates shall become due and payable on
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February 15 in each of the years and in principal amounts (the "Stated Maturities ") and bear
interest at the per annum rate(s) in accordance with the following schedule:
Year of
Principal
Interest
Stated Maturity
Amount
Rate (s
2007
$,000
%
2008
1 000
%
2009
7 000
%
2010
7 000
%
2011
7 000
%
2012
7 000
%
2013
7 000
%
2014
7 000
%
2015
7 000
%
2016
7 000
%
2017
7 000
%
2018
7 000
%
The Certificates shall bear interest on the unpaid principal amounts from the Certificate
Date at the rate per annum shown above in this Section (calculated on the basis of a 360 -day
year of twelve 30 -day months), and such interest shall be payable on February 15 and August
15 of each year, commencing February 15, 2004.
SECTION 3: Terms of Payment - Paying Agent /Registrar. The principal of, premium, if
any, and the interest on the Certificates, due and payable by reason of maturity, redemption, or
otherwise, shall be payable only to the registered owners or holders of the Certificates
(hereinafter called the "Holders ") appearing on the registration and transfer books maintained by
the Paying Agent /Registrar and the payment thereof shall be in any coin or currency of the
United States of America, which at the time of payment is legal tender for the payment of public
and private debts, and shall be without exchange or collection charges to the Holders.
The selection and appointment of Wachovia Bank, National Association, Houston, Texas
to serve as Paying Agent/Registrar for the Certificates is hereby approved and confirmed.
Books and records relating to the registration, payment, transfer and exchange of the
Certificates (the "Security Register ") shall at all times be kept and maintained on behalf of the
City by the Paying Agent /Registrar, as provided herein and in accordance with the terms and
provisions of a "Paying Agent /Registrar Agreement ", substantially in the form attached hereto as
Exhibit A, and such reasonable rules and regulations as the Paying Agent/Registrar and the City
may prescribe. The Mayor and City Secretary are authorized to execute and deliver such
Agreement in connection with the delivery of the Certificates. The City covenants to maintain
and provide a Paying Agent /Registrar at all times until the Certificates are paid and discharged,
and any successor Paying Agent /Registrar shall be a bank, trust company, financial institution
or other entity qualified and authorized to serve in such capacity and perform the duties and
services of Paying Agent/Registrar. Upon any change in the Paying Agent /Registrar for the
Certificates, the City agrees to promptly cause a written notice thereof to be sent to each Holder
by United States Mail, first class postage prepaid, which notice shall also give the address of the
new Paying Agent /Registrar.
Principal of and premium, if any, on the Certificates shall be payable at the Stated
Maturities or the redemption thereof only upon presentation and surrender of the Certificates to
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the Paying Agent/Registrar at its designated offices in Charlotte, North Carolina (the
"Designated Payment /Transfer Office "). Interest on the Certificates shall be paid to the Holders
whose name appears in the Security Register at the close of business on the Record Date (the
last business day of the month next preceding each interest payment date) and shall be paid by
the Paying Agent /Registrar (i) by check sent United States Mail, first class postage prepaid, to
the address of the Holder recorded in the Security Register or (ii) by such other method,
acceptable to the Paying Agent /Registrar, requested by, and at the risk and expense of, the
Holder. If the date for the payment of the principal of or interest on the Certificates shall be a
Saturday, Sunday, a legal holiday, or a day when banking institutions in the City where the
Designated Payment/Transfer Office of the Paying Agent /Registrar is located are authorized by
law or executive order to close, then the date for such payment shall be the next succeeding
day which is not such a Saturday, Sunday, legal holiday, or day when banking institutions are
authorized to close; and payment on such date shall have the same force and effect as if made
on the original date payment was due.
In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date ") will be
established by the Paying Agent/ Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date by United States
Mail, first class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business next preceding the date of mailing of such
notice.
SECTION 4: Redemption (a) Optional Redemption The Certificates maturing on and
after February 15, 2011 shall be subject to redemption prior to maturity, at the option of the City,
in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a
Stated Maturity by lot by the Paying Agent /Registrar), on February 15, 2010, or on any date
thereafter at the redemption price of par plus accrued interest to the date of redemption.
(b) Exercise of Redemption Option At least forty -five (45) days prior to a
redemption date for the Certificates (unless a shorter notification period shall be satisfactory to
the Paying Agent /Registrar), the City shall notify the Paying Agent /Registrar of the decision to
redeem Certificates, the principal amount of each Stated Maturity to be redeemed, and the date
of redemption therefor. The decision of the City to exercise the right to redeem Certificates shall
be entered in the minutes of the governing body of the City.
(c) Selection of Certificates for Redemption If less than all Outstanding Certificates
of the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/
Registrar shall treat such Certificates as representing the number of Certificates Outstanding
which is obtained by dividing the principal amount of such Certificates by $5,000 and shall
select the Certificates to be redeemed within such Stated Maturity by lot.
(d) Notice of Redemption Not less than thirty (30) days prior to a redemption date
for the Certificates, a notice of redemption shall be sent by United States Mail, first class
postage prepaid, in the name of the City and at the City's expense, to each Holder of a
Certificate to be redeemed in whole or in part at the address of the Holder appearing on the
Security Register at the close of business on the business day next preceding the date of
mailing such notice, and any notice of redemption so mailed shall be conclusively presumed to
have been duly given irrespective of whether received by the Holder.
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All notices of redemption shall (i) specify the date of redemption for the Certificates, (ii)
identify the Certificates to be redeemed and, in the case of a portion of the principal amount to
be redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price,
(iv) state that the Certificates, or the portion of the principal amount thereof to be redeemed,
shall become due and payable on the redemption date specified and the interest thereon, or on
the portion of the principal amount thereof to be redeemed, shall cease to accrue from and after
the redemption date, provided moneys sufficient for the payment of such Certificate (or the
principal amount thereof to be redeemed) at the then applicable redemption price are held for
the purpose of such payment by the Paying Agent /Registrar and (v) specify that payment of the
redemption price for the Certificates, or the principal amount thereof to be redeemed, shall be
made at the Designated Payment/Transfer Office of the Paying Agent/Registrar only upon
presentation and surrender of the Certificates. If a Certificate is subject by its terms to prior
redemption and has been called for redemption and notice of redemption has been duly given
as hereinabove provided, such Certificate (or the principal amount thereof to be redeemed) shall
become due and payable and interest thereon shall cease to accrue from and after the
redemption date therefor.
SECTION 5: Registration - Transfer - Exchange of Certificates - Predecessor
Certificates. The Paying Agent /Registrar shall obtain, record, and maintain in the Security
Register the name and address of each and every owner of the Certificates issued under and
pursuant to the provisions of this Ordinance, or if appropriate, the nominee thereof. Any
Certificate may be transferred or exchanged for Certificates of other authorized denominations
by the Holder, in person or by his duly authorized agent, upon surrender of such Certificate to
the Paying Agent /Registrar for cancellation, accompanied by a written instrument of transfer or
request for exchange duly executed by the Holder or by his duly authorized agent, in form
satisfactory to the Paying Agent /Registrar.
