HomeMy WebLinkAboutOrdinance 19925-09-2011THE STATE OF TEXAS
COUNTIES OF TARRANT AND DENTON
CITY OF FORT WORTH
On the 27th day of September, 2011, the City Council of the City of Fort Worth, Texas, met
in regular, open, public meeting in the City Council Chamber in the City Hall with the following
members present, to -wit:
Betsy Price, Mayor
Salvador Espino,
W.B. "Zim" Zimmerman
Danny Scarth,
Frank Moss,
Jungus Jordan, Councilmembers,
Dennis Shingleton,
Kathleen Hicks,
Joel Burns,
Tom Higgins, Interim City Manager,
Sarah Fullenwider, City Attorney,
Marty Hendrix, City Secretary,
Lena Ellis, � Financial Management Services
� VJ- Director and Chief Financial Officer
with_= absent, thus constituting more than a quorum resent and d after the City Council
had transacted certain business, the following business was transacted, to -wit:
Councilmember �� r ��
re introduced an ordinance and moved its passage. The motion was
M r Ya jerr,
seconded by Cej4e4ffmfflbw ZJ lrm`r T The ordinance was read by the City Secretary. The motion,
carrying with it the passage of the ordinance prevailed by a vote of 7 YEAS, -0— NAYS. The
ordinance as passed is as follows:
ORDINANCE NO. I4 2011
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF CITY OF
FORT WORTH, TEXAS DRAINAGE UTILITY SYSTEM REVENUE
BONDS, SERIES 2011; AND ORDAINING ALL OTHER MATTERS
RELATED THERETO
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, PARKER AND WISE
CITY OF FORT WORTH
WHEREAS, the City of Fort Worth, Texas (the "City" or the "Issuer "), is a "home- rule"
city operating under a home -rule charter adopted pursuant to Section 5 of Article XI of the Texas
Constitution, with a population according to the latest federal decennial census of in excess of
50,000; and
WHEREAS, the City is authorized by the Municipal Drainage Utility Systems Act,
Subchapter C, Chapter 552, Texas Local Government Code (formerly codified at Subchapter C,
Chapter 402, Texas Local Government Code) (the "Act "), to establish a municipal drainage
utility system and to issue bonds of the City for this purpose; and
WHEREAS, on January 24, 2006, in accordance with the provisions of the Act, the City
Council of the City adopted an ordinance whereunder the City adopted to apply the provisions of
the Act to the City and which further declared that the drainage of the City was a public utility;
and
WHEREAS, on March 7, 2006, in accordance with the provisions of the Act, the City
Council of the City adopted an ordinance whereunder the City adopted drainage charges
applicable for the availability and use of the municipal drainage utility system; and
WHEREAS, the City has previously issued its City of Fort Worth, Texas Drainage Utility
System Revenue Bonds, Series 2007, in the aggregate principal amount of $24,430,000 (the
"Series 2007 Bonds ") and its City of Fort Worth, Texas Drainage Utility System Revenue Bonds,
Series 2009, in the aggregate principal amount of $45,190,000 (the "Series 2009 Bonds ", and
together with the Series 2007 Bonds, the "Outstanding Parity Bonds "); and
WHEREAS, in the ordinance authorizing the Series 2007 Bonds, the City reserved the
right to issue additional bonds on a parity with the Outstanding Parity Bonds, for the purpose of
acquiring, constructing, improving, enlarging and repairing all or a part of the municipal
drainage utility system located in the City; and
WHEREAS, the City Council considers it in the best interest of the City to issue bonds
pursuant to the laws of the State of Texas, including, without limitation, the Act, on a parity with
the Outstanding Parity Bonds, for the purpose of acquiring, constructing, improving, enlarging
and repairing all or a part of the municipal drainage utility system located in the City;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FORT WORTH, TEXAS:
Section 1. BONDS AUTHORIZED. That the City's bonds (the "Bonds ") are hereby
authorized to be issued in the aggregate principal amount of $78,325,000 for the purpose of (i)
acquiring, constructing, improving, enlarging and repairing all or part of the facilities which
constitute the City's drainage utility system, and (ii) paying costs of issuance incurred in
connection with the issuance of the Bonds. The Bonds shall be designated as the "City of Fort
Worth, Texas Drainage Utility System Revenue Bonds, Series 2011 ". The Bonds constitute
the second series of "Parity Bonds" issued or incurred in accordance with the terms and
conditions as set forth in this Ordinance.
Section 2. DATES AND MATURITIES. That the Bonds shall be dated October 1,
2011, shall be in the denomination of $5,000 or any integral multiple thereof (an Authorized
Denomination "), shall be numbered consecutively from R -1 upward, and shall mature on the
maturity date, in each of the years, and in the amounts, respectively, as set forth in Schedule I.
Section 3. RIGHT OF PRIOR REDEMPTION. That the City reserves the right to
redeem the Bonds in the manner, on the dates, and in the amounts described in the FORM OF
BOND set forth in Exhibit A to this Ordinance. In addition, notice of such redemption shall be
provided in the manner described in the FORM OF BOND set forth in Exhibit A to this
Ordinance, and as provided in Section 5(e) hereof, but the failure to provide such notice as
described in Section 5(e) hereof shall not affect the validity or effectiveness of the proceedings
for the redemption of the Bonds. The City also reserves the right to rescind and cancel a
redemption of the Bonds, in the manner described in the FORM OF BOND set forth in Exhibit A
to this Ordinance.
Section 4. INTEREST. That the Bonds shall bear interest at the rates per annum set
forth in Schedule I. The interest on the Bonds shall be payable to the registered owner of any
such Bond on the dates and in the manner provided in the FORM OF BOND set forth in Exhibit
A to this Ordinance. Interest shall be calculated on the basis of a 360 -day year consisting of
twelve 30 -day months.
Section 5. PAYING AGENT/REGISTRAR; BOOK -ENTRY ONLY SYSTEM. (a)
Registration. Transfer Conversion and Exchanize. Authentication. That the City shall keep or
cause to be kept at the designated corporate trust office of Bank of Texas, N.A. (the "Paying
Agent/Registrar "), books or records for the registration of the transfer, conversion and exchange
of the Bonds (the "Registration Books "), and the City hereby appoints the Paying
Agent/Registrar as its registrar and transfer agent to keep such books or records and make such
registrations of transfers, conversions and exchanges under such reasonable regulations as the
City and the Paying Agent/Registrar may prescribe; and the Paying Agent/Registrar shall make
such registrations, transfers, conversions and exchanges as herein provided. The Paying
Agent/Registrar shall obtain and record in the Registration Books the address of the owner of
each Bond to which payments with respect to the Bonds shall be mailed, as herein provided; but
it shall be the duty of each owner to notify the Paying Agent/Registrar in writing of the address
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to which payments shall be mailed, and such interest payments shall not be mailed unless such
notice has been given. The City shall have the right to inspect at the Designated Trust Office the
Registration Books during regular business hours of the Paying Agent/Registrar, but otherwise
the Paying Agent/Registrar shall keep the Registration Books confidential and, unless otherwise
required by law, shall not permit their inspection by any other entity. Except as otherwise
provided in the FORM OF BOND, the owner of each Bond requesting a conversion, transfer,
exchange and delivery of such Bond shall pay the Paying Agent/Registrar's standard or
customary fees and charges for making such registration, transfer, conversion, exchange and
delivery of a substitute Bond or Bonds. Registration of assignments, transfers, conversions and
exchanges of Bonds shall be made in the manner provided and with the effect stated in the in the
FORM OF BOND. Each substitute Bond shall bear a letter and/or number to distinguish it from
each other Bond. An authorized representative of the Paying Agent/Registrar shall, before the
delivery of any such Bond, date and manually sign the "Paying Agent/Registrar's Authentication
Certificate" in the form set forth in the FORM OF BOND (the "Authentication Certificate "), and,
except as provided below, no such Bond shall be deemed to be issued or Outstanding unless the
Authentication Certificate is so executed; the foregoing notwithstanding, the Authentication
Certificate need not be executed if any such Bond is accompanied by an executed "Comptroller's
Registration Certificate" in the form set forth in the FORM OF BOND. The Paying
Agent/Registrar promptly shall cancel all paid Bonds and Bonds surrendered for conversion and
exchange. No additional ordinances, orders, or resolutions need be passed or adopted by the
governing body of the City or any other body or person so as to accomplish the foregoing
conversion and exchange of any Bond or portion thereof, and the Paying Agent/Registrar shall
provide for the printing, execution, and delivery of the substitute Bonds in the manner prescribed
herein. Pursuant to Chapter 1206, Texas Government Code, the duty of conversion and
exchange of Bonds as aforesaid is hereby imposed upon the Paying Agent/Registrar, and, upon
the execution of the Authentication Certificate, the converted and exchanged Bond shall be valid,
incontestable, and enforceable in the same manner and with the same effect as the Bonds which
initially were issued and delivered pursuant to this Ordinance, approved by the Attorney General,
and registered by the Comptroller of Public Accounts. As of the date this Ordinance is approved
by the City, the Designated Trust Office is the Houston, Texas corporate trust office of Bank of
Texas, N.A. In connection with the delivery of the Bonds, the execution of a paying
agent/registrar agreement with Bank of Texas, N.A., in substantially the form attached to this
Ordinance, is hereby authorized.
(b) Payment of Bonds and Interest. The City hereby further appoints the Paying
Agent/Registrar to act as the paying agent for paying the principal of, premium, if any, and
interest on the Bonds, all as provided in this Ordinance. The Paying Agent/Registrar shall keep
proper records of all payments made by the City and the Paying Agent/Registrar with respect to
the Bonds.
(c) In General. The Bonds (i) shall be issued in fully registered form, without interest
coupons, with the principal of and interest on such Bonds to be payable only to the registered
owners thereof, (ii) may be redeemed prior to their scheduled maturities, (iii) may be transferred
and assigned, (iv) may be converted and exchanged for other Bonds, (v) shall have the
characteristics, (vi) shall be signed, sealed, executed and authenticated, (vii) shall be payable,
and (viii) shall be administered and the Paying Agent/Registrar and the City shall have certain
duties and responsibilities with respect to the Bonds, all as provided, and in the manner and to
the effect as required or indicated, in the FORM OF BOND. The Bonds initially issued and
delivered to the Purchaser pursuant to this Ordinance are not required to be, and shall not be,
authenticated by the Paying Agent/Registrar, but on each substitute Bond issued in conversion of
and exchange for any Bond or Bonds issued under this Ordinance the Paying Agent/Registrar
shall execute the Authentication Certificate.
(d) Substitute Paying Agent/Registrar. The City covenants with the owners of the Bonds
that at all times while the Bonds are Outstanding a competent and legally qualified entity shall
act as and perform the services of Paying Agent/Registrar for the Bonds under this Ordinance,
and that the Paying Agent/Registrar will be one entity. Such entity may be the City, to the extent
permitted by law, or a bank, trust company, financial institution, or other agency, as selected by
the City. The City reserves the right to, and may, at its option, change the Paying
Agent/Registrar upon not less than one hundred and twenty (120) days written notice to the
Paying Agent/Registrar, to be effective not later than sixty (60) 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 City covenants that promptly it will appoint a competent and
legally qualified 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 Bonds, to the new Paying Agent/Registrar designated and appointed by
the City. Upon any change in the Paying Agent/Registrar, the City promptly will cause a written
notice thereof to be sent by the new Paying Agent/Registrar to each owner of the Bonds, by
United States mail, first -class postage prepaid, which notice also shall give the address of the
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.
(e) Additional Notice of Redemption. (i) In addition to the manner of providing notice
of redemption of Bonds as set forth in Section 3 hereof, the Paying Agent/Registrar shall give
notice of redemption of Bonds by United States mail, first -class postage prepaid, at least thirty
(30) days prior to a redemption date to the MSRB. In addition, in the event of a redemption
caused by an advance refunding of the Bonds, the Paying Agent/Registrar shall send a second
notice of redemption to the persons specified in the immediately preceding sentence at least
thirty (30) days but not more than ninety (90) days prior to the actual redemption date. Any
notice sent to the MSRB shall be sent so that such notice is received at least two (2) days prior to
the general mailing or publication date of such notice. The Paying Agent/Registrar shall also
send a notice of redemption to the registered owner of any Bonds who has not sent the Bonds in
for redemption sixty (60) days after the redemption date. The failure to send, mail or receive any
such notice described in this clause (i), or any defect therein or in the sending or mailing thereof,
shall not affect the validity or effectiveness of the proceedings for the redemption of any Bond.
(ii) Each redemption notice, whether required in the FORM OF BOND or otherwise
by this Ordinance, shall contain a description of the Bonds to be redeemed including the
complete name of the Bonds, the series, the date of issue, the interest rate, the maturity date, the
CUSIP number, the amounts called of each Bond, the publication and mailing date for the notice,
the date of redemption, the redemption price, the name of the Paying Agent/Registrar and the
address at which the Bond may be redeemed including a contact person and telephone number.
(iii) All redemption payments made by the Paying Agent/Registrar to the registered
owners of the Bonds shall include a CUSIP number relating to each amount paid to such
registered owner.
(f) DTC Book - Entry -Only System of Registration. The Bonds initially shall be issued
and delivered in such manner that no physical distribution of the Bonds will be made to the
public, and DTC initially will act as depository for the Bonds. DTC has represented to the City
that it is a limited purpose trust company incorporated under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the meaning of the
New York Uniform Commercial Code, and a "clearing agency" registered under Section 17A of
the Securities Exchange Act of 1934, as amended, and the City accepts, but in no way verifies,
such representations. The definitive Bonds delivered to the Purchaser may be registered in the
name of CEDE & CO., the nominee of DTC. So long as each Bond is registered in the name of
CEDE & CO., the Paying Agent/Registrar shall treat and deal with DTC the same in all respects
as if it were the actual and beneficial owner thereof. DTC may maintain a book -entry system
which will identify ownership of the Bonds in Authorized Denominations, with transfers of
ownership being effected on the records of DTC and its participant pursuant to rules and
regulations established by them, and that the Bonds deposited with DTC shall be immobilized
and not be further exchanged for substitute Bonds except as hereinafter provided. The City is
not responsible or liable for any functions of DTC, will not be responsible for paying any fees or
charges with respect to its services, will not be responsible or liable for maintaining, supervising,
or reviewing the records of DTC or its participants, or protecting any interests or rights of the
beneficial owners of the Bonds. The City does not represent, nor does it in any way covenant
that the initial book -entry system established with DTC will be maintained in the future. If for
any reason any of the originally delivered Bonds is duly filed with the Paying Agent/Registrar
with proper request for transfer and substitution, as provided for in this Ordinance, substitute
Bonds will be duly delivered as provided in this Ordinance, and there will be no assurance or
representation that any book -entry system will be maintained for the Bonds. Should there be
established a book -entry system with DTC in respect to the Bonds, the City heretofore has
executed a 'Blanket Letter of Representations" prepared by DTC in order to implement the
book -entry system described above.
Section 6. FORM OF BONDS. That the form of all Bonds, including the form of the
Authentication Certificate, the form of Assignment, and the form of the Comptroller's
Registration Certificate to accompany the Bonds on the initial delivery thereof, shall be,
respectively, substantially in the forms as set forth in Exhibit A to this Ordinance, with such
appropriate variations, omissions, or insertions as are permitted or required by this Ordinance.
Section 7. DEFINITIONS. That, as used in this Ordinance, the following terms shall
have the meanings set forth below, unless the text hereof specifically indicates otherwise:
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"Accountant" means a nationally recognized independent certified public accountant, or
an independent firm of certified public accountants.
"Act" means Subchapter C, Chapter 552, Texas Local Government Code.
"Additional Bonds" shall mean the additional bonds which the City reserves the right to
issue in the future as Parity Bonds, as provided in this Ordinance.
