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HomeMy WebLinkAbout020309 ORD - 05/10/1988AN ORDINANCE AUTHORIZING THE ISSUANCE OF "CITY OF CORPUS CHRISTI, TEXAS, COMBINATION TAX AND TAX INCREMENT REVENUE CERTIFICATES OF OBLIGATION, SERIES 1988 (TAX INCREMENT FINANCING ZONE PROJECT)"; LEVYING AN AD VALOREM TAX UPON ALL TAXABLE PROPERTY IN THE CITY AND PLEDGING TAX INCREMENT REVENUES FROM THE TAX INCREMENT FUND OF CORPUS CHRISTI REINVESTMENT ZONE NO. 1 FOR THE PAYMENT OF SAID CERTIFICATES; SPECIFYING THE TERMS AND FEATURES OF SUCH CERTIFICATES; APPROVING AN ESCROW AGREEMENT RELATING TO THE DISPOSITION OF THE PROCEEDS OF SUCH CERTIFICATES (INCLUDING APPROVAL OF THE FORM OF PURCHASE AGREEMENT ATTACHED TO SUCH ESCROW AGREEMENT); AND RESOLVING OTHER MATTERS INCIDENT AND RELATED TO THE ISSUANCE, SALE, SECURITY, PAYMENT AND DELIVERY OF SAID CERTIFICATES. WHEREAS, the City Council of the City of Corpus Christi, Texas, has determined that certificates of obligation should be issued for the purpose of paying contractual obligations to be incurred for (i) the purchase of land and a building (an Aquarium), (ii) the expansion of the Corpus Christi museum, and (iii) professional services; and WHEREAS, notice of intention to issue such certificates of obligation (stating the time and place the council proposed to authorize the issuance of such certificates, the maximum amount proposed to be issued, the purpose thereof and the manner in which the Council proposed to provide for the payment of such certificates) has been published in the Corpus Christi Caller -Times, a newspaper hereby found to be of general circulation in the City of Corpus Christi, Texas, on April 11, 1988, and April 18, 1988, the date of the first publication being before the fourteenth day before the date stated therein for the first reading of the ordinance authorizing the certificates; and WHEREAS, no petition, protesting the issuance of such certificates and signed by at least 5 percent of the qualified voters of the City, has been filed with the City Secretary, any member of the Council or any other official of the City; and WHEREAS, the City Council hereby finds and determines that all of the certificates of obligation described in such notice should be issued and sold at this time; no, therefore, 206HG067.ord 20309 MICROFtLMED BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1: Authorization - Designation - Principal Amount - Purpose. Certificates of obligation of the City shall be and are hereby authorized to be issued in the aggregate principal amount of $10,565,000 to be designated and bear the title "CITY OF CORPUS CHRISTI, TEXAS, COMBINATION TAX AND TAX INCREMENT REVENUE CERTIFICATES OF OBLIGATION, SERIES 1988 (TAX INCREMENT FINANCING ZONE PROJECT)", (hereinafter referred to as the "Certificates") for the purpose of paying contractual obligations to be incurred for (i) the purchase of land and a building (an Aquarium), (ii) the expansion of the Corpus Christi museum, -and (iii) professional -services, pursuant to authority conferred by and in conformity with the Constitution and laws of the State of Texas, including Subchapter C of Chapter 271, Local Government Code. SECTION 2: Fully Registered Obligations - Authorized Denominations - Stated Maturities - Date. The Certificates are issuable in fully registered form only; shall be dated April 15, 1988 (the "Certificate Date") and shall be in. denominations of $5,000 or any integral multiple thereof (within a Stated Maturity) and the Certificates shall become due and payable on March 1 in each of the years and in principal amounts (the "Stated Maturities") in accordance with the following schedule: Year of Stated Maturity 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Principal Amount $ 480,000" 415,000 435,000 465,000 490,000 520,000 555,000 595,000 635,000 680,000 730,000 785,000 840,000 910,000 975,000 1,055,000 The Certificates shall bear interest on the unpaid principal amount thereof from the Certificate Date at the per annum rates established by the ordinance to be adopted on the date on which the Certificates are sold (computed on the basis -2- 3 5 0 2 E of a 360 -day year of twelve 30 -day months). The interest rates of the Certificates shall be fixed interest rates for each maturity shown above and all Certificates of the same Stated Maturity shall bear the same interest rate. In no event shall the interest rates on the Certificates exceed a net effective interest rate of 15% as provided by Tex. Rev. Civ. Stat. Ann. art. 717k-2. Interest on the Certificates shall be payable semiannually on March 1 and September 1 in each year, commencing September 1, 1988. SECTION 3: Terms of Payment -Paying Agent/Registrar. The principal of, premium, if any, and the interest on the Certificates, due and payable by reason of maturity, redemption or otherwise, shall be payable only to the registered owners or holders of the Certificates (hereinafter called the "Holders") appearing on the registration and transfer books (the "Security Register") for the Certificates maintained by the Paying Agent/ Registrar and the payment thereof shall be in any cdin or currency of the United States of America, which at the time of payment is legal tender for the payment of public and private debts, and shall be without exchange or collection charges to the Holders. Interest on each Certificate issued and delivered to a Holder shall accrue from the latest interest payment date that interest on such Certificate (or Predecessor Certificate) has been paid that precedes the registration date appearing on such Certificate in the "Registration Certificate of Paying Agent/ Registrar" (Section 8D hereof), unless the registration date appearing thereon is an interest payment date for which interest is being paid, in which case interest on such Certificate shall accrue from the registration date appearing thereon and provided further that interest on a Certificate having a registration date prior to the first interest payment date therefor shall accrue from the Certificate Date. The selection and appointment of First City Bank of Corpus Christi, Corpus Christi, Texas, to serve as Paying Agent/Registrar for the Certificates is hereby approved and confirmed. The City covenants to maintain and provide a Paying Agent/Registrar at all times until the Certificates are paid and discharged, and any successor Paying Agent/Registrar shall be a bank, trust company, financial institution or other entity duly qualified and legally authorized to serve as and perform the duties and services of Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Certificates the City agrees to promptly cause a written notice thereof to be sent to each Holder affected by the change by United States Mail, first class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. -3- 3 5 0 2 E Principal of and premium, if any, on the Certificates shall be payable at the Stated Maturities or the redemption thereof, only upon presentation and surrender of the Certificates to the Paying Agent/Registrar at its principal office. Interest on the Certificates shall be paid to the Holders whose name appears in the Security Register for such series of Certificates at the close of business on the Record Date (the fifteenth day of the month next preceding each interest payment date) and shall be paid by the Paying Agent/ Registrar (i) by check sent United States Mail, first class postage prepaid, to the address of the Holder recorded in the Security Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the -Holder. If the date for the payment of the principal of or interest on the Certificates shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Paying Agent/Registrar is located are authorized by law or executive order to close; then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to close; and payment on such date shall have the same force and effect as if made on - the original date payment was due. In the event of a nonpayment of interest on a scheduled payment date, and for thirty (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 Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Holder appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. SECTION 4: Redemption. (a) Optional Redemption. The Certificates maturing on and after March 1, 1999, shall be subject to redemption prior to maturity, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on March 1, 1998, or on any interest payment date thereafter at the redemption price of par plus accrued interest to the date of redemption. (b) Exercise of Redemption. At least forty-five (45) days prior to a date set for the redemption of any Certificates (unless a shorter notification period shall be satisfactory to the Paying Agent/Registrar), the City shall notify the Paying -4- 3 5 0 2 E Agent/Registrar of the decision to redeem Certificates, the principal amount of each Stated Maturity to be redeemed, and the date set for the redemption thereof. The decision of the City to exercise the right to redeem Certificates shall be entered in the minutes of the governing body of the City. (c) Selection of Certificates for Redemption. If less than all Outstanding Certificates of the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall select by lot, the Certificates to be redeemed; provided that if less than the entire principal amount of a Certificate is to be redeemed, the Paying Agent/ Registrar shall treat such Certificate then subject to redemption as -representing the number of Certificates Outstanding which is obtained by dividing the principal amount of such Certificate by $5,000. (d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date for the Certificates, a notice of redemption shall be sent by United States Mail, first class postage prepaid, in the name of the City and at the City's expense, to each Holder of a Certificate to be redeemed in - whole or in part at the address of the Holder appearing on the Security Register at the close of business on the business day next preceding the date of mailing such notice, and any notice of redemption so mailed shall be conclusively presumed to have been duly given irrespective of whether received by the Holder. All notices of redemption shall (i) specify the date of redemption for the Certificates, (ii) identify the -Certificates to be redeemed and, in the case of a portion of the principal amount to be redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state that the Certificates, or the portion of the principal amount thereof to be redeemed, shall become due and payable on the redemption date specified, and the interest thereon, or on the portion of the principal amount thereof to be redeemed, shall cease to accrue from and after the redemption date, and (v) specify that payment of the redemption price for the Certificates, or the principal amount thereof to be redeemed, shall be made at the principal corporate office of the Paying Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Certificate is subject by its terms to prior redemption and has been called for redemption and notice of redemption thereof has been duly given or waived as herein provided, such Certificate (or the principal amount thereof to be redeemed) shall become due and payable, and interest thereon shall cease to accrue from and after the redemption date therefor, provided moneys sufficient for the payment of such Certificates (or of the principal amount thereof to be redeemed) at the then applicable redemption price are held for the purpose of such payment by the Paying Agent/Registrar. -5- 7 5 0 2 E SECTION 5: Registration - Transfer - Exchange of Certificates -Predecessor Certificates. A Security Register relating to the registration, payment, and transfer or exchange of the Certificates shall at all times be kept and maintained by the City at the principal office of the Paying Agent/Registrar, as provided herein and in accordance with the provisions of an agreement with the Paying Agent/Registrar and such rules and regulations as the Paying Agent/Registrar and City may prescribe. The Paying Agent/Registrar shall obtain, record, and maintain in the Security Register for the Certificates the name and address of each Holder -of the Certificates issued under and pursuant to the provisions of this Ordinance. Any Certificate may, in accordance with its terms and the terms hereof, be transferred or exchanged for Certificates of the same series and of other authorized denominations by the Holder, in person or by his 'duly authorized agent, upon surrender of such Certificate to the Paying Agent/Registrar for cancellation, accompanied by a written instrument of transfer or request for exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. Upon surrender for transfer of any Certificate at the principal office of the Paying Agent/Registrar, the Paying Agent/Registrar shall register and deliver, in the name of the designated transferee or transferees, one or more Certificates, executed on behalf of, and furnished by, the City, of authorized denominations and having the same Stated Maturity and of a like aggregate principal amount as the Certificate or Certificates surrendered for transfer. At the option of the Holder, Certificates may be exchanged for other Certificates of authorized denominations and having the same Stated Maturity, bearing the same rate of interest and for like aggregate principal amount, upon surrender of the Certificates to be exchanged at the principal office of the Paying Agent/Registrar. Whenever any Certificates are surrendered for exchange, the Paying Agent/Registrar shall register and deliver Certificates of like series, executed on behalf of and furnished by the City, to the Holder requesting the exchange. All Certificates issued upon any transfer or exchange of Certificates shall