HomeMy Public PortalAboutOrdinance No. 1042-06 01-10-2006 ORDINANCE NU .1042-06
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RICHLAND HILLS, TEXAS,
PROVIDING FOR THE ISSUANCE AND SALE OF CITY OF RICHLAND HILLS, TEXAS TAX
NOTE, SERIES 2006; PRESCRIBING THE FORM OF THE NOTE; LEVYING AN ANNUAL AD
VALOREM TAX AND PROVIDING FOR THE SECURITY FOR AND PAYMENT OF THE TAX
NOTE; AND ORDAINING OTHER MATTERS IN CONNECTION WITH THE ISSUANCE AND
SALE OF THE TAX NOTE
THE STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF RICHLAND HILLS §
WHEREAS, pursuant to Chapter 1431, Texas Government Code (hereinafter called the "Act"), the
City Council of the City of Richland Hills (the "City" or the "Issuer") is authorized and empowered to issue
tax notes to pay contractual obligations incurred or to be incurred (i) for the construction of any public work,
(ii) for the purchase of materials, supplies, equipment, machinery, buildings, lands and rights-of--way for the
City's authorized needs and purposes and (iii) to pay costs of professional services, including a service by a
tax appraisal engineer, engineer, architect, attorney, mapmaker, auditor, financial advisor, or fiscal agent; and
WHEREAS, in accordance with the provisions of the Act, the City Council hereby finds and
determines that a tax note should be issued and sold at this time for paying all or a portion of the Issuer's
contractual obligations incurred in connection with (i) the purchase of computer equipment and software for
the police and finance departments of the City, police and fire department equipment, imaging equipment for
the City Secretary's office, vehicles for the police, fire and community development departments of the City,
a backhoe for the public works department of the City and library equipment and (ii) legal and fiscal fees in
connection with such projects (collectively, the "Project"); and
WHEREAS, the govenung body of the Issuer deems it appropriate to adopt this Ordinance (the
"Ordinance") and issue the City of Richland Hills, Texas Tax Note, Series 2006 herein authorized as permitted
by the Act.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
RICHLAND HILLS:
Section 1. AMOUNT AND PURPOSE OF THE NOTE. The Note of the City of Richland Hills (the
"Issuer") is hereby authorized to be issued and delivered in the aggregate principal amount of $415,000, for
the purpose of financing the costs of the Project (as such teen is defined in the preambles hereto).
Section 2. DESIGNATION, DATE, DENOMINATION, NUMBERS, AND MATURITIES OF
NOTE. The Note initially authorized hereby shall be designated: "City of Richland Hills, Texas Tax Note,
Series 2006," and initially there shall be issued, sold, and delivered hereunder one fully registered Note, without
interest coupons (such note is hereinafter referred to as the "Note"), payable in installments to the registered
owners thereof, or registered assigns, dated February 1, 2006, m the denomination and pnncipal amount of
• $415,000, numbered R-1, with Notes issued in replacement thereof numbered consecutively from R-2 upward,
payable to the respective registered owners thereof (in each case, the "Registered Owner" or the "registered
owner"), with the initial Note being made payable to Bank of America, N.A., as the purchaser as described in
Section 14 hereof, with the principal of the Note to be payable on the dates and in the amounts as set forth in
the FORM OF NOTE in Section 5. The date of delivery of the Note to the initial purchaser thereof shall be
referred to in the Note and in this Ordinance as the "Delivery Date" or "Date of Delivery".
The term "Notes" as used in this Ordinance shall mean and include collectively the Note initially issued
and delivered pursuant to this Ordinance and all substitute notes exchanged therefor, as well as all other
substitute notes and replacement notes issued pursuant hereto..
Section 3. INTEREST ON THE NOTE. The Note initially authorized hereby shall bear interest on
the unpaid balance of the principal amount thereof from the Delivery Date (which date shall be indicated by
the Paying Agent/Registrar under the heading "Date of Delivery" appearing on the Note) to the scheduled due
date, or date of prepayment or redemption, if any, prior to the scheduled due date, of the principal installments
of the Note, at the rate of interest set forth in the FORM OF NOTE in Section 5. The interest shall be
calculated and payable on the dates and in the manner provided in the FORM OF NOTE set forth in Section
5.
Section 4. GENERAL CHARACTERISTICS.
(a) In General. The Note initially authorized hereby shall be issued, shall be payable, may be
transferred and assigned, shall have the characteristics, and shall be signed and executed (and the Note shall
• be sealed), all as provided, and in the manner indicated, in the FORM OF NOTE set forth in Section 5. After
the Note has been authorized to be issued by the City Council of the Issuer, and prior to the delivery of the
Note, the Comptroller of Public Accounts shall execute the Comptroller's Registration Certificate as provided
in Section 5. In addition, on the date of delivery of the Note to the initial purchaser thereof, the Paying
Agent/Registrar shall fill in the Date of Delivery of the Note under the heading "Date of Delivery" appearing
on the Note as set forth in Section 5.