"Amortization Installment ", with respect to the Bonds so designated in Section 2 of this
Ordinance and any Term Bonds of any Additional Bonds, shall mean the amount of money
which is required to be deposited into the Mandatory Redemption Account referred to in Section
10 hereof for retirement of such Term Bonds (whether at maturity or by mandatory redemption
and including redemption premium, if any) provided that the total Amortization Installments for
such Term Bonds shall be sufficient to provide for retirement of the aggregate principal amount
of such Term Bonds.
"Annual Debt Service Requirements" means, for any Fiscal Year, the principal of and
interest on all Parity Bonds coming due at Maturity or Stated Maturity (or that could come due
on demand of the owner thereof other than by acceleration or other demand conditioned upon
default by the City on such Debt, or be payable in respect of any required purchase of such Debt
by the City) in such Fiscal Year, and, for such purposes, any one or more of the following rules
shall apply at the election of the City:
(1) Committed Take Out. If the City has entered into a Credit Agreement
constituting a binding commitment within normal commercial practice to discharge any
of its Funded Debt at its Stated Maturity (or, if due on demand, at any date on which
demand may be made) or to purchase any of its Funded Debt at any date on which such
Debt is subject to required purchase, all under arrangements whereby the City's
obligation to repay the amounts advanced for such discharge or purchase constitutes
Funded Debt, then the portion of the Funded Debt committed to be discharged or
purchased shall be excluded from such calculation and the principal of and interest on the
Funded Debt incurred for such discharging or purchase that would be due in the Fiscal
Year for which the calculation is being made, if incurred at the Stated Maturity or
purchase date of the Funded Debt to be discharged or purchased, shall be added;
(2) Balloon Debt. If the principal (including the accretion of interest resulting
from original issue discount or compounding of interest) of any series or issue of Funded
Debt due (or payable in respect of any required purchase of such Funded Debt by the
City) in any Fiscal Year either is equal to at least 25% of the total principal (including the
accretion of interest resulting from original issue discount or compounding of interest) of
such Funded Debt or exceeds by more than 50% the greatest amount of principal of such
series or issue of Funded Debt due in any preceding or succeeding Fiscal Year (such
principal due in such Fiscal Year for such series or issue of Funded Debt being referred to
herein as "Balloon Debt "), the amount of principal of such Balloon Debt taken into
account during any Fiscal Year shall be equal to the debt service calculated using the
original principal amount of such Balloon Debt amortized over the Term of Issue on a
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level debt service basis at an assumed interest rate equal to the rate borne by such Balloon
Debt on the date of calculation;
(3) Consent Sinking Fund. In the case of Balloon Debt (as defined in clause (2)
above), if a Designated Financial Officer shall deliver to the City an Officer's Certificate
providing for the retirement of (and the instrument creating such Balloon Debt shall
permit the retirement of), or for the accumulation of a sinking fund for (and the
instrument creating such Balloon Debt shall permit the accumulation of a sinking fund
for), such Balloon Debt according to a fixed schedule stated in such Officer's Certificate
ending on or before the Fiscal Year in which such principal (and premium, if any) is due,
then the principal of (and, in the case of retirement, or to the extent provided for by the
sinking fund accumulation, the premium, if any, and interest and other debt service
charges on) such Balloon Debt shall be computed as if the same were due in accordance
with such schedule, provided that this clause (3) shall apply only to Balloon Debt for
which the installments previously scheduled have been paid or deposited to the sinking
fund established with respect to such Debt on or before the times required by such
schedule; and provided further that this clause (3) shall not apply where the City has
elected to apply the rule set forth in clause (2) above;
(4) Pre aid Debt. Principal of and interest on Parity Bonds, or portions thereof,
shall not be included in the computation of the Annual Debt Service Requirements for
any Fiscal Year for which such principal or interest are payable from funds on deposit or
set aside in trust for the payment thereof at the time of such calculations (including
without limitation capitalized interest and accrued interest so deposited or set aside in
trust) with a financial institution acting as fiduciary with respect to the payment of such
Debt;
(5) Variable Rate. As to any Parity Bond that bears interest at a variable interest
rate which cannot be ascertained at the time of calculation of the Annual Debt Service
Requirement then, at the option of the City, either (1) an interest rate equal to the average
rate borne by such Parity Bonds (or by comparable debt in the event that such Parity
Bonds has not been outstanding during the preceding 24 months) for any 24 month period
ending within 30 days prior to the date of calculation, or (2) an interest rate equal to the
20 -year Tax- Exempt Revenue Bond Index (as most recently published in The Bond
Buyer), shall be presumed to apply for all future dates, unless such index is no longer
published in The Bond Bu, , in which case an index of tax- exempt revenue bonds with
maturities of at least 20 years which is published in a newspaper or journal with national
circulation may be used for this purpose. If two Series of Parity Bonds which bear
interest at variable interest rates, or one or more maturities within a Series, of equal par
amounts, are issued simultaneously with inverse floating interest rates providing a
composite fixed interest rate for such Parity Bonds taken as a whole, such composite
fixed rate shall be used in determining the Annual Debt Service Requirement with respect
to such Parity Bonds;
(6) Guarantee. In the case of any guarantee, as described in clause (2) of the
definition of Debt, no obligation will be counted if the City does not anticipate in its
annual budget that it will make any payments on the guarantee. If, however, the City is
making payments on a guarantee or anticipates doing so in its annual budget, such
obligation shall be treated as Parity Bonds and calculations of annual debt service
requirements with respect to such guarantee shall be made assuming that the City will
make all additional payments due under the guaranteed obligation. If the entity whose
obligation is guaranteed cures all defaults and the City no longer anticipates making
payments under the guarantee, the guaranteed obligations shall not be included in the
calculation of Annual Debt Service Requirements; and
(7) Credit Agreement P ments. If the City has entered into a Credit Agreement
in connection with an issue of Debt, payments due under the Credit Agreement (other
than payments for fees and expenses), for either the City or the Credit Provider, shall be
included in such calculation, except to the extent that the payments are already taken into
account under (1) through (6) above and any payments otherwise included above under
(1) through (6) which are to be replaced by payments under a Credit Agreement, from
either the City or the Credit Provider, shall be excluded from such calculation. For
purposes of satisfying the provisions of Sections 19(a) and 19(b) of this Ordinance, the
City shall assume that for the term of the Credit Agreement, it will not receive any
payments from the counterparty thereto, and further that the City shall calculate the
amount of its payments due annually to the counterparty under the Credit Agreement
(other than payments for fees and expenses) on the basis of the percentage rate applicable
to the stated notional amount of the Credit Agreement, as such percentage rate is
determined as of the date the Credit Agreement is approved by ordinance adopted by the
City Council.
With respect to any calculation of historic data, only those payments actually made in the subject
period shall be taken into account in making such calculation and, with respect to prospective
calculations, only those payments reasonably expected to be made in the subject period shall be
taken into account in making the calculation.
"Authorized Denomination" shall have the same meaning as set forth in Section 2 hereof.
"Authorized Investments" means any and all of the authorized investments described in
the Public Funds Investment Act of 1987, Chapter 2256, Texas Government Code, provided that
such investments are at the time made included in and authorized by the City's official
investment policy approved from time to time by the City Council.
"Bond, Bonds" and "Series 2011 Bond, Bonds" shall mean one or more, as the case may
be, of the City of Fort Worth, Texas Drainage Utility System Revenue Bonds, Series 2011,
authorized to be issued by this Ordinance.
"Business Day" shall mean a day other than a Saturday, Sunday, a legal holiday, or a day
on which banking institutions are authorized by law or executive order to close in the City or the
city where the Designated Trust Office of the Paying Agent/Registrar is located.
"City" and "Issuer" shall mean the City of Fort Worth, Texas.
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"Code" shall mean the Internal Revenue Code of 1986.
"Credit Agreement" means, collectively, a loan agreement, revolving credit agreement,
agreement establishing a line of credit, letter of credit, reimbursement agreement, insurance
contract, commitments to purchase Parity Bonds, purchase or sale agreements, interest rate swap
agreements, currency exchange agreements, interest rate floor or cap agreements, or
commitments or other contracts or agreements authorized, recognized and approved by the City
as a Credit Agreement in connection with the authorization, issuance, security, or payment of
Parity Bonds and on a parity therewith.
"Credit Facility" means (i) a policy of insurance or a surety bond, issued by an issuer of
policies of insurance insuring the timely payment of debt service on governmental obligations,
provided that a Rating Agency having an outstanding rating on Parity Bonds would rate the
Parity Bonds fully insured by a standard policy issued by the issuer in its two highest generic
rating categories for such obligations; and (ii) a letter or line of credit issued by any financial
institution, provided that a Rating Agency having an outstanding rating on the Parity Bonds
would rate the parity obligations in its two highest generic rating categories for such obligations
if the letter or line of credit proposed to be issued by such financial institution secured the timely
payment of the entire principal amount of the Parity Bonds and the interest thereon; and, in any
case, no lower than the rating assigned by a Rating Agency to the Parity Bonds.
"Credit Provider" means any bank, financial institution, insurance company, surety bond
provider, or other entity which provides, executes, issues, or otherwise is a party to or provider of
a Credit Agreement.
"Debt" means all:
(1) indebtedness incurred or assumed by the City for borrowed money (including
indebtedness arising under Credit Agreements) and all other financing obligations of the
City that, in accordance with generally accepted accounting principles, are shown on the
liability side of a balance sheet;
(2) all other indebtedness (other than indebtedness otherwise treated as Debt
hereunder) for borrowed money or for the acquisition, construction, or improvement of
property or capitalized lease obligations that is guaranteed, directly or indirectly, in any
manner by the City, or that is in effect guaranteed, directly or indirectly, by the City
through an agreement, contingent or otherwise, to purchase any such indebtedness or to
advance or supply funds for the payment or purchase of any such indebtedness or to
purchase property or services primarily for the purpose of enabling the debtor or seller to
make payment of such indebtedness, or to assure the owner of the indebtedness against
loss, or to supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether or not such property is
delivered or such services are rendered), or otherwise; and
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(3) all indebtedness secured by any mortgage, lien, charge, encumbrance, pledge
or other security interest upon property owned by the City whether or not the City has
assumed or become liable for the payment thereof.
For the purpose of determining the "Debt" of the City, there shall be excluded any particular
Debt if, upon or prior to the Maturity thereof, there shall have been deposited with the proper
depository (a) in trust the necessary funds (or investments that will provide sufficient funds, if
permitted by the instrument creating such Debt) for the payment, redemption, or satisfaction of
such Debt or (b) evidence of such Debt deposited for cancellation; and thereafter it shall not be
considered Debt. No item shall be considered Debt unless such item constitutes indebtedness
under generally accepted accounting principles applied on a basis consistent with the financial
statements prepared by or for the benefit of the City in prior Fiscal Years.
"Defeasance Securities" means (i) direct, noncallable obligations of the United States of
America, including obligations that are unconditionally guaranteed by the United States of
America, (ii) noncallable obligations of an agency or instrumentality of the United States of
America, including obligations that are unconditionally guaranteed or insured by the agency or
instrumentality and that, on the date of the purchase thereof, 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 that, on the date on the date the governing
body of the Issuer adopts or approves the proceedings authorizing the financial arrangements, are
rated as to investment quality by a nationally recognized investment rating firm not less than
AAA or its equivalent.
"Designated Financial Officer" shall mean the City Manager or the Chief Financial
Officer of the City.
hereof. "Designated Trust Office" shall have the same meaning as set forth in Section 5(a)
"DTC" shall mean The Depository Trust Company, New York, New York, or any
successor securities depository designated by the City in accordance with the provisions of
Section 5(i) hereof.
"Fiscal Year" shall mean the regular fiscal year used by the City in connection with the
operation of the System, which may be any twelve consecutive months period established by the
City.
"Funded Debt" means all Parity Bonds that mature by their terms (in the absence of the
exercise of any earlier right of demand), or are renewable at the option of the City to a date, more
than one year after the original creation, assumption, or guarantee of such Debt by the City.
"Gross Revenues of the City's Drainage Utility System" and "Gross Revenues" shall mean
all revenues, income, and receipts of every nature derived or received by the City from the
operation and ownership of the System, including the interest income from the investment or
deposit of money in any Fund created by this Ordinance, or maintained by the City in connection
with the System.
"AMC" means the Municipal Advisory Council of Texas.
"Maturity" when used with respect to any Debt means the date on which the principal of
such Debt or any installment thereof becomes due and payable as therein provided, whether at
the Stated Maturity thereof or by declaration of acceleration, call for redemption, or otherwise.
"MSRB" shall mean the Municipal Securities Rulemaking Board.
"Non Recourse Debt" means any Debt secured by a lien (other than a lien on Gross
Revenues), liability for which is effectively limited to the property subject to such lien with no
recourse, directly or indirectly, to any other property of the City attributable to the System;
provided, however, that such Debt is being incurred in connection with the acquisition of
property only, which property is not, at the time of such occurrence, owned by the City and being
used in the operations of the City.
"Officer's Certificate" means a certificate executed by a Designated Financial Officer.
"Parity Bonds" shall mean the Series 2007 Bonds, the Series 2009 Bonds, the Bonds and
all bonds and obligations issued or incurred by the City that are determined and declared by the
City Council of the City to be on a parity with the Bonds, including Additional Bonds and
obligations of the City issued or incurred under the terms of a Credit Agreement.
"Paying Agent /Registrar" shall have the meaning as set forth in Section 5(a) hereof.
"Purchase Price" shall mean the purchase price for the Bonds designated in Schedule I to
this Ordinance.
"Purchaser" shall mean the entity or entities designated in Schedule I to this Ordinance.
"Rule" shall mean SEC Rule 15c2 -12, as amended from time to time.
"SEC" shall mean the United States Securities and Exchange Commission.
"Series 2007 Bonds" and "Series 2009 Bonds" each shall have the meaning as set forth in
the preamble to this Ordinance.
"Stated Maturity" when used with respect to any Debt or any installment of interest
thereon means any date specified in the instrument evidencing or authorizing such Debt or such
installment of interest as a fixed date on which the principal of such Debt or any installment
thereof or the fixed date on which such installment of interest is due and payable.
"Subordinated Debt" or "Subordinate Obligations" means any Debt which expressly
provides that all payments thereon shall be subordinated to the timely payment of all Parity
Bonds then outstanding or subsequently issued.
"System" shall mean and include the City's drainage utility system, together with all
future extensions, improvements, enlargements, and additions thereto, and all replacements
thereof, provided that, notwithstanding the foregoing, and to the extent now or hereafter
authorized or permitted by law, the term System shall not include any facilities which are
declared not to be a part of the System and which are acquired or constructed by the City with
the proceeds from the issuance of "Special Facilities Bonds", which are hereby defined as being
special revenue obligations of the City which are not secured by or payable from the Gross
Revenues as defined herein, but which are secured by and payable solely from special contract
revenues or payments received from any other legal entity in connection with such facilities, and
thus constitute Non - Recourse Debt; and such revenues or payments shall not be considered as or
constitute Gross Revenues of the System, unless and to the extent otherwise provided in the
ordinance or ordinances authorizing the issuance of such "Special Facilities Bonds ".
"Term Bonds" means those Parity Bonds so designated in the ordinances authorizing such
bonds which shall be subject to retirement by operation of the Mandatory Redemption Account
referred to in Section 10 hereof.
"Term of Issue" means with respect to any Balloon Debt, a period of time equal to the
greater of (i) the period of time commencing on the date of issuance of such Balloon Debt and
ending on the final maturity date of such Balloon Debt or (ii) twenty -five years.
"Value of Investment Securities" and words of like import shall mean valuation at their
market value, excluding accrued interest, in accordance with the City's official investment policy
approved from time to time by the City Council.