be delivered at the principal office of the Paying Agent/Registrar, or sent by United States mail, first class postage prepaid, to the Holder and, upon the delivery thereof, the same shall be valid obligations of the City, evidencing the same obligation to pay, and entitled to the same benefits under this Ordinance, as the Certificates surrendered in such transfer or exchange. -6- 3 5 0 2 E All transfers or exchanges of Certificates pursuant to this Section shall be made without expense or service charge to the Holder, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange of any tax or other governmental charges required to be paid with respect to such transfer or exchange. Certificates cancelled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be "Predecessor Certificates," evidencing all or a portion, as the case may be, of the same obligation to pay evidenced by the Certificate or Certificates registered and delivered in the exchange or transfer therefor. Additionally, the term "Predecessor Certificates" shall include any mutilated, lost, destroyed, or stolen Certificate for which a replacement Certificate has been issued, registered and delivered in lieu thereof pursuant to the provisions of Section 24 heredf and such new replacement Certificate shall be deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Certificate. Neither the City nor the Paying Agent/Registrar shall be required to transfer or exchange any Certificate called for redemption, in whole or in part, within 45 days of the date fixed for redemption of such Certificate; provided, however, such limitation on transferability shall not be applicable to an exchange by the Holder of an unredeemed balance of a Certificate called for redemption in part. SECTION 6: Execution - Registration. The Certificates shall be executed on behalf of the City by the Mayor under its seal reproduced or impressed thereon and countersigned by the City Secretary. The signature of said officers on the Certificates may be manual or facsimile. Certificates bearing the manual or facsimile signatures of individuals who are or were the proper officers of the City on the Certificate Date shall be deemed to be duly executed on behalf of the City, notwithstanding that such individuals or either of them shall cease to hold such offices at the time of delivery of the Certificates to the initial purchasers and with respect to Certificates delivered in subsequent exchanges and transfers, all as authorized and provided in the Bond Procedures Act of 1981, as amended. No Certificate shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless there appears on such Certificate either a registration certificate substantially in the form provided in Section 8E, manually executed by the Comptroller of Public -7- 3 5 0 2 E Accounts of the State of Texas or his duly authorized agent, or a registration certificate substantially in the' form provided in Section 8C, manually executed by an authorized officer, employee, or representative of the Paying Agent/Registrar, and either such certificates upon any Certificate duly signed shall be conclusive evidence, and the only evidence, that such Certificate has been duly certified, registered and delivered. SECTION 7: Initial Certificates. The initial delivery of the Certificates herein authorized shall be accomplished with sixteen (16) fully registered Certificates (hereinafter called the "Initial Certificates"), being one certificate for each year of maturity, in the applicable principal amount and denomination and- to be numbered consecutively from T-1 and upward, and the Initial Certificates shall be registered in the name of the initial purchasers. The Initial Certificates shall be the Certificates submitted to the Office of the Attorney General of the State of Texas, for approval, certified and registered by the Office of the Comptroller of Public Accounts of the State of Texas and delivered to the initial purchasers. SECTION 8: Forms. A. Forms Generally. The' Certificates, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas (to be printed on the Initial Certificates only), the Registration Certificate of the Paying Agent/Registrar, and the form of Assignment to be printed on the Certificates, including the Initial Certificates, shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification (including identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including any reproduction of an opinion of counsel and, if applicable, an appropriate statement regarding insurance with respect to the Certificates) thereon as may, consistently herewith, be established by the City or determined by the officers executing such Certificates as evidenced by their execution thereof. Any portion of the text of any Certificates may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Certificate. The Certificates, including the Initial Certificates, shall be printed, lithographed, typewritten, or engraved or produced in any other similar manner, all as determined by the officers executing such Certificates as evidenced by their execution thereof. -8- 3 5 0 2 E B. Form of Certificates. REGISTERED REGISTERED NO. $ United States of America State of Texas City of Corpus Christi, Texas, Combination Tax and Tax Increment Revenue Certificate of Obligation, Series 1988 (Tax Increment Financing Zone Project) Certificate Date: April 15, 1988 Interest Rate: Stated Maturity: CUSIP NO: Registered Owner: Principal Amount: DOLLARS The City of Corpus Christi (hereinafter referred to as the "City"), a body corporate and political subdivision in the. County of Nueces, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the order of the Registered Owner named above (the "Holder"), or the registered assigns thereof, on the Stated Maturity date specified above the Principal Amount stated above (or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the unpaid Principal Amount hereof (computed on the basis of a 360 -day year of twelve 30 -day months) from the interest payment date next preceding the "Registration Date" of this Certificate appearing below (unless this Certificate bears a "Registration Date" as of an interest payment date, in which case it shall bear interest from such date, or unless the Registration Date of this Certificate is prior to the first interest payment date, in which case it shall bear interest from the Certificte Date, at the per annum rate of interest specified above; such interest being payable on March 1 and September 1 of each year, commencing September 1, 1988. Principal of this Certificate is payable to the Holder hereof, upon presentation and surrender, at the principal office of the Paying Agent/Registrar executing the registration certificate appearing hereon, or its successor. Interest is payable to the Holder of this Certificate (or one or more Predecessor Certificates, as defined in the Ordinance hereinafter referenced) whose name appears on the "Security Register" maintained by the Paying Agent/Registrar at the close of business on the "Record Date", which is the fifteenth day of the month next preceding each interest payment date and interest shall be paid by the Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the -9- 3 5 0 2 E address of the Holder recorded in the Security Register on the Record Date or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. All payments of principal of, premium, if any, and interest on this Certificate shall be without exchange or collection charges to the Holder hereof and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. This Certificate is one of the series specified- in its title issued in the aggregate principal amount of $10,565,000 (herein referred to as the "Certificates") for the purpose of paying contractual obligations to be incurred for (i) the purchase of land and a building (an Aquarium), (ii) the expansion of the Corpus Christi museum, and (iii) professional services, under and in strict conformity with the Constitution and laws of the State of Texas, including Subchapter' C of Chapter 271, Local Government Code, and pursuant to an Ordinance adopted by the governing body of the City (herein referred to as the "Ordinance"). The Certificates maturing on and after March 1, 1999, may be redeemed prior to their Stated Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on March 1, 1998, or on any interest payment date thereafter, at the redemption price of par, together with accrued interest to the date of redemption, and upon 30 days prior written -notice being given by United States Mail, first class postage prepaid, to Holders of the Certificates to be redeemed, and subject to the terms and provisions relating theretocontained in the Ordinance. If this Certificate (or any portion of the principal sum hereof) shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date this Certificate (or the portion of the principal sum hereof to be redeemed) shall become due and payable, and interest thereon shall cease to accrue from and after the redemption date therefor, provided moneys for the payment of the redemption price and the interest on the principal amount to be redeemed to the date of redemption are held for the purpose of such payment by the Paying Agent/Registrar. In the event of a partial redemption of the principal amount of this Certificate, payment of the redemption price of such principal amount shall be made to the Holder only upon presentation and surrender of this Certificate to the Paying Agent/Registrar at its principal office and there shall be -10- 3 5 0 2 E issued, without charge therefor to the Holder hereof, a new Certificate or Certificates of like maturity and interest rate in any authorized denominations provided in the Ordinance for the then unredeemed balance of the principal sum hereof. If this Certificate is selected for redemption, in whole or in part, the City and the Paying Agent/Registrar shall not be required to transfer this Certificate to an assignee of the Holder of this Certificate Oithin 45 days of the redemption date therefor; provided, however, such limitation on transferability shall not be applicable to an exchange by the Holder of this Certificate of the unredeemed balance hereof in the event of its redemption in part. The Certificates are payable from and secured by a lien on and pledge of certain Tax Increment Revenues (as defined in the Ordinance) of Corpus Christi Reinvestment Zone No. 1 (the "Zone"), such lien and pledge, however, being junior and subordinate to the lien on and pledge of the Tax Increment Revenues of the Zone securing the payment of Prior Lien Bonds (identified and defined in the Ordinance) hereafter issued by the City and are additionally payable from the proceeds of an ad valorem tax levied, within the limitations prescribed by law, upon all taxable property in the City. In the Ordinance, the City reserves and retains the right to issue Prior Lien Bonds while the Certificates are Outstanding without limitation as to principal amount but subject to certain covenants in the Ordinance and any terms, conditions, or restrictions as may be applicable thereto under law or otherwise. Reference is hereby made to the Ordinance, a copy of which is on file in the principal office of the Paying Agent/ Registrar, and to all the provisions of which the Holder hereof by the acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the tax levied for the payment of the Certificates; the description of the Tax Increment Revenues pledged to the payment of the principal of and interest on the Certificates; the nature and extent and manner of enforcement of the pledge; the terms and conditions relating to the transfer of this Certificate; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders of the Certificates; the rights, duties, and obligations of the City and the paying Agent/Registrar; the terms and provisions upon which the tax levy and the liens, pledges, charges and covenants made therein may be discharged at or prior to the maturity of this Certificate, and this Certificate deemed to be no longer Outstanding thereunder; and for the other terms and provisions contained therein. Capitalized terms used herein have the meanings assigned in the Ordinance. -11- 150ZL This Certificate, subject to certain limitations contained in the Ordinance, may be transferred on the Security Register only upon its presentation and surrender at the principal office of the Paying Agent/Registrar, with the Assignment hereon duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by, the Holder hereof, or his duly authorized agent. When a transfer on the Security Register occurs, one or more fully registered Certificates of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be issued by the Paying Agent/Registrar to the designated transferee or transferees. The City and the Paying Agent/Registrar, and any agent of either, may treat the Holder hereof whose name appears on the Security Register (i) on the Record Date as the owner entitled to payment of interest hereon, (ii) on the date of surrender of this Certificate as the owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the City nor the Paying. Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. In the event of nonpayment of interest on a scheduled payment date and for thirty (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 Special Record Date and of the scheduled payment date of the past -due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Holder appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. It is hereby certified, recited, represented, and covenanted that the City is a body corporate and political subdivision duly organized and legally existing under and by virtue of the Constitution and laws of the State of Texas; that the issuance of the Certificates is duly authorized by law and that the Certificates are issued by the City for the Zone; that all acts, conditions and things required to exist and be done precedent to and in the issuance of the Certificates to render the same lawful and valid obligations of the City have been properly done, have happened and have been performed in regular and due time, form, and manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that the Certificates do not exceed any constitutional or statutory -12- 3 5 0 2 E limitation; and that due provision has been made for the payment of the principal of and interest on the Certificates by the levy of a tax and a pledge of the Tax Increment Revenues of the Zone as aforestated. In case any provision in this Certificate or any application thereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. The terms and provisions of this Certificate and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the City Council of the City has caused this Certificate to be duly executed under the official seal of the City as of the Certificate Date. CITY OF CORPUS CHRISTI, TEXAS Mayor COUNTERSIGNED: City Secretary (SEAL) C. Form of Certificate of Paying Agent/Registrar to Appear on All Certificates. REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR This Certificate has been duly issued and registered in the name of the Registered Owner shown above under the provisions of the within -mentioned Ordinance and duly approved, or a Predecessor Certificate hereof duly approved, by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown hereon or by the records of the Paying Agent/Registrar. Registration Date: 3 5 0 2 E First City Bank of Corpus Christi, Corpus Christi, Texas as Paying Agent/Registrar By Authorized Signature -13- D. Form of Assignment to Appear on All Certificates. ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print or typewrite name, address, and zip code of transferee:) (Social Security or other identifying number• ) the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within Certificate on the books kept for registration thereof, with full power of substitution in the premises. DATED: Signature guaranteed: NOTICE: The signature on this assignment must correspond with the name of the Registered Owner as it appears on the face of the - within Certificate in every particular. E. *Form of Registration Certificate of Comptroller of Public Accounts to Appear on Initial Certificates only. REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER OF PUBLIC ACCOUNTS THE STATE OF TEXAS REGISTER NO. I HEREBY CERTIFY that this Certificate has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this • (SEAL) Comptroller of Public Accounts of the State of Texas *Note to Printer: Print only on Initial Certificates -14- 3 5 0 2 E SECTION 9: Definitions. That for purposes of this Ordinance and for clarity with respect to the issuance of the Certificates, and the levy of taxes and appropriation of Tax Increment Revenues therefor, the following words or terms, whenever the same appear herein without qualifying language, are defined to mean as follows: (a) The term "Additional Certificates" shall mean combination tax and revenue certificates of obligation hereafter issued under and pursuant to the provisions of Subchapter C of Chapter 271, Local Government Code, or similar law hereafter enacted and payable from ad valorem taxes and additionally payable from and secured by a parity lien on and pledge of the Tax Increment Revenues of the Zone of equal rank and dignity with the lien- and ienand pledge securing the payment of the Certificates. (b) The term "Certificates" shall mean the $10,565,000 "CITY OF CORPUS CHRISTI, TEXAS, COMBINATION TAX AND TAX INCREMENT REVENUE CERTIFICATES OF OBLIGATION, SERIES 1988 (TAX INCREMENT FINANCING ZONE PROJECT)" authorized by this Ordinance. (c) The term "Certificate Fund" shall mean the special Fund created and established under the provisions of Section 10 of this Ordinance. (d) The term "Collection Date" shall mean, when reference is being made to the levy and collection of annual ad valorem taxes, the date annual ad valorem taxes levied each year by the City become delinquent. (e) The term "Fiscal Year" shall mean the annual financial accounting period used with respect to the operations of the System now ending on July 31 of each year; provided, however, the City Council may change, by ordinance duly passed, such annual financial accounting period to end on another date if such change is found and determined to be necessary. (f) The term "Government Obligations" shall mean direct obligations of the United States of America, including obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, and the United States Treasury obligations such as its State and Local Government Series in book -entry form. -15- 3 5 0 2 E (g) The term "Outstanding" when used in this Ordinance with respect to Certificates means, as of the date of determination, all Certificates theretofore issued and delivered under this Ordinance, except: (1) those Certificates cancelled by the Paying Agent/Registrar or delivered to the Paying Agent/Registrar for cancellation; (2) those Certificates deemed to be duly paid by the City in accordance with the provisions of Section 20 hereof by the irrevocable deposit with the Paying Agent/ Registrar, or an authorized escrow agent, of money or Government Securities, or both, in the amount necessary to fully pay the principal of, premium, if any, and interest thereon to maturity or redemption, as the case may be, provided that, if such Certificates are to be redeemed, notice of redemption thereof shall have been duly given pursuant to this Ordinance or irrevocably provided to be given to the satisfaction of the Paying. Agent/Registrar, or waived; and (3) those mutilated, destroyed, lost, or stolen Certificates which have been replaced with Certificates registered and delivered in lieu thereof as provided in Section 24- hereof. (h) The term "Prior Lien Bonds" shall mean all bonds or other similar obligations hereafter issued payable from and secured by a lien on and pledge of the Tax Increment Revenues of the Zone superior to the lien on and pledge of the Tax Increment Revenues of the Zone herein made and granted. (i) The term "Tax Increment Revenues" shall mean, subject to existing contracts to which the City is a party regarding amounts deposited in the tax increment fund prior to the Certificate Date, all amounts deposited in the tax increment fund for the Zone created pursuant to Chapter 311 -16- 3 5 0 2 E of the Texas Tax Code (or its predecessor statute, the Tax Increment Financing Act of 1981) and by an ordinance adopted by the City Council of the City on December 29, 1982. (j) The term "Zone" shall mean Corpus Christi Reinvemtment Zone No. 1 heretofore created pursuant to Chapter 311 of the Texas Tax Code (or its predecessor statute, the Tax Increment Financing Act of 1981) and by an ordinance adopted by the City Council of the City on December 29, 1982. SECTION 1G: Certificate Fund. That, for the purpose of paying the interest on and to provide a sinking fund for the payment, redemption, and retirement of the Certificates, an interest and sinking fund or account shall be created and maintained on the books and records of the City, which fund or account shall be maintained at a depository of City funds and be known as the "SPECIAL 1988 CITY OF CORPUS CHRISTI, TEXAS, COMBINATION TAX AND TAX INCREMENT FUND REVENUE CERTIFICATE OF OBLIGATION FUND." The Certificate Fund shall be a special fund' or account maintained solely for the payment of the Certificates. Proper officers of the City are hereby authorized and directed to cause to be transferred to the Paying Agent/Registrar for the Certificates, from funds on deposit in the Certificate Fund, amounts sufficient to fully pay and discharge promptly each installment of interest and principal of the Certificates as the same accrues or matures or comes due by reason of redemption prior to maturity; such transfers of funds to be made in such manner as will cause immediately available funds to be deposited with the Paying Agent/Registrar for the Certificates at the close of business on the last business day next preceding each interest and/or principal payment date for the Certificates. SECTION 11: Tax Levy. That to provide for the payment of the "Debt Service Requirements" on the Certificates being (i) the interest on said Certificates and (ii) a sinking fund for their redemption at maturity or a sinking fund of 2% (whichever amount shall be the greater), there shall be and there is hereby levied for the current year and each succeeding year thereafter while said Certificates or any interest thereon shall remain Outstanding, a sufficient tax on each one hundred dollars' valuation of taxable property in said City, adequate to pay such Debt Service Requirements, full allowance being made for delinquencies and costs of collection; said tax shall be assessed and collected each year and applied to the payment of the Debt Service Requirements, and the same shall not be diverted to any other purpose. The taxes so levied and -17- 3 5 0 2 E collected shall be deposited to the credit of the Certificate Fund. This governing body hereby .declares its purpose and intent to provide and levy a tax legally and fully sufficient to pay the said Debt Service Requirements, it having been determined that the existing and available taxing authority of the City for such purpose is adequate to permit a legally sufficient tax in consideration of all other outstanding indebtedness. The. amount of taxes to be provided annually for the payment of the principal of and interest on the Certificates shall be determined and accomplished in the following manner: (a) Prior to the date the City Council establishes the annual tax rate and passes an ordinance levying ad valorem taxes each year, the City Council shall determine: (1) The amount on deposit in the Certificate Fund after (a) deducting therefrom the total amount of Debt Service Requirements to become due on Certificates prior to the Collection Date for the ad valorem taxes to be levied and (b) adding thereto the amount of Tax Increment Revenues of the Zone appropriated and allocated to pay such Debt Service Requirements prior to the Collection Date for the ad valorem taxes to be levied. (2) The amount of Tax Increment Revenues if any, appropriated and to be set aside for the payment of the Debt Service Requirements on the Certificates between the Collection Date for the taxes then to be levied and the Collection Date for the taxes to be levied during the next succeeding calendar year. (3) The amount of Debt Service Requirements to become due and payable on the Certificates between the Collection Date for the taxes then to be levied and the Collection Date for the taxes to be levied during the next succeeding calendar year. (b) The amount of taxes to be levied annually each year to pay the Debt Service Requirements on the Certificates shall be the amount established in paragraph (3) above less the sum total of the amounts established in paragraphs (1) and (2), after taking into consideration delinquencies and costs of collecting such annual taxes. It is the intent of this Section 11 that the Certificates will be paid first from the Tax Increment Revenues and from ad valorem taxes only to the extent Tax Increment Revenues are insufficient for the payment of the Debt Service Requirements. -18- 3502E SECTION 12: Pledge of Revenues. The City hereby covenants and agrees that, subject only to a prior lien on and pledge of the Tax Increment Revenues of the Zone for the payment and security of Prior Lien Bonds, the Tax Increment Revenues of the Zone, with the exception of those in excess of the amounts required to be deposited to the Certificate Fund as hereafter provided, are hereby irrevocably pledged, equally and ratably, to the payment of the principal of and interest on the Certificates and Additional Certificates, if issued, as herein provided, and the pledge of the Tax Increment Revenues of the Zone herein made for the payment of the Certificates shall constitute a lien on the Tax Increment Revenues of the Zone in accordance with the terms and provisions hereof and be valid and binding without any physical delivery thereof or further act by the City. SECTION 13: Deposits to Certificate Fund. The City hereby covenants and agrees to cause to be deposited in the Certificate Fund prior to each interest and principal payment date from the Tax Increment Revenues of the Zone, after deduction of all payments required to be made to special Funds or accounts created for the payment and security of Prior Lien' Bonds, an amount not in excess of one hundred per centum (100%) of the amount required to fully pay the interest and principal payments then due and payable on the Certificates, such deposits to pay accruing interest and maturing principal on the Certificates to be made in substantially equal monthly installments on or before the first day of each month beginning the first day of the month next following the date of delivery of the Certificates to the initial purchaser. The monthly deposits to the Certificate Fund, as hereinabove provided and subject in all events to the pledge made in Section 12 of this Ordinance, shall be made until such time as such Fund contains an amount equal to pay the principal of and interest on the Certificates to maturity. Ad valorem taxes levied, collected, and deposited in the Certificate Fund for and on behalf of the Certificates may be taken into consideration and reduce the amount of the monthly deposits otherwise required to be deposited in the Certificate Fund from the Tax Increment Revenues of the Zone. In addition, any proceeds of sale of the Certificates in excess of the amount required to pay the