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HomeMy WebLinkAboutResolution 1139 iM4" ?4, 113 9 RESOLUTION A RESOLUTION REQUESTING TEXAS HIGHER EDUCATION AUTHORITY, INC., TO ACT ON BEHALF OF THE CITY OF FORT WORTH, AND AS ITS DULY CONSTITUTED AUTHORITY AND INSTRUMENTALITY IN PROVIDING FINANCING THROUGH ITS EDUCATIONAL FACILITIES REVENUE BOND PROGRAM OF EDUCATIONAL FACILITIES FOR TEXAS WESLEYAN COLLEGE, EACH AN INSTITUTION OF HIGHER EDUCATION LOCATED WITHIN THE BOUNDARIES OF THIS CITY. WHEREAS, the City of Fort Worth, Texas, has ordered created the Texas Higher Education Authority, Inc. (the "Authority"), under and pursuant to Chapter 53, Texas Education Code, as amended (the "Act"), and particularly Section 53.35(b) thereof, to act on its behalf and as its duly constituted authority and instrumentality and on behalf, and as the duly constituted authority and instrumentality, of such other cities as shall request it to do so in accordance with the Act, all for the purpose of aiding in the promotion and development of higher education at the college and university level by Texas nonprofit institutions of higher education located within the participating cities on whose behalf the Authority is created or requested to act; and WHEREAS, the Authority has established a program (the "Program") for such purpose on behalf of each participating city, including this City, if approved by this City; and amount (the "Bonds"); and WHEREAS, the Authority has funded the Program through the issuance of its Educational Facilities Revenue Bonds, Series 1985A and Series 1985B, aggregating $175,000,000 in principal. WHEREAS, Texas Wesleyan College (the "Local Institution"), an institution of higher education under the Act, and being located within this City, has requested that certain of their respective educational facilities be financed through the Program; and WHEREAS, the Local Institution and this City have jointly determined that participation in the Program provides a better and. less expensive method of financing than other available alternatives; and WHEREAS, this Resolution is adopted under the authority of Section 53.35 of the Act, and shall constitute a request for the Authority to act on behalf of this City as its duly constituted authority and instrumentality for the purpose of permitting institutions of higher education located within this City to participate in the Program as authorized by the Act; and WHEREAS, Section 53.35(b) of the Act provides that if the Authority agrees to the request of this City to act on its behalf, the directors of the Authority shall thereafter be appointed and be subject to removal by the governing body of this City; and WHEREAS, Section 53.35(b) of the Act further provides that Section 53.14 of the Act shall apply and govern such corporation and its procedures and bonds; and WHEREAS, Section 53.14 of the Act provides that if the Authority includes more than one city, each governing body shall appoint an equal number of directors unless otherwise agreed by the cities; and WHEREAS, the Program guidelines require the Local Institu- tion to satisfy certain conditions prior to being accepted into the Program and becoming eligible to receive funds under the Program, including the approval by Financial Guaranty Insurance Company, an insurance company which has insured the payment of the debt service on the Bonds; and WHEREAS, the Local Institution has submitted evidence satisfactory to this City that the Local Institution has been accepted as a participant in the Program; and WHEREAS, the agreement referred to in Section 2 of the Resolution has been executed by the City of University Park, Texas, prior to the date of this Resolution, and WHEREAS, the indemnification agreement referred to in Section 6 of this Resolution has been executed by the under- writers named therein prior to the date of this Resolution; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, AS FOLLOWS: (1) That this City hereby requests the Authority to act on its behalf and as its duly constituted authority and instrumentality for the sole purpose of making funds available under the Program to finance educational facilities authorized by the Act for the Local Institution, and this City authorizes the use of such funds for the purpose of the Local Institution in accordance with the terms and requirements of the Program as developed, defined and from time to time implemented by the Authority. (2) That the City Manager is hereby authorized to enter into an agreement with the City of University Park, Texas, whereby this City hereby waives its statutory right to appoint and/or remove any director of the Board of Directors of the Authority, and this 2 City hereby approves the Articles of Incorporation of the Authority, attached hereto as Exhibit A. (3) That in the event that any change is made to the Articles of Incorporation subsequent to adoption of this Resolution that is not approved by the governing body of this City within 30 days of such change, this Resolution