Section 8. PLEDGE. That the Parity Bonds, and any interest payable thereon, are and
shall be secured by and payable from a first lien on and pledge of the Gross Revenues; and the
Gross Revenues are further pledged to the establishment and maintenance of the Debt Service
Fund as hereinafter provided. The Parity Bonds are and will be secured by and payable only
from the Gross Revenues, and are not secured by or payable from a mortgage or deed of trust on
any real, personal or mixed properties constituting the System.
Section 9. REVENUE FUND. That there has been created and established on the books
of the City, and accounted for separate and apart from all other funds of the City, a special
drainage utility fund entitled the "City of Fort Worth, Texas, Drainage Utility System Revenue
Fund" (hereinafter called the "Revenue Fund "). All Gross Revenues are and shall be credited to
the Revenue Fund immediately upon receipt. Monies in the Revenue Fund shall be maintained
at an official depository bank of the City.
Section 10. DEBT SERVICE FUND. (a) That for the sole purpose of paying the
principal of and interest on the Parity Bonds, as the same come due, there has been created and
established on the books of the City a separate fund entitled the "City of Fort Worth, Texas,
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Drainage Utility System Revenue Bonds Debt Service Fund" (hereinafter called the "Debt
Service Fund "). Monies in the Debt Service Fund shall be maintained at an official depository
bank of the City.
(b) That within the Debt Service Fund there is hereby established an account entitled
the "City of Fort Worth, Texas Drainage Utility System Revenue Bonds Mandatory Redemption
Account" (the "Mandatory Redemption Account "), into which shall be credited the Amortization
Installments which shall be used for the payment of the principal of Term Bonds as the same
shall come due, whether by maturity thereof or by redemption, through the operation of the
Mandatory Redemption Account.
Section 11. RESERVE FUND. That the City reserves the right to establish and fund a
reserve fund for the benefit of the owners and holders of the Parity Bonds. Any such reserve
fund so established shall be maintained in such amount as shall be determined by the City
Council, subject to the provisions of Section 24 of this Ordinance. With respect to the Bonds, no
reserve fund shall be required to be established at the time of the delivery of the Bonds.
Section 12. DEPOSITS OF GROSS REVENUES; INVESTMENTS. (a) That the
Gross Revenues shall be transferred from the Revenue Fund and deposited to the credit of the
Debt Service Fund when and as required by this Ordinance and by ordinances hereafter adopted
by the City Council of the City authorizing Parity Bonds.
(b) Moneys in any Fund or Account established pursuant to this Ordinance may, at the
option of the City, be placed or invested in Authorized Investments. The value of any such Fund
or Account shall be established by adding any money therein to the Value of Investment
Securities. The value of each such Fund or Account shall be established no less frequently than
annually as of the last Business Day of each Fiscal Year, and in any event the value of each such
Fund and Account shall be established as of the last Business Day of the month preceding the
date the City Council adopts an ordinance authorizing the issuance and delivery of Parity Bonds.
Earnings derived from the investment of moneys on deposit in the various Funds and Accounts
shall be credited to the Revenue Fund.
Section 13. FUNDS SECURED. That money in all Funds created by this Ordinance, to
the extent not invested, shall be secured in the manner prescribed by law for securing funds of
the City.
Section 14. DEBT SERVICE REQUIREMENTS. (a) That promptly after the
delivery of the Bonds the City shall cause to be deposited to the credit of the Debt Service Fund
any accrued interest received from the sale and delivery of the Bonds, and any such deposit shall
be used to pay part of the interest next coming due on the Bonds.
(b) That the City shall transfer Gross Revenues from the Revenue Fund and deposit
to the credit of the Debt Service Fund the amounts, at the times, as follows:
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(1) such amounts, deposited in approximately equal monthly installments on
or before the last Business Day of each month hereafter, commencing with the month
during which the Bonds are delivered, as will be sufficient, together with other amounts,
if any, then on hand in the Debt Service Fund and available for such purpose, to pay the
interest scheduled to accrue and come due on the Bonds on the next succeeding interest
payment date;
(2) such amounts, deposited in approximately equal monthly installments on
or before the last Business Day of each month hereafter, commencing with the month
during which the Bonds are delivered, as will be sufficient, together with other amounts,
if any, then on hand in the Debt Service Fund and available for such purpose, to pay the
principal scheduled to mature and come due on the Bonds on the next succeeding
principal payment date; and
(3) such amounts, deposited in approximately equal monthly installments on
or before the last Business Day of each month hereafter, commencing with the month
during which the Bonds are delivered, as will be sufficient, together with other amounts,
if any, then on hand in the Debt Service Fund and available for such purpose, to pay the
Amortization Installments scheduled to come due on the Bonds on the next succeeding
mandatory sinking fund redemption payment date.
Section 15. DEFICIENCIES; ADDITIONAL USES FOR GROSS REVENUES. (a)
That if on any occasion there shall not be sufficient Gross Revenues to make the required
deposits into the Debt Service Fund, then such deficiency shall be made up as soon as possible
from the next available Gross Revenues, or from any other sources available for such purpose.
(b) That, subject to making the required deposits to the credit of the Debt Service
Fund when and as required by this Ordinance, or any ordinance authorizing the issuance of
Parity Bonds, Gross Revenues may be used by the City for any lawful purpose not inconsistent
with the Act including, without limitation, paying the costs of operating and maintaining the
System.
Section 16. PAYMENT OF THE PARITY BONDS. That on or before each date upon
which principal of or interest on any Parity Bonds are scheduled to be due and payable, while
any of the Parity Bonds are outstanding and unpaid, the City shall make available to the paying
agents therefor (including the Paying Agent/Registrar), out of the Debt Service Fund (if
necessary), money sufficient to pay such interest on and such principal of the Parity Bonds as
shall become due on such dates, respectively, at maturity or by redemption prior to maturity.
The aforesaid paying agents (including the Paying Agent/Registrar) shall furnish the City with an
appropriate certificate that such payments to the holder or owner thereof have been made when
due.
Section 17. DEFAULT AND REMEDIES. (a) Events of Default. That each of the
following occurrences or events for the purpose of this Ordinance is hereby declared to be an
Event of Default:
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(i) the failure to make payment of the principal of or interest on any of the Bonds
when the same becomes due and payable; or
(ii) default in the performance or observance of any other covenant, agreement or
obligation of the City, the failure to perform which materially, adversely affects the rights
of the registered owners of the Bonds, including, but not limited to, their prospect or
ability to be repaid in accordance with this Ordinance, and the continuation thereof for a
period of sixty (60) days after notice of such default is given by any registered owner to
the City.
(b) Remedies for Default.
(i) Upon the happening of any Event of Default, then and in every case, any
registered owner or an authorized representative thereof, including, but not limited to, a
trustee or trustees therefor, may proceed against the City, or any official, officer or
employee of the City in their official capacity, for the purpose of protecting and enforcing
the rights of the registered owners under this Ordinance, by mandamus or other suit,
action or special proceeding in equity or at law, in any court of competent jurisdiction,
for any relief permitted by law, including the specific performance of any covenant or
agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or
in violation of any right of the registered owners hereunder or any combination of such
remedies.
(ii) It is provided that all such proceedings shall be instituted and maintained for
the equal benefit of all registered owners of Bonds then outstanding.
(c) Remedies Not Exclusive.
(i) No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or under the Bonds or
now or hereafter existing at law or in equity; provided, however, that notwithstanding any
other provision of this Ordinance, the right to accelerate the debt evidenced by the Bonds
shall not be available as a remedy under this Ordinance.
(ii) The exercise of any remedy herein conferred or reserved shall not be deemed
a waiver of any other available remedy.
(iii) By accepting the delivery of a Bond authorized under this Ordinance, such
registered owner agrees that the certifications required to effectuate any covenants or
representations contained in this Ordinance do not and shall never constitute or give rise
to a personal or pecuniary liability or charge against the officers, employees or members
of the City or the City Council.
(iv) None of the members of the City Council, nor any other official or officer,
agent, or employee of the City, shall be charged personally by the registered owners with
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any liability, or be held personally liable to the registered owners under any term or
provision of this Ordinance, or because of any Event of Default or alleged Event of
Default under this Ordinance.
Section 18. FINAL DEPOSITS; GOVERNMENTAL OBLIGATIONS. (a) Defeased
Bonds. That any Bond and the interest thereon shall be deemed to be paid, retired and no longer
outstanding (a "Defeased Bond ") within the meaning of this Ordinance, except to the extent
provided in subsection (d) of this Section, when payment of the principal of such Bond, 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 in accordance with an escrow agreement or other
instrument (the "Future Escrow Agreement ") for such payment (1) lawful money of the United
States of America sufficient to make such payment or (2) Defeasance Securities that mature as to
principal and interest in such amounts and at such times as will insure the availability, without
reinvestment, of sufficient money to provide for such payment, and when proper arrangements
have been made by the City with the Paying Agent/Registrar for the payment of its services until
all Defeased Bonds shall have become due and payable. At such time as a Bond shall be deemed
to be a Defeased Bond hereunder, as aforesaid, such Bond and the interest thereon shall no
longer be secured by, payable from, or entitled to the benefits of, the pledge of Gross Revenues
as provided in this Ordinance, and such principal and interest shall be payable solely from such
money or Defeasance Securities. Notwithstanding any other provision of this Ordinance to the
contrary, it is hereby provided that any determination not to redeem Defeased Bonds that is made
in conjunction with the payment arrangements specified in subsection 18(a)(i) or (ii) shall not be
irrevocable, provided that the City: (1) in the proceedings providing for such payment
arrangements, expressly reserves the right to call the Defeased Bonds for redemption; (2) gives
notice of the reservation of that right to the owners of the Defeased Bonds immediately
following the making of the payment arrangements; (3) directs that notice of the reservation be
included in any redemption notices that it authorizes; and (4) at the time of the redemption,
satisfies the conditions for the redemption of the Bonds as provided in the FORM OF BOND set
forth in Exhibit A to this Ordinance as though they were being defeased at the time of the
exercise of the option to redeem the Bonds, after taking the redemption into account in
determining the sufficiency of the provisions made for the payment of the Bonds.
(b) Investment in Defeasance Securities. Any moneys so deposited with the Paying
Agent/Registrar may at the written direction of the City be invested in Defeasance Securities,
maturing in the amounts and times as hereinbefore set forth, and all income from such
Defeasance Securities received by the Paying Agent/Registrar that is not required for the
payment of the Bonds and interest thereon, with respect to which such money has been so
deposited, shall be turned over to the City, or deposited as directed in writing by the City. Any
Future Escrow Agreement pursuant to which the money and/or Defeasance Securities are held
for the payment of Defeased Bonds may contain provisions permitting the investment or
reinvestment of such moneys in Defeasance Securities or the substitution of other Defeasance
Securities upon the satisfaction of the requirements specified in subsection 18(a)(i) or (ii). All
income from such Defeasance Securities received by the Paying Agent/Registrar which is not
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required for the payment of the Defeased Bonds, with respect to which such money has been so
deposited, shall be remitted to the City or deposited as directed in writing by the City.
(c) Paying _A eg nt/Re- ;istrar Services. Until all Defeased Bonds shall have become
due and payable, the Paying Agent/Registrar shall perform the services of Paying
Agent/Registrar for such Defeased Bonds the same as if they had not been defeased, and the City
shall make proper arrangements to provide and pay for such services as required by this
Ordinance.
(d) Selection of Bonds for Defeasance. In the event that the City elects to defease
less than all of the principal amount of Bonds of a maturity, the Paying Agent/Registrar shall
select, or cause to be selected, such amount of Bonds by such random method as it deems fair
and appropriate.
Section 19. ADDITIONAL BONDS. (a) Parity Bonds. That the City reserves and shall
have the right and power to issue or incur Parity Bonds for any purpose authorized by law
pursuant to the provisions of this Ordinance and any ordinance hereafter adopted authorizing the
issuance or incurrence of Parity Bonds. The City may issue, incur, or otherwise become liable in
respect of any Parity Bonds if a Designated Financial Officer shall deliver to the City a
certificate stating that, to the best knowledge thereof, (i) the City is in compliance with all
covenants contained in this Ordinance and any ordinance hereafter adopted authorizing the
issuance or incurrence of Parity Bonds, is not in default in the performance and observance of
any of the terms, provisions and conditions hereof and thereof, and the Funds and Accounts
securing the Parity Bonds then outstanding contain the amount then required to be therein, and
(ii) the Gross Revenues for the preceding Fiscal Year, or for twelve consecutive months out of
the fifteen months immediately preceding, the dated date of such proposed Parity Bonds, are at
least equal to 1.50 times the Annual Debt Service Requirements of the Parity Bonds to be
outstanding after the issuance of the then proposed Parity Bonds for the Fiscal Year during
which such Annual Debt Service Requirements are scheduled to be the greatest. For purposes of
this subsection (a), if Parity Bonds are issued to refund less than all of the Parity Bonds then
outstanding, the certification required by clause (ii) above shall give effect to the issuance of the
proposed refunding Parity Bonds (and shall not give effect to the Parity Bonds being refunded
following their cancellation or provision being made for their payment).
(b) Reserve Fund. Should a reserve fund be hereafter established in connection with the
issuance of Parity Bonds, the City shall deposit to the credit of such reserve fund such amounts,
at such times, and in such manner, as shall be provided by ordinance adopted by the City Council
establishing such reserve fund.
(c) Non - Recourse Debt and Subordinate Obligations. Non - Recourse Debt and
Subordinate Obligations may be incurred without limitation by the City, upon passage of an
ordinance by the City Council of the City for the purpose of approving the issuance of Non -
Recourse Debt or Subordinate Obligations, as the case may be, and approval of such Non -
Recourse Debt or Subordinate Obligations by the Attorney General of Texas, to the extent
required by law.
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(d) Credit Agreements. Payments to be made under a Credit Agreement may be treated
as a payment in respect of a Parity Bond and secured by Gross Revenues if the governing body
of the City makes a finding in the ordinance authorizing the execution and delivery of a Credit
Agreement as a Parity Bond that, based upon the findings contained in a certificate executed and
delivered by a Designated Financial Officer, the City will have sufficient funds to meet the
financial obligations of the System, including sufficient Gross Revenues to satisfy the Annual
Debt Service Requirements of the System and the financial obligations of the City relating to the
System after giving effect to the treatment of the Credit Agreement as a Parity Bond. The
payment obligations incurred by the City under a Credit Agreement shall not be treated as a
Parity Bond unless the form of such Credit Agreement is approved by ordinance adopted by the
City Council.
(e) Determination of Gross Revenues. In making a determination of Gross Revenues for
any of the purposes described in this Section, including, without limitation, subsection (a) of this
Section, the Designated Financial Officer may take into consideration a change in the rates and
charges for services and facilities afforded by the System that became effective at least thirty
(30) days prior to the last day of the period for which Gross Revenues are determined and, for
purposes of satisfying the Gross Revenues test described in subsection (a) above, make a pro
forma determination of the Gross Revenues of the System for the period of time covered by the
Designated Financial Officer's certification based on such change in rates and charges being in
effect for the entire period covered by the Designated Financial Officer's certificate.
Section 20. APPROVAL BY ATTORNEY GENERAL. That to the extent required by
the laws of the State of Texas, no Parity Bonds shall be delivered by the City until the approval
of the Attorney General of Texas has been obtained.