contractual obligations to be incurred (including change orders to a construction contract) shall be deposited in the Certificate Fund, which amount shall reduce the sums otherwise required to be deposited in said Fund from ad valorem taxes and the Tax Increment Revenues of the Zone. SECTION 14: Security of Funds. That all moneys on deposit in the Funds for which this Ordinance makes provision (except any portion thereof as may be at any time properly -19- 3 5 0 2 E invested) shall be secured in the manner and to the fullest extent required by the laws of Texas for the security of public Funds, and moneys on deposit in such Funds shall be used only for the purposes permitted by this Ordinance. SECTION 15: Remedies in Event of Default. That in addition to all the rights and remedies provided by the laws of the State of Texas, the City covenants and agrees particularly that in the event the City (a) defaults in the aents to be made to the Certificate Fund, or (b) defaults in t h observance or performance of any other of the covenants, conditions, or obligations set forth in this Ordinance, the of any of the Certificates shall be entitled Holder foa or ri tdeo f mandamus issued by a court of proper jurisdiction compelling and requiring the governing body of the City and other officers of the City to observe and perform any covenant, condition or obligation prescribed in this Ordinance. No delay or omission to exercise any right or accruing upon any default shall impair any such right or power, or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. The specific remedies herein provided shall be cumulative of all other existing remedies and the specification of such remedies shall not be deemed to be exclusive. SECTION 16: Special Covenants. That the City hereby further covenants as follows; (a) That it has the lawful power to pledge the Tax Increment Revenues of the Zone supporting this issue of Certificates and has lawfully exercised said powers under the Constitution and laws of the State of Texas, including said power existing under Chapter 311 of the Texas Tax Code and Subchapter C of Chapter 271 of the Local Government Code. (b) That other than for the payment of Prior Lien Bonds hereafter issued, and the Certificates, the Tax Increment Revenues of the Zone have not in any manner been pledged to the payment of any debt or obligation of the City or of the Zone. SECTION 17: Issuance of Prior Lien Bonds and Additional Certificates. That the City hereby expressly reserves the right to hereafter issue Prior Lien Bonds, without limitation as to principal amount but subject to all terms, conditions, or restrictions applicable thereto under law or otherwise, and provided further that the City covenants and agrees not to issue any Prior Lien Bonds until, the City can obtain a certificate from an independent certified public accountant that the Tax Increment Revenues for the five most recently completed Fiscal Years preceding the date of issuance of the Prior Lien Bonds have been sufficient in amount (i) to fully -20- 3 S O Z E pay the Debt Service Requirements coming due during such period on the Certificates and (ii) to fully pay, based on historical projections, the debt service to come due on the Certificates through maturity; in each case after giving effect to the proposed debt service on the prior Lien Bonds.. In addition, the City reserves the right to issue Additional Certificates payable from and secured by a lien on and pledge of the Tax Increment Revenues of the Zone of equal rank and .dignity, and on a parity in all respects, with the lien and pledge securing the payment of the Certificates. SECTION 18: Subordinate to Prior Lien Bonds Covenants and Agreements. That it is the intention of this governing body and accordingly hereby recognized and stipulated that the provisions, agreements, and covenants contained herein bearing upon the Zone and the administering and application of revenues derived from the Zone, shall to the extent possible be harmonized with like provisions, agreements, and covenants contained in the ordinances authorizing the issuance of Prior Lien Bonds, and to the extent of any irreconciable conflict between the provisions contained herein and in the ordinances authorizing the issuance of Prior Lien Bonds, the provisions, agreements and covenants contained therein shall prevail to the extent of such conflict and be applicable to this Ordinance but in all respects subject to the priority of rights and benefits, if any, conferred thereby to the holders of Prior Lien Bonds, SECTION 19: Covenants to Maintain Tax-Exem•t Status of Certificates. (a) Definitions. When used in this Section, the following terms have the following meanings: "Code" means the Internal Revenue Code of 1986, as amended. 3502E "Gross Proceeds" when used with respect to the Certificates or any other issue of obligations of the City, means original proceeds, amounts received (including repayments of principal) as a result of investing the original proceeds of the issue, transferred proceeds, sinking fund proceeds, amounts invested in a reasonably required reserve or replacement fund, securities or obligations pledged by the City as security for payment of debt service on the Certificates or such other issue, and any other amounts used to pay debt service on the Certificates or such other issue, together with earnings from the investment of the foregoing. "Investment" means (1) a share of stock in a corporation or a right to subscribe for or to receive such a share, -21- (2) any obligation, including United States Treasury bonds, notes, and bills and bank deposits, whether or not certified or interest bearing, but excluding obligations the interest on which is, in the opinion of counsel nationally recognized in the field of municipal bond law, excludable from the gross income of any owner thereof under the Code or the Internal Revenue Code of 1954, as amended to the date of issuance of such obligations, (3) any annuity contract, or any other deferred payment contract acquired to fund an obligation of the Issuer, or (4) any other property held for investment. "Issue Date" means the date on which. the Certificates are first authenticated and delivered to the initial purchaser against payment therefor. "Issue Price" of the Certificates of each' Stated Maturity means the aggregate initial offering price of all the Certificates of such Stated Maturity to the public (exclusive of underwriters, dealers, bondhouses, brokers, and similar persons or organizations acting in the capacity of underwriters or wholesalers) at which a substantial number of Certificates of such Stated Maturity are sold to the public, including accrued interest to the Issue Date, if any. "Nonpurpose Investment" means any Investment in which Gross Proceeds of the Certificates are invested and which is not acquired to carry out the governmental purpose of the Certificates. "Purchase Price" of any Investment means (1) if a United States Treasury obligation acquired directly from the United States Treasury, the amount paid therefor, (2) if a certificate of deposit issued by a commercial bank, the bona fide bid price quoted by a dealer who maintains an active secondary market in such certificates of deposit, and (3) otherwise, generally the mean of the bid price and the offered price therefor on an established market on the day on which such -22- 3 5 0 2 E Investment is purchased or contracted for or, if there are no bid prices and offered prices on such date, on the first day preceding such date for which there are bid prices and offered prices. "Yield" of (1) any Investment means the discount factor which, when used in computing the present value of all scheduled payments of principal of and interest on such Investment on the date such Investment is purchased with Gross Proceeds or otherwise allocated to Gross Proceeds, results in an -amount equal to the Purchase Price thereof (but excluding any commissions), compounding semiannually, and (2) the Certificates means the discount factor which, when used in computing the present value on the Issue Date of all scheduled payments of principal of and interest on the Certificates, results in an amount equal to aggregate Issue' Prices of the Certificates of each Stated Maturity, compounding semiannually. (b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction, or improvement of which is to be financed directly or indirectly with Gross Proceeds) in a manner which, if made or omitted, respectively, would cause the interest on any Certificate to become includable in the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the City shall have received a written opinion of counsel nationally recognized in the field of municipal bond law to the effect that failure to comply with such covenant will not adversely affect the exemption from federal income tax of the interest on any Bond, the City shall comply with each of the specific covenants in this Section. (c) No Private Use or Private Payments. Except as permitted by section 141 of the Code and the regulations and rulings thereunder, the City shall, at all times prior to the last Stated Maturity of Certificates, (1) exclusively own, operate, and possess all property the acquisition, construction, or improvement of which is to be financed directly or indirectly with Gross Proceeds of the Certificates (including property financed -23- 3 5 0 2 E with Gross Proceeds of the Refunded Certificates) and not use or permit the use of such Gross Proceeds or any property acquired, constructed, or improved with such Gross Proceeds in any activity carried on by any person or entity other than a state or local government, unless such use is solely as a member of the general public, or (2) not directly or indirectly impose or accept any charge or other payment for use of Gross Proceeds of the Certificates or any property the acquisition, construction, or improvement of which is to be financed directly or indirectly with such Gross Proceeds (including property financed with Gross Proceeds of the Refunded Certificates), other than taxes of general application within the City or interest earned on investments acquired with such Gross Proceeds pending application for their intended purposes`. (d) No Private Loan. Except to the extent permitted by section 141 of the Code and the regulations and rulings thereunder, the City shall not use Gross Proceeds of the Certificates to make or finance loans to any person or entity other than a state or local government. For purposes of the' foregoing covenant, such Gross Proceeds are considered to be "loaned" to a person or entity if (1) property acquired, constructed, or improved with such Gross Proceeds is sold or leased to such person or entity in a transaction which creates a debt for federal income tax purposes, (2) capacity in or service from such property is committed to such person or entity under a take -or -pay, output, or similar contract or arrangement, or (3) indirect benefits, or burdens -and benefits of ownership, of such Gross Proceeds or any property acquired, constructed, or improved with such Gross Proceeds are otherwise transferred in a transaction which is the. economic equivalent of a loan. (e) Not to Invest at Higher Yield. Except to the extent permitted by section 148 of the Code and the regulations and rulings thereunder, the City shall not, at any time prior to the final Stated Maturity of the Certificates, directly or indirectly invest Gross Proceeds of the Certificates in any Investment (or use such Gross Proceeds to replace money so invested), if as a result of such investment the Yield from the Issue Date of all Investments acquired with such Gross Proceeds (or with money replaced thereby) whether then held or previously disposed of, exceeds the Yield of the Certificates. (f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code and the regulations and rulings thereunder, the City shall not take or omit to take any action which would cause the Certificates to be federally guaranteed within the meaning of section 149(b) of the Code and the regulations and rulings thereunder. -24- 1 5 0 2 E (g) Information Report. The City shall timely file with the Secretary of the Treasury the information required by section 149(e) of the Code with respect to the Certificates on such form and in such place as such Secretary may prescribe. (h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section 148(f) of the Code and the regulations and rulings thereunder, (1) The City shall account for all Gross Proceeds of the Certificates (including all receipts, expenditures, and investments thereof) on its books of account separately and apart from all other funds (and receipts, expenditures, and investments thereof) and shall retain all records of such accounting for at least six years after the day on which the last .outstanding Certificate is discharged. The City may, however, to the extent permitted by law, commingle Gross Proceeds of the Certificates with other money Of the City, provided that the City separately accounts for each receipt and expenditure of such Gross Proceeds and the obligations acquired therewith. (2) Not less frequently than annually, the City shall calculate, in accordance with rules set forth in section 148(f) of the Code and the regulations and rulings thereunder, the excess of: (i) the amount earned on all Nonpurpose Investments (other than Investments attributable to any excess previously calculated pursuant to this paragraph (2)) acquired with Gross Proceeds of the Certificates, over (ii) the amount which would have been earned if such Nonpurpose Investments were invested at a rate equal to the Yield on the Certificates, plus any income attributable to any excess previously calculated pursuant to this paragraph (2). In this