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Res 145-2003 11/4/2003RESOLUTION NO. I I4� OLC)3 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A PROJECT AGREEMENT BETWEEN THE CITY OF WICHITA FALLS AND THE WICHITA FALLS 4B SALES TAX CORPORATION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, the 4B Board of Directors took action at their October 7 meeting, in form of a Resolution, signifying their intention to pay the debt service on debt issued for certain public safety projects; and WHEREAS, the City Council passed a Resolution notifying the public of an intent to issue debt for said projects; and WHEREAS, the attached Project Agreement is necessary to consummate the agreement between the City Council to issue debt for certain public safety projects, and for the 4B Sales Tax Corporation to pay the resulting debt service. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. The Mayor is hereby authorized to execute the attached Project Agreement on behalf of the City Council of the City of Wichita Falls. SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 4th day of November, 2003. ATTEST: tt�.1 City Clerk PROJECT AGREEMENT THIS PROJECT AGREEMENT ("Agreement") executed by and between the City of Wichita Falls, Texas (the "City"), and the Wichita Falls 4B Sales Tax Corporation (the "Corporation"). WITNESSETH WHEREAS, the Corporation was duly created by the City pursuant to authority granted by Article 5190.6, Section 4B, Revised Civil Statutes, as amended (the "Act"); WHEREAS, at an election held on January 18, 1997, in accordance with the provisions of the Act, the voters of the City approved a proposition (the "Proposition") on the question of the adoption of a sales and use tax within the City at a rate of one-fourth of one percent (the "Sales Tax") to undertake projects as described in Section 4B of Article 5190.6, Revised Civil Statutes, including but not limited to projects for a library, a police and fire training center, fire station consolidation and equipment, police and fire radio dispatch modernization, public park improvements, streets and roads, drainage and related improvements, and the maintenance and operations expenses for any project authorized by Section 4B of Article 5190.6, Revised Civil Statutes; and WHEREAS, the City Council of the City (the "City Council") and the Board of Directors of the Corporation (the "Board ") have determined to undertake a project as authorized by the Act and the Proposition, on land owned by the City, as generally described and depicted on Exhibit A attached hereto (the "Project"); and WHEREAS, after due consideration of the available means to finance the costs of the Project, the benefit to the City, the Corporation and the citizens of the City of providing the Project, and the purposes for which the Corporation was created and the Sales Tax was authorized, the City and Board have further determined that the most cost effective and beneficial arrangement would be for the City to issue certificates of obligations secured in part from the City's ad valorem tax taxing authority with the understanding and agreement that the Corporation would pay the costs of such Project by remitting to the City from the receipts from the Sales Tax amounts equal to the principal of and interest on the obligations issued by the City to finance such Project costs as such principal and interest shall become due and payable; and WHEREAS, the parties hereto find it necessary and advisable to enter into this Agreement with respect to the Project in accordance with Section 23(a)(12) of the Act to set forth the duties and responsibilities of the respective parties for the implementation and funding of the Project. NOW, THEREFORE, in consideration of the covenants and agreements herein made, and subject to the conditions herein set forth, the City and the Corporation agree as follows: Section 1. DEFINITIONS AND INCORPORATION OF PREAMBLES. The terms and expressions used in this Agreement, unless the context shows clearly otherwise, shall have meanings set forth herein, including terms defined in the Preambles hereto, which preambles are incorporated in and made a part hereof for all purposes, or, if not defined herein, such terms shall have the meanings given in the Resolution. I Section 2. FINANCING OF PROJECT. The parties agree and understand the costs of the construction, acquisition, installation and equipment of the Project are to be paid from the proceeds of certificates of obligation to be issued and sold by the City under and pursuant to Subchapter C of Chapter 271, Texas Local Government Code, as amended (the Certificate of Obligation Act of 1971), in a principal amount currently anticipated to be $7,550,000 ("Obligations") on or about November 18, 2003. Section 3. OBLIGATION OF THE CORPORATION. (a) The Corporation agrees to pay the costs of the Project by making payments to the City in amounts sufficient to pay in full the principal of and interest on the Obligations as the same shall become due and payable, in accordance with the provisions hereinafter set forth. (b) Upon a firm delivery date being established for the Obligations, the City agrees to notify the Corporation of such date and confirm in writing such delivery date. Following the delivery of the Obligations, the City shall furnish the Corporation a debt retirement schedule for such Obligations for attachment hereto as Exhibit B, which shall