Section 21. GENERAL COVENANTS. That the City further covenants and agrees that
in accordance with and to the extent required or permitted by law:
(a) Performance. It will faithfully perform at all times any and all covenants,
undertakings, stipulations, and provisions contained in this Ordinance, and each ordinance
authorizing the issuance of Parity Bonds, and in each and every Parity Bond; it will promptly pay
or cause to be paid the principal of and interest on every Parity Bond, on the dates and in the
places and manner prescribed in such ordinances and Parity Bonds; and it will, at the times and
in the manner prescribed, deposit or cause to be deposited the amounts required to be deposited
into the Debt Service Fund; and any holder of the Parity Bonds may require the City, its officials
and employees to carry out, respect or enforce the covenants and obligations of this Ordinance,
or any ordinance authorizing the issuance of Additional Bonds, by all legal and equitable means,
including specifically, but without limitation, the use and filing of mandamus proceedings, in any
court of competent jurisdiction, against the City, its officials and employees.
(b) City's Legal Authority. It is a duly created and existing home rule city of the
State of Texas, and is duly authorized under the laws of the State of Texas to create and issue the
Bonds; that all action on its part for the creation and issuance of the Bonds has been duly and
effectively taken; and that the Bonds in the hands of the holders and owners thereof are and will
be valid and enforceable special obligations of the City in accordance with their terms.
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(c) Title. It has or will obtain lawful title to the lands, buildings, structures and
facilities constituting the System, that it warrants that it will defend the title to all the aforesaid
lands, buildings, structures and facilities, and every part thereof, for the benefit of the holders
and owners of the Parity Bonds, against the claims and demands of all persons whomsoever, that
it is lawfully qualified to pledge the Gross Revenues to the payment of the Parity Bonds in the
manner prescribed herein, and has lawfully exercised such rights.
(d) Liens. It will from time to time and before the same become delinquent pay and
discharge all taxes, assessments and governmental charges, if any, which shall be lawfully
imposed upon it, or the System; it will pay all lawful claims for rents, royalties, labor, materials,
and supplies which if unpaid might by law become a lien or charge thereon, the lien of which
would be prior to or interfere with the liens hereof, so that the priority of the liens granted
hereunder shall be fully preserved in the manner provided herein; and it will not create or suffer
to be created any mechanic's, laborer's, materialman's or other lien or charge which might or
could be prior to the liens hereof, or do or suffer any matter or thing whereby the liens hereof
might or could be impaired; provided, however, that no such tax, assessment or charge, and that
no such claims which might be used as the basis of a mechanic's, laborer's, materialman's or
other lien or charge, shall be required to be paid so long as the validity of the same shall be
contested in good faith by the City.
(e) Operation of System: No Free Service. It will, while the Parity Bonds are
outstanding and unpaid, continuously and efficiently operate the System, and shall maintain the
System in good condition, repair and working order, all at reasonable cost. No free service of the
System shall be allowed, and should the City or any of its agencies or instrumentalities make use
of the services and facilities of the System, payment of the reasonable value shall be made by the
City out of funds from sources other than the revenues of the System, unless made from Gross
Revenues as permitted in Section 16(b) hereof.
(f) Further Encumbrance. It, while any Parity Bonds are outstanding and unpaid,
will not additionally encumber the Gross Revenues in any manner, except as permitted in this
Ordinance in connection with Parity Bonds, unless said encumbrance is made junior and
subordinate in all respects to the liens, pledges, covenants and agreements of this Ordinance; but
the right of the City to issue revenue bonds payable from a subordinate lien on the Gross
Revenues is specifically recognized and retained.
(g) Sale or Disposal of Property. It, while the Parity Bonds are outstanding and
unpaid, will not sell, convey, mortgage, encumber, lease or in any manner transfer title to, or
otherwise dispose of the System, or any significant or substantial part thereof; provided, that
whenever the City deems it necessary to dispose of any other property, machinery, fixtures or
equipment, it may sell or otherwise dispose of such property, machinery, fixtures or equipment
when it has made arrangements to replace the same or provide substitutes therefor, unless it is
determined that no such replacement or substitute is necessary. Proceeds from any sale
hereunder not used to replace or provide for substitution of such property sold, shall be used for
improvements to the System or to purchase or redeem Parity Bonds.
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(h) Insurance. (1) Except as otherwise permitted in clause (2) below, the City shall
insure such parts of the System as would usually be insured by corporations operating like
properties, with responsible insurance companies, against loss to the extent insurance is usually
carried by corporations operating like properties. To the extent reasonably obtainable, it shall
include insurance against the perils of fire, extended coverage and flood. At any time while any
contractor engaged in construction work shall be fully responsible therefor, the City shall not be
required to carry insurance on the work being constructed if the contractor is required to carry
appropriate insurance. All such policies shall be open to the inspection of the bondholders and
their representatives at all reasonable times.
(2) In lieu of obtaining policies for insurance as provided above, the City may self - insure
against risks, accidents, claims or casualties of the nature described in clause (1) above.
(3) The annual audit hereinafter required shall contain a section commenting on whether
the City has complied with the requirements of this subsection, and listing the areas of insurance
for which the City is insuring, all policies carried, and whether all insurance premiums upon the
insurance policies to which reference is hereinbefore made have been paid.
(i) Rate Covenant. The City Council of the City will fix, establish, maintain and
collect such rates, charges and fees for the use and availability of the System at all times as are
necessary to produce Gross Revenues sufficient for each Fiscal Year (1) at least equal to 1.25
times the Annual Debt Service Requirements of all then outstanding Parity Bonds for the Fiscal
Year during which such Annual Debt Service Requirements are scheduled to be the greatest, (2)
to pay all current operation and maintenance expenses of the System, and (3) to pay all other
obligations of the System reasonably anticipated to be paid from Gross Revenues during the
current Fiscal Year.
0) Records. It will keep proper books of record and account in which full, true and
correct entries will be made of all dealings, activities and transactions relating to the System, the
Gross Revenues and the Funds and Accounts created pursuant to this Ordinance, and all books,
documents and vouchers relating thereto shall at all reasonable times be made available for
inspection upon request of any bondholders.
(k) Audits. After the close of each Fiscal Year while any Parity Bonds are
outstanding, an audit will be made by an Accountant of the books and accounts relating to the
System and the Gross Revenues. As soon as practicable after the close of each such Fiscal Year,
and when said audit has been completed and made available to the City, a copy of such audit for
the preceding Fiscal Year shall be mailed to the MAC and to any holder of 5% or more in
aggregate principal amount of then outstanding Parity Bonds who shall so request in writing.
Such annual audit reports shall be open to the inspection of the bondholders and their agents and
representatives at all reasonable times.
(1) Governmental Agencies. It will comply with all of the terms and conditions of
any and all franchises, permits and authorizations applicable to or necessary with respect to the
System, and which have been obtained from any governmental agency; and the City has or will
obtain and keep in full force and effect all franchises, permits, authorization and other
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requirements applicable to or necessary with respect to the acquisition, construction, equipment,
operation and maintenance of the System.
(m) No Competition. It will not grant any franchise or permit for the acquisition,
construction or operation of any competing facilities which might be used as a substitute for the
System's facilities, and, to the extent that it legally may, the City will prohibit any such
competing facilities.
Section 22. AMENDMENT OF ORDINANCE. (a) That the holders of the Parity
Bonds aggregating in principal amount a majority of the aggregate principal amount of then
outstanding Parity Bonds shall have the right from time to time to approve any amendment to
this Ordinance which may be deemed necessary or desirable by the City; provided, however, that
without the consent of the holders of all of the Parity Bonds at the time outstanding, nothing
herein contained shall permit or be construed to permit the amendment of the terms and
conditions in this Ordinance or in the Parity Bonds so as to:
(1) Make any change in the maturity of the outstanding Parity Bonds;
(2) Reduce the rate of interest borne by any of the outstanding Parity Bonds;
(3) Reduce the amount of the principal payable on the outstanding Parity Bonds;
(4) Modify the terms of payment of principal of or interest on the outstanding Parity
Bonds or impose any conditions with respect to such payment;
(5) Affect the rights of the holders of less than all of the Parity Bonds then
outstanding; or
(6) Change the minimum percentage of the principal amount of Parity Bonds
necessary for consent to such amendment.
(b) That if at any time the City shall desire to amend the Ordinance under this
Section, the City shall cause notice of the proposed amendment to be published in a financial
newspaper or journal published in The City of New York, New York, once during each calendar
week for at least two successive calendar weeks; provided, however, that the publication of such
notice shall not constitute a condition precedent to the adoption of such amendatory ordinance
and the failure to publish such notice shall not adversely affect the implementation of such
amendment as adopted pursuant to such amendatory ordinance. Such notice shall briefly set
forth the nature of the proposed amendment and shall state that a copy thereof is on file at the
principal office of the Paying Agent/Registrar for inspection by all holders of Parity Bonds.
Such publication is not required, however, if notice in writing is given to each holder of Parity
Bonds.
(c) That whenever at any time not less than thirty days, and within one year, from the
date of the first publication of said notice or other service of written notice the City shall receive
an instrument or instruments executed by the holders of at least a majority in aggregate principal
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amount of all Parity Bonds then outstanding, which instrument or instruments shall refer to the
proposed amendment described in said notice and which specifically consent to and approve
such amendment in substantially the form of the copy thereof on file with the Paying
Agent/Registrar, the City Council may pass the amendatory ordinance in substantially the same
form.
(d) That upon the passage of any amendatory ordinance pursuant to the provisions of
this Section, this Ordinance shall be deemed to be amended in accordance with such amendatory
ordinance, and the respective rights, duties and obligations under this Ordinance of the City and
all the holders of then outstanding Parity Bonds shall thereafter be determined, exercised and
enforced hereunder, subject in all respects to such amendments.
(e) That any consent given by the holder of a Parity Bond pursuant to the provisions
of this Section shall be irrevocable for a period of six months from the date of the first
publication of the notice provided for in this Section, and shall be conclusive and binding upon
all future holders of the same Parity Bond during such period. Such consent may be revoked at
any time after six months from the date of the first publication of such notice by the holder who
gave such consent, or by a successor in title, by filing notice thereof with the Paying
Agent/Registrar therefor and the City, but such revocation shall not be effective if the holders of
a majority in aggregate principal amount of the then outstanding Parity Bonds as in this Section
defined have, prior to the attempted revocation, consented to and approve the amendment.
(f) For the purposes of this Section, the ownership and other matters relating to all
Parity Bonds registered as to ownership shall be determined from the registration books kept by
the Paying Agent/Registrar therefor. The Paying Agent/Registrar may conclusively assume that
such ownership continues until written notice to the contrary is served upon the Paying
Agent/Registrar. For purposes of this Section, the notional amount attributable to a Credit
Agreement that is treated as a Parity Bond shall be deemed to be the principal amount of such
Parity Bond.
(g) The foregoing provisions of this Section notwithstanding, the City by action of
the City Council may amend this Ordinance for any one or more of the following purposes:
(1) To add to the covenants and agreements of the City in this Ordinance
contained, other covenants and agreements thereafter to be observed, grant additional
rights or remedies to bondholders or to surrender, restrict or limit any right or power
herein reserved to or conferred upon the City;
(2) To make such provisions for the purpose of curing any ambiguity, or
curing, correcting or supplementing any defective provision contained in this Ordinance,
or in regard to clarifying matters or questions arising under this Ordinance, including,
without limitation, those matters described in Section 26(c)(v) hereof, as are necessary or
desirable and not contrary to or inconsistent with this Ordinance and which shall not
adversely affect the interests of the holders of the Parity Bonds; or
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(3) To modify any of the provisions of this Ordinance in any other respect
whatever, provided that (i) such modification shall be, and be expressed to be, effective
only after all previously issued Parity Bonds outstanding at the date of the adoption of
such modification shall cease to be outstanding, and (ii) such modification shall be
specifically referred to in the text of all Additional Bonds issued after the date of the
adoption of such modification.
Section 23. DAMAGED, MUTILATED, LOST, STOLEN OR DESTROYED
BONDS. (a) That in the event any outstanding Bond is damaged, mutilated, lost, stolen, or
destroyed, the Paying Agent/Registrar shall cause to be printed, executed, and delivered, a new
bond of the same principal amount, maturity, and interest rate, as the damaged, mutilated, lost,
stolen, or destroyed Bond, in replacement for such Bond in the manner hereinafter provided.
(b) Application for replacement of damaged, mutilated, lost, stolen, or destroyed
Bonds shall be made to the Paying Agent/Registrar. In every case of loss, theft, or destruction of
a Bond, the applicant for a replacement bond shall furnish to the City 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 Bond, the applicant shall furnish to the City and to the Paying Agent/Registrar
evidence to their satisfaction of the loss, theft, or destruction of such Bond, as the case may be.
In every case of damage or mutilation of a Bond, the applicant shall surrender to the Paying
Agent/Registrar for cancellation the Bond so damaged or mutilated.
(c) Notwithstanding the foregoing provisions of this Section, in the event any such
Bond 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 the Bond, the City may authorize the
payment of the same (without surrender thereof except in the case of a damaged or mutilated
Bond) instead of issuing a replacement Bond, provided security or indemnity is furnished as
above provided in this Section.
(d) Prior to the issuance of any replacement bond, the Paying Agent/Registrar shall
charge the owner of such Bond with all legal, printing, and other expenses in connection
therewith. Every replacement bond issued pursuant to the provisions of this Section by virtue of
the fact that any Bond is lost, stolen, or destroyed shall constitute a contractual obligation of the
City whether or not the lost, stolen or destroyed Bond 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 Bonds duly issued under this Ordinance.
(e) In accordance with Chapter 1206, Texas Government Code, this Section of this
Ordinance shall constitute authority for the issuance of any such replacement bond without
necessity of further action by the governing body of the City or any other body or person, and the
duty of the replacement of such bonds is hereby authorized and imposed upon the Paying
Agent/Registrar, and the Paying Agent/Registrar shall authenticate and deliver such bonds in the
form and manner and with the effect, as provided in Section 5(d) of this Ordinance for Bonds
issued in exchange for other Bonds.
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Section 24. TAX COVENANTS. That the City covenants to refrain from any action
which would adversely affect, or to take any action to assure, the treatment of the Bonds as
obligations described in section 103 of 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
City covenants as follows:
(a) to take any action to assure that no more than 10 percent of the proceeds
of the Bonds or the projects financed 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 are so used, that amounts, whether or
not received by the City, with respect to such private business use, do not, under the
terms of this Ordinance or any underlying arrangement, directly or indirectly, secure or
provide for the payment of more than 10 percent of the debt service on the Bonds, in
contravention of section 141(b)(2) of the Code;
(b) to take any action to assure that in the event that the "private business use"
described in subsection (a) hereof exceeds 5 percent of the proceeds of the Bonds 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 141(b)(3) of the Code, to the
governmental use;
(c) 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 Bonds (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;
(d) to refrain from taking any action which would otherwise result in the
Bonds being treated as "private activity bonds" within the meaning of section 141(a) of
the Code;
(e) to refrain from taking any action that would result in the Bonds being
"federally guaranteed" within the meaning of section 149(b) of the Code;
(f) to refrain from using any portion of the proceeds of the Bonds, 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 Bonds, other than investment property
acquired with --
(1) proceeds of the Bonds invested for a reasonable temporary period
until such proceeds are needed for the purpose for which the bonds are issued,
(2) amounts invested in a bona fide debt service fund, within the
meaning of section 1.148 -1(b) of the Treasury Regulations, and
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(3) 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 Bonds;
(g) to otherwise restrict the use of the proceeds of the Bonds or amounts
treated as proceeds of the Bonds, as may be necessary, so that the Bonds do 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 refundings); and
(h) to pay to the United States of America at least once during each five -year
period (beginning on the date of delivery of the Bonds) 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 Bonds have
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.
The City understands that the term "proceeds" includes "disposition proceeds" as defined in the
Treasury Regulations and, in the case of a refunding bond, transferred proceeds (if any) and
proceeds of the refunded bonds expended prior to the date of the issuance of the Bonds. It is the
understanding of the City 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 Bonds, the City 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 Bonds 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 Bonds, the City 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 Bonds under section 103 of the Code.