Upon surrender of any Certificate (other than the Initial Certificate(s) authorized in
Section 8 hereof) for transfer at the Designated Payment /Transfer Office of the Paying
Agent/Registrar, the Paying Agent /Registrar shall register and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized denominations
and having the same Stated Maturity and of a like aggregate principal amount as the Certificate
or Certificates surrendered for transfer.
At the option of the Holder, Certificates (other than the Initial Certificate(s) authorized in
Section 8 hereof) may be exchanged for other Certificates of authorized denominations and
having the same Stated Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Certificates surrendered for exchange, upon surrender of the
Certificates to be exchanged at the Designated Payment /Transfer Office of the Paying Agent/
Registrar. Whenever any Certificates are surrendered for exchange, the Paying
Agent/Registrar shall register and deliver new Certificates to the Holder requesting the
exchange.
All Certificates issued in any transfer or exchange of Certificates shall be delivered to the
Holders at the Designated Payment /Transfer Office of the Paying Agent/Registrar or sent by
United States Mail, first class, postage prepaid to the Holders, and, upon the registration and
delivery thereof, the same shall be the valid obligations of the City, evidencing the same
obligation to pay, and entitled to the same benefits under this Ordinance, as the Certificates
surrendered in such transfer or exchange.
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All transfers or exchanges of Certificates pursuant to this Section shall be made without
expense or service charge to the Holder, except as otherwise herein provided, and except that
the Paying Agent /Registrar shall require payment by the Holder requesting such transfer or
exchange of any tax or other governmental charges required to be paid with respect to such
transfer or exchange.
Certificates cancelled by reason of an exchange or transfer pursuant to the provisions
hereof are hereby defined to be "Predecessor Certificates," evidencing all or a portion, as the
case may be, of the same obligation to pay evidenced by the new Certificate or Certificates
registered and delivered in the exchange or transfer therefor. Additionally, the term
"Predecessor Certificates" shall include any mutilated, lost, destroyed, or stolen Certificate for
which a replacement Certificate has been issued, registered and delivered in lieu thereof
pursuant to the provisions of Section 18 hereof and such new replacement Certificate shall be
deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Certificate.
Neither the City nor the Paying Agent/ Registrar shall be required to issue or transfer to
an assignee of a Holder any Certificate called for redemption, in whole or in part, within 45 days
of the date fixed for the redemption of such Certificate; provided, however, such limitation on
transferability shall not be applicable to an exchange by the Holder of the unredeemed balance
of a Certificate called for redemption in part.
SECTION 6: Book -Entry Only Transfers and Transactions Notwithstanding the
provisions contained in Sections 3, 4 and 5 hereof relating to the payment, and
transfer /exchange of the Certificates, the City hereby approves and authorizes the use of
"Book -Entry Only" securities clearance, settlement and transfer system provided by The
Depository Trust Company (DTC), a limited purpose trust company organized under the laws of
the State of New York, in accordance with the operational arrangements referenced in the
Blanket Issuer Letter of Representation, by and between the City and DTC (the "Depository
Agreement ").
Pursuant to the Depository Agreement and the rules of DTC, the Certificates shall be
deposited with DTC who shall hold said Certificates for its participants (the "DTC Participants ").
While the Certificates are held by DTC under the Depository Agreement, the Holder of the
Certificates on the Security Register for all purposes, including payment and notices, shall be
Cede & Co., as nominee of DTC, notwithstanding the ownership of each actual purchaser or
owner of each Certificate (the "Beneficial Owners ") being recorded in the records of DTC and
DTC Participants.
In the event DTC determines to discontinue serving as securities depository for the
Certificates or otherwise ceases to provide book -entry clearance and settlement of securities
transactions in general or the City determines that DTC is incapable of properly discharging its
duties as securities depository for the Certificates, the City covenants and agrees with the
Holders of the Certificates to cause Certificates to be printed in definitive form and provide for
the Certificate certificates to be issued and delivered to DTC Participants and Beneficial
Owners, as the case may be. Thereafter, the Certificates in definitive form shall be assigned,
transferred and exchanged on the Security Register maintained by the Paying Agent /Registrar
and payment of such Certificates shall be made in accordance with the provisions of Sections 3,
4 and 5 hereof.
SECTION 7: Execution - Registration. The Certificates shall be executed on behalf of
the City by the Mayor under its seal reproduced or impressed thereon and countersigned by the
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City Secretary. The signature of said officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who are or were the proper
officers of the City on the Certificate Date shall be deemed to be duly executed on behalf of the
City, notwithstanding that one or more of the individuals executing the same shall cease to be
such officer at the time of delivery of the Certificates to the initial purchaser(s) and with respect
to Certificates delivered in subsequent exchanges and transfers, all as authorized and provided
in V.T.C.A., Government Code, Chapter 1201.
No Certificate shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Certificate either a certificate of
registration substantially in the form provided in Section 9C, manually executed by the
Comptroller of Public Accounts of the State of Texas, or his duly authorized agent, or a
certificate of registration substantially in the form provided in Section 9D, manually executed by
an authorized officer, employee or representative of the Paying Agent /Registrar, and either such
certificate duly signed upon any Certificate shall be conclusive evidence, and the only evidence,
that such Certificate has been duly certified, registered and delivered.
SECTION 8: Initial Certificate(s) The Certificates herein authorized shall be initially
issued either (i) as a single fully registered certificate in the total principal amount stated in
Section 1 hereof with principal installments to become due and payable as provided in Section 2
hereof and numbered T -1, or (ii) as multiple fully registered certificates, being one certificate for
each year of maturity in the applicable principal amount and denomination and to be numbered
consecutively from T -1 and upward (hereinafter called the "Initial Certificate(s) ") and, in either
case, the Initial Certificate(s) shall be registered in the name of the initial purchaser(s) or the
designee thereof. The Initial Certificate(s) shall be the Certificates submitted to the Office of the
Attorney General of the State of Texas for approval, certified and registered by the Office of the
Comptroller of Public Accounts of the State of Texas and delivered to the initial purchaser(s).
Any time after the delivery of the Initial Certificate(s), the Paying Agent /Registrar, pursuant to
written instructions from the initial purchaser(s), or the designee thereof, shall cancel the Initial
Certificate(s) delivered hereunder and exchange therefor definitive Certificates of authorized
denominations, Stated Maturities, principal amounts and bearing applicable interest rates for
transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to
and in accordance with such written instructions from the initial purchaser(s), or the designee
thereof, and such other information and documentation as the Paying Agent /Registrar may
reasonably require.
SECTION 9: Forms A. Forms Generally The Certificates, the Registration
Certificate of the Comptroller of Public Accounts of the State of Texas, the Registration
Certificate of Paying Agent /Registrar, and the form of Assignment to be printed on each of the
Certificates, shall be substantially in the forms set forth in this Section with such appropriate
insertions, omissions, substitutions, and other variations as are permitted or required by this
Ordinance and may have such letters, numbers, or other marks of identification (including
identifying numbers and letters of the Committee on Uniform Securities Identification
Procedures of the American Bankers Association) and such legends and endorsements
(including insurance legends in the event the Certificates, or any maturities thereof, are
purchased with insurance and any reproduction of an opinion of counsel) thereon as may,
consistently herewith, be established by the City or determined by the officers executing such
Certificates as evidenced by their execution. Any portion of the text of any Certificates may be
set forth on the reverse thereof, with an appropriate reference thereto on the face of the
certificate.