shall terminate and the Authority shall have no further authority to act on behalf of this City. (4) That in the event that the governing body of this City directs that a notice of a required change to the Articles of Incorporation be sent to the Authority directing that the Articles of Incorporation be amended, and such action as specified in said notice is not taken within 30 days of the mailing of said notice, this Resolution shall terminate and the Authority shall have no further authority to act on behalf of this city. (5) That this City is not, by the adoption of this Resolution, authorizing the issuance of any obligations of this City and this City is not pledging any of its properties, revenues or taxes to secure any obligations of the Authority, and no obligations issued by the Authority shall ever create an obligation of this City nor create any indebtedness or liability or be a special, general or moral obligation of this City and all obligations issued by the Authority shall contain a statement to such effect. (6) That the City Manager is hereby authorized to accept -.the indemnification agreement executed by the investment banking firms which purchased the Bonds issued by the Authority to finance the Program; pro- vided that such indemnification agreement shall be in substantially the same form as the indemnification language the Local Institution is required to agree to, a copy of which is attached hereto as Exhibit B. (7) That this City, by the adoption of this Resolution, assumes no responsibility for any costs or expenses incurred in connection with the issuance of any obligations by the Authority to finance and/or operate the Program. (8) That this City requires that any investment banking firm purchasing obligations, the proceeds of which are to finance the Program, from the Authority, shall assume responsibility for the marketing, sale and distribution of such obligations under the Texas Securities Act, as amended, similar laws of other states where the obligations are sold or offered for sale, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the 3 Trust Indenture Act of 1939, as amended, and this City assumes no responsibility for any matter in connection therewith. (9) That in the event a loan to the Local Institution in the amount requested from the Authority by the Local Institution is not funded within 90 days of the date of this Resolution, the terms of this Resolution shall expire and be null and void, retro- active to the date of this Resolution. This Resolution shall take effect immediately from and after its adoption. PASSED AND APPROVED this day of , 1986. (SEAL) ATTEST: City Secretary APPROVED AS TO FORM: City Attorney Mayor 4 Exhibit A ARTICLES OF INCORPORATION OF TEXAS HIGHER EDUCATION AUTHORITY, INC Pursuant to Section 53.35(b), Texas Education Code, as amended (the "Act"), we, the undersigned natural persons, acting on behalf of and as directed and orderedi by the City of University Park, Texas (the "City'), and acting on behalf of other municipalities from time to time, as incorporators of a nonprofit corporation under the Act, do hereby adopt the following Articles of Incorporation therefor- ARTICLE I The name of the corporation is TEXAS HIGHER EDUCATION AUTHORITY, INC. ARTICLE II The Corporation is a nonprofit corporation created under the Act by order of the governing body of the City pursuant to the Act. ARTICLE III The duration of the Corporation is perpetual, subject to dissolution as herein provided. ARTICLE TV The Corporation is organized solely and exclusively for the purpose of aiding nonprofit institutions of higher education located within the City and within other municipalities within the-State of Texas in providing- educational facilities and housing facilities and facilities which are incidental, subordinate or related thereto or appropriate in connection therewith in accordance with and subject to the provisions of the Act. All of such activity shall be done on behalf of the City as to institutions located within its corporate limits, and on behalf of other municipalities within the State or to institutions located within their respective corporate limits, all as their duly constituted authority and instrumentality, respectively The Corporation shall have and may exercise all powers granted under the Act, except as such powers are limited by these Articles of Incorporation or by the bylaws of the Corporation. ARTICLE V The Corporation shall have no members and is a nonstoek corporation. ARTICLE VI The street address of the initial registered office of the Corporation is 3800 University Blvd., Dallas, Texas 75205, and the name of the initial registered agent at such address is Leland D Nelson. 