connection, the City hereby makes the election provided for in section 148(f)(4)(A)(ii) of the Code. (3) As additional consideration for the purchase of the Certificates by the initial purchaser thereof and the loan of the money represented thereby, and in order to induce such purchase by measures designed to insure the excludability of the interest thereon from the gross income of the owners thereof for federal income tax purposes, the City shall pay to the United States the amount described in paragraph (2) above at the times, in the installments, to the place, in the manner, and accompanied by such forms or -25- 3 5 0 2 E other information as is or may be required by section 148(f) of the Code and the regulations and rulings thereunder. (4) The City shall exercise reasonable diligence to assure that no errors are made in the calculations required by paragraph (2) and, if such error is made, to discover and promptly to correct such error within a reasonable amount of time thereafter, including payment to the United States of any delinquent amounts owed to it, interest thereon, and any assessed penalty. - (i) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the Code and the regulations and rulings thereunder, the City shall not, at any time prior to the earlier of the Stated Maturity or final payment of= the Certificates enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection (h) of this Section because such transaction results in a smaller profit or a larger loss than would have resulted if the transaction had been at arm's length and had the Yield of the Certificates not been relevant to either party. SECTION 20: Satisfaction of Obligations of City. If the City shall pay or cause to be paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and interest on the Certificates, at the times and in the manner stipulated in this Ordinance, then the pledge of taxes levied and the lien on and pledge of the Tax Increment Revenues of the Zone under this Ordinance and all covenants; agreements, and other obligations of the City to the Holders shall thereupon cease, terminate, and be discharged and satisfied. Certificates shall be deemed to have been paid within the meaning and with the effect expres-sed above in this Section when (i) money sufficient to pay in full such Certificates at maturity, together with all interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government Securities have been certified by an independent accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any moneys deposited therewith, if any, to pay when due the principal of and interest on such Certificates on and prior to the maturity thereof. The City covenants that no deposit of moneys or Government Securities will be made under this Section and no use made of any such deposit which would -26- 3 5 0 2 E cause the Certificates to be treated as "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or regulations adopted pursuant thereto. Any moneys so deposited with the Paying Agent/Registrar and all income from Government Securities held in trust by the Paying Agent/Registrar, or an authorized escrow agent, pursuant to this Section which is not required for the payment of the Certificates or interest thereon with respect to which such moneys have been so deposited shall be remitted to the City or deposited as directed by the City. Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of and interest on the Certificates and remaining unclaimed for a period of four (4) years after the maturity of the Certificates such moneys were deposited and are held in trust to pay shall, subject to applicable unclaimed property laws of the State of Texas, upon the request of the City be remitted to the City against a written receipt therefor. SECTION 21: Ordinance a Contract - Amendments. This Ordinance shall constitute a contract with the Holders from time to time, be binding on the City, and shall not be amended- or repealed by the City so long as any Certificate remains Outstanding except as permitted in this Section. The City, may, without the consent of or notice to any Holders of the Certificates, from time to time and at any time, amend this Ordinance in any manner not detrimental to the interests of the Holders of the Certificates, including the curing of any ambiguity, inconsistency, or formal defect or omission herein. In addition, the City may, with the written consent of Holders of the Certificates holding a majority in aggregate principal amount of the Certificates then Outstanding affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of all Holders of Outstanding Certificates, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the principal of, premium, if any, and interest on the Certificates, reduce the principal amount thereof, or the rate of interest thereon, or in any other way modify the terms of payment of the principal of, premium, if any, or interest on the Certificates, (2) give any preference to any Certificate over any other Certificate, or (3) reduce the aggregate principal amount of Certificates required to be held by Holders for consent to any such amendment, addition, or rescission. SECTION 22: Notices to Holders - Waivers. Wherever this Ordinance provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to the address of each Holder appearing in the Security Register at the close of business on the business day next preceding the mailing of such notice. -27- 3 5 0 2 E In any case where notice to Holders is given by mail, neither the failure to mail such notice to any particular Holders, nor any defect in any notice so mailed, shall affect the sufficiency of such notice with respect to all other Certificates. Where this Ordinance provides for notice in any manner, such notice may be waived in writing by the Holder entitled to receive such notice, either before or after the event with respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/ Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 23: Cancellation. All Certificates surrendered for payment, redemption, transfer, or exchange, if surrendered to the Paying Agent/Registrar, shall be promptly cancelled by it and, if surrendered to the City, shall be delivered 'to the Paying Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for cancellation any Certificates previously certified or - registered and delivered which the City may have acquired in any manner whatsoever, and all Certificates so delivered shall be promptly cancelled by the Paying Agent/Registrar. All cancelled Certificates held by the Paying Agent/Registrar shall be returned to the City. SECTION 24: Mutilated, Destroyed, Lost and Stolen Certificates. In case any Certificate of a series shall be mutilated, or destroyed, lost or stolen, the Paying Agent/ Registrar may execute and deliver a replacement Certificate of like series, form and tenor, and in the same denomination and bearing a number not contemporaneously outstanding, in exchange and substitution for such mutilated Certificate, or in lieu of and in substitution for such destroyed, lost or stolen Certificate, only upon (i) the filing by the Holder thereof with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent/ Registrar of the destruction, loss or theft of such Certificate, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying Agent/Registrar harmless. All expenses and charges associated with such indemnity and with the preparation, execution and delivery of a replacement Certificate of a series shall be borne by the Holder of the Certificate mutilated, or destroyed, lost or stolen. Every replacement Certificate of a series issued pursuant to this Section shall be a valid and binding obligation of such series, and shall be entitled to all the -28- 3 5 0 2 E benefits of this Ordinance equally and ratably with all other Outstanding Certificates of said series; notwithstanding the enforceability of payment by anyone of the destroyed, lost or stolen Certificates. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost, or stolen Certificates. SECTION 25: Sale of Certificates. The sale of the Certificates to a purchaser or purchasers to be determined at the time of sale (herein referred to as the "Purchaser"), shall be made pursuant -to a purchase agreement between the City and the Purchaser to be executed on or after the date the ordinance establishing the interest rates on the Certificates is adopted. The price for the Certificates and the other details of the sale and delivery of the Certificates shall be as set forth in the purchase agreement. The purchase agreement shall be approved, and execution thereof shall be authorized, by the ordinance establishing the interest rates on the Certificates. Delivery of the Certificates to the Purchaser shall occur as- soon as possible upon payment being made therefor in accordance with the terms of sale. SECTION 26: Control and Custody of Certificates. The Mayor of the City shall be and is hereby authorized to take and have charge of all necessary orders and records pending investigation by the Attorney General of the State of Texas, including the printing of the Certificates, and shall take and have charge and control of the Certificates pending the approval thereof by the Attorney General, the registration thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchasers. Furthermore, the Mayor, City Manager or any Assistant City Manager, City Secretary and Director or Assistant Director of Finance of the City, any one or more of said officials, are hereby authorized and directed to furnish and execute such documents relating to the City and its financial affairs as may be necessary for the issuance of the Certificates, the approval of the Attorney General and registration by the Comptroller of Public Accounts and, together with the City's bond counsel and the Paying Agent/Registrar, make the necessary arrangements transfers and disbursements of funds, including but not limited to Certificate proceeds, and for the delivery of the Initial Certificates to the Purchasers. SECTION 27: Approval of Escrow Agreement and Purchase Agreement. The Escrow Agreement attached hereto as Exhibit A is hereby approved as to form and substance and the City Manager and City Secretary are hereby authorized to execute and -29- 3 5 0 2 E affix the seal of the City to such Escrow Agreement, in substantially the form of Exhibit A. The approval of the Escrow Agreement is intended to and hereby does include approval of the form of Purchase Agreement attached to the Escrow Agreement and the City Manager and City Secretary are hereby authorized to execute and affix the seal of the City to such Purchase Agreement, in substantially the form attached to the Escrow Agreement attached hereto as Exhibit A. Proper officers of the City are authorized to perform any duties imposed on the City in such Escrow Agreement and Purchase Agreement as executed and to do and take all other -actions necessary or convenient to give effect to the intent of the parties to the executed Escrow Agreement and Purchase Agreement. SECTION 28: Legal Opinion. The Purchaser's obligation to accept delivery of the Certificates is subject to being furnished a final opinion of Fulbright & Jaworski, Attorneys, Dallas, Texas, approving such Certificates as to their validity, said opinion to be dated and delivered as of the date of delivery and payment for the Certificates. SECTION 29: Benefits of Ordinance. Nothing in this - Ordinance, expressed or implied, is intended or shall be construed to confer upon any person other than the City, the Paying Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being intended to be and being for the sole and exclusive benefit of the City, the Paying Agent/Registrar and the Holders. SECTION 30: Inconsistent Provisions. All ordinances, orders or resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict and the provisions of this Ordinance shall be and remain controlling as to the matters contained herein. SECTION 31: Governing Law. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the. United States of America. SECTION 32: Severability. If any provision of this Ordinance or the application thereof to any circumstance shall be held to be invalid, the remainder of this Ordinance and the application thereof to other circumstances shall nevertheless be valid, and the City Council hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 33: Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. -30- 3 5 0 2 E SECTION 34: Construction of Terms. If appropriate in the context of this Ordinance, words of the singular number shall be considered to include the plural, words of the plural number shall be considered to include the singular, and words of the masculine, feminine or neuter gender shall be considered to include the other genders. SECTION 35: Public Meeting: It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Article 6252-17, Vernon's Texas Civil Statutes, as amended. PASSED AND ADOPTED, THIS THE DAY OF , 1988. ATTEST: City Secretary (City Seal) 206HG067.ord CITY OF CORPUS CHRISTI, TEXAS ayo r APPROVED AS TO LEGAL FORM: Hal George City Attorney PURCHASE AGREEMENT Parties The parties to this Purchase Agreement (herein called this "Agreement") are the Texas State Aquarium Association, a Texas nonprofit corporation (herein called the "Association"), and the City of Corpus Christi, Texas, a Texas home rule city (herein called the "City"). Definitions For purposes of this Agreement, the following terms shall have the indicated meanings: a. The term "Aquarium" shall mean the public aquarium which the Association plans to construct in Corpus Christi, Texas, and operate on a nonprofit basis for multiple public purposes. b. The term "Aquarium Lease" shall mean the agreement between the City and the Association entitled "Aquarium Lease" which pertains to the development and -operation of the Aquarium by the Association and the lease of the Aquarium by the City to the Association. c. The term "Aquarium Parcel One" shall mean the real property in Nueces County, Texas, which was acquired by the Association from third parties and which is described on the attached Exhibit I, which Exhibit I is incorporated herein by reference for all purposes. d. The term "Aquarium Parcel Two" shall mean the real property in Nueces County, Texas, which was or will be acquired by the Association after the closing of certain public streets and which is described on the attached Exhibit II, which Exhibit II is incorporated herein by reference for all purposes. e. The term "Association Exchange Tract" shall mean the real property in Nueces County, Texas, acquired by the Association from third parties and which is described on the attached Exhibit III, which Exhibit III is incorporated herein by reference for all purposes. f. The term "City Exchange Tract" shall mean the real property in Nueces County, Texas, which will be acquired by the City after the closing of certain public streets and which is described on the attached Exhibit IV, which C24 Exhibit IV is incorporated herein by reference for all pur- poses. g. The term "Easement Tract" shall mean the real property in Nueces County, Texas, described on the attached Exhibit V, which Exhibit V is incorporated herein by refer- ence for all purposes. h. The term "Easement" shall mean a perpetual, non- exclusive easement for a pedestrian walkway upon and across the Easement Tract, which easement shall be appurtenant to and shall run with Aquarium Parcel One and Aquarium Parcel Two, and which is more fully described hereinbelow. i. The term "Architect" shall mean the architectural firm of Phelps Garza Bomberger or its successor. J. Lawyers The term "Title Insurance Company" shall mean Title Insurance Corporation or its successor. k. The term "Title Agency" shall mean Lawyers Title Services, Inc., in Corpus Christi, Texas, or its successor. 1. The term "Escrow Agent" shall mean First City Bank of Corpus Christi, a State Banking Association, or its successor. m. The term "Plans" shall mean the final construction plans and specifications for the Aquarium delivered by the Association to the City pursuant to Paragraph 37 of the Aquarium Lease as such final construction plans and specifi- cations may be modified, if applicable, in accordance with the provisions of this Agreement. n. The term "Property" shall mean collectively (i) Aquarium Parcel One, (ii) Aquarium Parcel Two, (iii) the buildings and improvements to be constructed on Aquarium Parcel One and Aquarium Parcel Two pursuant to the Plans, and (iv) the Easement. o. The terms "Interim Construction Loan" and "City Purchase Account" shall have the same meaning herein as in the Aquarium Lease. p. The term "Interim Construction Lender" shall mean the provider or providers of the Interim Construction Loan. q. The term "Permitted Exceptions" shall mean the matters set forth on the attached Exhibit VI, which Exhibit VI is incorporated herein by reference for all purposes. -2- r. The term "Independent Architect" shall mean the architect or architectural firm designated by the Interim Construction Lender as its independent inspecting architect in the interim construction loan agreement executed by the Association at the "Closing" as defined in the Aquarium Lease, or any substitute approved in writing by the City, acting through its City Manager, the Association and the Interim Construction Lender. s. The term "Certificate of Substantial Completion" shall mean the current edition of the form of Certificate of Substantial Completion promulgated by The American Institute of Architects, executed by the Architect, and certifying the substantial completion of the construction of the Aquarium in accordance with the Plans. t. The. term "Concurrence Letter" shall mean a letter from the Independent Architect to the City stating that based only upon (i) the Independent Architect's review of the Certificate of Substantial Completion and (ii) a walk- through of the Aquarium and visual inspection of exposed surfaces and finishes, the Independent Architect concurs with the Architect's certification in the Certificate of Substantial Completion that the construction of the Aquarium has been substantially completed. Premises Upon completion of the Aquarium as herein provided, the Association has agreed to sell and the City has agreed to pur- chase the Property. In addition, upon completion of the Aquarium or at such time thereafter as the City acquires fee simple title to the City Exchange Tract, the City and the Association have agreed to exchange the City Exchange Tract and the Association Exchange Tract. Agreement In consideration of the premises, the covenants contained in the Aquarium Lease, and other good and valuable consideration exchanged between the City and the Association, the receipt and sufficiency of which are hereby acknowledged, the City and the Association agree as follows: 1. Purchase and Sale. The Association, for the considera- tion and upon the terms herein provided, agrees to sell and convey to the City, and the City agrees to purchase from the Association, the Property (said sale and purchase is sometimes referred to herein as the "Purchase"). 2. Exchange. Upon the terms herein provided, the Association agrees to convey the Association Exchange Tract to the City in exchange for the City's conveyance to the Association -3- of the City Exchange Tract (said exchange between the Association and the City is sometimes referred to herein as the "Exchange"). 3. Sales Price. The total sales price to be paid by the City to the Association on the Date of Closing is an amount equal to $10,000,000.00 plus the Adjustment Amount (the term "Adjustment Amount" is defined below). The total purchase price shall be paid to the Association in cash or by cashier's check or certified check as hereinafter provided. Simultaneous with the execution of this Agreement, the City shall deposit in the City Purchase Account with the Escrow Agent the sum of $10,000,000.00. The Escrow Agent shall hold the $10,000,000.00 pursuant to the terms of the Escrow Agreement by and among the Association, the City and the Escrow Agent pertaining to said $10,000,000.00 (hereinafter called the "Escrow Agreement"). The term "Adjustment Amount" shall mean an amount of money equal to the monies actually paid by the Association as interest on the Interim Construction Loan, not to exceed the total amount of money earned on the $10,000,000.00 while held by the Escrow Agent pursuant to the Escrow Agreement less any amount of such total amount earned required to be paid to the United States by the City pursuant to Section 148 of the Internal Revenue Code of 1986, as amended, to the date of issuance of the obligations issued to provide such $10,000,000.00. 4. Title Policy. Upon closing of the Purchase, the Association shall cause to be delivered to the City an Owner Policy of Title Insurance issued by the Title Insurance Company through the Title Agency in the form prescribed by the State Board of Insurance of the State of Texas, dated as of the Date of Closing or later, issued to the City in the amount of the total purchase price paid by the City to the Association for the Property, guaranteeing the City's title to the Property to be good and indefeasible subject only to the Permitted Exceptions and the usual and customary title exceptions printed and other- wise contained in a standard Owner Policy of Title Insurance. The Owner Policy of Title Insurance described in this paragraph is hereinafter sometimes called the "Purchase Title Policy." Notwithstanding anything herein to the contrary, if on the Date of Closing (i) all of the portions of the public streets and alleys which comprise part of the Easement Tract have not been closed, and (ii) the Association has not acquired title to said portions of said public streets, then the Purchase Title Policy shall only describe and insure the Easement insofar as it pertains to that portion of the Easement Tract not consisting of said public streets or alleys. Upon closing of the Exchange, the Association shall cause to be delivered to the City an Owner Policy of Title Insurance issued by the Title Insurance Company through the Title Agency in the form prescribed by the State Board of Insurance of the State of Texas, dated as of the Date of Closing or later, issued to the -4- City in an amount not less than $89,000.00, guaranteeing the City's title to the Association Exchange Tract to be good and indefeasible subject only to the Permitted Exceptions and the usual and customary title exceptions printed and otherwise con- tained in a standard Owner Policy of Title Insurance. The Owner Policy of Title Insurance described in this paragraph is herein- after sometimes called the "Exchange Title Policy." The Association shall pay twenty percent (20%) and the City shall pay eighty percent (80%) of the premium for the Purchase Title Policy. The premium for the Purchase Title Policy shall be deemed to include any premium paid by the Association for any other title insurance policy which the Title Agency allows as a credit for the payment of the premium for the Purchase Title Policy, or which the Title Agency is permitted to take into account for purposes of discounting the premium to be paid for the Purchase Title Policy. The premium for the Exchange Title Policy shall be paid by the Association. 5. Deeds. On the Date of Closing, the Association shall execute a Deed conveying the Property to the City. The form of such Deed is attached hereto as Exhibit VII, which Exhibit VII is incorporated herein by reference for all purposes. On or after the Date of Closing as hereinafter provided, (i) the Association shall execute and deliver a Deed conveying the Association Exchange Tract to the City, and (ii) the City shall execute and deliver a Deed conveying the City Exchange Tract to the Association. Such Deeds shall be in the form attached hereto as Exhibit VIII, which Exhibit VIII is incor- porated herein by reference for all purposes. 6. Purchase Closing. The closing of the Purchase (herein sometimes called the "Purchase Closing") shall be on or before thirty (30) days after the Association gives written notice to the Escrow Agent and the City that substantial completion (as that term is defined in the Certificate of Substantial Comple- tion) of the construction of the Aquarium in accordance with the Plans has occurred (herein called the "Date of Closing"). At the Purchase Closing, the following shall occur: a. At least ten (10) days prior to the Date of Closing, the Escrow Agent shall have been furnished with (i) a Certificate of Substantial Completion executed by the Architect which certifies the substantial completion of the construction of the Aquarium in accordance with the Plans; (ii) a Commitment For Title Insurance issued to the City by the Title Insurance Company through the Title Agency, dated within eighty (80) days of the Date of Closing, evidencing the commitment of the Title Insurance Company to issue to the City the Purchase Title Policy; (iii) a copy of the executed Deed described herein conveying the Property from -5- the Association to the City certified by the Title Agency as being a true and correct copy of the original, executed copy held by the Title Agency; (iv) a copy of a letter from the Interim Construction Lender to the Title Agency stating the total amount of money paid or to be paid by the Association through the Date of Closing as interest on the Interim Construction Loan; (v) a letter from the Title Agency to the Escrow Agent stating that the Title Agency has made arrange- ments to satisfy all conditions precedent to the issuance of the Purchase Title Policy upon the Title Agency's receipt of the total purchase price and the other sum described below in subparagraph b; (vi) a Settlement Statement which sets forth the total purchase price, the description and amount of any expenses to be paid by the City, the description and amount of any credits against the total purchase price permitted under this Agreement, and a schedule of the disbursements to be made by the Title Agency of the total amount to be paid by the City pursuant to this Agreement; (vii) a letter addressed to the Title Agency for execution by the Escrow Agent on behalf of the City stating that the form of the above Commitment For Title Insurance is acceptable to the City; (viii) tax certificates from all taxing authorities evidencing that there are no delinquent taxes and assessments pertaining to the Property; and (ix) the Concurrence Letter from the Independent Architect. The City shall be furnished with copies of the items described in this subparagraph at the same time they are furnished to the Escrow Agent. b. Upon Escrow Agent's receipt of the items described in surparagraph a above, Escrow Agent shall within ten (10) days (i) execute on behalf of the City the Settlement Statement; (ii) execute on behalf of the City the letter addressed to the Title Agency pertaining to the Commitment For Title Insurance; and (iii) deliver to the Title Agency the executed Settlement Statement, the executed letter, the total purchase price, and an amount equal to the total of the City's expenses shown on the Settlement Statement net of any allowable credits. c. Upon the Title Agency's receipt of the executed Settlement Statement, the executed letter, the total purchase price and the amount of the City's net expenses, the Title Agency shall (i) file the original copy of the Deed conveying the Property to the City with the Nueces County Clerk for recording in the Deed Records of Nueces County, Texas; (ii) disburse the total amount received from the Escrow Agent pursuant to the Settlement Statement; and (iii) issue the Purchase Title Policy and deliver it to the City. 7. Exchange Closinj. The closing of the Exchange herein sometimes called the "Exnnange Closing") shall be on the Date of -6- Closing or as soon thereafter as the City acquires fee simple title to the City Exchange Tract. The Exchange Closing shall be held in the office of the Title Agency or such other location as may be mutually acceptable to the Association and the City. At the Exchange Closing, the following shall occur: a. The Association shall execute and deliver to the City the Deed conveying the Association Exchange Tract. b. The City shall execute and deliver to the Association the Deed conveying the City Exchange Tract. c. The Association and the City shall execute and deliver to the Title Agency any and all documents the Title Agency may reasonably require to close the Exchange and cause the Exchange Title Policy to be issued to the City. The Association shall pay all expenses associated with the Exchange Closing as herein provided. 