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The definitive Certificates and the Initial Certificate(s) shall be printed, lithographed, or
engraved, typewritten, photocopied or otherwise reproduced in any other similar manner, all as
determined by the officers executing such Certificates as evidenced by their execution.
B. Form of Certificates
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF SOUTHLAKE, TEXAS,
TAX AND TAX INCREMENT REVENUE
CERTIFICATE OF OBLIGATION, SERIES 2003 -A
(REINVESTMENT ZONE NUMBER ONE)
Certificate Date: Interest Rate: Stated Maturity: CUSIP NO:
April 15, 2003 % February 15,
Registered Owner:
Principal Amount: DOLLARS
The City of Southlake (hereinafter referred to as the "City "), a body corporate and
municipal corporation in the Counties of Tarrant and Denton, State of Texas, for value received,
acknowledges itself indebted to and hereby promises to pay to the order of the Registered
Owner named above, or the registered assigns thereof, on the Stated Maturity date specified
above the Principal Amount hereinabove stated (or so much thereof as shall not have been paid
upon prior redemption) and to pay interest on the unpaid principal amount hereof from the
Certificate Date at the per annum rate of interest specified above computed on the basis of a
360 -day year of twelve 30 -day months. Principal of this Certificate is payable at its Stated
Maturity or redemption to the registered owner hereof, upon presentation and surrender, at the
Designated Payment /Transfer Office of the Paying Agent/Registrar executing the registration
certificate appearing hereon, or its successor; provided, however, while this Certificate is
registered to Cede & Co., the payment of principal upon a partial redemption of the principal
amount hereof may be accomplished without presentation and surrender of this Certificate.
Accrued interest on the unpaid principal amount hereof is payable on February 15 and August
15 in each year, commencing February 15, 2004 to the registered owner of this Certificate (or
one or more Predecessor Certificates, as defined in the Ordinance hereinafter referenced)
whose name appears on the "Security Register" maintained by the Paying Agent /Registrar at
the close of business on the "Record Date ", which is the last business day of the month next
preceding each interest payment date, and interest shall be paid by the Paying Agent /Registrar
by check sent United States Mail, first class postage prepaid, to the address of the registered
owner recorded in the Security Register or by such other method, acceptable to the Paying
Agent/Registrar, requested by, and at the risk and expense of, the registered owner. All
payments of principal of, premium, if any, and interest on this Certificate shall be without
exchange or collection charges to the owner hereof and in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment of public and
private debts.
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This Certificate is one of the series specified in its title issued in the aggregate principal
amount of $ (herein referred to as the "Certificates ") for the purposes of
paying contractual obligations to be incurred for (a) the construction of public works in
Reinvestment Zone Number One, to wit: water and sewer improvements and extensions, and
(b) professional services rendered in relation to such project and the financing thereof, under
and in strict conformity with the Constitution and laws of the State of Texas, particularly
V.T.C.A., Local Government Code, Subchapter C of Chapter 271, as amended, and pursuant to
an Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance ").
The Certificates maturing on and after February 15, 2011 may be redeemed prior to their
Stated Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or
any integral multiple thereof (and if within a Stated Maturity by lot by the Paying
Agent/Registrar), on February 15, 2010, or on any date thereafter, at the redemption price of
par, together with accrued interest to the date of redemption.
At least thirty days prior to a redemption date, the City shall cause a written notice of
such redemption to be sent by United States Mail, first class postage prepaid, to the registered
owners of each Certificate to be redeemed at the address shown on the Security Register and
subject to the terms and provisions relating thereto contained in the Ordinance. If a Certificate
(or any portion of its principal sum) shall have been duly called for redemption and notice of
such redemption duly given, then upon the redemption date such Certificate (or the portion of its
principal sum to be redeemed) shall become due and payable, and, if moneys for the payment
of the redemption price and the interest accrued on the principal amount to be redeemed to the
date of redemption are held for the purpose of such payment by the Paying Agent/Registrar,
interest shall cease to accrue and be payable from and after the redemption date on the
principal amount redeemed.
In the event a portion of the principal amount of a Certificate is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Certificate to the Designated Payment /Transfer Office of the Paying Agent /Registrar, and a
new Certificate or Certificates of like maturity and interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the principal sum thereof will be
issued to the registered owner, without charge. If a Certificate is selected for redemption, in
whole or in part, the City and the Paying Agent /Registrar shall not be required to transfer such
Certificate to an assignee of the registered owner within 45 days of the redemption date
therefor; provided, however, such limitation on transferability shall not be applicable to an
exchange by the registered owner of the unredeemed balance of a Certificate redeemed in part.
The Certificates are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City and are additionally payable
from and, together with the Previously Issued Certificates (identified and defined in the
Ordinance) and the "City of Southlake, Texas, Tax and Tax Increment Revenue Refunding
Bonds, Series 2003 -A (Reinvestment Zone Number One)" (authorized for issuance concurrently
with the Certificates), equally and ratably secured by a lien on and pledge of Pledged Tax
Increment Revenues (as defined in the Ordinance). In the Ordinance, the City reserves and
retains the right to issue Additional Obligations payable, in whole or in part, from the Pledged
Tax Increment Revenues and equally and ratably secured by a parity lien on and pledge of such
Pledged Tax Increment Revenues without having to satisfy or comply with any terms or
conditions precedent for their issuance other than as may be required by the laws of the State.
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Reference is hereby made to the Ordinance, a copy of which is on file in the Designated
Payment /Transfer Office of the Paying Agent /Registrar, and to all the provisions of which the
owner or holder of this Certificate by the acceptance hereof hereby assents, for definitions of
terms; the description of and the nature and extent of the tax levied for the payment of the
Certificates; the nature and extent of the pledge of the Pledged Tax Increment Revenues
securing the payment of the Certificates; the terms and conditions relating to the transfer or
exchange of this Certificate; the conditions upon which the Ordinance may be amended or
supplemented with or without the consent of the Holders; the rights, duties, and obligations of
the City and the Paying Agent /Registrar; the terms and provisions upon which the tax levy and
the pledge of the Pledged Tax Increment Revenues and covenants made in the Ordinance may
be discharged at or prior to the maturity of this Certificate, and this Certificate deemed to be no
longer Outstanding thereunder; and for the other terms and provisions contained therein.
Capitalized terms used herein have the meanings assigned in the Ordinance.
This Certificate, subject to certain limitations contained in the Ordinance, may be
transferred on the Security Register only upon its presentation and surrender at the Designated
Payment /Transfer Office of the Paying Agent /Registrar, with the Assignment hereon duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent /Registrar duly executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more new fully registered
Certificates of the same Stated Maturity, of authorized denominations, bearing the same rate of
interest, and of the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of either, shall treat the
registered owner whose name appears on the Security Register (i) on the Record Date as the
owner entitled to payment of interest hereon, (ii) on the date of surrender of this Certificate as
the owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in
whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the
City nor the Paying Agent /Registrar, or any agent of either, shall be affected by notice to the
contrary. In the event of nonpayment of interest on a scheduled payment date and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date ") will be
established by the Paying Agent /Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date by United States
Mail, first class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of
such notice.