(b) Registration Books. The Issuer shall keep or cause to be kept at the principal operations office
of the Paying Agent/Registrar books for the registration and transfer of the Note (the "Registration Books")
and the Issuer hereby appoints the Paying Agent/Registrar as its registrar and transfer agent to keep such books
and make such registrations and transfers under such reasonable regulations as the Issuer or the Paying
Agent/Registrarrnay prescribe; and the Paying Agent/Registrarwih register or transfer as herein provided, the
Note upon presentation thereof at such office.
Registration of any Note may be transferred (in whole, not in part) only on the Registration Books
upon surrender thereof by the registered owner in person or by its duly authorized attorney, by proper written
instrument of transfer, in the form and with guaranty of signatures satisfactory to the Paying Agent/Registrar,
duly executed by such owner or attorney. Upon such surrender for transfer of registration, the Paying
AgentlRegistrar shall make notation of such transfer on such Note in the assignment section appearing thereon
and in the Registration Books. Such transfers of registration shall be made without charge to the owner of such
Note, but any taxes or other governmental charges required to be paid with respect to the same shall be paid
by the Bondholder requesting such transfer of registration, as a condition precedent to the exercise of such
privilege.
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• The Paying AgentlRegistrar shall not be required to make transfers of any Note within five (5) days
prior to an interest payment date, anything in such Note to the contrary notwithstanding.
(c) Pavment to registered owner. The person in whose name any Note shall be registered on the
Registration Books may be deemed and treated as the absolute owner thereof for all purposes of this Ordinance
whether or not such Note shall be overdue, and neither the Issuer nor the Paying Agent/Registrar shall be
affected by any notice to the contrary; and payment of, or on account of, the principal of, premium, if any,
agreed liquidated damages, if any, and interest on any such Note shall be made only to such registered owner
thereof; but such registration may be changed as provided herein. All such payments shall be valid and
effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid.
(d) Notation of Pavment. The Issuer hereby appoints Bank of America, N.A., Dallas, Texas as
the Paying Agent/Registrar for the Note. Upon the payment of each principal installment of the Note on their
respective due dates, the Paying Agent/Registrar, shall note in the Payment Record appearing on such Note
the amount of such installment payment, the date said payment was made and the remaining unpaid principal
balance of said Note and shall then have said entry signed by an authorized official of the Paying
AgentlRegistrar. The Paying Agent/Registrar shall also record such information in the Registration Books,
and the Paying Agent/Registrar shall also record in the Registration Books all payments of principal
installments on such Note when made on their respective due dates.
(e) Substitute Pang A
eg nt/Re istrar. The Issuer covenants with the registered owners of the
Note that at all times while the Note is outstanding the Issuer will provide a national or state banking
corporation doing business under the laws of the United States or any state, with trust powers subject to
. examination by federal or state authority to act as and perform the services of Paying Agent/Registrar for the
Note under this Ordinance, and that the Paying AgentlRegistrarwill beone entity. The Issuer reserves the right
to, and may, at its option, change the Paying Agent/Registrar upon not less than 40 days written notice to the
Paying Agent/Registrar, to be effective not later than 30 days prior to the next principal or interest payment
date after such notice. In the event that the entity at any time acting as Paying Agent/Registrar (or its successor
by merger, acquisition, or other method) should resign or otherwise cease to act as such, the Issuer covenants
that promptly it will appoint a competent and legally qualified bank, trust company, financial institution, or
other entity to act as Paying Agent/Registrar under this Ordinance. Upon any change in the Paying
Agent/Registrar, the previous Paying Agent/Registrar promptly shall transfer and deliver the Registration
Books (or a copy thereof), along with all other pertinent books and records relating to the Note, to the new
Paying Agent/Registrar designated and appointed by the Issuer. Upon any change in the Paying
Agent/Registrar, the Issuer promptly will cause a written notice thereof to be sent by the new Paying
Agent/Registrar toeach registered owner of the Note, by United States mail, first-class postage prepaid, which
notice also shall give the address ofthe new Paying Agent/Registrar. By accepting the position and performing
as such, each Paying Agent/Registrar shall be deemed to have agreed to the provisions of this Ordinance, and
a certified copy of this Ordinance shall be delivered to each Paying Agent/Registrar.