0 oa0M ARTICLE VII All powers of the Corporation shall be vested in a board of directors consisting of not less than seven nor more than eleven directors, as may be fixed by the bylaws of the Corporation, each of whom shall be appointed by the governing body of the City. Each director shall serve for a term of two years or until his or her successor is appointed by the governing body of the City. No officer or employee of the City is eligible for appointment as a director. Directors are not entitled to compensation for services but are entitled to reimbursement for expenses incurred in performing such services. Any director may be removed from office at any time, with or without cause, by written ordinance of the governing body of the City All vacancies, from whatever cause, shall be filled by the governing body of the City. ARTICLE VIII All matters pertaining to the internal affairs of the Corporation shall be governed by the bylaws of the Corporation, so long as such bylaws are not inconsistent with these Articles of Incorporation or with the Act. ARTICLE IX The number of directors constituting the initial board of directors is seven. The names and addresses of the initial directors are. NAME: ADDRESS. Thomas Max Nygaard James B. Gardner Frank C Carter Alex Bul Martin C Cude, Jr. Trevor W Rees-Jones Ronald J Case 7022 Hunters Glen, Dallas, Texas 75205 3408 Caruth, Dallas, Texas 75225 3936 Marquette, Dallas, Texas 75225 3016 Bryn Mawr, Dallas, Texas 75225 4415 Normandy, Dallas, Texas 75205 3615 Centenary 3836 Caruth, Dallas, Texas 75225 ARTICLE X The names and street addresses of the incorporators are NAME: Thomas Max Nygaard James B Gardner Frank C Carter DO aOm ADDRESS. 7022 Hunters Glen, Dallas, Texas 75205 3408 Caruth, Dallas, Texas 75225 3936 Marquette, Dallas, Texas 7.5225 -C) - ARTICLE SCI On November 9, 1985, the governing body of the City duly adopted an ordinance ordering the creation of the Corporation, approving the form of these Articles of Incorporation, and authorizing the Corporation to act on its behalf and as its duly constituted authority and instrumentality to further the public purposes provided in the Act, in the ordinance and in these Articles of Incorporation. ARTICLE XII These Articles of Incorporation may at any time and from time to time be amended by either of the following methods: (1) the members of the board of directors of the Corporation may file with the governing body of the City a written application seeking permission to amend these Articles of Incorporation, specifying in such application the amendment proposed to be made, and if the governing body finds and determines that it is advisable that the proposed amendment be made and approves the form and substance of the amendment and authorizes the same to be made, then the board of directors of the Corporation may amend these Articles of Incorporation by adopting such amendment and delivering articles of amendment to the Secretary of State, or (2) the governing body of the City may, in its sole discretion, and at any time, adopt an amendment to these Articles of Incorporation and direct the board of directors to amend the same whereupon the board of directors shall amend the same by filing articles of amendment with the Secretary of State. ARTICLE XIII The Corporation shall be a nonprofit corporation, and no part of its net earnings remaining after payment of its expenses, bonds or other obligations shall ever inure to the benefit of any individual, firm or corporation, except that in the event sufficient provision has been made for the full payment of the expenses, bonds and other obligations of the Corporation, then any net earnings of the Corporation thereafter accruing and, arising from activities within the corporate limits of the City shall be paid to the City Any net earnings of the Corporation thereafter accruing and arising from activities within other municipalities shall be paid to the appropriate municipalities, respectively No part of the Corporation's activities shall be carrying on propaganda, or otherwise attempting to influence legislation, and it shall not participate or intervene in (including the publishing or distributing of statements) any political campaign on behalf of or in opposition to any candidate for public office. 11 ARTICLE XIV (a) - In addition to the power to amend these Articles of Incorporation, as provided elsewhere herein, the governing body of the City may, in its sole 46 discretion, and at any time, alter or change the structure, organization, programs, or activities of the Corporation or terminate and dissolve the Corporation, subject only to any (imitations provided by the respective constitutions and laws of the State of Texas or of the United States prohibiting the impairment of contracts entered into by the Corporation. 