In furtherance of the foregoing, any of the Mayor, the City Manager, the Chief Financial Officer
of the City, any Assistant City Manager, the Chief Financial Officer of the City and the City
Treasurer may execute any certificates or other reports required by the Code and to make such
elections, on behalf of the City, which may be permitted by the Code as are consistent with the
purpose for the issuance of the Bonds. In order to facilitate compliance with the above clause
(h), a 'Rebate Fund" is hereby established by the City for the sole benefit of the United States of
America, and such Rebate Fund shall not be subject to the claim of any other person, including
without limitation the registered owners of the Bonds. The Rebate Fund is established for the
additional purpose of compliance with section 148 of the Code.
This Ordinance is intended to satisfy the official intent requirements set forth in section
1.150 -2 of the Treasury Regulations.
Section 25. ALLOCATION OF, AND LIMITATION ON, EXPENDITURES FOR
THE PROJECT; DISPOSITION OF PROJECT. (a) That the City covenants to account for
on its books and records the expenditure of proceeds from the sale of the Bonds and any
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investment earnings thereon to be used for the purposes described in Section 1 of this Ordinance
(such purposes referred to herein and subsection (b) of this Section as a 'Project ") in accordance
with the requirements of the Code. The City recognizes that in order for the proceeds to be
considered used for the reimbursement of costs, the proceeds must be allocated to expenditures
within eighteen (18) months of the later of the date that (a) the expenditure on a Project is made
or (b) each such 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 City recognizes that
in order for proceeds to be expended under the Code, the sale proceeds or investment earnings
must be expended no more than sixty (60) days after the earlier of (a) the fifth anniversary of the
date of delivery of the Bonds or (b) the date the Bonds are retired. The City agrees to obtain the
advice of a nationally- 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
Bonds. For purposes of this Section, the City shall not be obligated to comply with this covenant
if it obtains an opinion of a nationally- recognized bond counsel to the effect that such failure to
comply will not adversely affect the excludability for federal income tax purposes from gross
income of the interest.
(b) That the City covenants that the property constituting the Project will not be sold or
otherwise disposed in a transaction resulting in the receipt by the City of cash or other
compensation, unless the City obtains an opinion of a nationally- recognized bond counsel
substantially to the effect that such sale or other disposition will not adversely affect the tax -
exempt status of the Bonds. For purposes of this Section, the portion of the property comprising
personal property and disposed of in the ordinary course of business shall not be treated as a
transaction resulting in the receipt of cash or other compensation. For purposes of this Section,
the City shall not be obligated to comply with this covenant if it obtains an opinion of a
nationally - recognized bond counsel to the effect that such failure to comply will not adversely
affect the excludability for federal income tax purposes from gross income of the interest.
Section 26. CONTINUING DISCLOSURE UNDERTAKING. (a) Annual Report s.
(i) That the City shall provide annually to the MSRB, within six months after the end of each
Fiscal Year ending in or after 2011, financial information and operating data with respect to the
City of the general type described in Exhibit B hereto. Any financial statements so to be
provided shall be (1) prepared in accordance with the accounting principles described in Exhibit
B hereto, or such other accounting principles as the City may be required to employ from time to
time pursuant to state law or regulation, 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
the audit of such financial statements is not complete within such period, then the City shall
provide unaudited financial statements by the required time and will provide audited financial
statements for the applicable Fiscal Year to the MSRB, when and if the audit report on such
statements become available. Such information shall be transmitted electronically to the MSRB,
in such format as prescribed by the MSRB.
(ii) If the City changes its Fiscal Year, it will notify the MSRB 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
M61
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 the MSRB or filed with the SEC.
(b) Disclosure Event Notices. The City shall notify the MSRB, in a timely manner not in
excess of ten Business Days after the occurrence of the event, of any of the following events with
respect to the Bonds:
1. Principal and interest payment delinquencies;
2. Non - payment related defaults, if material;
3. Unscheduled draws on debt service reserves 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, the issuance by the Internal Revenue Service of
proposed or final determinations of taxability, Notices of Proposed Issue
(IRS Form 5701 -TEB) or other material notices or determinations with
respect to the tax - exempt status of the Bonds, or other events affecting the
tax- exempt status of the Bonds;
7. Modifications to rights of holders of the Bonds, if material;
8. Bond calls, if material, and tender offers;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Bonds,
if material;
11. Rating changes;
12 Bankruptcy, insolvency, receivership or other similar event of the City;
13. The consummation of a merger, consolidation, or acquisition involving the
City or the sale of all or substantially all of the assets of the City, other
than in the ordinary course of business, the entry into a definitive
agreement to undertake such an action or the termination of a definitive
agreement relating to any such actions, other than pursuant to its terms, if
material; and
14. Appointment of a successor Paying Agent/Registrar or change in the name
of the Paying Agent/Registrar, if material.
As used in clause 12 above, the phrase "bankruptcy, insolvency, receivership or similar event"
means the appointment of a receiver, fiscal agent or similar officer for the City in a proceeding
under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over substantially all of the assets of
the City, or if jurisdiction has been assumed by leaving the City Council and officials and
officers of the City in possession but subject to the supervision and orders of a court or
governmental authority, or the entry of an order confirming a plan of reorganization,
arrangement or liquidation by a court or governmental authority having supervision or
jurisdiction over substantially all of the assets or business of the City. The City shall notify the
MSRB, in a timely manner, of any failure by the City to provide financial information or
27
operating data in accordance with subsection (a) of this Section by the time required by such
subsection.
(c) Limitations. Disclaimers, and Amendments. (i) The City shall be obligated to
observe and perform the covenants specified in this Section for so long as, but only for so long
as, the City remains an "obligated person" with respect to the Bonds within the meaning of the
Rule, except that the City in any event will give notice of any deposit made in accordance with
this Ordinance or applicable law that causes Bonds no longer to be outstanding.
(ii) The provisions of this Section are for the sole benefit of the holders and beneficial
owners of the Bonds, 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 Bonds at any future date.
(iii) UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE
HOLDER OR BENEFICIAL OWNER OF ANY BOND 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.
(iv) No default by the City in observing or performing its obligations under this Section
shall comprise 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.
(v) Should the Rule be amended to obligate the City to make filings with or provide
notices to entities other than the MSRB, the City agrees to undertake such obligation in
accordance with the Rule as amended.
(vi) The provisions of this Section may be amended by the City from time to time to
adapt to changed circumstances that arise 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 an underwriter to purchase or
sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account
any amendments or interpretations of the Rule since such offering 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
28
amendment) of the outstanding Bonds 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 interest of the holders and beneficial owners of the
Bonds. 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 (a) of this
Section an explanation, in narrative form, of the reason for the amendment and of the impact of
any change in the type of financial information or operating data so provided. The City may also
amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or
repeals the applicable provision of the Rule or a court of final jurisdiction enters judgment that
such provisions of the Rule are invalid, but only if and to the extent that the provisions of this
sentence would not prevent an underwriter from lawfully purchasing or selling Bonds in the
primary offering of the Bonds.
Section 27. SALE OF BONDS. That the sale of the Bonds to the Purchaser, at the
Purchase Price, is authorized, ratified and confirmed. The Bonds were sold pursuant to the terms
of a "Notice of Sale and Bidding Instructions ", "Official Bid Form" and "Official Statement ", the
use of these documents, a true and correct copy of each document being attached to this
Ordinance, is approved. The City Council hereby finds, determines and declares that the Bonds
were sold to the highest bidder at terms that were the most advantageous reasonably obtained.
One Bond in the principal amount maturing on each maturity date as set out in Section 2 of this
Ordinance shall be delivered to the Purchaser, and the Purchaser shall have the right to exchange
such certificates as provided in Section 5 of this Ordinance without cost. The City Council
ratifies use of the "Preliminary Official Statement" prepared in connection with the sale of the
Bonds.
Section 28. APPROVAL AND REGISTRATION OF BONDS. That the City
Manager of the City is hereby authorized to have control of the Bonds and all necessary records
and proceedings pertaining to the Bonds pending their delivery and their 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 Bonds, the
Comptroller of Public Accounts (or a deputy designated in writing to act therefor) shall manually
sign the Comptroller's Registration Certificate. The Bonds thus registered shall remain in the
custody of the City Manager (or the designee thereof) until delivered to the Purchaser. The City
Council hereby authorizes the payment of the fee of the Office of the Attorney General of the
State of Texas for the examination of the proceedings relating to the issuance of the Bonds, in the
amount determined in accordance with the provisions of Section 1202.004, Texas Government
Code.
Section 29. FURTHER PROCEDURES. That the City Manager, any Assistant City
Manager, the Chief Financial Officer of the City, and all other officers, employees, and agents of
the City, and each of them, shall be and 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 under the corporate seal and on behalf of the
City all such instruments, whether or not herein mentioned, as may be necessary or desirable in
order to carry out the terms and provisions of this Ordinance, and the sale and delivery of the
Bonds and fixing all details in connection therewith.
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Section 30. USE OF PROCEEDS. That the proceeds from the sale of the Bonds shall
be used for the System in the manner described in the letter of instructions executed by the City
or by its financial advisor on behalf of the City, provided, that any accrued interest received from
the sale of the Bonds shall be deposited to the Debt Service Fund, and any proceeds representing
premium on the Bonds shall be used in a manner consistent with the provisions of Section
1201.042(d), Texas Government Code.
Section 31. PREAMBLE. That the preamble to this Ordinance is incorporated by
reference and made a part hereof for all purposes.
Section 32. MISCELLANEOUS PROVISIONS. (a) Titles Not Restrictive. That the
titles assigned to the various sections of this Ordinance are for convenience only and shall not be
considered restrictive of the subject matter of any section or of any part of this Ordinance.
(b) Rules of Construction. The words "herein ", "hereof' and "hereunder" and other
words of similar import refer to this Ordinance as a whole and not to any particular Section or
other subdivision. Except where the context otherwise requires, terms defined in this Ordinance
to impart the singular number shall be considered to include the plural number and vice versa.
References to any named person means that party and its successors and assigns. References to
any constitutional, statutory or regulatory provision means such provision as it exists on the date
this Ordinance is adopted by the City and any future amendments thereto or successor provisions
thereof. Any reference to "FORM OF BOND" shall refer to the form of the Bonds set forth in
Exhibit A to this Ordinance. Any reference to the payment of principal in this Ordinance shall
be deemed to include the payment of any Amortization Installments as may be described herein.
References to "City Manager" include any person acting in the capacity of City Manager,
whether on an interim or permanent basis.
(c) Inconsistent Provisions. All ordinances, orders and resolutions, or parts thereof,
which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed
and declared to be inapplicable, and the provisions of this Ordinance shall be and remain
controlling as to the matters prescribed herein.
(d) Seve_ rabilty. If any word, phrase, clause, paragraph, sentence, part, portion, or
provision of this Ordinance or the application thereof to any person or circumstance shall be held
to be invalid, the remainder of this Ordinance shall nevertheless be valid and the City hereby
declares that this Ordinance would have been enacted without such invalid word, phrase, clause,
paragraph, sentence, part, portion, or provisions.
(e) Governing Law. This Ordinance shall be construed and enforced in accordance with
the laws of the State of Texas.
(f) Open Meeting. The City officially finds and determines that the meeting at which this
Ordinance is adopted was open to the public; and that public notice of the time, place, and
purpose of such meeting was given, all as required by Chapter 551, Texas Government Code.
30
Section 33. IMMEDIATE EFFECT. That this Ordinance shall be effective
immediately from and after its passage in accordance with the provisions of Section 1201.028,
Texas Government Code, and it is accordingly so ordained.
SIGNED AND SEALED THIS 27TH DAY OF SEPTEMBER, 2011.
yor,
City of Fo y rt , Texas
(SEAL)
City Secretary
APPROVED AS TO FORM AND LEGALITY:
Attorney
Signature Page — Drainage Utility System Revenue Bond Ordinance
31
NO. R-
EXHIBIT A
FORM OF BOND:
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF FORT WORTH, TEXAS
DRAINAGE UTILITY SYSTEM
REVENUE BOND, SERIES 2011
MATURITY INTEREST ORIGINAL CUSIP
DATE RATE ISSUE DATE
ON THE MATURITY DATE SPECIFIED ABOVE, THE CITY OF FORT WORTH, IN
TARRANT, DENTON, PARKER AND WISE COUNTIES, TEXAS (the "City "), hereby
promises to pay to ' or the registered assignee hereof (either
being hereinafter called the "registered owner ") the principal amount of
and to pay interest thereon, from the original issue date of this Bond specified above, to the date
of its scheduled maturity or the date of its redemption prior to scheduled maturity, at the rate of
interest per annum specified above, with said interest being payable on February 15, 2012, and
semiannually on each August 15 and February 15 thereafter, except that if the Paying
Agent/Registrar's Authentication Certificate appearing on the face of this Bond is dated later than
February 15, 2010, such interest is payable semiannually on each August 15 and February 15
following such date.
THE PRINCIPAL OF AND INTEREST ON this Bond are payable in lawful money of
the United States of America, without exchange or collection charges. The principal of this
Bond shall be paid to the registered owner hereof upon presentation and surrender of this Bond at
maturity, or upon the date fixed for its redemption prior to maturity, at the designated corporate
trust office in Houston, Texas (the "Designated Trust Office ") of Bank of Texas, N.A., which is
the "Paying Agent/Registrar" for this Bond. The payment of interest on this Bond shall be made
by the Paying Agent/Registrar to the registered owner hereof as shown by the Registration Books
kept by the Paying Agent/Registrar at the close of business on the Record Date (hereinafter
defined) by check drawn by the Paying Agent/Registrar on, and payable solely from, funds of the
City required to be on deposit with the Paying Agent/Registrar for such purpose as hereinafter
provided; and such check 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 appears on the Registration Books kept by the Paying Agent/Registrar, as
hereinafter described. The record date ( "Record Date ") for the interest payable on any interest
payment date means the 15th day of the preceding month. In the event of a non - payment of
interest on a scheduled payment date, and for 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
Mi
Special Record Date and of the scheduled payment date of the past due interest (the "Special
Payment Date ", which shall be 15 days after the Special Record Date) shall be sent at least five
business days prior to the Special Record Date by United States mail, first- class, postage prepaid,
to the address of each registered owner of a Bond appearing on the books of the Paying
Agent/Registrar at the close of business on the last business day next preceding the date of
mailing of such notice. The City covenants with the registered owner of this Bond that no later
than each principal payment date and interest payment date for this Bond it will make available
to the Paying Agent/Registrar the amounts required to provide for the payment, in immediately
available funds, of all principal of and interest on the Bonds, when due, in the manner set forth in
the ordinance authorizing the issuance of the bonds (the "Ordinance ").
IF THE DATE for the payment of the principal of or interest on this Bond shall be a
Saturday, Sunday, a legal holiday, or a day on which banking institutions are authorized by law
or executive order to close in the city where the Designated Trust Office of the Paying
Agent/Registrar is located, 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. Notwithstanding the foregoing, during any period in which
ownership of the bonds of this Series is determined only by a book entry at a securities
depository therefor, any payment to the securities depository, or its nominee or registered
assigns, shall be made in accordance with existing arrangements between the City and the
securities depository.
THIS BOND is one of a Series of bonds of like tenor and effect except as to
denomination, number, maturity, interest rate and right of prior redemption, dated as of the
Original Issue Date stated above, issued in the aggregate principal amount of $78,325,000 for the
purpose of (i) acquiring, constructing, improving, enlarging and repairing all or part of the
facilities which constitute the City's drainage utility system and (ii) paying costs of issuance
incurred in connection with the issuance of the Bonds. All Bonds of this Series are issuable
solely as fully registered bonds, without interest coupons, in the denomination of any integral
multiple of $5,000 (an "Authorized Denomination ").