Section 5. FORM OF NOTE. The form ofthe Note, together with the forms ofthe various certificates
and forms to appear on the Note, shall be, respectively, substantially as follows, with necessary and appropriate
variations, omissions, and insertions as permitted or required by this Ordinance:
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. (a) FORM OF NOTE
NO. R- UNITED STATES OF AMERICA PRINCIPAL
STATE OF TEXAS AMOUNT
COUNTY OF TARRANT $415,000
CITY OF RICHLAND HILLS, TEXAS
TAX NOTE, SERIES 2006
Interest Rate Date of Delivery Final Maturity Date
3.50% August 15, 2012
REGISTERED OWNER:
PRINCIPAL AMOUNT:
The City of Richland Hills, Texas (the "Issuer"), being a political subdivision of the State of Texas
located in Tarrant County, for value received, promises to pay, from the sources described herein, to the
registered owner specified above, or registered assigns, the principal amount specified above, and to pay
interest thereon, from the Date of Delivery set forth above, on the balance of said principal amount from time
to time remaining unpaid, at the rate per annum set forth above, calculated on the basis of a 360-day year of
twelve 30-day months. The unpaid principal of this Note shall mature on August 15, 2012, but shall be paid
in installments on the dates and in the amounts set forth in the table below:
• Principal
Payment Date Installment
August 15, 2007 $57,000
August 15, 2008 67,000
August 15, 2009 69,000
August 15, 2009 71,000
August 15, 2010 74,000
August 15, 2012 77,000
The principal of and interest on this Note are payable in lawful money of the United States of America,
without exchange or collection charges. The Issuer shall pay interest on this Note on February 15, 2007 and
on each August 15 and February 15 thereafter to the date of maturity prior to maturity. The last principal
installment of this Note shall be paid to the registered owner hereof upon presentation and surrender of this
Note at maturity, at the principal office of Bank of America, N.A., Dallas, Texas, which is the "Paying
Agent/Registrar" for this Note. The payment of all other principal installments of and interest on this Note
shall be made by the Paying AgentlRegistrar to the registered owner hereof on each principal and interest
payment date by check or draft, dated as of such principal and interest payment date, drawn by the Paying
Agent/Registrar on, and payable solely from, funds of the Issuer required by the Ordinance to be on deposit
with the Paying Agent/Registrar for such purpose as hereinafterprovided; and such check or draft shall be sent
by the Paying Agent/Registrar by United States mail, first-class postage prepaid, on each such interest payment
date, to the registered owner hereof, at its address as it appeared on the last day of the month next preceding
each such date (the "Record Date") on the Registration Books kept by the Paying AgentJRegistrar, as
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• hereinafter described. In addition, principal and interest may be paid by such other method, acceptable to the
Paying AgentlRegistrar, requested by, and at the risk and expense of, the registered owner.
Any accrued interest due in connection with the payment of the final installment of principal of this
Note shall be paid to the registered owner upon presentation and surrender of this Note for payment at the
designated principal off ce of the Paying Agent/Registrar. The Issuer covenants with the registered owner of
this Note that on or before each principal payment date, interest payment date, and accrued interest payment
date for this Note it will make available to the Paying Agent/Registrar, from the "Interest and Sinking Fund"
created by the Ordinance, the amounts required to provide for the payment, in immediately available funds, of
all principal of and interest on the Note, when due.
If the date for the payment of this Note shall be a Saturday, Sunday, a legal holiday, or a day on which
banking institutions in the city where the designated principal 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 on which 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.
THIS NOTE is the sole note of the authorized series of the Issuer designated "City of Richland Hills,
Texas Tax Note, Series 2006," in the aggregate principal amount of $415,000 (the "Note"), issued for the
purpose of the payment of contractual obligations incurred in connection with (i) the purchase of computer
equipment and software for the police and finance departments of the Issuer, police and fire department
equipment, imaging equipment for the City Secretary's office, vehicles for the police, fire and community
• development departments of the Issuer, a backhoe for the public works department of the Issuer and library
equipment and (ii) legal and fiscal fees in connection with such projects.
THE OUTSTANDING PRINCIPAL INSTALLMENTS OF THIS NOTE are not subject to
redemption in whole or in part prior to their scheduled payment dates at the option of the Issuer.
UPON THE PAYMENT OF EACH PRINCIPAL INSTALLMENT of this Note, the Paying
Agent/Registrar, shall note in the Payment Record appearing on this Note the amount of such payment, the date
said payment was made and the remaining unpaid principal balance of this Note and shall then have said entry
signed by an authorized official of the Paying AgentlRegistrar. The Paying Agent/Registrar shall also record
such information in the Registration Books, and the Paying Agent/Registrar shall also record in the Registration
Books all such payments of principal installments on such Note when made on their respective due dates.
THE NOTE OF THIS SERIES is issuable in the form of one fully-registered Note without coupons
in the denomination of $415,000. This Note may be transferred or exchanged as provided in the Ordinance,
only upon the Registration Books kept for that purpose at the above-mentioned office of the Paying
Agent/Registrarupnn surrender of this Note together with a written instrument of transfer or authorization for
exchange satisfactory to the Paying Agent/Registrar and duly executed by the registered owner or his duly
authorized attorney, and thereupon a new Note of the same maturity and in the same aggregate principal
amount shall be issued by the Paying Agent/Registrar to the transferee in exchange therefor as provided in the
Ordinance, and upon payment of the charges therein prescribed. The Issuer and the Paying Agent/Registrar
may deem and treat the person in whose name this Note is registered as the absolute owner hereof for the
purpose of receiving payment of, or on account of, the principal and interest due hereon and for all other
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• purposes.