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 issuance of the Certificates is duly
authorized by law; that all acts, conditions and things required to exist and be done precedent to
and in the issuance of the Certificates to render the same lawful and valid obligations of the City
have been properly done, have happened and have been performed in regular and due time,
form and manner as required by the Constitution and laws of the State of Texas, and the
Ordinance; that the Certificates do not exceed any Constitutional or statutory limitation; and that
due provision has been made for the payment of the principal of and interest on the Certificates
as aforestated. In case any provision in this Certificate shall be invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
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affected or impaired thereby. The terms and provisions of this Certificate and the Ordinance
shall be construed in accordance with and shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused this Certificate to be
duly executed under the official seal of the City as of the Certificate Date.
CITY OF SOUTHLAKE, TEXAS
Mayor
COUNTERSIGNED:
City Secretary
(Seal)
C. *Form of Registration Certificate of Comptroller of Public Accounts to appear
on Initial Certificate(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS ) REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Certificate has been examined, certified as to validity and
approved by the Attorney General of the State of Texas, and duly registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
*NOTE TO PRINTER: Do not print on definitive Certificates
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only.
D. Form of Certificate of Paying Agent/Registrar to appear on Definitive Certificates
REGISTRATION CERTIFICATE OF PAYING AGENT /REGISTRAR
This Certificate has been duly issued and registered under the provisions of the
within - mentioned Ordinance; the certificate or certificates of the above entitled and designated
series originally delivered having been approved by the Attorney General of the State of Texas
and registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated offices of the Paying Agent /Registrar located in Charlotte, North
Carolina, the "Designated Payment /Transfer Office" for this Certificate.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
Houston, Texas,
as Paying Agent/Registrar
Registration Date:
a
Authorized Signature
E. 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
Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Certificate on the books kept for registration thereof, with full
power of substitution in the premises.
DATED:
Signature guaranteed:
NOTICE: The signature on this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Certificate in every particular.
F. The Initial Certificate(s) shall be in the form set forth in paragraph B of this
Section, except that the form of a single fully registered Initial Certificate shall be modified
as follows:
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(i) immediately under the name of the certificate the headings "Interest Rate
and "Stated Maturity " shall both be omitted;
(ii) paragraph one shall read as follows:
Registered Owner:
Principal Amount:
Dollars
The City of Southlake (hereinafter referred to as the "City "), a body corporate and
municipal corporation in the Counties of Tarrant and Denton, State of Texas, for value received,
acknowledges itself indebted to and hereby promises to pay to the order of the Registered
Owner named above, or the registered assigns thereof, the Principal Amount hereinabove
stated on February 15 in each of the years and in principal installments in accordance with the
following schedule:
PRINCIPAL INTEREST
YEAR INSTALLMENTS RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much thereof as shall not have been prepaid prior to maturity) and to pay interest on the
unpaid principal amounts hereof from the Certificate Date at the per annum rate(s) of interest
specified above computed on the basis of a 360 -day year of twelve 30 -day months. Principal
installments of this Certificate are payable at its Stated Maturity or on a prepayment date to the
registered owner hereof by Wachovia Bank, National Association, Houston, Texas (the "Paying
Agent/Registrar "), upon presentation and surrender, at its designated offices in Charlotte, North
Carolina (the "Designated Payment /Transfer Office "). Accrued interest on the unpaid principal
amount hereof is payable on February 15 and August 15 of each year, commencing
February 15, 2004, to the registered owner of this Certificate whose name appears on the
"Security Register" maintained by the Paying Agent/Registrar at the close of business on the
"Record Date ", which is the last business day of the month next preceding each interest
payment date hereof and interest shall be paid by the Paying Agent /Registrar by check sent
United States Mail, first class postage prepaid, to the address of the registered owner recorded
in the Security Register or by such other method, acceptable to the Paying Agent/ Registrar,
requested by, and at the risk and expense of, the registered owner. All payments of principal of,
premium, if any, and interest on this Certificate shall be without exchange or collection charges
to the owner hereof and in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts.
SECTION 10: Definitions For purposes of this Ordinance and for clarity with respect
to the issuance of the Certificates herein authorized, and the levy of taxes and appropriation of
Pledged Tax Increment Revenues therefor, the following words or terms, whenever the same
appears herein without qualifying language, are defined to mean as follows:
(a) The term "Creation Ordinance" shall mean Ordinance No. 682,
adopted by the City Council of the City on September 23, 1997, as amended by
Ordinance No. 682 -A adopted by the City Council of the City on December 2,
1997, providing for the creation and establishment of the Zone.
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(b) The term "Additional Obligations" shall mean obligations hereafter
issued which by their terms are payable, in whole or in part, from and secured by
a parity lien on and pledge of the Pledged Tax Increment Revenues of the Zone
of equal rank and dignity with the lien and pledge securing the payment of the
Previously Issued Certificates, the Series 2003 -A Bonds and the Certificates.
(c) The term "Certificates" shall mean the "City of Southlake, Texas,
Tax and Tax Increment Revenue Certificates of Obligation, Series 2003 -A
(Reinvestment Zone Number One)" authorized by this Ordinance.
(d) The term "Certificate Fund" shall mean the special Fund created
and established under the provisions of Section 11 of this Ordinance.
(e) The term "Collection Date" shall mean, when reference is being
made to the levy and collection of annual ad valorem taxes, the date the annual
ad valorem taxes levied each year by the City become delinquent.
(f) The term "Fiscal Year" shall mean the twelve month financial
accounting period used by the City which may be any twelve consecutive month
period established by the City.
(g) The term "Government Securities" shall mean shall mean (i) direct
noncallable obligations of the United States of America, including obligations the
principal of and interest on which are unconditionally guaranteed by the United
States of America, (ii) noncallable obligations of an agency or instrumentality of
the United States, including obligations unconditionally guaranteed or insured by
the agency or instrumentality and on the date of their acquisition or purchase by
the City are rated as to investment quality by a nationally recognized investment
rating firm not less than AAA or its equivalent and (iii) noncallable obligations of a
state or an agency or a county, municipality, or other political subdivision of a
state that have been refunded and on the date of their acquisition or purchase by
the City, are rated as to investment quality by a nationally recognized investment
rating firm not less than AAA or its equivalent.
(h) The term "Outstanding" when used in this Ordinance with respect
to Certificates means, as of the date of determination, all Certificates theretofore
issued and delivered under this Ordinance, except:
(1) those Certificates cancelled by the Paying
Agent/Registrar or delivered to the Paying Agent/Registrar for
cancellation;
(2) those Certificates for which payment has been duly
provided by the City in accordance with the provisions of
Section 19 hereof; and
(3) those Certificates that have been mutilated,
destroyed, lost, or stolen and replacement Certificates have been
registered and delivered in lieu thereof as provided in Section 18
hereof.
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(i) The term "Participating Taxing Units" shall mean the City and the
following taxing units levying property taxes on real property in the Zone that
have determined to deposit tax increment to the credit of the Tax Increment Fund
pursuant to V.T.C.A., Tax Code, Section 311.013, to wit: Tarrant County, Texas,
Tarrant County Hospital District and Tarrant County Junior College District.