THE BONDS of this Series scheduled to mature on and after February 15, 2022 may be
redeemed prior to their scheduled maturities, in whole, or in part in principal amounts of $5,000
or any integral multiple thereof, at the option of the City, on February 15, 2021, or on any date
thereafter, at the redemption price of par plus accrued interest to the date fixed for redemption.
If less than all of the Bonds are to be redeemed by the City, the City shall determine the maturity
or maturities and the amounts therewith to be redeemed and shall direct the Paying
Agent/Registrar to call by lot Bonds, or portions thereof, within such maturity or maturities and
in such principal amounts, for redemption; provided, that during any period in which ownership
of the Bonds is determined only by a book entry at a securities depository for the Bonds, if fewer
than all of the Bonds of the same maturity and bearing the same interest rate are to be redeemed,
the particular Bonds of such maturity and bearing such interest rate shall be selected in
accordance with the arrangements between the City and the securities depository.
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AT LEAST 30 days prior to the date fixed for any such redemption, a written notice of
such redemption shall be given by the Paying Agent/Registrar to the registered owner of each
Bond or a portion thereof being called for redemption by depositing such notice in the United
States mail, first- class, postage prepaid, addressed to each such registered owner at his address
shown on the Registration Books of the Paying Agent/Registrar. By the date fixed for any such
redemption due provision shall be made by the City with the Paying Agent/Registrar for the
payment of the required redemption price for this Bond or the portion hereof which is to be so
redeemed, plus accrued interest thereon to the date fixed for redemption. Such notice may state
(i) that the redemption is conditioned upon the deposit of moneys and/or authorized securities, in
an amount equal to the amount necessary to effect such redemption, with an authorized entity, no
later than the redemption date or (ii) the City retains the right to rescind such notice at any time
prior to the scheduled redemption date if the City delivers a certificate to the Paying
Agent/Registrar instructing it to rescind the redemption notice, and such notice and redemption
shall be of no effect if such moneys and/or authorized securities are not so deposited or if the
notice is rescinded. If such notice of redemption is given and is not rescinded, and if due
provision for such payment is made, all as provided above, this Bond, or the portion hereof
which is to be so redeemed, thereby automatically shall be redeemed prior to its scheduled
maturity, and shall not bear interest after the date fixed for its redemption, and shall not be
regarded as being outstanding except for the right of the registered owner to receive the
redemption price plus accrued interest to the date fixed for redemption from the Paying
Agent/Registrar out of the funds provided for such payment. The Paying Agent/Registrar shall
record in the Registration Books all such redemptions of principal of this Bond or any portion
hereof. If a portion of any Bond shall be redeemed a substitute Bond or Bonds having the same
maturity date, bearing interest at the same rate, in any Authorized Denomination, at the written
request of the registered owner, and in aggregate principal amount equal to the unredeemed
portion thereof, will be issued to the registered owner upon the surrender thereof for cancellation,
at the expense of the City, all as provided in the Ordinance.
AS PROVIDED IN THE ORDINANCE, this Bond, or any unredeemed portion hereof,
may, at the request of the registered owner or the assignee or assignees hereof, be assigned,
transferred, and exchanged for a like aggregate principal amount of fully registered bonds,
without interest coupons, payable to the appropriate registered owner, assignee, or assignees, as
the case may be, having the same maturity date, and bearing interest at the same rate, in any
Authorized Denomination as requested in writing by the appropriate registered owner, assignee,
or assignees, as the case may be, upon surrender of this Bond to the Paying Agent/Registrar at its
Designated Trust Office for cancellation, all in accordance with the form and procedures set
forth in the Ordinance. Among other requirements for such assignment and transfer, this Bond
must be presented and surrendered to the Paying Agent/Registrar, together with proper
instruments of assignment, in form and with guarantee of signatures satisfactory to the Paying
Agent/Registrar, evidencing assignment of this Bond or any portion or portions hereof in any
Authorized Denomination to the assignee or assignees in whose name or names this Bond or any
such portion or portions hereof is or are to be transferred and registered. The form of
Assignment printed or endorsed on this Bond may be executed by the registered owner to
evidence the assignment hereof, but such method is not exclusive, and other instruments of
assignment satisfactory to the Paying Agent/Registrar may be used to evidence the assignment of
this Bond or any portion or portions hereof from time to time by the registered owner. The City
A -3
shall pay the Paying Agent/Registrar's reasonable standard or customary fees and charges for
transferring, converting and exchanging any Bond or portion thereof, provided, however, that
any taxes or governmental charges required to be paid with respect thereto shall be paid by the
one requesting such transfer, conversion and exchange. In any circumstance, neither the City nor
the Paying Agent/Registrar shall be required (1) to make any transfer or exchange during a
period beginning at the opening of business 15 days before the day of the first mailing of a notice
of redemption of bonds and ending at the close of business on the day of such mailing, or (2) to
transfer or exchange any Bonds so selected for redemption when such redemption is scheduled to
occur within 30 calendar days; provided, however, such limitation shall not be applicable to an
exchange by the registered owner of the uncalled principal balance of a Bond.
WHENEVER the beneficial ownership of this Bond is determined by a book entry at a
securities depository for the Bonds, the foregoing requirements of holding, delivering or
transferring this Bond shall be modified to require the appropriate person or entity to meet the
requirements of the securities depository as to registering or transferring the book entry to
produce the same effect.
IN THE EVENT any Paying Agent/Registrar for the Bonds is changed by the City,
resigns, or otherwise ceases to act as such, the City has covenanted in the Ordinance that it
promptly will appoint a competent and legally qualified substitute therefor, and promptly will
cause written notice thereof to be mailed to the registered owners of the Bonds.
BY BECOMING the registered owner of this Bond, the registered owner thereby
acknowledges all of the terms and provisions of the 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 of the City, and agrees that the terms and provisions of this Bond
and the Ordinance constitute a contract between each registered owner hereof and the City.
THE CITY has reserved the right, subject to the restrictions stated, and adopted by
reference, in the Ordinance, to issue or incur bonds or other obligations ( "Parity Bonds ") which
also may be made payable from, and secured by a lien on and pledge of, the "Gross Revenues"
(as defined in the Ordinance) on a parity with the lien on and pledge of the Gross Revenues
securing this Bond and the series of which it is a part.
THE REGISTERED OWNER HEREOF shall never have the right to demand payment of
this obligation out of any funds raised or to be raised by taxation, or from any source whatsoever
other than the Gross Revenues.
IT IS HEREBY certified and covenanted that this Bond has been duly and validly
authorized, issued 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
Bond have been performed, existed and been done in accordance with law; that this Bond is a
special obligation; and that the principal of and interest on this Bond and the series of which it is
a part, together with any Parity Bonds hereafter issued or incurred and outstanding, are payable
from, and secured by a first lien on and pledge of, the Gross Revenues.
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IN WITNESS WHEREOF, this Bond has been signed with the imprinted or lithographed
manual or facsimile signature of the Mayor of said Issuer, attested by the imprinted or
lithographed facsimile signature of the City Secretary, and approved as to form and legality by
the imprinted or lithographed facsimile signature of the City Attorney, and the official seal of
said Issuer has been duly affixed to, printed, lithographed or impressed on this Bond.
CITY OF FORT WORTH, TEXAS
LI-A
ATTEST:
City Secretary, City of Fort Worth, Texas
APPROVED AS TO FORM AND LEGALITY:
City Attorney, City of Fort Worth, Texas
A -S
Mayor, City of Fort Worth, Texas
(SEAL)
FORM OF PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond has been issued under the provisions of the
proceedings adopted by the City as described in the text of this Bond; and that this Bond has
been issued in exchange for or replacement of a bond, bonds, or a portion of a bond or bonds of
an issue 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 Texas, N.A.,
Paying Agent/Registrar
Authorized Representative
(FORM OF COMPTROLLER'S CERTIFICATE ATTACHED TO
THE BONDS UPON INITIAL DELIVERY THEREOF ONLY)
OFFICE OF COMPTROLLER
STATE OF TEXAS
I hereby certify that this Bond has been examined,
by the Attorney General of the State of Texas, and that
Comptroller of Public Accounts of the State of Texas.
Witness my signature and seal this
REGISTER NO.
certified as to validity, and approved
this Bond has been registered by the
xxxxxxxx
Comptroller of Public Accounts of the
State of Texas
A-i
FORM OF ASSIGNMENT:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert Social Security or Taxpayer Identification Number of Transferee
(Please print or typewrite name and address, including zip code of Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to
register the transfer of the within Bond on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signatures must be guaranteed by
an eligible guarantor institution participating
in a Securities Transfer Association
recognized signature guarantee program.
NOTICE: The signature above must correspond with
the name of the registered owner as it appears upon the
front of this Bond in every particular, without alteration
or enlargement or any change whatsoever.
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Exhibit B
to
Ordinance
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 26 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 Section 26 of this Ordinance are as specified (and included in the
Appendix or under the headings of the Official Statement referred to) below:
The quantitative financial information and operating data with respect to the City of the
general type included in the main text of the Official Statement under Tables 1 through 5.
The portions of the financial statements of the City appended to the Official Statement as
Appendix B, but for the most recently concluded fiscal year.
Accounting Principles
The accounting principles referred to in Section 26 of the Ordinance are the accounting
principles described in the notes to the financial statements referred to in the third
paragraph under the heading "Annual Financial Statements and Operating Data" above.
1�5
SCHEDULEI
MATURITY SCHEDULE:
MATURITY DATE: FEBRUARY 15
YEARS
2012
AMOUNTS ($)
YEARS
AMOUNTS ($)
2013
2'270' 000
2,050,000
2025
3,110,000
2014
2,080,000
2026
2027
3,225,000
2015
2,130,000
2028
3,340,000
2016
2,210,000
2029
3,465,000
2017
2,285 000
3,590,000
2018
2019
2,345,000
2031
* * **
7,575,000
2020
2,420,000
2021
2,540,000
2,665,000
2036
22,360,000
2022
2,785,000
2023
2,885,000
2024
2,995,000
INTEREST RATES:
maturities 2012,4.000%
3.000%
maturities 2013,
4.000%
maturities 2014, 4.000%
maturities 2015,
4.000%
maturities 2016,
4.000%
maturities 2017,
2.000%
maturities 2018,
3.000%
maturities 2019,
4.000 %
maturities 2020,
5.000%
maturities 2021,
5.000 %
maturities 2022,
5.000%
PURCHASERS:
Robert W. Baird & Co., Inc., and syndicate members
PURCHASE PRICE:
maturities 2023,
3.000%
maturities 2024,
3.000%
maturities 2025, 3.250%
maturities 2026, 3.375%
maturities 2027,
4.500%
maturities 2028,
4.000%
maturities 2029,
4.000%
maturities 2031,
4.000%
maturities 2036,
4.000%
The purchase price for the Bonds shall be par and accrued interest on the Bonds to the date of
delivery, plus a premium of $1,919,701.88.
MANDATORY REDEMPTION:
The Bonds maturing in each of the years 2031 and 2036 are term bonds. The Bonds maturing in
2031 are subject to mandatory sinking fund redemption on February 15 in each of the years 2030
and 2031, in the following sinking fund amounts: $3,720,000 in 2030 and $3,855,000 in 2031;
and the Bonds maturing in 2036 are subject to mandatory sinking fund redemption on February
15 in each of the years 2032 through 2036, in the following sinking fund amounts: $4,005,000 in
2032, $4,155,000 in 2033, $4,530,000 in 2034, $4,700,000 in 2035 and $4,970,000 in 2036.
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, PARKER AND WISE
CITY OF FORT WORTH
I, Marty Hendrix, City Secretary of the City of Fort Worth, in the State of Texas, do
hereby certify that I have compared the attached and foregoing excerpt from the minutes of the
regular, open, public meeting of the City Council of the City of Fort Worth, Texas held on
September 27, 2011, and of the ordinance authorizing the issuance of Drainage Utility System
Revenue Bonds, Series 2011, which was duly passed at said meeting, and that said copy is a true
and correct copy of said excerpt and the whole of said ordinance. Said meeting was open to the
public, and public notice of the time, place, and purpose of said meeting was given, all as
required by Chapter 551, Texas Government Code, as amended.
In testimony whereof, I have set my hand and have hereunto affixed the seal of said City
of Fort Worth, this 27th day of September, 2011.
City Secretary of th
City of Fort Worth, Texas
(SEAL)
Before me, on this day personally appeared the foregoing individuals, known to me to be the
persons whose names are subscribed to the foregoing instrument in my presence.
Given under my hand and seal of office this (,54q 4,7, 4oy
x otarAJ4L y Public
;�`' ••�'
i : • �s
RONALD a GONULES
Notary P, ;•;, State
• ••�� �;�'
of Texas
My Crmmission Expires
�a�`
Mdy 17 . in i2
x otarAJ4L y Public
PAYING AGENT/REGISTRAR AGREEMENT
THIS PAYING AGENT/REGISTRAR AGREEMENT (the "Agreement "), dated as of the
27th day of September, 2011, is by and between the City of Fort Worth, Texas (the "City") and Bank
of Texas, N.A., a national banking association organized and existing under the laws of the United
States of America (together with any successor, the 'Bank ");
WITNESSETH:
WHEREAS, the City is authorized to issue the obligations described in Exhibit A hereto (the
"Obligations ") in accordance with the ordinance adopted by the City on September 27, 2011, and
incorporated herein for all purposes (the "Ordinance ");
WHEREAS, the City desires that the Obligations be issued in fully registered form with
privileges of transfer and exchange as herein provided, and as authorized in the Ordinance;
WHEREAS, the City has authorized the issuance of the Obligations subject to the terms of
the Ordinance and, to provide for registration, payment, transfer, exchange, and replacement of the
Obligations, the City has authorized the execution and delivery of this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
herein contained, and subject to the conditions herein set forth, the City and the Bank agree as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
The terms defined in this Article shall have the meaning set out below unless the context
requires a different meaning:
"Agreement" means this agreement as originally executed or as it may from time to time be
supplemented, modified, or amended.
"Bank" means the entity named as the 'Bank" in the first paragraph of this Agreement, or a
successor Bank selected in accordance with the applicable provisions of this Agreement.
"City" means the City of Fort Worth, Texas.
"City Request" means a request signed in the name of the City by the Mayor, the City
Manager, any Assistant City Manager, or the Chief Financial Officer of the City, which the Bank
shall assume to be a duly authorized act of the City.
"Designated Payment/Transfer Office" means the corporate trust office of the Paying Agent/
Registrar designated as the place of payment, transfer and exchange of the Obligations, initially, the
corporate trust office of the Paying Agent/Registrar in Houston, Texas.
"Holder" when used with respect to any Obligation, means the Person in whose name such
Obligation is registered in the Register.
"Interest Payment Date" means the Stated Maturity of an installment of interest on any
Obligations.
"Maturity" when used with respect to any Obligation means the date on which the principal
of such Obligation becomes due and payable as therein provided, whether at the Stated Maturity or
by call for redemption or otherwise.
"Obligations" means the obligations issued by the City, as described in Exhibit A attached
hereto.
"Ordinance" means the ordinance authorizing the issuance of the Obligations, adopted by the
City on September 27, 2011, and incorporated herein for all purposes.
"Person" means any entity, individual, corporation, partnership, joint venture, association,
joint -stock company, trust, unincorporated organization, or government or any governmental agency
or political subdivision.
"Predecessor Obligations" of any particular Obligation means every previous Obligation
evidencing all or a portion of the same debt as that evidenced by such particular Obligation, and, for
purposes of this definition, any Obligation authenticated and delivered under Section 5.02 in lieu of a
mutilated, lost, destroyed or stolen Obligation shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Obligation,
"Record Date" for the interest payable on an Interest Payment Date for an Obligation means
the date (whether or not a business day) specified in such Obligation.