IN THE Ordinance, the Issuer has reserved the right to amend the Ordinance as provided therein, and
under some (but not all) circumstances amendments thereto must be approved by the registered owner of the
outstanding Note.
THIS NOTE shall not be valid or become obligatory for any purpose or be entitled to any security or
benefit under the Ordinance until the Certificate of Authentication shall have been executed by the Paying
Agent/Registrar or the Comptroller's Registration Certificate hereon shall have been executed by the Texas
Comptroller of Public Accounts.
IT IS HEREBY certified, recited, and covenanted that this Note has been duly and validly authorized,
issued, sold, and delivered; that all acts, conditions, and things required or proper to be performed, exist, and
be done precedent to or in the authorization, issuance, and delivery of this Note have been performed, existed,
and been done in accordance with law; that this Note is a general obligation of the Issuer, issued on the full
faith and credit thereof; and that ad valorem taxes sufficient to provide for the payment ofthe interest on and
principal of this Note, as such interest and principal come due, have been levied and ordered to be levied
against all taxable property in the Issuer, and have been pledged for such payment, within the limit prescribed
by law.
BY BECOMING the registered owner ofthis Note, the registered owner thereby acknowledges all of
the terms and provisions ofthe Ordinance, agrees to be bound by such terms and provisions, acknowledges that
the Ordinance is duly recorded and available for inspection in the official minutes and records ofthe governing
• body ofthe Issuer, and agrees that the terms and provisions ofthis Note and the Ordinance constitute a contract
between the registered owner hereof and the Issuer.
[The remainder ofthis page is intentionally left blank]
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed with the manual or facsimile
signature ofthe Mayor ofthe Issuer (or the Mayor Pro-Tem in the absence ofthe Mayor), countersigned with
the manual or facsimile signature ofthe City Secretary ofthe Issuer, and has caused the official seal of the
Issuer to be duly impressed or placed in facsimile on this Note, which is dated February 1, 2006.
(signature) (signature)
City Secretary, City of Richland Hills, Texas Mayor, City of Richland Hills, Texas
(CITY SEAL)
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• (b) FORM OF REGISTRATION CERTIFICATE OF THE
COMPTROLLER OF PUBLIC ACCOUNTS:
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this Note has been examined, certified as to validity, and approved by the Attorney
General of the State of Texas, and that this Note has been registered by the Comptroller of Public Accounts
of the State of Texas.
Witness my signature and seal this
Comptroller of Public Accounts of the State of Texas
(COMPTROLLER'S SEAL)
(c) FORM OF PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
PAYING AGENTlREGISTRAR'S AUTHENTICATION CERTIFICATE
(To be executed if this Note is not accompanied by an executed Registration Certificate of the
• Comptroller of Public Accounts of the State of Texas)
It is hereby certified that this Note has been issued under the provisions of the Ordinance described on
the face of this Note; and that this Note has been issued in exchange for or replacement of a Note which
originally was approved by the Attorney General of the State of Texas and registered by the Comptroller of
Public Accounts of the State of Texas.
Dated: Bank of America, N.A.
Dallas, Texas
By
Authorized Representative
(d) FORM OF ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Print or Type Name, Address and Social Security Number
• ~
• or other Taxpayer Identification Number of Transferee
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Note on the books kept by the Paying
Agent/Registrar for the registration and transfer of the Note, with full power of substitution in the premises.
Dated:
Assignee Signature:
Printed Name:
NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the
within Note in every particular.
Signature Guaranteed By:
By:
Title:
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(e) FORM OF PAYMENT RECORD
PAYMENT RECORD
Principal Name and Title of
Installment Remaining Authorized Officer
Date of Payment Principal making Entry Signature of Authorized
Payment Balance Officer
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•
Section 6. INTEREST AND SINKING FUND. City of Richland Hills, Texas Tax Note, Series 2006
Interest and Sinking Fund, hereinafter called the "Interest and Sinking Fund" is hereby authorized and shall be
established and maintained in a depository bank of the Issuer, so long as the Note, or interest thereon, is
outstanding and unpaid. The Interest and Sinking Fund shall be kept separate and apart from all other funds
and accounts of the Issuer, and shall be used only for paying the interest on and principal of the Note. All ad
valorem taxes levied and collected for and on account of said Note shall be deposited, as collected, to the credit
of the Interest and Sinking Fund.