(j) The term "Pledged Tax Increment Revenues" shall mean all
amounts deposited by all Participating Taxing Units to the credit of the Tax
Increment Fund as provided by V.T.C.A., Tax Code, Section 311.013.
(k) The term "Previously Issued Certificates" shall mean the
outstanding and unpaid certificates of obligation, payable from ad valorem taxes
and additionally payable from and secured by a lien on and pledge of the
Pledged Tax Increment Revenues, more particularly described as follows: (1)
"City of Southlake, Texas, Tax and Tax Increment Revenue Certificates of
Obligation, Series 2000 -B (Reinvestment Zone Number One) ", dated March 1,
2000, and originally issued in the principal amount of $11,925,036.45, and (2)
"City of Southlake, Texas, Tax and Tax Increment Revenue Certificates of
Obligation, Series 2000E (Reinvestment Zone Number One) ", dated
December 1, 2000, and originally issued in the principal amount of $3,630,000
(1) The term "Series 2003 -A Bonds" shall mean the "City of
Southlake, Texas, Tax and Tax Increment Revenue Refunding Bonds, Series
2003 (Reinvestment Zone Number One) ", dated April 15, 2003 authorized for
issuance concurrently with the Certificates.
(m) The term "Tax Increment Fund" shall mean the Tax Increment
Fund created and established pursuant to the Creation Ordinance.
(n) The term "Zone" shall mean "Reinvestment Zone Number One,
City of Southlake, Texas ", heretofore created pursuant to V.T.C.A., Tax Code,
Chapter 311 and the Creation Ordinance
SECTION 11: Certificate Fund For the purpose of paying the interest on and to provide
a sinking fund for the payment, redemption and retirement of the Certificates, there shall be and
is hereby created a special account or fund on the books and records of the City known as the
"SPECIAL SERIES 2003 -A TAX AND TAX INCREMENT REVENUE CERTIFICATE OF
OBLIGATION FUND ", and all moneys deposited to the credit of such Fund shall be shall be
kept and maintained in a special banking account at the City's depository bank. Authorized
officials of the City are hereby authorized and directed to make withdrawals from said Fund
sufficient to pay the principal of and interest on the Certificates as the same become due and
payable, and, shall cause to be transferred to the Paying Agent /Registrar from moneys on
deposit in the Certificate Fund an amount sufficient to pay the amount of principal and /or
interest falling due on the Certificates, such transfer of funds to the Paying Agent/Registrar to be
made in such manner as will cause immediately available funds to be deposited with the Paying
Agent/Registrar on or before the last business day next preceding each interest and principal
payment date for the Certificates.
Pending the transfer of funds to the Paying Agent/Registrar, money in the Certificate
Fund may, at the option of the City, be invested in obligations identified in, and in accordance
with the provisions of the "Public Funds Investment Act" (V.T.C.A., Government Code, Chapter
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2256) relating to the investment of "bond proceeds "; provided that all such investments shall be
made in such a manner that the money required to be expended from said Fund will be
available at the proper time or times. All interest and income derived from deposits and
investments in said Certificate Fund shall be credited to, and any losses debited to, the said
Certificate Fund. All such investments shall be sold promptly when necessary to prevent any
default in connection with the Certificates.
SECTION 12: Tax Levy To provide for the payment of the "Debt Service
Requirements" on the Certificates being (i) the interest on said Certificates and (ii) a sinking
fund for their redemption at maturity or a sinking fund of 2% (whichever amount shall be the
greater), there shall be and there is hereby levied for the current year and each succeeding year
thereafter while said Certificates or any interest thereon shall remain Outstanding, a sufficient
tax on each one hundred dollars' valuation of taxable property in said City, within the limitations
prescribed by law, adequate to pay such Debt Service Requirements, full allowance being made
for delinquencies and costs of collection; said tax shall be assessed and collected each year
and applied to the payment of the Debt Service Requirements, and the same shall not be
diverted to any other purpose. The taxes so levied and collected shall be paid into the
Certificate Fund. The City Council hereby declares its purpose and intent to provide and levy a
tax legally and fully sufficient to pay the said Debt Service Requirements, it having been
determined that the existing and available taxing authority of the City for such purpose is
adequate to permit a legally sufficient tax in consideration of all other outstanding indebtedness.
Notwithstanding the requirements of this Section 12 for the levy of a sufficient ad
valorem tax for the Debt Service Requirements of the Certificates, the amount of ad valorem
taxes required to be levied for the payment of Debt Service of the Certificates may be reduced
by the sum of (i) the amount of Pledged Tax Increment Revenues then on deposit to the credit
of the Tax Increment Fund at the time the City's annual tax rate is levied by the City Council and
(ii) the amount of Pledged Tax Increment Revenues budgeted and appropriated for the payment
of the Certificates from the tax levy then being made by the Participating Taxing Units. It is the
intent of this Section 12 that the Certificates will be paid first from the Pledged Tax Increment
Revenues and from ad valorem taxes only to the extent such Pledged Tax Increment Revenues
are insufficient for the payment of the Debt Service Requirements.
SECTION 13: Pledge of Tax Increment Revenues The City hereby covenants and
agrees that the Pledged Tax Increment Revenues, with the exception of those in excess of the
amounts required to be deposited to the Certificate Fund as hereafter provided, are hereby
pledged, equally and ratably, to the payment of the principal of and interest on the Previously
Issued Certificates, the Certificates, the Series 2003 -A Bonds and Additional Obligations, if
issued, and the pledge of Pledged Tax Increment Revenues for the payment of the Certificates
shall constitute a lien on such Pledged Tax Increment Revenues in accordance with the terms
and provisions hereof and be valid and binding without further action by the City and without any
filing or recording except for the filing of this Ordinance in the records of the City.
In accordance with the provisions of the Creation Ordinance, the City represents and
warrants to the holders of the Certificates that it has established a Tax Increment Fund for the
Zone, which Fund is maintained at a depository bank of the City, and while the Certificates are
Outstanding, the City agrees to deposit to the credit of the Tax Increment Fund all Pledged Tax
Increment Revenues from the Participating Taxing Units when and as such Revenues are
received in accordance with V.A.T.C., Tax Code, Section 311.013.
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SECTION 14: Deposits to Certificate Fund The City hereby covenants and agrees to
cause to be deposited to the credit of the Certificate Fund prior to each principal and interest
payment date for the Certificates from the Pledged Tax Increment Revenues an amount equal
to one hundred per centum (100 %) of the amount required to fully pay the interest and principal
payments then due and payable on the Certificates, such deposits to pay accrued interest and
maturing principal on the Certificates to be made in substantially equal semiannual installments
on or before the tenth day of each February and August of each year, beginning with the
February or August first to follow the delivery of the Certificates to the initial purchaser.
The semiannual deposits to the Certificate Fund, as hereinabove provided, shall be
made until such time as such Fund contains an amount equal to the amount to pay in full the
principal of and interest on all the Certificates until their maturity or their scheduled redemption
date. In addition, the accrued interest received from the sale of the Certificates and any
proceeds of sale of the Certificates in excess of the amount required to pay the contractual
obligations to be incurred (including change orders to a construction contract) shall be deposited
in the Certificate Fund, which amounts shall reduce the sums otherwise required to be
deposited in said Fund from the Pledged Tax Increment Revenues.