constitute the payment schedule to be adhered to by the Corporation. (c) Such payments shall be made until all principal and interest due or to become due on the Obligations is paid in full. (d) If for any reason the Corporation does not make its payments in full on the due dates thereof, any such deficiency shall, be made up from the next available Sales Tax revenues of the Corporation. (e) The Corporation agrees that the payments due hereunder to the City for the payment of the debt service on the Obligations will be incorporated and included in the Corporation's annual budget, as adopted or amended, and the City shall be entitled to a first claim on and right to the amounts budgeted each year for the payment of the Obligations; provided that, with the consent or approval of the City, the Corporation may issue or incur obligations secured by and payable from a superior lien on and pledge of the Sales Tax. Section 4. CONSTRUCTION CONTRACTS. The City will construct the Project and shall be solely responsible for the construction and maintenance of the Project and the payment of the Obligations, and the Corporation shall have no liability with respect to the construction, operation or maintenance of the Project or the Obligations other than to make the payments to the City herein contemplated from the Corporation's receipts from the Sales Tax. Section 5. PROJECT OWNERSHIP. The Project shall be owned by the City. Section 6. PROJECT FINANCING, CONSTRUCTION AND COMPLETION. The City agrees to proceed promptly with the issuance of the Obligations, and upon receipt of the proceeds of sale of the Obligations proceed with due diligence with the construction and completion of the Project. The City does not anticipate delays in the construction of the Project and the Corporation shall not be liable for any damages caused by any delays in completion of the Project or any additional costs in reference to the Project. Section 7. FORCE MAJEURE. If, by reason of Force Majeure, either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then such party shall give notice and full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as hereinafter provided, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall means acts of God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the landslides, lightening, earthquakes, fires hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines, or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch sh all not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. It is specifically excepted and provided, however, that in no event shall any Force Majeure relieve the City of its obligation to transfer sales tax revenues to the Corporation as required under the Act. Section 8. REGULATORY BODIES. This Agreement shall be subject to all valid rules, regulations, and laws applicable thereto passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them. Section 9. SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Section 10. TERM OF AGREEMENT. That the term of this Agreement shall be for the period during which the Obligations are Outstanding. [Remainder of page left blank intentionally] IN WITNESS WHEREOF, The Corporation and the City, acting under authority of their respective governing bodies have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an original, all as of the day of , which is the date of this Agreement. WICHITA FALLS 4B SALES TAX President, Board of Directors ATTEST: Secretary, Board of Directors (Corporate Seal) CITY OF WICHITA FALLS By Mayor ATTEST: City Secretary/City Clerk (City Seal) EXIMIT A DESCRIPTION OF PROJECT The Construction and Equipping of a new public safety training center which will include facilities for emergency communications and operations, public safety, and general city training, and the acquisition and installation of fiber link to other city facilities. The construction, acquiring, installing and equipping a radio and data communications system for police, fire and other departments of the City, including computer equipment and software, radios and communications equipment, towers, equipment shelters and storage facilities, and land and interest in land necessary therefore. Professional services, including fiscal, engineering, architectural, and legal fees incurred in connection with such projects. EXHIBIT B Schedule of Debt Service Payments for the Certificates of Obligation (See Attached) RESOLUTION NO. RESOLUTION OF THE WICHITA FALLS 4B SALES TAX BOARD OF DIRECTORS SIGNIFYING THE BOARD'S INTENTION TO PAY THE DEBT SERVICE FOR CERTAIN PUBLIC SAFETY PROJECTS; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, The 413 Board of Directors has amended their budget to include project expenditures for the Municipal Public Safety Training Center, a two-way radio project and a Computer Aided Dispatch and Records Management Systems project; and WHEREAS, It is necessary to issue debt to pay for elements of these three projects; and WHEREAS, The 413 Board of Directors intends to pay the annual debt service for debt issued in conjunction with these three projects. NOW, THEREFORE, BE IT RESOLVED BY THE WICHITA FALLS 4B SALES TAX BOARD OF DIRECTORS, THAT: SECTION 1. The 4B Board of Directors of the Wichita Falls 4B Sales Tax Board hereby agrees to pay the annual debt service on the aforementioned public safety projects. SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 7th day of October, 2003. Chairman