Section 7. TAX LEVY. During each year while any of said Note is outstanding and unpaid, the
governing body of the Issuer shall compute and ascertain a rate and amount of ad valorem tax which together
with any other lawfully available funds that are on deposit in the Interest and Sinking Fund at the time of such
levy will be sufficient to pay the interest on said Note as such interest comes due, and to provide and maintain
a sinking fund adequate to pay the principal of such Note as such principal matures (but never less than 2%
of the original principal amount of said Note as a Sinking Fund each year); and said tax shall be based on the
latest approved tax rolls of said Issuer, with full allowance being made for tax delinquencies and the cost of
tax collection. Said rate and amount of ad valorem tax is hereby levied and is hereby ordered to be levied,
against all taxable property in said Issuer for each year while any of said Note is outstanding and unpaid; and
said tax shall be assessed and collected each such year and deposited to the credit of the aforesaid Interest and
Sinking Fund. Said ad valorem taxes sufficient to provide for the payment of the interest on and principal of
said Note, as such interest comes due and such principal matures, are hereby pledged for such payment, within
• the limit prescribed by law. In addition, until expended for the herein authorized purposes, the proceeds of the
Note are pledged to the payment of the principal and interest on the Note.
Section 8. DEFEASANCE OF NOTE.
(a) The Note and the interest thereon shall be deemed to be paid, retired, and no longer outstanding
(the "Defeased Note") within the meaning of this Ordinance, except to the extent provided in Subsection (d)
of this Section, when payment of the principal of the Note, plus interest thereon to the due date (whether such
due date be by reason of maturity or otherwise) either (i) shall have been made or caused to be made in
accordance with the terms thereof, or (ii) shall have been provided for on or before such due date by irrevocably
depositing with or making available to the Paying Agent/Registrar for such payment (1) lawful money of the
United States of America sufficient to make such payment or (2) Government Obligations which mature as to
principal and interest in such amounts and at such times as will insure the availability, without reinvestment,
or sufficient money to provide for such payment, and when proper arrangements have been made by the Issuer
with the Paying Agent/Registrarfnr the payment of its services until the Defeased Note shall have become due
and payable. At such time as the Note shall be deemed to be a Defeased Note hereunder, as aforesaid, such
Note and the interest thereon shall no longer be secured by, payable from, or entitled to the benefits of, the ad
valorem taxes herein levied as provided in this Ordinance, and such principal and interest shall be payable
solely from such money or Government Obligations.
(b) Any moneys so deposited with the Paying Agent/Registrar may at the written direction of the
Issuer also be invested in Government Obligations, maturing in the amounts and times as hereinbefore set forth,
and all income from such Govemment Obligations received by the Paying Agent/Registrar/ Registrar which
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• is not required for the payment of the Note and interest thereon, with respect to which such money has been
so deposited, shall be turned over to the Issuer, or deposited as directed in writing by the Issuer.
(c) The term "Government Obligations" as used in this Section, shall mean direct obligations of
the United States of America, including obligations the principal of and interest on which are unconditionally
guaranteed by the United States of America, which may be United States Treasury obligations such as its State
and Local Government Series, which may be in book-entry form.
(d) Until the Defeased Note shall have become due and payable, the Paying Agent/Registrar shall
perform the services of Paying Agent/Registrar for such Defeased Note the same as if they had not been
defeased, and the Issuer shall make proper arrangements to provide and pay for such services as required by
this Ordinance.
Section 9. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED NOTE.
(a) Replacement Notes. In the event any outstanding Note is damaged, mutilated, lost, stolen, or
destroyed, the Paying AgentlRegistrar shall cause to be printed, executed, and delivered, a new Note of the
same principal amount, maturity, and interest rate, as the damaged, mutilated, lost, stolen, or destroyed Note,
in replacement for such Note in the manner hereinafter provided.
(b) Application for Replacement Notes. Application for replacement of a damaged, mutilated,
lost, stolen, or destroyed Note shall be made by the registered owner thereof to the Paying Agent/Registrar/
Registrar. In every case of loss, theft, or destruction of a Note, the registered owner applying for a replacement
• Note shall furnish to the Issuer and to the Paying Agent/Registrar such security or indemnity as may be
required by them to save each of them harmless from any loss or damage with respect thereto. Also, in every
case of loss, theft, or destruction of a Note, the registered owner shall furnish to the Issuer and to the Paying
Agent/Registrar evidence to their satisfaction of the loss, theft, or destruction of such Note, as the case may
be. In every case of damage or mutilation of a Note, the registered owner shall surrender to the Paying
Agent/Registrar for cancellation the Note so damaged or mutilated.
(c) No Default Occurred. Notwithstanding the foregoing provisions of this Section, in the event
any such Note shall have matured, and no default has occurred which is then continuing in the payment of the
principal of, redemption premium, if any, or interest on this Note, the Issuer may authorize the payment of the
same (without surrender thereof except in the case of a damaged or mutilated Note) instead of issuing a
replacement Note, provided security or indemnity is furnished as above provided in this Section 9.
(d) Charge for Issuine Replacement Notes. Prior to the issuance of any replacement Note, the
Paying Agent/Registrar shall charge the registered owner of such Note with all legal, printing, and other
expenses in connection therewith. Every replacement Note issued pursuant to the provisions of this Section
by virtue of the fact that any Note is lost, stolen, or destroyed shall constitute a Note of the Issuer whether or
not the lost, stolen, or destroyed Note shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Ordinance equally and proportionately with any and all other Notes duly
issued under this Ordinance.