8. Escrow Agreement. The Escrow Agreement shall specifically provide for, authorize and direct the Escrow Agent's performance of the Escrow Agent's tasks described above in Paragraph 6 and elsewhere in this Agreement. If the Escrow Agreement terminates pursuant to its terms prior to the Escrow Agent's performance of the duties described in Paragraph 6b above, then this Agreement and the Aquarium Lease shall automatically terminate and be without further force or effect, and neither the Association nor the City shall have any further rights, duties, obligations or liabilities under this Agreement or the Aquarium Lease. 9. Construction of Aquarium. The Association shall cause the Aquarium to be constructed in accordance with the Plans. The Plans may be modified from time to time by the Association provided such modifications do not materially alter the design concepts evidenced by the Plans as originally approved by the City. Any modifications to the Plans which materially alter such design concepts must be approved in writing by the City Manager. 10. Authority of City Manager. By its execution Agreement, the City authorizes its City Manager to act behalf and to take such action and do all things which necessary to perform the City's obligations under this and to implement the provisions hereof. 11. Default. If the Purchase and the Exchange are not closed by reason of default of the Association for any reason, except title defects, the City's default or other conditions permitting the Association's nonperformance as herein provided, then the City may seek such relief as may be provided at law or in equity. Notwithstanding anything in this Agreement to the of this in its may be Agreement -7- contrary, the Association shall have no obligation to incur any expense or take any action to cure or remove any title exception or defect to which the City may object under this Agreement. If the Association fails to cure or remove any such title exception or defect prior to the applicable closing, then the City, as the City's sole and exclusive remedy, may either cancel this Agreement, thereby relieving both the City and the Association from any further rights, obligations or privileges under this Agreement, or waive such objection and accept the deed and title policy to the property to which such objection applies subject to such title exception or defect. In no event shall the Association be liable for damages, specific performance or other legal or equitable action if any such title exception or defect is not cured or removed by the Association prior to the appli- cable closing, or if the Association is unable to deliver to the City any title insurance policy provided for herein. If the Purchase and the Exchange are not closed by reason of default of the City for any reason, except the Association's default or other conditions permitting the City's nonperformance as herein provided, then the Association may seek such relief as may be provided at law or in equity. 12. Representations of the Association. The City acknowl- edges and agrees that the Property and the Association Exchange Tract are to be sold, conveyed and delivered by the Association to the City at closing, and accepted by the City "AS IS", in its then current condition and appearance, and without any warranties by the Association, express or implied, with respect to appear- ance, condition, defects, habitability, fitness for any specific purpose, the availability of utilities and access, or zoning. The City agrees that the City is not relying and shall not rely on any statement, covenant, representation or warranty pertaining to any of the matters described in this paragraph which is not expressly set forth in this Agreement. The Association shall assign to the City in the Deed attached hereto as Exhibit VII all of the Association's right, title and interest in and to any and all warranties and causes of action available to the Association with respect to the construction of the Aquarium. 13. Proration and Costs. The Deeds described in this Agreement shall be prepared by the Association and recorded at its expense. The City and the Association shall each pay one-half (1/2) of the cost of any Title Agency escrow fees. The costs of the Purchase Title Policy and the Exchange Title Policy shall be paid by each party as provided above. 14. Source of City Funds. Notwithstanding anything it this Agreement to the contrary, the City and the Association agree that (i) the total sales price (defined in Paragraph 3 above) •nd all expenses to be paid by the City as herein provided paid only from the monies held by the Escrow Agent on thy_ Date of Closing pursuant to the Escrow Agreement; (ii) the City shall not be obligated to pay the amount of any expenses to be paid by the City hereunder which are in excess of the total amount of monies held by the Escrow Agent on the Date of Closing pursuant to the Escrow Agreement after deducting the total sales price; and (iii) the Association shall pay the amount of any such excess expenses on the Date of Closing. 15. Notices. Any notice, demand or other communication required or permitted to be given to either party hereunder shall be in writing and shall be deemed to have been delivered when actually received or, regardless of whether or not received, on the third business day after having been deposited in the United States mail, registered or certified mail, return receipt requested, postage prepaid, addressed to the respective party at the address indicated below, or to such other address as may hereafter be indicated by written notice delivered in accordance with the terms hereof to the other party: If to the City: City Manager City Hall P. 0. Box 9277 Corpus Christi, TX 78469 If to the Association: Texas State Aquarium Association P. 0. Box 331307 - Corpus Christi, TX 78404 16. Miscellaneous. This Agreement is intended to be separate and distinct from the Aquarium Lease. To the extent of any conflict between the provisions of the Aquarium Lease and this Agreement which address the same subject matter, the terms of this Agreement shall control. This Agreement shall be binding upon the Association and the City and their respective successors and assigns. Time is of the essence under this Agreement for all purposes. It is agreed (a) this Agreement shall not be modified, changed, discharged or voluntarily terminated except by an instrument in writing signed by the party or parties against whom enforcement of any such modification, change, addition or deter- mination is sought; (b) this Agreement shall be construed in accord with the laws of the State of Texas; and (c) this Agree- ment may be executed in any number of counterparts, each of which shall constitute one and the same contract. DATED this day of , 198_ TEXAS STATE AQUARIUM ASSOCIA ON By: Print Name: Print 'Title: -9- ATTEST: CITY OF CORPUS CHRISTI, TEXAS By: Print Name: Print Name: City Secretary City Manager APPROVED: day of , 198 HAL GEORGE, CITY ATTORNEY By: Print Name: Print Title: THE STATE OF TEXAS § COUNTY OF NUECES § Before me, the undersigned authority, on this day personally appeared , President of the Texas State Aquarium Association, a Texas nonprofit corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of said corporation, for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of , 198_ Notary Public, State of Texas Print Name: My Commission Expires: THE STATE OF TEXAS § COUNTY OF NUECES § Before me, the undersigned authority, on this day personally appeared , City Manager of the City of Corpus Christi, Texas, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of said City of Corpus Christi, Texas, for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day , 198 . Notary Public, State of Texas Print Name: My Commission Expires: EXHIBIT I TO THE PURCHASE AGREEMENT BETWEEN THE TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY Aquarium Parcel One: Tract 1: BEGINNING at a 5/8" iron rod set in the Southeast right-of-way line of North Shoreline Boulevard a one hundred (100') foot road at its point in intersection with the Southwest right-of-way line of Bennett Street a sixty (60') foot road, said point of intersection also being the Northernmost corner of Block E, Brooklyn Addition, as shown by map of record of said subdivision in Volume "A", pages 30-32, Map Records of Nueces County, Texas; and said point of intersection having Lambert Grid Coordinates (South Zone) of x = 2,358,227.83, y = 782,063.87, THENCE along said Southwest right-of-way line of Bennett Street S 58° 21' 24" E at 220.47 feet pass a 5/8" iron rod set for a reference point, in all a distance of 250.27 feet to a point in the shoreline of Corpus Christi Bay at the 0.7' MSL contour line for corner, THENCE along the meanders of said shoreline of Corpus Christi Bay being the 0.7' MSL contour line to points as follows: S 41° 48' 10" W 50.80' S 33° 07' 58" W 50.02' S 34° 23' 29" W 50.06' S 33° 19' 31" W 50.01' S 75° 49' 47" W 42.49', to a point for corner, THENCE N 58° 21' 24" W a distance of 206.52 feet to a point for corner, said point also being on the said Southeast right-of-way line of North Shoreline Boulevard, THENCE along said Southeast right-of-way line of North Shoreline Boulevard N 31° 38' ,36" E a distance of 230.47 feet to the Point of Beginning forming a tract embracing 54,850.00 square feet (1.26i acres) more or less. Tract 2: Lots 142, 143, 144, and 145, Block F, Corpus Beach Hotel Addition, a subdivision of the City of Corpus Christi, Nueces County, Texas, as shown by the map or plat thereof recorded in Volume 1, Page 51, Map Records of Nueces County, Texas; 27.14 EXHIBIT II TO THE PURCHASE AGREEMENT BETWEEN THE TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY Aquarium Parcel Two: BEGINNING at a point at the intersection of the centerlines extended of North Shoreline Boulevard a one hundred (100') foot road and Canal Avenue (9th Street) a sixty (60') foot road as shown by map of record of Brooklyn Addition in Volume "A", pages 30-32, Map Records of Nueces County, Texas; and said point of intersection having Lambert Grid Coordinates (South Zone) of x =2,358,012.14, y = 781,809.17, THENCE along said centerline extended of North Shoreline Boulevard N 31° 38' 36" E, a distance of 465.38 feet to a point for corner, THENCE in a Northwesterly direction along a curve to right having a central angle of 73° 05' 24", a radius of 55.0 feet, a tangent of 40.76 feet, and an ARC length of 70.16 feet to the end of said curve and a point for corner, THENCE N 31° 38' 36" E, a distance of 22.00 feet to a point for corner, THENCE S 58° 21' 24" E, a distance of 39.00 feet to the said centerline extended of North Shoreline Boulevard and point for corner, THENCE along said centerline N 31° 38' 36" E, a distance of 50.00 feet to a point for corner, THENCE S 58° 21' 24" E, a distance of 50.00 feet to the Southeast right-of-way line of said North Shoreline Boulevard and a point for corner, THENCE along the said Southeast right-of-way line of North Shoreline Boulevard S 31° 3.8' 36" W, a distance of 200.00 feet to the Northeast right-of-way line of Bennett Street (10th Street) as shown on said Brooklyn Addition, fora point for corner. THENCE along the said Northeast right-of-way line of Bennett Street S 58° 21' 24" E, a distance of 126.83 feet to a point in the shoreline of Corpus Christi Bay at the 1.0 foot elevation (February 17, 1986 N.G.V.D.) to a point for corner, THENCE along the meanders of said shoreline of Corpus Christi Bay as fo11 w: S 42° 50' 59" E 34.42' S 44° 25' 14" E 93.87', S 23° 22' 56" W 14A8', and S 35° 17' 01" W, a distance of 13.26 feet to the Southwest right-of-way line of said Bennett Street and a point for corner, 27.14 THENCE along said Southwest right-of-way line of Bennett Street N 58° 21' 24" W, a distance of 251.11 feet to the said Southeast right-of-way line of North Shoreline Boulevard and a point for corner, THENCE along said Southeast right-of-way line of North Shoreline Boulevard S 31° 38' 36" W, a distance of 300.00 feet to a 5/8" iron rod set in the Northeast right-of-way line of said Canal Avenue and a point for corner, THENCE along said Northeast right-of-way line of Canal Avenue S 58° 21' 24" E, distance of 178.61 feet to a point in the said shoreline of Corpus Christi Bay, THENCE along the meanders of said shoreline of Corpus Christi Bay S 60° 52' 41" W, a distance of 34.38 feet to the centerline of said Canal Avenue to a point for corner, THENCE along said centerline of Canal Avenue N 58° 21' 24" W, a distance of 211.82' to the Point of Beginning forming a tract embracing 50,029 square feet (1.15± acres) more or less. EXHIBIT 1.