"Redemption Date" when used with respect to any Obligation to be redeemed means the date
fixed for such redemption pursuant to the terms thereof, the Ordinance and this Agreement.
"Redemption Price" when used with respect to any Obligation to be redeemed means the
price at which it is to be redeemed pursuant to terms thereof and the Ordinance and, in the case of the
Refunding Obligations, the applicable Purchase Agreement, excluding installments of interest whose
Stated Maturity is on or before the Redemption Date.
"Register" has the meaning stated in Section 5.01.
"Stated Maturity" when used with respect to any Obligation or any installment of interest
thereon means the date specified in such Obligation as the fixed date on which the principal of such
Obligation or such installment of interest is due and payable.
SECTION 1.02. Written Communication.
Any request, demand, authorization, direction, notice, consent, waiver, or other written
communication provided or permitted by this Agreement to be made upon, given or furnished to, or
filed with
A. the City, shall be sufficient for every purpose hereunder if in writing and mailed, first -
class, postage prepaid, to the City addressed to it at City Hall, 1000 Throckmorton Street, Third
Floor, Fort Worth, Texas 76201, or at any other address previously furnished to the Bank in writing
by the City, and
B. the Bank, shall be sufficient for every purpose hereunder if in writing and mailed,
first -class, postage prepaid (and properly referred to this Agreement or the Obligations), to the Bank
addressed to it at 1401 McKinney, Suite 100, Houston, Texas 77010, or at any other address
previously furnished to the City in writing by the Bank.
SECTION 1.03. Notice to Holders: Waiver.
Where this Agreement provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise expressly provided herein) if in writing and mailed, first -class,
postage prepaid, to each Holder, at the address of such Holder as it appears in the Register.
In any case where notice to Holders is mailed, neither the failure to mail such notice nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to all other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Bank, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.04. Effect of HeadinLys.
The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 1.05. Successors and Assigns.
All covenants and agreements in this Agreement by the City or the Bank shall bind its
successors and assigns.
SECTION 1.06. Severability Clause.
In case any provision of this Agreement, the Ordinance, or the Obligations or any application
thereof shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions and applications of this Agreement shall not in any way be affected or impaired
thereby.
SECTION 1.07. Amendment.
hereto. This Agreement may be amended only by an agreement in writing by both of the parties
SECTION 1.08. Benefits of Agreement.
Nothing in this Agreement or in the Obligations, expressed or implied, shall give to any
Person other than the parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy, or claim under this Agreement.
SECTION 1.09. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State
of Texas.
ARTICLE TWO
THE OBLIGATIONS
SECTION 2.01. Forms Generally.
The Obligations, the registration certificate of the Comptroller of Public Accounts of the
State of Texas (the "Comptroller Registration Certificate "), the authentication certificate of the Bank
(the "Authentication Certificate "), and the Assignment to be printed on each of the Obligations, shall
be substantially in the forms set forth in the Ordinance with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required by the Ordinance and this Agreement
and may have such letters, numbers, or other marks of identification and the Obligations may have
such legends and endorsements thereon (including any reproduction of an opinion of counsel) as
may, consistently herewith, be established by the Ordinance or determined by the officers executing
such Obligations as evidenced by their execution of such Obligations.
SECTION 2.02. Execution Registration Delivery and Dating.
The Obligations shall be executed on behalf of the City as provided in the Ordinance.
4
No Obligation shall be entitled to any right or benefit under this Agreement or the Ordinance,
or be valid or obligatory for any purpose, unless there appears on such Obligation either the
Comptroller Registration Certificate, substantially in the form provided in the Ordinance, executed
by the Comptroller of Public Accounts of the State of Texas or the duly authorized agent thereof, by
manual signature, or the Authentication Certificate substantially in the form provided in the
Ordinance, executed by the Bank, by manual signature, and either such certificate upon any
Obligation shall be conclusive evidence, and the only evidence, that such Obligation has been duly
certified or registered or delivered.
SECTION 2.03. Cancellation.
All Obligations surrendered for payment, redemption, transfer, exchange, or replacement, if
surrendered to the Bank, shall be promptly cancelled by it and, if surrendered to the City, shall be
delivered to the Bank and, if not already cancelled, shall be promptly cancelled by the Bank. The
City may at any time deliver to the Bank for cancellation any Obligations previously certified or
registered and delivered which the City may have acquired in any manner whatsoever and all
Obligations so delivered shall be promptly cancelled by the Bank. No Obligation shall be registered
in lieu of or in exchange for any Obligation cancelled as provided by this Agreement. All cancelled
Obligations held by the Bank shall be disposed of as directed by City Request.
SECTION 2.04. Persons Deemed Owners.
The City, the Bank, and any agent of the City or the Bank may treat the Person in whose
name any Obligation is registered as the owner of such Obligation for the purpose of receiving
payment of the principal (and Redemption Price, if applicable) of and interest on such Obligation and
for all other purposes whatsoever whether or not such Obligation be overdue, and, to the extent
permitted by law, none of the City, the Bank, and any such agent shall be affected by notice to the
contrary.
ARTICLE THREE
PAYMENT OF OBLIGATIONS
SECTION 3.01. Payment of Interest.
Interest on any Obligation which is payable on any Interest Payment Date shall be paid to the
Holder of such Obligation as determined at the close of business on the Record Date.
Such interest shall be paid by the Bank by check mailed to the Holder at the address of such
Holder as it appears on the Register, or by such other customary banking arrangements to which the
Holder and the Bank may agree, but solely from funds collected from the City for such purpose.
Each Obligation delivered under this Agreement upon transfer or in exchange for or in lieu of
any other Obligation shall carry all the rights to interest accrued and unpaid, and to accrue, which
W
were carried by such other Obligation and each such Obligation shall bear interest from such date so
that neither gain nor loss in interest shall result from such transfer, exchange or substitution.
SECTION 3.02. Payment of Principal and Redemption Price.
Principal (and the Redemption Price, if applicable) of each Obligation shall be paid by the
Bank to the Holder at the Maturity thereof, but solely from funds collected from the City for such
purpose, upon presentation and surrender of such Obligation to the Bank for cancellation. All
Obligations presented and surrendered for payment shall be delivered to the Designated
Payment/Transfer Office.
SECTION 3.03. City to Deposit Funds.
The City will duly and punctually deposit with the Bank, at its corporate trust office in
Houston, Texas, on or before each Stated Maturity of interest on Obligations and each Maturity of
Obligations, money sufficient to pay the principal (and Redemption Price, if applicable) of and
interest on the Obligations when due.
ARTICLE FOUR
REDEMPTION OF OBLIGATIONS
SECTION 4.01. General Applicability of Article.
If the Obligations are to be redeemed before their Stated Maturity, they shall be redeemed in
accordance with their terms and the Ordinance.
SECTION 4.02. Election to Redeem; Notice to Bank.
The exercise by the City of its option to redeem any Obligations shall be evidenced by City
action consistent with the provisions of the Ordinance. In case of any redemption at the election of
the City of less than all of the outstanding Obligations, the City shall, at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Bank), notify the Bank of such
Redemption Date and of the principal amount of Obligations of each Stated Maturity to be redeemed,
and the Redemption Price to be paid to the Holders.
SECTION 4.03. Notice of Redemption.
Notice of redemption shall be given by the Bank in the name and at the expense of the City,
prior to the Redemption Date, to each Person entitled to receive notice of such redemption at the
times and in the manner required by the Ordinance.
All notices of redemption shall contain a description of the Obligations to be redeemed
including the complete name of the Obligations, the Series, the date of issue, the interest rate, the
Maturity, the CUSIP number, if any, the amounts called of each Obligation, the publication and
mailing date for the notice, the date of redemption, the redemption price, the name of the Bank and
the address at which the Obligation may be redeemed including a contact person and telephone
number.
ARTICLE FIVE
REGISTRATION, TRANSFER, EXCHANGE, AND
REPLACEMENT OF OBLIGATIONS
SECTION 5.01. Registration Transfer and Exchange.
The Bank shall keep at the Designated Payment/Transfer Office a register (herein referred to
as the "Register ") in which, subject to such reasonable regulations as the City or the Bank may
prescribe, the Bank shall provide for the registration of the Obligations and registration of transfers
of the Obligations as herein provided.
Upon surrender for transfer or exchange of any Obligation at the Designated
Payment/Transfer Office of the Bank, the Bank shall register and deliver, in the name of the
designated transferee or transferees, one or more new fully registered Obligations of the same
maturity, of any authorized denominations, and of a like aggregate principal amount in accordance
with the terms of the Ordinance.
Every Obligation presented or surrendered for transfer or exchange shall be duly endorsed (if
so required by the Bank) or be accompanied by a written instrument of transfer in form satisfactory
to the Bank duly executed by the Holder or the attorney thereof duly authorized in writing.
Neither the City nor the Bank shall be required (i) to issue, transfer, or exchange any
Obligation subject to redemption during a period beginning at the opening of business thirty
(30) days before the day of the first mailing of a notice of redemption of Obligations and ending at
the close of business on the day of such mailing, or (ii) to transfer or exchange any Obligation after it
is so selected for redemption, in whole or in part, prior to the redemption date; except that at the
option of the Holder of at least $1,000,000 in principal amount of a series of Obligations, the Bank is
required to transfer or exchange any such Obligation which has been selected in whole or in part for
redemption upon the surrender thereof.
In the event that the use of book -entry transfers for the Obligations is discontinued, the City
shall provide an adequate inventory of Obligation certificates to facilitate transfers and exchanges.
The Bank covenants that it will maintain Obligation certificates in safekeeping and will use
reasonable care in maintaining such condition in safekeeping, which shall be not less than the care it
maintains for debt securities of other governments or corporations for which it serves as registrar, or
which it maintains for its own securities.
VA
The Bank as Registrar will maintain the records of the Register in accordance with the Bank's
general practices and procedures in effect from time to time. The Bank shall not be obligated to
maintain the Register in any form other than those which the Bank has currently available and
currently utilizes at the time.
The Register may be maintained in written form or in any other form capable of being
converted into written form within a reasonable time.
SECTION 5.02. Mutilated, Destroyed Lost and Stolen Obligations.
If (i) any mutilated Obligation is surrendered to the Bank, or the City and the Bank receive
evidence to their satisfaction of the destruction, loss or theft of any Obligation, and (ii) there is
delivered to the City and the Bank such security or indemnity as may be required by them to save
each of them harmless, then, the City shall execute and upon its request the Bank shall register and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Obligation (but
only upon surrender of such Obligation if such Obligation is mutilated), a new Obligation of the
same series and maturity and of like tenor and principal amount, bearing a number not
contemporaneously outstanding, in accordance with the Ordinance.
In case any such mutilated, destroyed, lost or stolen Obligation 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 the Obligations, the City in its discretion may by City Request have
the Bank pay such Obligation instead of issuing a new Obligation, provided security or indemnity is
furnished to the City and the Bank as may be required by them to save each of them harmless from
any loss or damage with respect thereto, all in accordance with the Ordinance.
SECTION 5.03. List of Holders.
The Bank will provide the City at any time requested by the City, upon payment of the agreed
upon fee, a copy of the information contained in the Register. The City may also inspect the
information in the Register at any time the Bank is customarily open for business, provided that
reasonable time is allowed the Bank to provide an up -to -date listing or to convert the information
into written form.
The Bank will not release or disclose the content of the Register to any Person other than
pursuant to a City Request or other than to an authorized officer or employee of the City, except
upon receipt of a subpoena or court order or as otherwise required by law. Upon receipt of a
subpoena or court order the Bank will notify the City so that the City may contest the subpoena or
court order.
SECTION 5.04. Surety Bond.
The City hereby accepts the Bank's current blanket bond for lost, stolen or destroyed
Obligations (and any future substitute blanket bond for lost, stolen or destroyed Obligations that the
Bank may arrange with sufficient coverage to protect the City in the opinion of the Bank) and agrees
that the coverage under any such blanket bond is acceptable to it and meets the City's requirements as
to security or indemnity. The Bank need not notify the City of any changes in the security or other
company giving such bond or the terms of any such bond. The blanket bond then utilized for the
purpose of lost, stolen, or destroyed certificates by the Bank is available for inspection by the City on
request.
SECTION 5.05. Transaction Information to Citv.
The Bank will, within a reasonable time after receipt of written request from the City, furnish
the City information as to the Obligations it has paid, Obligations it has delivered upon the transfer
or exchange of any Obligation, and Obligations it has delivered in exchange for or in lieu of
mutilated, destroyed, lost or stolen Obligations.
ARTICLE SIX
RIGHTS AND OBLIGATIONS OF BANK
SECTION 6.01. Certain Duties and Responsibilities.
A. The Bank:
1. shall perform the duties imposed on the Bank under the Ordinance.
2. shall exercise reasonable care in the performance of its duties as are
specifically set forth in this Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Bank; and
3. in the absence of bad faith on its part, may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Bank and conforming to the requirements of this Agreement, but in the case of any
opinions which by any provision hereof are specifically required to be furnished to the Bank, shall be
under a duty to examine the same to determine whether or not they conform to the requirements of
this Agreement.
B. No provision of this Agreement shall be construed to relieve the Bank from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct except
that:
1. this Subsection shall not be construed to limit the effect of Subsection A of
this Section; and
2. the Bank shall not be liable for any error of judgment made in good faith by
any officer thereof, unless it shall be proved that the Bank was negligent in ascertaining the pertinent
facts.
C. Whether or not therein expressly so provided, every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection to the Bank shall be subject
to the provisions of this Section.
D. By executing this Agreement, the Bank hereby represents that it has received a
certified copy of the Ordinance.
SECTION 6.02. Certain Rip-hts of Bank.
Except as otherwise provided in Section 6.01 hereof:
A. the Bank may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, coupon or other paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
B. the Bank may consult with legal counsel and the written advice of such counsel or any
opinion of counsel shall be full and complete authorization and protection in respect of any action
taken, suffered, or omitted by the Bank hereunder in good faith and in reliance thereon;
C. the Bank shall not be bound to make any investigation into the facts of matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, coupon or other paper or document, but the Bank, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit, and, if the Bank shall
determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records, and premises of the City, personally or by agent or attorney; and
D. the Bank may execute any of the trusts or powers hereunder or perform any of the
duties hereunder either directly or by or through agents or attorneys, and the Bank shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
hereunder with due care by it.
Irl
SECTION 6.03. Not Responsible for Recitals.
The recitals contained in the Obligations, except any authentication certificate signed by the
Bank on the Obligations, shall be taken as the statements of the City, and the Bank assumes h
responsibility for their correctness. no
SECTION 6.04. Mav Hold Obli ations.
The Bank, in its individual or any other capacity, may become the owner or pledgee of
Obligations and otherwise deal with the City with the same rights it would have if it were not serving
as paying agent, transfer agent, bond registrar, authenticating agent, or in any other capacity
hereunder.
SECTION 6.05. Money Deposited with Bank.
Money deposited by the City with the Bank for payment of principal (or Redemption Price, if
applicable) of or interest on any Obligations shall be segregated from other funds of the Bank and the
City and shall be held in trust for the benefit of the Holders of such Obligations.
All money deposited with the Bank hereunder shall be secured in the manner required by law
for the security of funds of the City.
Amounts held by the Bank which represent principal of and interest on the Obligations
remaining unclaimed by the owner after the expiration of three (3) years from
have become due and payable shall be reported and disposed of by the ank in c accordance with the
provisions of Texas law including, to the extent applicable, Title 6 of the Texas Property Code, as
amended.
The Bank shall be under no liability for interest on any money received by it hereunder.