(e) Authority for Issuing Replacement Notes. In accordance with Subchapter D, Chapter 1201,
Texas Government Code, as amended, this Section 9 shall constitute authority for the issuance of any such
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• replacement certificate without necessity of further action by the Issuer or any other body or person, and the
duty of the replacement of such notes is hereby authorized and imposed upon the Paying Agent/Registrar, and
the Paying Agent/Registrar shall authenticate and deliver such Notes in the form and manner and with the
effect, as provided in Section 4(a) of this Ordinance for a Note issued in exchange of another Note.
Section 10. CUSTODY, APPROVAL, AND REGISTRATION OF NOTE. The Mayor ofthe Issuer
(or the Mayor Pro-Tem in the absence of the Mayor) is hereby authorized to have control of the Note initially
issued and delivered hereunder and all necessary records and proceedings pertaining to the Note pending its
delivery and its investigation, examination, and approval by the Attorney General of the State of Texas, and
their registration by the Comptroller of Public Accounts of the State of Texas. Upon registration of the Note,
the Comptroller of Public Accounts (or a deputy designated in writing to act for the Comptroller) shall
manually sign the Comptroller's Registration Certificate attached to the Note, and the seal of the Comptroller
shall be impressed, or placed in facsimile, on such Certificate.
Section 11. REMEDIES OF REGISTERED OWNER. In additional to all rights and remedies ofhe
Registered Owner provided by the laws of the State of Texas, the Issuer and the City Council covenant and
agrees that in the Issuer defaults in the payment of the principal of or interest on the Note when due, or fails
to make the payments required to be made into the Interest and Sinking Fund required by this Ordinance, the
Registered Owner of the Note shall be entitled to a writ of mandamus issued by a court of proper jurisdiction
compelling and requiring the City Council and other officers ofthe Issuerto observe and perform any covenant,
obligation or condition prescribed in this Ordinance. No delay or omission by any Registered Owner to
exercise any right or power accruing to him upon default shall impair any such right or power, or shall be
construed to be a waiver of any such default or acquiescence therein, and every such right or power may be
• exercised from time to time and as often as maybe deemed expedient. The specific remedies mentioned in this
Ordinance shall be available to the Registered Owner of the Certificate and shall be cumulative of all other
existing remedies.
Section 12. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE NOTE.
(a) Covenants. The Issuer covenants to take any action necessary to assure, or refrain from any action which
would adversely affect, the treatment of the Note as an obligation described in section 103 of the Internal
Revenue Code of 1986, as amended (the "Code"), the interest on which is not includable in the "gross income"
of the holder for purposes of federal income taxation. In furtherance thereof, the Issuer covenants as follows:
(1) to take any action to assure that no more than 10 percent of the proceeds of the Note or
the projects fmanced therewith (less amounts deposited to a reserve fund, if any) are used for any
"private business use," as defined in section 141(b)(6) of the Code or, if more than 10 percent of the
proceeds or the projects financed therewith are soused, such amounts, whether or not received by the
Issuer, with respect to such private business use, do not, under the terms of this Resolution or any
underlying arrangement, directly or indirectly, secure or provide for the payment of more than 10
percent of the debt service on the Note, in contravention of section 141(b)(2) of the Code;
(2) to take any action to assure that in the event that the "private business use" described in
subsection (1) hereof exceeds 5 percent of the proceeds of the Note or the projects financed therewith
(less amounts deposited into a reserve fund, if any) then the amount in excess of 5 percent is used for
a "private business use" which is "related" and not "disproportionate," within the meaning of section
•
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• 141(b)(3) of the Code, to the governmental use;
(3) to take any action to assure that no amount which is greater than the lesser of $5,000,000,
or 5 percent of the proceeds of the Note (less amounts deposited into a reserve fund, if any) is directly
or indirectly used to finance loans to persons, other than state or local governmental units, in
contravention of section 141(c) of the Code;
(4) to refrain from taking any action which would otherwise result in the Note being treated
as a "private activity bond" within the meaning of section 141(b) of the Code;
(5) to refrain from taking any action that would result in the Note being "federally
guaranteed" within the meaning of section 149(b) of the Code;
(6) to refrain from using any portion of the proceeds of the Note, directly or indirectly, to
acquire or to replace funds which were used, directly or indirectly, to acquire investment property (as
defined in section 148(b)(2) of the Code) which produces a materially higher yield over the term of the
Note, other than investment property acquired with
(A) proceeds of the Note invested for a reasonable temporary period of 3 years or
less or, in the case of a refunding bond, for a period of 30 days or less until such proceeds are
needed for the purpose for which the Note is issued,
• (B) amounts invested in a bona fide debt service fund, within the meaning of section
1.148-1(b) of the Treasury Regulations, and
(C) amounts deposited in any reasonably required reserve or replacement fund to the
extent such amounts do not exceed 10 percent of the proceeds of the Note;
(7) to otherwise restrict the use of the proceeds of the Note or amounts treated as proceeds
of the Note, as may be necessary, so that the Note does not otherwise contravene the requirements of
section 148 of the Code (relating to arbitrage) and, to the extent applicable, section 149(d) of the Code
(relating to advance refixndings); and
(8) to pay to the United States of America at least once during each five-year period
(beginning on the date of delivery of the Note an amount that is at least equal to 90 percent of the
"Excess Earnings," within the meaning of section 148(f) of the Code and to pay to the United States
of America, not later than 60 days after the Note has been paid in full, 100 percent of the amount then
required to be paid as a result of Excess Earnings under section 148(f) of the Code.
