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Res 165-2009 12/1/2009 RESOLUTION NO. �(�„r.�20oq Resolution Approving A Debt Payment Agreement Between The City Of Wichita Falls And The Wichita Falls 4B Sales Tax Corporation And Authorizing The City Manager To Execute All Documents Necessary To Effectuate And Confirm Said Obligation WHEREAS, on November 3, 2009, the City Council of the City of Wichita Falls (the "City Council") authorized the City Manager to execute all documents necessary to offer $3,900,000 to Brook Avenue Associates, LP, to purchase the Castaway Cove Waterpark, and endorsed an application to the Wichita Falls 4B Sales Tax Corporation to fund that purchase; and WHEREAS, on November 13, 2009, the Wichita Falls 4B Sales Tax Corporation approved the Castaway Cove Waterpark Project, which will provide for the purchase, repair, maintenance and payment of other "costs" to acquire and develop the Castaway Cove Waterpark in Wichita Falls, Texas, authorized the President of the Wichita Falls 4B Sales Tax Corporation to execute all documents necessary to obligate the Wichita Falls 4B Sales Tax Corporation to the City for said funds, amended the Wichita Falls 4B Sales Tax Corporation's FY 2009-2010 budget to provide for debt service payments on said funds, and made related findings, allocations, and authorizations with respect to the proposed acquisition. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The attached Debt Payment Agreement between the City of Wichita Falls and the Wichita Falls 4B Sales Tax Corporation is hereby approved, and the City Manager is authorized to execute all documents necessary to effectuate and confirm the obligation of said corporation to pay the funds allocated therein, as well as such other agreements as are necessary to receive funds necessary to pay for additional transactional "costs" (as such term is defined in the Texas Development Corporation Act of 1979) from the aforementioned corporation. PASSED AND APPROVED this the 1 day of December, 2009. � � MAYOR ATTEST: ity Clerk Debt Payment Agreement THIS Debt Payment Agreement ("Agreement") is between the City of Wichita Falls, Texas (the "City") and the Wichita Falls 4B Sales Tax Corporation (the "Corporation"). 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, on November 3, 2009, the City Council of the City of Wichita Falls (the "City Council") authorized the City Manager to execute all documents necessary to offer $3,900,000 to Brook Avenue Associates, LP, to purchase the Castaway Cove Waterpark, and endorsed an application to the Wichita Falls 4B Sales Tax Corporation to fund that purchase; WHEREAS, on November 13, 2009, the Wichita Falls 4B Sales Tax Corporation approved the Castaway Cove Waterpark Project, to provide for the purchase, repair, maintenance and payment of other "costs" to acquire and develop the Castaway Cove Waterpark in Wichita Falls, Texas, authorized the President of the Wichita Falls 4B Sales Tax Corporation to execute all documents necessary to obligate the Wichita Falls 4B Sales Tax Corporation to the City for said funds, amended the Wichita Falls 4B Sales Tax Corporation's FY 2009-2010 budget to provide for debt service payments on said funds, and made related findings, allocations, and authorizations with respect to the proposed acquisition; WHEREAS, the City Council of the City of Wichita Falls (the "City Council") and the Board of Directors of the Corporation (the "Board") have determined to undertake the 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 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. 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 approximately $3,985,000 ("Obligations") on or about January of 2010. 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. The amount payable by the Corporation shall be subject to annual appropriation by the Corporation, and the amount of the Obligations that exceed the amount appropriated by the Corporation shall be the responsibility of the City. (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. PURCHASE, REPAIR, AND CONSTRUCTION CONTRACTS. The City will purchase the Project, perform all construction and repair activities on the Project, and 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 ar 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 ar 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. 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 Corporation City of Wichita Falls By: By: President, Board of Directors Mayor ATTEST: ATTEST: Secretary, Board of Directors City Secretary/City Clerk (Corporate Seal) (City Seal) Exhibit A DESCRIPTION OF PROJECT Purchasing & repairing Castaway Cove Waterpark. Exhibit B Schedule of Debt Service Payments for the Certificates of Obligation (See Attached)