SECTION 15: Security of Funds All moneys on deposit in the Funds for which this
Ordinance makes provision (except any portion thereof as may be at any time properly
invested) shall be secured in the manner and to the fullest extent required by the laws of Texas
for the security of public funds, and moneys on deposit in such Funds shall be used only for the
purposes permitted by this Ordinance.
SECTION 16: Special Covenants The City hereby further covenants as follows
(a) The Zone has been established and created pursuant to
Ordinance Number 682, as amended, and the provisions of the Act, and while
the Certificates are Outstanding, tax increment revenues collected by the City
and by the Participating Tax Units shall be deposited to the credit of the Tax
Increment Fund as required by the provisions of the Act and this Ordinance
(b) It has the lawful power to pledge the Pledged Tax Increment
Revenues to the payment of the Certificates in the manner herein contemplated
and has lawfully exercised such power under the Constitution and laws of the
State of Texas, including said power existing under Chapter 311, Texas Tax
Code, and V.T.C.A., Local Government Code, Sections 271.041, et seq.
(c) Other than for the payment of the Previously Issued Certificates,
the Series 2003 -A Bonds and the Certificates, the Pledged Tax Increment
Revenues have not in any manner been pledged or encumbered to the payment
of any debt or obligation of the City or of the Zone.
SECTION 17: Issuance of Additional Parity Obligations The City hereby expressly
reserves the right to hereafter issue additional obligations payable, in whole or in part, from the
Pledged Tax Increment Revenues and, to the extent provided, secured by a lien on and pledge
of the Pledged Tax Increment Revenues of equal rank and dignity with the lien and pledge
securing the payment of the Previously Issued Certificates, the Series 2003 -A Bonds and the
Certificates.
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SECTION 18: Mutilated - Destroyed - Lost and Stolen Certificates In case any
Certificate shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may
execute and deliver a replacement Certificate of like form and tenor, and in the same
denomination and bearing a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Certificate, or in lieu of and in substitution for such destroyed, lost
or stolen Certificate, only upon the approval of the City and after (i) the filing by the Holder
thereof with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent /Registrar
of the destruction, loss or theft of such Certificate, and of the authenticity of the ownership
thereof and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount
satisfactory to hold the City and the Paying Agent /Registrar harmless. All expenses and
charges associated with such indemnity and with the preparation, execution and delivery of a
replacement Certificate shall be borne by the Holder of the Certificate mutilated, or destroyed,
lost or stolen.
Every replacement Certificate issued pursuant to this Section shall be a valid and
binding obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably
with all other Outstanding Certificates; notwithstanding the enforceability of payment by anyone
of the destroyed, lost, or stolen Certificates. The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement
and payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 19: Satisfaction of Obligation of City. If the City shall pay or cause to be
paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and
interest on the Certificates, at the times and in the manner stipulated in this Ordinance, then the
pledge of taxes levied under this Ordinance and the Pledged Tax Increment Revenues of the
Zone (to the extent such pledge of Pledged Tax Increment Revenues shall not have been
discharged or terminated by prior payment of principal of or interest on the Certificates) and all
covenants, agreements, and other obligations of the City to the Holders shall thereupon cease,
terminate, and be discharged and satisfied.
Certificates or any principal amount(s) thereof shall be deemed to have been paid within
the meaning and with the effect expressed above in this Section when (i) money sufficient to
pay in full such Certificates or the principal amount(s) thereof at maturity or the redemption date
therefor, together with all interest due thereon, shall have been irrevocably deposited with and
held in trust by the Paying Agent /Registrar, or an authorized escrow agent, or (ii) Government
Securities shall have been irrevocably deposited in trust with the Paying Agent /Registrar, or an
authorized escrow agent, which Government Securities have been certified by an independent
accounting firm to mature as to principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient money, together with any moneys
deposited therewith, if any, to pay when due the principal of and interest on such Certificates, or
the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of
redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to
the Paying Agent/ Registrar have been made) the redemption date thereof. The City covenants
that no deposit of moneys or Government Securities will be made under this Section and no use
made of any such deposit which would cause the Certificates to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or
regulations adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent/Registrar,
or an authorized escrow agent, pursuant to this Section which is not required for the payment of
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the Certificates, or any principal amount(s) thereof, or interest thereon with respect to which
such moneys have been so deposited shall be remitted to the City or deposited as directed by
the City. Furthermore, any money held by the Paying Agent /Registrar for the payment of the
principal of and interest on the Certificates and remaining unclaimed for a period of three (3)
years after the Stated Maturity, or applicable redemption date, of the Certificates such moneys
were deposited and are held in trust to pay shall upon the request of the City be remitted to the
City against a written receipt therefor. Notwithstanding the above and foregoing, any remittance
of funds from the Paying Agent /Registrar to the City shall be subject to any applicable
unclaimed property laws of the State of Texas.
SECTION 20: Ordinance a Contract - Amendments This Ordinance shall constitute a
contract with the Holders from time to time, be binding on the City, and shall not be amended or
repealed by the City so long as any Certificate remains Outstanding except as permitted in this
Section. The City may, without the consent of or notice to any Holders, from time to time and at
any time, amend this Ordinance in any manner not detrimental to the interests of the Holders,
including the curing of any ambiguity, inconsistency, or formal defect or omission herein. In
addition, the City may, with the consent of Holders holding a majority in aggregate principal
amount of the Certificates then Outstanding affected thereby, amend, add to, or rescind any of
the provisions of this Ordinance; provided that, without the consent of all Holders of Outstanding
Certificates, no such amendment, addition, or rescission shall (1) extend the time or times of
payment of the principal of, premium, if any, and interest on the Certificates, reduce the principal
amount thereof, the redemption price, or the rate of interest thereon, or in any other way modify
the terms of payment of the principal of, premium, if any, or interest on the Certificates, (2) give
any preference to any Certificate over any other Certificate, or (3) reduce the aggregate
principal amount of Certificates required to be held by Holders for consent to any such
amendment, addition, or rescission.
SECTION 21: Covenants to Maintain Tax - Exempt Status (a) Definitions When used in
this Section, the following terms have the following meanings:
"Closing Date" means the date on which the Certificates are first authenticated and
delivered to the initial purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended by all legislation, if any,
effective on or before the Closing Date.
"Computation Date" has the meaning set forth in Section 1.148 -1(b) of the Regulations.
"Gross Proceeds" means any proceeds as defined in Section 1.148 -1(b) of the
Regulations, and any replacement proceeds as defined in Section 1.148 -1(c) of the
Regulations, of the Certificates.
"Investment" has the meaning set forth in Section 1.148 -1(b) of the Regulations.
"Nonpurpose Investment" means any investment property, as defined in section 148(b)
of the Code, in which Gross Proceeds of the Certificates are invested and which is not acquired
to carry out the governmental purposes of the Certificates.
"Rebate Amount" has the meaning set forth in Section 1.148 -1(b) of the Regulations.
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"Regulations" means any proposed, temporary, or final Income Tax Regulations issued
pursuant to Sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue
Code of 1954, which are applicable to the Certificates. Any reference to any specific Regulation
shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation
designed to supplement, amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in Section 1.148 -5 of the
Regulations and (2) the Certificates has the meaning set forth in Section 1.148 -4 of the
Regulations.