(b) Rebate Fund. In order to facilitate compliance with the above covenant (8), a "Rebate Fund" is
hereby established by the Issuer for the sole benefit of the United States of America, and such fund shall not
be subject to the claim of any other person, including without limitation the Registered Owner. The Rebate
Fund is established for the additional purpose of compliance with section 148 of the Code.
(c) Proceeds. The Issuer understands that the term "proceeds" includes "disposition proceeds" as
defined in the Treasury Regulations and, in the case of refunding bonds, transferred proceeds (if any) and
•
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• proceeds of the refunded bonds expended prior to the date of issuance of the Note. It is the understanding of
the Issuer that the covenants contained herein are intended to assure compliance with the Code and any
regulations or rulings promulgated by the U. S. Department of the Treasury pursuant thereto. In the event that
regulations or rulings are hereafter promulgated which modify or expand provisions of the Code, as applicable
to the Note, the Issuer will not be required to comply with any covenant contained herein to the extent that such
failure to comply, in the opinion of nationally recognized bond counsel, will not adversely affect the exemption
from federal income taxation of interest on the Note under section 103 of the Code. In the event that
regulations or rulings are hereafter promulgated which impose additional requirements which are applicable
to the Note, the Issuer agrees to comply with the additional requirements to the extent necessary, in the opinion
of nationally recognized bond counsel, to preserve the exemption from federal income taxation of interest on
the Note under section 103 of the Code. In furtherance of such intention, the Issuer hereby authorizes and
directs the Mayor to execute any documents, certificates or reports required by the Code and to make such
elections, on behalf of the Issuer, which may be permitted by the Code as are consistent with the purpose for
the issuance of the Note.
(d) Allocation Of, and Limitation On. Expenditures for the Project. The Issuer covenants to account
for the expenditure of sale proceeds and investment earnings to be used for the purposes described in Section
1 ofthis Ordinance (the "Project") on its books and records in accordance with the requirements of the Internal
Revenue Code. The Issuer recognizes that in order for the proceeds to be considered used for the
reimbursement of costs, the proceeds must be allocated to expenditures within 18 months ofthe later of the date
that (1) the expenditure is made, or (2) the Project is completed; but in no event later than three years after the
date on which the original expenditure is paid. The foregoing notwithstanding, the Issuer recognizes that in
order for proceeds to be expended under the Internal Revenue Code, the sale proceeds or investment earnings
• must be expended no more than 60 days after the earlier of (1) the fifth anniversary of the delivery of the Note,
or (2) the date the Note is retired. The Issuer agrees to obtain the advice ofnationally-recognized bond counsel
if such expenditure fails to comply with the foregoing to assure that such expenditure will not adversely affect
the tax-exempt status of the Note. For purposes hereof, the issuer shall not be obligated to comply with this
covenant if it obtains an opinion that such failure to comply will not adversely affect the excludability for
federal income tax purposes from gross income of the interest.
(e) Disposition of Proiect. The Issuer covenants that the property constituting the Project will not be
sold or otherwise disposed in a transaction resulting in the receipt by the Issuer of cash or other compensation,
unless the Issuer obtains an opinion ofnationally-recognized bond counsel that such sale or other disposition
will not adversely affect the tax-exempt status of the Note. For purposes of the foregoing, the portion of the
property comprising personal property and disposed in the ordinary course shall not be treated as a transaction
resulting in the receipt of cash or other compensation. For purposes hereof, the Issuer shall not be obligated
to comply with this covenant if it obtains an opinion that such failure to comply will not adversely affect the
excludability for federal income tax purposes from gross income of the interest.
(f1 Designation as Oualified Tax-Exempt Obli atg ions. The Issuer hereby designates the Note as a
"qualified tax-exempt obligation" as defined in section 265(b)(3) of the Code. In furtherance of such
designation, the Issuer represents, covenants and warrants the following: (a) that during the calendar year in
which the Note is issued, the Issuer (including any subordinate entities) has not designated nor will designate
obligations, which when aggregated with the Note, will result in more than $10,000,000 of "qualified tax-
exempt obligations" being issued; (b) that the Issuer reasonably anticipates that the amount of tax-exempt
obligations issued, during the calendar year in which the Note is issued, by the Issuer (or any subordinate
•
13
• entities) will not exceed $10,000,000; and, (c) that the Issuer will take such action or refrain from such action
as necessary, and as more particularly set forth in this Section, in order that the Note will not be considered
a "private activity bond" within the meaning of section 141 of the Code.