0080H -3- (b) If the board of directors shall determine that the purposes for which the corporation was formed have been substantially accomplished and that all expenses, bonds and other obligations theretofore issued or incurred by the Corporation have been fully paid or payment provided for, the members of the board of directors shall, upon receipt of the approval of the governing body of the City, thereupon dissolve the Corporation in the manner provided by law subject to the same limitations provided in paragraph (a) of this Article XIV pertaining to dissolution :directed by the City. (c) If the Corporation ever should be dissolved, whether instituted by the governing body of, the City or by the board of directors, all interests in any funds or property of any kind, real, personal or mixed, shall be transferred and delivered to the City, after satisfaction has been made of all debts and claims against the Corporation. (d) The initial bylaws of the Corporation and all amendments thereto, substitutes therefor, and repeals thereof shall be subject to the approval of the governing body of the City. ARTICLE XV No obligations issued by the Corporation shall constitute an obligation of the City or other municipality or shall create any indebtedness or liability, or be a special, general or moral obligation of the City or other municipality, and all obligations issued by the Authority shall contain a statement to such effect. IN WITNESS WHEREOF, we have hereunto set our hands this 1985 Incorporator Incorporator Incorporator 009034 -4- CITY MANAGER-CLERK'S CERTIFICATE • THE UNDERSIGNED, City Manager-Clerk of the City of University Park, Texas, hereby certifies that pursuant to the specific provisions of Section 53 35(b), Texas Education Code, as amended, the referenced Corporation was ordered created by the Board of Commissioners, the governing body, of the City on the date stated in Article XI of the above and foregoing Articles of Incorporation pursuant to the. ordinance 'therein described, that the Articles of Incorporation are those which were approved by the ordinance, and that a true and correct copy of the ordinance is on file among the permanent records of the Board of Commissioners and City TO CERTIFY WHICH, witness my hand and the seal of the City this November , 1985 City Manager-Clerk, City of University Park, Texas (SEAL) ooeox -7- STATE OF TEXAS § COUNTY OF DALLAS § I, the undersigned, a Notary Public of the State of Texas, do hereby certify that on this day of November, 1985, personally appeared before me Thomas Max Nygaard who, being by me first duly sworn, declared that he is the person who signed the foregoing document as an incorporator and that the statements therein contained are true. IN WITNESS WHEREOF, I have hereunto set my hand and seal the date and year above written. Notary Public, State of Texas My Commission Expires: [SEAL) STATE OF TEXAS § COUNTY OF DALLAS § I, the undersigned, a Notary Public of the State of Texas, do hereby certify that on this day of November, 1985, personally appeared before me James B Gardner who, being by me first duly sworn, declared that he is the person who signed the foregoing document as an incorporator and that the statements therein contained are true. IN WITNESS WHEREOF, I have hereunto set my hand and seal the date and year above written. Notary Public, State of Texas 41 My Commission Expires. [SEAL] O0a0H STATE OF TEXAS ? COUNTY OF DALLAS § I, the undersigned, a Notary Public of the State of Texas, do hereby certify that on this day of November, 1985, personally appeared before me Frank C Carter who, being by me first duly sworn, declared that he is the person who signed the foregoing document as an incorporator and that the statements therein contained are true IN WITNESS WHEREOF, I have hereunto set my hand and seal the date and year above written. Notary Public, State of Texas My Commission Expires: [SEAL] 00a0)1 -7- ARTICLES OF INCORPORATION OF TEXAS HIGHER EDUCATION AUTHORITY, INC. Pursuant to Section 53.35(b), Texas Education Code, as amended (the "Act"), we, the undersigned natural persons, acting on behalf of and as directed and ordered by the City of University Park, Texas (the "City"), and acting on behalf of other municipalities from time to time, as incorporators of a nonprofit corporation under the Act, do hereby adopt the following Articles of Incorporation therefor- ARTICLE I INC. The name of the corporation is TEXAS NIGHER EDUCATION AUTHORITY, ARTICLE II The Corporation is a nonprofit corporation created under the Act by order of the governing body of the City pursuant to the Act. ARTICLE III The duration of the Corporation is perpetual, subject to dissolution as herein provided. ARTICLE IV The Corporation is organized solely and exclusively for the purpose of aiding nonprofit institutions of higher education located within the City and within other municipalities within the State of Texas in providing educational facilities and housing facilities and facilities which are incidental, subordinate or related thereto or appropriate in connection therewith in accordance with and subject to the provisions of the Act All of such activity shall be done on behalf of the City as to institutions located within its corporate limits, and on behalf of other municipalities within the 'State or to institutions located within their respective corporate limits, all as their duly constituted authority and instrumentality, respectively The ;Corporation shall have and may exercise all powers granted under the Act, except as such powers are limited by these Articles of Incorporation or by the bylaws of the Corporation. ARTICLE, V The Corporation shall have no members and is a nonstock corporation. ARTICLE VI The street address of the initial registered office of the Corporation is 3800 University Blvd , Dallas, Texas 75205, and the name of the initial registered agent at such address is Leland D Nelson. 