(b) Not to Cause Interest to Become Taxable The City shall not use, permit the use
of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any
Certificate to become includable in the gross income, as defined in section 61 of the Code, of
the owner thereof for federal income tax purposes. Without limiting the generality of the
foregoing, unless and until the City receives a written opinion of counsel nationally recognized in
the field of municipal bond law to the effect that failure to comply with such covenant will not
adversely affect the exemption from federal income tax of the interest on any Certificate, the
City shall comply with each of the specific covenants in this Section.
(c) No Private Use or Private Payments Except as permitted by section 141 of the
Code and the Regulations and rulings thereunder, the City shall at all times prior to the last
Stated Maturity of Certificates:
(1) exclusively own, operate and possess all property the acquisition,
construction or improvement of which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Certificates, and not use or permit the use
of such Gross Proceeds (including all contractual arrangements with terms
different than those applicable to the general public) or any property acquired,
constructed or improved with such Gross Proceeds in any activity carried on by
any person or entity (including the United States or any agency, department and
instrumentality thereof) other than a state or local government, unless such use
is solely as a member of the general public; and
(2) not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Certificates or any property the acquisition, construction or improvement of which
is to be financed or refinanced directly or indirectly with such Gross Proceeds,
other than taxes of general application within the City or interest earned on
investments acquired with such Gross Proceeds pending application for their
intended purposes.
(d) No Private Loan Except to the extent permitted by section 141 of the Code and
the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the
Certificates to make or finance loans to any person or entity other than a state or local
government. For purposes of the foregoing covenant, such Gross Proceeds are considered to
be "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)
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indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property
acquired, constructed or improved with such Gross Proceeds are otherwise transferred in a
transaction which is the economic equivalent of a loan.
(e) Not to Invest at Higher Yield Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Certificates directly or indirectly invest Gross Proceeds in any
Investment (or use Gross Proceeds to replace money so invested), if as a result of such
investment the Yield from the Closing Date of all Investments acquired with Gross Proceeds (or
with money replaced thereby), whether then held or previously disposed of, exceeds the Yield of
the Certificates.
(f) Not Federally Guaranteed Except to the extent permitted by section 149(b) of
the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any
action which would cause the Certificates to be federally guaranteed within the meaning of
section 149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report The City shall timely file the information required by section
149(e) of the Code with the Secretary of the Treasury on Form 8038 -G or such other form and
in such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits 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 (including all
receipts, expenditures and investments thereof) on its books of account
separately and apart from all other funds (and receipts, expenditures and
investments thereof) and shall retain all records of accounting for at least six
years after the day on which the last Outstanding Certificate is discharged.
However, to the extent permitted by law, the City may commingle Gross
Proceeds of the Certificates with other money of the City, provided that the City
separately accounts for each receipt and expenditure of Gross Proceeds and the
obligations acquired therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in section 148(f)
of the Code and the Regulations and rulings thereunder. The City shall maintain
such calculations with its official transcript of proceedings relating to the issuance
of the Certificates until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Certificates by
the Purchasers and the loan of the money represented thereby and in order to
induce such purchase by measures designed to insure the excludability of the
interest thereon from the gross income of the owners thereof for federal income
tax purposes, the City shall pay to the United States out of the Certificate Fund or
its general fund, as permitted by applicable Texas statute, regulation or opinion
of the Attorney General of the State of Texas, the amount that when added to the
future value of previous rebate payments made for the Certificates equals (i) in
the case of a Final Computation Date as defined in Section 1.148- 3(e)(2) of the
Regulations, one hundred percent (100 %) of the Rebate Amount on such date;
and (ii) in the case of any other Computation Date, ninety percent (90 %) of the
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Rebate Amount on such date. In all cases, the rebate payments shall be made
at the times, in the installments, to the place and in the manner as is or may be
required by section 148(f) of the Code and the Regulations and rulings
thereunder, and shall be accompanied by Form 8038 -T or such other forms and
information as is or may be required by Section 148(f) of the Code and the
Regulations and rulings thereunder.
(4) The City shall exercise reasonable diligence to assure that no
errors are made in the calculations and payments required by paragraphs (2) and
(3), and if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148 -3(h) of the Regulations.
(i) Not to Divert Arbitrage Profits Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Certificates, enter into any transaction that
reduces the amount required to be paid to the United States pursuant to Subsection (h) of this
Section because such transaction results in a smaller profit or a larger loss than would have
resulted if the transaction had been at arm's length and had the Yield of the Certificates not
been relevant to either party.
(j) Elections The City hereby directs and authorizes the Mayor, City Secretary, City
Manager and Director of Finance, individually or jointly, to make elections permitted or required
pursuant to the provisions of the Code or the Regulations, as they deem necessary or
appropriate in connection with the Certificates, in the Certificate as to Tax Exemption or similar
or other appropriate certificate, form or document.
SECTION 22: Sale of Certificates - Official Statement Approval The sale of the
Certificates authorized by this Ordinance to RBC Dain Rauscher Inc., A. G. Edwards & Sons,
Inc. and Estrada Hinojosa & Company, Inc. (herein referred to as the "Purchasers ") in
accordance with the Purchase Contract, dated April 15, 2003, approved and authorized to be
executed pursuant to Ordinance No. is hereby ratified, confirmed and approved.
Furthermore, the use of the Official Statement by the Purchasers in connection with the
public offering and sale of the Certificates is hereby ratified, confirmed and approved in all
respects. The final Official Statement, which reflects the terms of sale (together with such
changes approved by the Mayor, City Manager, Director of Finance or City Secretary,
individually or jointly), shall be and is hereby in all respects approved, and the Purchasers are
hereby authorized to use and distribute said final Official Statement, dated April 15, 2003, in the
reoffering, sale and delivery of the Certificates to the public. The Mayor and City Secretary are
further authorized and directed to manually execute and deliver for and on behalf of the City
copies of said Official Statement in final form as may be required by the Purchasers, and such
final Official Statement in the form and content manually executed by said officials shall be
deemed to be approved by the City Council and constitute the Official Statement authorized for
distribution and use by the Purchasers.
SECTION 23: Proceeds of Sale The proceeds of sale of the Certificates, excluding the
accrued interest and net reoffering premium of $ received from the Purchasers, shall
be deposited in a construction fund maintained at a depository of the City. Pending expenditure
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for authorized projects and purposes, such proceeds of sale may be invested in authorized
investments in accordance with the provisions of V.T.C.A., Government Code, Chapter 2256,
including specifically guaranteed investment contracts permitted in V.T.C.A., Section 2256.015,
et seq, and any investment earnings realized may be expended for such authorized projects
and purposes or deposited in the Certificate Fund as shall be determined by the City Council.
Accrued interest and net reoffering premium of $ , as well as all surplus proceeds of sale
of the Certificates, including investment earnings, remaining after completion of all authorized
projects or purposes shall be deposited to the credit of the Certificate Fund.