Section 13. SALE OF NOTE. (a) The Note is hereby initially sold and shall be delivered to Bank
of America, N.A., Dallas, Texas (the "Purchaser") for cash for the par value thereof, pursuant to the private
placement letter dated the date of the passage of this Ordinance. The Mayor (or the Mayor Pro-Tem in the
absence of the Mayor) is authorized to execute and deliver the private placement letter. The Note shall initially
be registered in the name of the Purchaser. It is hereby officially found, determined, and declared that the terms
of this sale are the most advantageous reasonably obtainable.
(b) The Mayor and Mayor Pro Tem, and all other officers, employees and agents of the Issuer, and
each of them, shall be and they are hereby expressly authorized, empowered and directed from time to time and
at any time to do and perform all~such acts and things and to execute, acknowledge and deliver in the name and
on behalf of the Issuer a Paying Agent/Registrar Agreement with the Paying Agent/Registrar and all other
instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms
and provisions of this Ordinance, the Note and the sale of the Note. In case any officer whose signature shall
appear on any Note shall cease to be such officer before the delivery of such Note, such signature shall
nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such
delivery.
Section 14. PUBLIC NOTICE. It is hereby officially found and determined that public notice of the
time, place and purpose of said meeting was given, all as required by the Government Code, Chapter 551.
• Section 15. ORDINANCE EFFECTIVE ON PASSAGE. This Ordinance shall become effective
immediately upon passage.
Section 16. METHOD OF AMENDMENT. The Issuer hereby reserves the right to amend this
Ordinance subject to the following terms and conditions, to-wit:
(a) The Issuer may from time to time, without the consent of any registered owner, except as
otherwise required by paragraph (b) below, amend or supplement this Ordinance in order to (i) cure any
ambiguity, defect or omission in this Ordinance that does not materially adversely affect the interests of the
registered owners, (ii) grant additional rights or security for the benefit of the registered owners, (iii) add events
of default as shall not be inconsistent with the provisions of this Ordinance and which shall not materially
adversely affect the interests of the registered owners, (v) qualify this Ordinance under the Trust Indenture Act
of 1939, as amended, or corresponding provisions of federal laws from time to time in effect, or (iv) make such
other provisions in regard to matters or questions arising under this Ordinance as shall not be inconsistent with
the provisions of this Ordinance and which shall not in the opinion of bond counsel to the Issuer materially
adversely affect the interests of the registered owners.
(b) Except as provided in paragraph (a) above, the registered owner of the Note shall have the
right from time to time to approve any amendment hereto which may be deemed necessary or desirable by the
Issuer.
(c) If at any time the Issuer shall desire to amend this Ordinance under this Section, the Issuer
• 14
• shall send by U. S. mail to the registered owner of the Note a copy of the proposed amendment.
(d) Whenever at any time within one year from the date of mailing of such notice the Issuer shall
receive an instrument or instruments executed by the registered owner, which instrument or instruments shall
refer to the proposed amendment and which shall specifically consent to and approve such amendment, the
Issuer may adopt the amendment in substantially the same form.
(e) Upon the adoption of any amendatory Ordinance pursuant to the provisions of this Section,
this Ordinance shall be deemed to be modified and amended in accordance with such amendatory Ordinance,
and the respective rights, duties, and obligations of the Issuer and all registered owners of such affected Note
shall thereafter be determined, exercised, and enforced, subject in all respects to such amendment.
For the purposes ofestablishing ownership ofthe Note, the Issuer shall rely solely upon the registration
of the ownership of such bonds on the Registration Books kept by the Paying Agent/Registrar.
Section 17. NO RULE 15c2-12 UNDERTAKING. The offering of the Note is exempt from the
requirements of Rule 15c2-12 (the "Rule") and the Issuer has therefore not made an undertaking with respect
to the Note in accordance with the Rule. The Issuer is not, therefore, obligated pursuant to the Rule to provide
any on-going disclosure relating to the Issuer or the Note.
Section 18. INCONSISTENT PROVISIONS. All indentures, ordinances 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 19. 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 20. 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 this governing body hereby declares that this Ordinance would
have been enacted without such invalid provision.
Section 21. USE OF NOTE PROCEEDS. The proceeds ofthe issuance ofthe Note shall be deposited
in a special account of the Issuer and used for purposes for which the Note is hereby authorized to be issued.
(Execution Page Follows)
•
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ADOPTED THIS 10~' DAY OF JANUARY, 2006.
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ATTEST: ~ ~ y yor, City of Richland Hills, Texas
~
City ecretary, City of Richland Hi s~;l`rexas
[CITY SEAL]
AP ROVE A TO ORM AND LEGALITY:
City Attorney,
City of Richland Hills, Texas
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