0 0a0H ARTICLE VI LOANS Section 6.01. Terms and Conditions of Loans. The Authority shall loan funds to Borrowers to finance or refinance the cost of, or reimburse the cost of Facilities and enter into Loan Agreements on the terms and conditions and upon submission of the documents contained in this Article VI and not otherwise. Section 6.02. Restrictions on Program. The following restrictions shall apply to Loans made by the Authority hereunder: ' (a) No Loan shall be made unless the Trustee receives an opinion of Bond Counsel to the effect that the Loan is authorized by the Indenture, the Articles of Incorporation, Bylaws and any local regulation of the Authority and the Act, and, based upon representations wade to the Bond Counsel, the making of the Loan will not cause the interest on the Bonds to become subject to federal income taxation. (b) The Trustee shall not on behalf of the Authority accept a Loan Agreement with a Borrower or disburse Bond proceeds therefor unless the Trustee receives a Bond Insurer Letter and the Borrower delivers to the Trustee any Collateral Documents and other security required by the Bond Insurer Letter which are approved by the Bond Insurer. Section 6.03. The Program Administrator. In order to further the Program, the Authority hereby authorizes and directs the Program Administrator to conduct studies on an ongoing basis to determine future Program Loan demand, and file quarterly written reports with the Issuer specifying (i) the Borrowers to whom Loans were made during the preceding quarter and the amounts of such Loans, (ii) the facilities or expenditures financed by each Loan during the preceding quarter; (iii) the rates on the Bonds during the preceding quarter and comparisons with the rates on other means of financing available to finance the facilities and expenditures financed by such Loan; (iv) the results of ongoing studies concerning future Program Loan demand; and (v) applications currently in process for such Loans and the status' of each application. The Authority directs the Program Administrator to coordinate between the Bond Insurer and each Borrower with respect to processing each Loan. The Program Administrator and the Bond Counsel shall be compensated for the services that they are required to perform under this Indenture through the payment by the -96- ARTICLE VII 4 All powers of the Corporation shall be vested in a board of directors consisting of not less than seven nor more than eleven directors, as may be fixed by the bylaws of the Corporation, each of whom shall be appointed by the governing body of the City. Each director shall serve for a term of two years or until his or her successor is appointed by the governing body of the City No officer or employee of the City is eligible for appointment as a director. Directors are not entitled to compensation for services but are entitled to reimbursement for expenses incurred in performing such services. Any director may be removed from office at any time, with or without cause, by written ordinance of the governing body of the City. All vacancies, from whatever cause, shall be filled by the governing body of the City. ARTICLE VIII All matters pertaining to the internal affairs of the Corporation shall be governed by the bylaws of the Corporation, so long as such bylaws are not inconsistent' with these Articles of Incorporation or with the Act. ARTICLE IX The number of directors constituting the initial board of directors is seven. The names and addresses of the initial directors are. 0 NAME: Thomas Max, Nygaard 7022 James B. Gardner 3408 Frank C Carter 3936 Alex Bul 3016 Martin C Cude, Jr 4415 Trevor W Rees-Jones 3615 Ronald J Case 3836 ADDRESS. Hunters Glen, Dallas, Texas 75205 Caruth, Dallas, Texas 75225 Marquette, Dallas, Texas 7.5225 Bryn Mawr, Dallas, Texas 7522.5 Normandy, Dallas, Texas 75205 Centenary Caruth, Dallas, Texas 75225 ARTICLE X The names and street addresses of the incorporators are NAME. Thomas Max Nygaard • James 13 Gardner Frank C Carter 0080" ADDRESS. 