SECTION 24: Control and Custody of Certificates The Mayor of the City shall be and is
hereby authorized to take and have charge of all necessary orders and records pending the sale
of the Certificates, the investigation by the Attorney General of the State of Texas, including the
printing and supply of definitive Certificates, and shall take and have charge and control of the
Initial Certificate(s) pending the approval thereof by the Attorney General, the registration
thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, Mayor Pro Tem, City Secretary, Director of Finance, and City
Manager, 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 issuance of the
Certificates, including a certification as to facts, estimates, circumstances and reasonable
expectations pertaining to the use and expenditure and investment of the proceeds of the
Certificates as may be necessary for the approval of the Attorney General and their registration
by the Comptroller of Public Accounts. In addition, such officials, together with the City's
financial advisor, bond counsel and the Paying Agent /Registrar, are authorized and directed to
make the necessary arrangements for the delivery of the Initial Certificate(s) to the Purchasers
and the initial exchange thereof for definitive Certificates.
SECTION 25: Notices to Holders- Waiver Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Certificates. Where this Ordinance provides
for notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent /Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 26: Cancellation All Certificates surrendered for payment, redemption,
transfer, exchange, or replacement, if surrendered to the Paying Agent /Registrar, shall be
promptly cancelled by it and, if surrendered to the City, shall be delivered to the Paying
Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying
Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for cancellation
any Certificates previously certified or registered and delivered which the City may have
acquired in any manner whatsoever, and all Certificates so delivered shall be promptly
cancelled by the Paying Agent/Registrar. All cancelled Certificates held by the Paying
Agent/Registrar shall be returned to the City.
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SECTION 27: Bond Counsel's Opinion The Purchasers' obligation to accept delivery of
the Certificates is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P.,
Dallas, Texas, approving the Certificates as to their validity, said opinion to be dated and
delivered as of the date of delivery and payment for the Certificates. An executed counterpart of
said opinion shall accompany the global certificates deposited with The Depository Trust
Company or a reproduction thereof shall be printed on the definitive Certificates in the event the
book entry only system shall be discontinued.
SECTION 28: CUSIP Numbers CUSIP numbers may be printed or typed on the
definitive Certificates. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Certificates shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Certificates as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Certificates.
SECTION 29: Benefits of Ordinance Nothing in this Ordinance, expressed or implied,
is intended or shall be construed to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Ordinance or any provision hereof, and this Ordinance and all its provisions is
intended to be and shall be for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 30: Inconsistent Provisions All ordinances, orders or resolutions, or parts
thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain
controlling as to the matters contained herein.
SECTION 31: Governing Law This Ordinance shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
SECTION 32: Effect of Headings The Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 33: 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 34: Severability If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
SECTION 35: Continuing Disclosure Undertaking (a) Definitions. As used in this
Section, the following terms have the meanings ascribed to such terms below:
WSRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means each person whom the SEC or its staff has determined to be a
nationally recognized municipal securities information repository within the meaning of the Rule
from time to time.
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"Rule" means SEC Rule 15c2 -12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"SID" means any person designated by the State of Texas or an authorized department,
officer, or agency thereof as, and determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
(b) Annual Reports. The City shall provide annually to each NRMSIR and any
SID, within six months after the end of each fiscal year (beginning with the fiscal year ending
September 30, 2003) financial information and operating data with respect to the City of the
general type included in the final Official Statement approved by Section 22 of this Ordinance,
being the information described in Exhibit B hereto. Financial statements to be provided shall
be (1) prepared in accordance with the accounting principles described in Exhibit B hereto and
(2) audited, if the City commissions an audit of such statements and the audit is completed
within the period during which they must be provided. If audited financial statements are not
available at the time the financial information and operating data must be provided, then the City
shall provide unaudited financial statements for the applicable fiscal year to each NRMSIR and
any SID with the financial information and operating data and will file the annual audit report,
when and if the same becomes available.
If the City changes its fiscal year, it will notify each NRMSIR and any SID of the change
(and of the date of the new fiscal year end) prior to the next date by which the City otherwise
would be required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is available from the
MSRB) that theretofore has been provided to each NRMSIR and any SID or filed with the SEC.
(c) Material Event Notices. The City shall notify any SID and either each
NRMSIR or the MSRB, in a timely manner, of any of the following events with respect to the
Certificates, if such event is material within the meaning of the federal securities laws:
1. Principal and interest payment delinquencies;
2. Non - payment related defaults;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
4. Unscheduled draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions or events affecting the tax - exempt status of the Certificates;
7. Modifications to rights of holders of the Certificates;
8. Certificate calls;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Certificates; and
11. Rating changes.
The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner,
of any failure by the City to provide financial information or operating data in accordance with
subsection (b) of this Section by the time required by such Section.
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(d) Limitations, Disclaimers, and Amendments. The City shall be obligated to
observe and perform the covenants specified in this Section while, but only while, the City
remains an "obligated person" with respect to the Certificates within the meaning of the Rule,
except that the City in any event will give the notice required by subsection (c) hereof of any
Certificate calls and defeasance that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Certificates, and nothing in this Section, express or implied, shall give any benefit
or any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Certificates at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY CERTIFICATE OR ANY OTHER PERSON, IN CONTRACT OR
TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE
CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
The provisions of this Section may be amended by the City from time to time to adapt to
changed circumstances resulting from a change in legal requirements, a change in law, or a
change in the identity, nature, status, or type of operations of the City, but only if (1) the
provisions of this Section, as so amended, would have permitted underwriters to purchase or
sell Certificates in the primary offering of the Certificates in compliance with the Rule, taking into
account any amendments or interpretations of the Rule to the date of such amendment, as well
as such changed circumstances, and (2) either (a) the Holders of a majority in aggregate
principal amount (or any greater amount required by any other provision of this Ordinance that
authorizes such an amendment) of the Outstanding Certificates consent to such amendment or
(b) a Person that is unaffiliated with the City (such as nationally recognized bond counsel)
determines that such amendment will not materially impair the interests of the Holders and
beneficial owners of the Certificates. The provisions of this Section may also be amended from
time to time or repealed by the City if the SEC amends or repeals the applicable provisions of
the Rule or a court of final jurisdiction determines that such provisions are invalid, but only if and
to the extent that reservation of the City's right to do so would not prevent underwriters of the
initial public offering of the Certificates from lawfully purchasing or selling Certificates in such
offering. If the City so amends the provisions of this Section, it shall include with any amended
financial information or operating data next provided in accordance with subsection (b) an
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explanation, in narrative form, of the reasons for the amendment and of the impact of any
change in the type of financial information or operating data so provided.
SECTION 36: Public Meeting It is officially found, determined, and declared that the
meeting at which this Ordinance is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered at such meeting, including this
Ordinance, was given, all as required by V.T.C.A., Government Code, Chapter 551, as
amended.
SECTION 37: Effective Date This Ordinance shall take effect and be in full force from
and after its adoption on the date shown below in accordance with V.T.C.A., Government Code,
Section 1201.028.
PASSED AND ADOPTED, this April 15, 2003.
CITY OF SOUTHLAKE, TEXAS
Mayor
ATTEST:
City Secretary
(City Seal)
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Exhibit B
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION AND OPERATING DATA
The following information is referred to in Section 35 of this Ordinance.
Annual Financial Statements and Operating Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. The financial statements of the City appended to the Official Statement as
Appendix B, but for the most recently concluded fiscal year.
2. The information in the Official Statement contained in Tables 1 through 6 and 8
through 15.
Accounting Principles
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
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