This Agreement relates solely to money deposited for the purposes described herein, and the
parties agree that the Bank may serve as depository for other funds of the City, act as trustee under
indentures authorizing other bond transactions, or act in any other capacity not in conflict with its
duties hereunder.
SECTION 6.06. Compensation an d Reimbursement.
The City agrees:
A. to pay to the Bank from time to time reasonable compensation for all services
rendered by it hereunder, which compensation shall be established initially for the Obligations in
accordance with the schedule attached as Exhibit B which is made a part hereof for all purposes;
B. except as otherwise expressly provided herein, to reimburse the Bank upon its request
for all reasonable expenses, disbursements, and advances incurred or made by the Bank in
accordance with any provisions of this Agreement, except to the extent (i) covered by the
compensation established pursuant to Subsection A of this Section or (ii) any such expense,
disbursement, or advance as may be attributable to the negligence or bad faith of the Bank; and
C. to the extent permitted by law, to indemnify the Bank for, and to hold it harmless
against, any loss, liability, or expense incurred without negligence or bad faith on its part, arising out
of or in connection with the administration or performance of its duties and obligations hereunder,
including the costs and expenses of defending itself (including counsel fees) against any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
SECTION 6.07. Resignation and Removal.
The Bank may resign from its duties hereunder at any time by giving not less than sixty
(60) days written notice thereof to the City, with such resignation effective upon the appointment of a
successor thereto.
The Bank maybe removed from its duties hereunder at any time with or without cause by the
City designating a successor upon not less than sixty (60) days written notice; provided, however,
that no such removal shall become effective until such successor shall have accepted the duties of the
Bank hereunder by written instrument.
Upon the effective date of such resignation or removal (or any earlier date designated by the
City in case of resignation) the Bank shall, upon payment of all its fees, charges, and expenses then
due, transfer and deliver to, or upon the order of, the City all funds, records, and Obligations held by
it (except any Obligations owned by the Bank as Holder or pledgee), under this Agreement.
If the Bank shall resign or be removed, the City shall promptly appoint and engage a
successor to act in the place of the Bank hereunder, which appointment shall be effective as of the
effective date of the resignation or removal of the Bank. Such successor shall immediately give
notice of its substitution hereunder in the name of the City to the Holders, including the name of the
successor to the Bank and the address of its principal office and office of payment as provided in the
Ordinance.
SECTION 6.08. Merger, Conversion, Consolidation or Succession.
Any corporation into which the Bank may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion, or consolidation to which
the Bank shall be a party, or any corporation succeeding to all or substantially all of the corporate
trust business of the Bank shall be the successor of the Bank hereunder without the execution or
filing of any paper or any further acts on the part of either of the parties hereto. In case any
Obligation shall have been registered, but not delivered, by the Bank then in office, any successor by
12
merger, conversion, or consolidation to such authenticating Bank may adopt such registration and
deliver the Obligation so registered with the same effect as if such successor Bank had itself
registered such Obligations.
SECTION 6.09. Bank Not a Trustee..
This Agreement shall not be construed to require the Bank to enforce any remedy which any
Holder may have against the City during any default or event of default under any agreement
between any Holder and the City, including the Ordinance, or to act as trustee for such Holder.
SECTION 6.10. Bank Not Responsible for Obligations.
The Bank shall not be accountable for the use of any Obligations or for the use on application
of the proceeds thereof.
SECTION 6.11. Adjudication and Interpleader.
The City and the Bank agree that the Bank may seek adjudication of any adverse claim,
demand, or controversy over its persons as well as funds on deposit, in the appropriate Federal or
State District Court located in Travis County, Texas, and agree that service of process by certified or
registered mail, return - receipt requested, to the address set forth in this Agreement shall constitute
adequate service. The City and the Bank further agree that the Bank has the right to file a Bill of
Interpleader in any court of competent jurisdiction within the State of Texas to determine the rights
of any Person claiming interest herein.
SECTION 6.12. Bank's Funds Not Used.
No provisions of this Agreement shall require the Bank to expend or risk its own funds or
otherwise incur any financial liability for performance of any of its duties hereunder, or in the
exercise of any of its rights of powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it against such risks or liability is not
assured to it.
The Bank shall in no event be liable to the City, any Holder, or any other Person for any
amount due on any Obligation from its own funds.
SECTION 6.13. Denository Trust Company Services.
It is hereby represented and warranted that, in the event the Obligations are otherwise
qualified and accepted for The Depository Trust Company services or equivalent depository trust
services by other organizations, the Bank has the capability and, to the extent within its control, will
comply with the operational arrangements which establishes requirements for securities to be eligible
for such type depository trust services, including, but not limited to, requirements for the timeliness
of payments and funds availability, transfer turnaround time and notification of redemptions and
calls.
13
SECTION 6.14. Reporting R
equirements.
To the extent required by the Code or the Treasury Regulations, the Bank shall report the
amount of interest paid or the amount treated as interest accrued on the Bonds which is required to
be reported by the Holders on their returns of federal income tax, or assure that such a report is made,
to the Holders and the Internal Revenue Service.
SECTION 6.15. Entire Agreement.
This Agreement and the Ordinance constitute the entire agreement between the parries hereto
relative to the Bank acting as Paying Agent/Registrar and if any conflict exists between this
Agreement and the Ordinance, the Ordinance shall govern.
SECTION 6.16. Counterparts.
This Agreement may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall together constitute but one and the
same Agreement.
[Execution page follows]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, and their respective seals to be hereunto affixed and attested, all as of the day and year first
above written.
CITY OF FORT WORTH, TEXAS
By:
Interim City anager
ATTEST::
r
City Secretary (SEAL)
APPROVED AS TO FORM:
,a
o
City A y
Signature Page — Paying Agent Registrar Agreement
BANK OF TEXAS, N.A.
By:
Title:
Attention: Corporate Trust Services
15
EXHIBIT A
City of Fort Worth, Texas Drainage Utility System Revenue Bonds, Series 2011, in the aggregate
principal amount of $78,325,000.
E_
FEE SCHEDULE
NOTE REGISTRAR, TRANSFER AGENT, AND PAYING AGENT
Annual Administration Fee: ......................... $300
(c) insofar as the descriptions and statements, including financial data, of or
pertaining to entities, other than the City, and their activities contained in such Official
Statement are concerned, such statements and data have been obtained from sources
which the City believes to be reliable and that the City has no reason to believe that
they are untrue in any material respect; and
(d) there has been no material adverse change in the financial condition of the City
since the date of the last audited financial statements of the City.
SIGNED AND SEALED this
Interim City Manager,
City of Fort Worth, Texas
e inancial0fficer,
City of rt Worth, Texas
,-(SEAL)
Signature Page, General Certificate, Drainage Revenue Bonda
-4-
� 11:
MANUAL SIGNATURE
OFFICIAL TITLE
Signature Page, Exhibit C to General Certificate, Drainage Revenue Bonds
ior,
of Fort Worth, Texas
Secretary,
. A..y of Fort Worth, Texas
City Attomey,
City of Fort Worth, Texas
Section 33. IMMEDIATE EFFECT. That this Ordinance shall be effective
immediately from and after its passage in accordance with the provisions of Section 1201.028,
Texas Government Code, and it is accordingly so ordained.
SIGNED AND SEALED THIS 27TH DAY OF SEPTEMBER, 2011.
ayor,
City of Fo y exas
(SEAL)
City Secretary
APPROVED AS TO FORM AND LEGALITY:
City Attorney
Signature Page — Drainage Utility System Revenue Bond Ordinance
31
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, PARKER AND WISE
CITY OF FORT WORTH
I, Marty Hendrix, City Secretary of the City of Fort Worth, in the State of Texas, do
hereby certify that I have compared the attached and foregoing excerpt from the minutes of the
regular, open, public meeting of the City Council of the City of Fort Worth, Texas held on
September 27, 2011, and of the ordinance authorizing the issuance of Drainage Utility System
Revenue Bonds, Series 2011, which was duly passed at said meeting, and that said copy is a true
and correct copy of said excerpt and the whole of said ordinance. Said meeting was open to the
public, and public notice of the time, place, and purpose of said meeting was given, all as
required by Chapter 551, Texas Government Code, as amended.
In testimony whereof, I have set my hand and have hereunto affixed the seal of said City
of Fort Worth, this 27th day of September, 2011.
City Secretary o e
City of Fort Worth, Texas
(SEAL)
ufi
GENERAL CERTIFICATE
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, PARKER AND WISE
CITY OF FORT WORTH
We, the undersigned, hereby officially certify that we are the Interim City Manager and the
Chief Financial Officer, respectively, of the City of Fort Worth, Texas (the "City "), and we further
certify as follows:
General
1. That this certificate is given for the benefit of the Attorney General of the State of
Texas, and the purchasers of City of Fort Worth, Texas Drainage Utility System Revenue Bonds,
Series 2011, in the aggregate principal amount of $78,325,000 (herein referred to as the 'Bonds ").
The Bonds are being issued in accordance with the terms of the "Ordinance Authorizing the Issuance
and Sale of City of Fort Worth, Texas Drainage Utility System Revenue Bonds, Series 2011; and
Ordaining Other Matters Relating Thereto" (the "Ordinance "), adopted by the City Council of the
City on September 27, 2011. Defined terms used herein shall have the meaning ascribed to said terms
in the Ordinance.
2. That any certificate signed by any official of the City delivered to the Purchaser or the
Attorney General of the State of Texas shall be deemed a representation and warranty by the City as
to the statements made therein. The Public Finance Division of the Office of the Attorney General
of the State of Texas is hereby authorized to date this Certificate as of the date of approval of the
Bonds and is entitled to rely upon the accuracy of the information contained herein unless notified
by telephone or telecopy to the contrary.
Matters Relating to the City
3. That the City is a duly incorporated home -rule municipality that adopted its charter
under Section 5, Article XI, Texas Constitution, has more than 50,000 inhabitants, and operates and
exists under the Constitution and laws ofthe State of Texas and the duly adopted Home Rule Charter
of the City, which Charter has not been changed or amended since the issuance of the City of Fort
Worth, Texas General Purpose Refunding Bonds, Series 2011 on September 20, 2011.
4. That the seal an impression of which appears below is the corporate seal of the City;
that said seal has been used continuously as such corporate seal for more than forty years and was
duly adopted as the seal of the City by the City Council of the City; and that since its adoption, no
seal other than said seal has been used as the corporate seal of the City.
5. That each of the following persons is the duly acting, constituted and qualified officer
of the City of Fort Worth as herein shown, respectively:
Betsy Price,
Salvador Espino,
W.B. "Zim" Zimmerman,
Danny Scarth,
Frank Moss,
Jungus Jordan,
Dennis Shingleton,
Kathleen Hicks,
Joel Burns,
Tom Higgins,
Sarah Fullenwider,
Marty Hendrix,
Lena Ellis,
Mayor
Councilmembers,
Interim City Manager,
City Attorney,
City Secretary,
Financial Management Services Director and
Chief Financial Officer
6. That no litigation of any nature has been filed or, to the best of our knowledge,
threatened, pertaining to, affecting or contesting: (a) the issuance, delivery, payment, security or
validity of the proposed Bonds; (b) the ability of the City or the authority of the officers of the City
to issue, execute and deliver the proposed Bonds; (c) the validity of the corporate existence or the
Charter of the City; or (d) the boundaries of the City.
Matters Relating to the System
7. That (i) the City is in compliance with all covenants contained in the Ordinance, and
the City is not in default in the performance and observance of any of the terms, provisions and
conditions of the Ordinance and (ii) the Gross Revenues for the preceding Fiscal Year are at least
1.50 times the Annual Debt Service Requirements of the Parity Bonds to be outstanding after the
issuance of the Bonds during the Fiscal Year during which such Annual Debt Service Requirements
are scheduled to be greatest. No Reserve Fund has been established for the benefit of the holders of
the Parity Bonds, including the Bonds. The Bonds are the second series of bonds issued by the City
under the terms of the Ordinance.
8. That attached hereto as Exhibit A are the current rates and charges for services
provided by the municipal drainage utility system. The ordinance establishing the municipal drainage
utility system was previously submitted to the Public Finance Division in connection with the issuance
of the Series 2009 Bonds. The City Council has approved a 13.68% rate increase, with such rate
increase becoming effective on January 1, 2012.
9. That attached hereto as Exhibit B is a schedule showing the debt service requirements
for the Bonds. The projected Gross Revenues that shall be available to pay debt service on the
Bonds, commencing with the fiscal year beginning October 1, 2011, equal $28,065,024. The Bonds
are secured by a pledge of Gross Revenues on a parity with the outstanding Parity Bonds.
-2-
Matters Relating to the Execution of the Bonds
10. That in connection with the execution of the Bonds:
(a) The Mayor, the City Secretary and the City Attorney of the City have officially
executed and signed the Bonds by affixing thereto their manual or facsimile
signatures; and by executing this Certificate the Mayor, the City Secretary and the
City Attorney hereby adopt said facsimile signatures as their own, respectively, and
declare that said facsimile signatures constitute their signatures the same as if they had
manually signed each of the Bonds;
(b) The Bonds are substantially in the form, and have been duly executed and signed
in the manner, prescribed in the Ordinance;
(c) At the time the Bonds were executed and signed, the Mayor, the City Secretary
and the City Attorney were, and at the time of executing this certificate are, the duly
chosen, qualified and acting officers indicated therein, and authorized to execute the
same;
(d) The official seal of the City has been impressed, or printed, or lithographed on
each of the Bonds; and said seal has been duly adopted as, and is hereby declared to
be, the official seal of the City.
11. That the true and correct signatures of the Mayor, the City Secretary and the City
Attorney are set forth in Exhibit C attached hereto.
Matters Relating to the Official Statement
12. That, to our best knowledge and belief:
(a) the descriptions and statements of or pertaining to the City contained in its
Official Statement and any addenda, supplement or amendment with respect to such
descriptions or statements thereto, on the date of such Official Statement, on the date
of sale of the Obligations and the acceptance of the best bid therefor, and on the date
of the delivery, were and are true and correct in all material respects;
(b) insofar as the City and its affairs, including its financial affairs, are concerned,
such Official Statement did not and does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made,
not misleading;
-3-
(c) insofar as the descriptions and statements, including financial data, of or
pertaining to entities, other than the City, and their activities contained in such Official
Statement are concerned, such statements and data have been obtained from sources
which the City believes to be reliable and that the City has no reason to believe that
they are untrue in any material respect; and
(d) there has been no material adverse change in the financial condition of the City
since the date of the last audited financial statements of the City.
SIGNED AND SEALED this
Interim lCityana r,
City of Fort Worth, Texas
e inanc' cer,
C,�ty o Fort Worth, Texas
(SEAL)
* % f
� � J
�lh
signature Page, General Certificate, Drainage Revenue Bonds
4-
MANUAL SIGNATURE OFFICIAL TITLE
Signature Page, Exhibit C to General Certificate, Drainage Revenue Bonds
Mayor,
City of Fort Worth, Texas
City Secretary,
City of Fort Worth, Texas
City Attorney,
City of Fort Worth, Texas
Before me, on this day personally appeared the foregoing individuals, known to me to be the
persons whose names are subscribed to the foregoing instrument in my presence.
Given under my hand and seal of office this &1 G 4, % J,,,
E-'NOtOrY ONALD P. GONZALES Public, State of Texas y Commission Expires
May 17, 2012
otary Public
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, and their respective seals to be hereunto affixed and attested, all as of the day and year first
above written.
ATTEST:
w
APPROVED AS TO FORM:
City Atto ey
Signature Page — Paying Agent Registrar Agreement
CITY OF FORT WORTH, TEXAS
By:
Interim City Manager
(SEAL)
BANK OF TEXAS, N.A.
By:
Title:
Attention: Corporate Trust Services
15