7022 Hunters Glen, Dallas, Texas 75205 3408 Caruth, Dallas, Texas 75225 3936 Marquette, I)allas, Texas 7-622 (1) That this City hereby requests the Authority to act on its behalf and as its duly constituted authority and instrumentality in making funds available under the Program to finance educational facilities authorized by the Act for the Local Institution, and this City hereby requests and approves the issuance of the Bonds by the Authority and approves the inclusion therein of the amounts requested by the Local Institution, and this City authorizes the use of such funds for the purposes of the Local Institution and other institutions of higher education within this State located within cities on whose behalf the Authority is acting in accordance with the terms and requirements of the Program as developed, defined and from time to time implemented by the Authority; (2) That this City approves the Articles of Incorporation of the Authority, attached hereto as Exhibit A, and adopts the terms thereof, except that no amendment thereto shall be effective as to this City unless the amendment is acceptable to this City; (3) That this resolution constitutes an interlocal agreement between this City and all other cities on whose behalf the Authority is created and is acting, and the Authority is authorized to continue to implement the Program within this City for the benefit of the Local Institution and any other institutions of higher education located within this City on a year-to-year basis unless terminated as to this City by its giving of notice to the Authority that from and after a date specified in the notice no further activities of the Authority shall be conducted within the corporate boundaries of this City; • (4) No obligation issued as created by the Authority shall ever create an obligation of this City nor shall create any indebtedness or liability, or be a special, general or moral obligation of this City, and all obligations issued by the Authority shall contain a statement to such effect. This Resolution shall take effect immediately from and after its adoption. PASSED AND APPROVED this , 1985. ATTEST: Attesting Officer [SEAL] Presiding Officer 1032M Exhibit B INDEMNIFICATION AGREEMENT This Indemnification Agreement, dated as of April 1, 1986, by and between the City of Fort Worth, Texas ( the "City") and Shearson Lehman Brothers, Inc., E. F. Hutton & Company Inc, and MBank Capital Markets (collectively, the "Underwriters") W I T N E S S E T H: WHEREAS, the City has been approached by Texas Wesleyan College to authorize the Texas Higher Education Authority, Inc. (the "Authority") to act on behalf of the City and loan moneys to said College for eligible project costs; and WHEREAS, on December 24, 1985, the Authority delivered its Floating Rate Weekly Demand Educational Facilities Revenue Bonds, Series 1985A and 1985B, aggregating $175,000,000 in principal amount, to the Underwriters; and WHEREAS, the Underwriters agreed to indemnify the Authority and the City of University Park, Texas, from certain acts relating to the sale and delivery of said Bonds; and WHEREAS, as a condition for the City to authorize the Authority to act on its behalf, it is the intent of the parties to provide the City with similar rights of indemnification. NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: Section 1. That in consideration of the City authorizing the Authority to loan moneys to said College from the proceeds of said Bonds, the Underwriters jointly and severally agree to indemnify the City in the manner herein provided. Section 2. That the Underwriters hereby jointly and severally release and shall defend and hold the City, its officers and employees, and each of the members of its governing body harmless from any tax, penalty, fine, cost, expense, loss, damage, or other liability or claim (including attorneys' fees, litigation and court costs, and other expenses of the defense thereof and amounts paid in settlement or to discharge judg- ments) incurred by or asserted against the City as a result of any action or omission by the Authority, or any agent of the Authority, to the extent attributable to the issuance of said Bonds by the Authority and the loan to Texas Wesleyan College from the proceeds of said Bonds, or as a result of any action of omission of Texas Wesleyan College in the design, construction, installation, equipping, furnishing, operation, use, occupancy, insurance, maintenance, or ownership of any facilities financed by said College by the aforementioned loan. The Underwriters may, and if requested in writing by the City shall, undertake the defense of any claim, action, or proceeding for the City, r 1'• k and thereafter, the Underwriters shall not be liable to the City for any legal or other expenses other than costs subsequently incurred by the City at the request of the Underwriters in connection with the defense thereof. The City shall give prompt notice of any claim, action, or proceeding against it upon which it may seek indemnity hereunder. IN WITNESS WHEREOF, the City has executed this Agreement in its corporate name with its corporate seal hereunto affixed and attested and approved as to legality by its duly authorized officers and the Underwriters have caused this Agreement to be executed in their respective corporate names by their respective duly authorized officers, all as of the date first written above. CITY OF FORT WORTH, TEXAS (SEAL) ATTEST: City Secretary BY: APPROVED-AS TO FORM AND LEGALITY: City Attorney SHEARSON LEHMAN BROTHERS, INC. BY: E. F. HUTTON & COMPANY INC. BY: MBANR CAPITAL MARKETS BY: City Manager r'