-1 Page 2 () EXHIBIT III TO THE PURCHASE AGREEMENT BETWEEN THE TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY Aquarium Exchange Tract: BEGINNING- at a 5/8" iron rod set in the Southeast right-of-way line of North Shoreline Boulevard at its point of intersection with the Northeast right-of-way line of a portion of Canal Avenue closed by City of Corpus Christi, Texas Ordinance No. 17139 for the Westernmost corner of said Block "E" and of this tract; said point of intersection having Lambert Grid Coordinates (South Zone) of x = 2,358,070.45, y = 781,808.48. THENCE along said Southeast right-of-way line of North Shoreline Boulevard N 31° 38' 36" E, a distance of 69.53 feet to a point for corner, THENCE S 58° 21' 24" E, a distance of 206.52 feet to a point for corner, THENCE S 75° 49' 47" W, a distance of 27.24 feet to a point for corner, THENCE S 42° 57' 12" W, a distance of 50.99 feet to a point for corner, THENCE N 58° 21' 24" W, a distance of 177.54 feet to the Point of Beginning forming a tract embracing 12,975 square feet (0.30± Acres) more or less. 27.14 EXHIBIT IV TO THE PURCHASE AGREEMENT BETWEEN THE TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY City Exchange Tract: BEGINNING at a point of intersection of the centerline extended of Surfside Boulevard a sixty (60') foot road, and the common boundary lot line extended of Lot 8 and of Lot 10, Block 3, Brooklyn Addition, as shown by map of record of said subdivision in Volume "A", pages 30-32, Map Records of Nueces County, Texas; said point of intersection having Lambert Grid Coordinates (South Zone) of x = 2,357,826.33 y = 782,193.84, THENCE N 58° 21',24" W a distance of 9.41 feet to a point for corner, THENCE N 28° 19' 58" E a distance of 410.69 feet to a point for corner, and the beginning of a curve to the right, THENCE along said curve to the right having a central angle of 70° 16' 10", a radius of 50.0 feet, a tangent length of 35.19 feet and an ACR length of 61.32 feet to a point for corner, THENCE S 31° 38' 36" W a distance of 457.07 feet to the point of beginning forming a tract embracing 9,855 square feet (0.23f acres) more or less. 27.14 EXHIBIT V TO THE PURCHASE AGREEMENT BETWEEN THE TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY Easement Tract: BEGINNING at a point at the intersection of the centerline of a twenty (20') foot alley and the common boundary lot line extended of Lot 8 and Lot 10 in Block 3, Brooklyn Addition as shown by map of record of said subdivision in Volume "A", pages 30-32, Map Records of Nueces County, Texas; said point of intersection having Lambert Grid Coordinates (South Zone) of x = 2,357,971.05, y = 782,104.65, THENCE N 58° 21' 24" W, a distance of 179.41 feet to a point for corner, THENCE N 28° 19' 58" E, a distance of 100.17 feet to a point for corner, THENCE S 58° 21' 24 " E, a distance of 88.04 feet to a point for corner, THENCE S 28° 21' 24" E, a distance of 148.49 feet to a point for corner, THENCE S. 88° 21' 24" E, a distance of 109.65 feet to a point for corner, THENCE N 31° 38' 36" E, a' distance of 229.42 feet to a point for corner, THENCE S 58° 21' 24" E, a distance of 24.59 feet to a point for corner, THENCE S 31° 38' 36" W, a distance of 22.00 feet to a point for corner, and the beginning of a curve to the left having a central angle of 73° 05' 24", a radius of 55.0 feet, a tangent length of 40.76 feet and an ARC length of 70.16 feet to the end of said curve and a point for corner, THENCE S 31° 38' 36" W, a distance of 252.72 feet to a point for corner, THENCE N 28° 21' 24" W, a distance of 113.85 feet to a point for corner, THENCE N 88° 21' 24" W, a distance of 69.23 feet to a point for corner, THENCE N 67° 20' 27" W, a distance of 31.83 feet to the Point of Beginning forming a tract embracing 36,486 square feet (0.84± acres) more or less. 27.14 EXHIBIT VI TO THE PURCHASE AGREEMENT BETWEEN THE TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY Permitted Exceptions: 1. Any and all existing leases covering oil, gas or other minerals and all outstanding royalty and mineral interests in and to the oil, gas and other minerals situated in, on or under the real property herein described. All assignments of said leases and said royalty and mineral interests. 2. Any changes in the boundary lines of the real property herein described caused by erosion from the actions of the waters of Corpus Christi Bay. 3. Rights of parties in possession, if any, and any visible and apparent easements or rights-of-way upon or affecting the real property herein described. 4. All matters shown on any map or plat of all or any portion of the real property herein described filed of record in the office of the Nueces County Clerk. 5. Any public streets or alleys upon or across the real property herein described. 6. Notice to purchasers that no flood disaster assistance will be provided by the U.S. Small Business Administration as long as the property described in said Notice remains flood prone, executed by Ruby B. Rowden on April 12, 1982, recorded in Volume 1819, Page 668, Deed Records of Nueces County, Texas. 7. The terms and conditions of the Aquarium Lease. 8. Any other matter approved in writing by the City acting through its City Manager. 27.14 EXHIBIT VII TO THE PURCHASE AGREEMENT BETWEEN TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY THE STATE OF TEXAS § § COUNTY OF NUECES § DEED KNOW ALL MEN BY THESE PRESENTS: THAT Texas State Aquarium Association, a Texas nonprofit corporation ("Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by the City of Corpus Christi, a Texas home rule city ("Grantee"), the receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY, subject to the matters herein set forth, unto Grantee, the following: (i) The property in Nueces County, Texas, described on the attached Exhibit A, which Exhibit A is incorporated herein by reference for descriptive purposes (herein called "Parcel One"); (ii) All of Grantor's rights, titles and interests in and to the property in Nueces County, Texas, described on the attached Exhibit B, which Exhibit B is incorporated herein by, reference for descriptive purposes (herein called "Parcel Two"); and (iii) All of Grantor's rights, titles and interests in and to a perpetual, non-exclusive easement for a pedestrian walkway (herein called the "Easement") upon and across the property in Nueces County, Texas, described on the attached Exhibit C, which Exhibit C is incorporated herein for descriptive purposes (herein called the "Easement Tract"); TO HAVE AND TO HOLD Parcel One and all of Grantor's rights, titles and interests in and to the Easement and Parcel Two, subject to the matters herein set forth, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors to (i) WARRANT AND FOREVER DEFEND all and sinc4utar Parcel One, subject to the matters herein set forth, unto Grantee 27.54 and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof; and (ii) WARRANT AND FOREVER DEFEND all and singular all of Grantor's rights, titles and interests in and to Parcel Two and the Easement, subject to the matters herein set forth, unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. The Easement is for a pedestrian walkway for ingress and egress to and from Parcel One and Parcel Two and shall be appurtenant to and shall run with Parcel One and Parcel Two. Grantee and its successors and assigns shall not construct or alter any improvements on the Easement Tract without the written consent of Grantor or its successors and assigns as owners of the Easement Tract. Grantor reserves unto Grantor and its successors and assigns the right to alter or construct improvements on the Easement Tract provided any such alteration or construction does not prevent use of the Easement as a pedestrian walkway for ingress and egress to and from Parcel One and Parcel Two. This conveyance, Parcel One, Parcel Two, the Easement, the Easement Tract and all of Grantor's warranties are subject to the matters set forth on the attached Exhibit D, which Exhibit D is incorporated herein by reference for all purposes. Grantee, by accepting delivery of this Deed, confirms that Grantee has been afforded full opportunity and complete access to inspect the above-described property to determine its condition, appearance, repair and operation, and Grantee has done so. The above-described property is sold, conveyed and delivered by Grantor to Grantee, and accepted by Grantee, AS IS, in its current condition, repair, operation and appearance, and without any warranties by Grantor, express or implied, with respect to condition, defects, habitability or fitness for any specific purpose. Grantee, by accepting delivery of this Deed, agrees that Grantee is not relying on any statement, covenant, representation or warranty which is not expressly contained herein. For the consideration set forth above, Grantor assigns and transfers to Grantee and Grantee's successors and assigns all of Grantor's right, title and interest, if any, in and to any and all causes of action and third -party warranties available to Grantor with respect to any improvements located on Parcel One and Parcel Two. DATED: , 19 . TEXAS STATE AQUARIUM ASSOCIATION By: Print Name: Print Title: -2- Grantee's Address: P. O. Box 9277 Corpus Christi, Texas 78469 THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on 19 , by of the Texas State Aquarium Association, a Texas nonprofit corporation, on behalf of said corporation. Notary Public, State of Texas Print Name: My Commission Expires: UPON DELIVERY OF THIS DEED, THE EXHIBITS DESCRIBED HEREIN SHALL BE ATTACHED CONTAINING THE FOLLOWING ITEMS DESCRIBED IN THIS AGREEMENT: EXHIBIT A SHALL CONTAIN THE DESCRIPTION OF AQUARIUM PARCEL ONE, EXHIBIT B SHALL CONTAIN THE DESCRIPTION OF AQUARIUM PARCEL TWO, EXHIBIT C SHALL CONTAIN THE DESCRIPTION OF THE EASEMENT TRACT AND EXHIBIT D SHALL CONTAIN A DESCRIPTION OF THE PERMITTED EXCEPTIONS. EXHIBIT VIII TO THE PURCHASE AGREEMENT BETWEEN TEXAS STATE AQUARIUM ASSOCIATION, A TEXAS NONPROFIT CORPORATION, AND THE CITY OF CORPUS CHRISTI, A TEXAS HOME RULE CITY THE STATE OF TEXAS § § COUNTY OF NUECES § DEED KNOW ALL MEN BY THESE PRESENTS: THAT the City of Corpus Christi, a Texas home rule city ("Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by Texas State Aquarium Association, a Texas nonprofit corporation ("Grantee"), the receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY unto Grantee, all of Grantor's rights, titles and interests in and to the property located in Nueces County, Texas, described on the attached Exhibit A, which Exhibit A is incorporated herein by reference for descriptive purposes (the "Property"): TO HAVE AND TO HOLD all of Grantor's rights, titles and interests in and to the Property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors to WARRANT AND FOREVER DEFEND all and singular all of Grantor's rights, titles and interests in and to the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. Grantor waives any and all implied liens which Grantor may now or hereafter have against the Property as a result of or in any way pertaining to any exchange of real property between Grantor and Grantee. DATED: , 19 . CITY OF CORPUS CHRISTI, ATTEST: A Texas Home Rule City By: Print Name: Print N_ me: City Secreta,:,- City Manager 27.54 Grantee's Address: Texas State Aquarium Association P. O. Box 31207 Corpus Christi, Texas 78404 THE STATE OF TEXAS § COUNTY OF NUECES § BEFORE ME, the undersigned authority, on this day personally appeared , City Manager of the City of Corpus Christi, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of said City of Corpus Christi for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day , 19 . Notary Public, State of Texas UPON DELIVERY OF THIS DEED EXHIBIT A SHALL BE ATTACHED CONTAINING THE DESCRPTION OF THE CITY EXCHANGE TRACT AS DEFINED IN THIS TITLE AGREEMENT EXHIBIT VIII (CONTINUED) THE STATE OF TEXAS § § COUNTY OF NUECES § DEED KNOW ALL MEN BY THESE PRESENTS: THAT Texas State Aquarium Association, a Texas nonprofit corporation ("Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by the City of Corpus Christi, a Texas home rule city ("Grantee"), the receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY, subject to the matters herein set forth, unto Grantee, all of the property located in Nueces County, Texas, described on the attached Exhibit A, which Exhibit A is incorporated herein by reference for descriptive purposes (herein called the "Property"); TO HAVE AND TO HOLD the Property, subject to the matters herein set forth, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors to WARRANT AND FOREVER DEFEND all and singular the Property, subject to the matters herein set forth, unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Grantor waives any and all implied liens which Grantor may now or hereafter have against the Property as a result of or in any way pertaining to any exchange of real property between Grantor and Grantee. This conveyance, the Property and all of Grantor's warranties are subject to the matters set forth on the attached Exhibit B, which Exhibit B is incorporated herein by reference for all purposes. DATED: , 1988. TEXAS STATE AQUARIUM ASSOCIATION By: Print Name: Print Title: 27.54 Grantee's Address: P. O. Box 9277 Corpus Christi, Texas 78469 THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on 19 , by of the Texas State Aquarium Association, a Texas nonprofit corporation-, on behalf of said corporation. Notary Public, State of Texas Print Name: My Commission Expires: UPON DELIVERY OF THIS DEED THE EXHIBITS DESCRIBED HEREIN SHALL BE ATTACHED CONTAINING THE FOLLOWING ITEMS DESCRIBED IN THIS AGREEMENT: EXHIBIT A SHALL CONTAIN THE DESCRIPTION OF AQUARIUM EXCHANGE TRACT AND EXHIBIT B SHALL CONTAIN A DESCRIPTION OF THE PERMITTED EXCEPTIONS. Art. 842a-2. Public Funds Investment Act Short Title Sec. 1. This Act may be cited as the Public Funds Investment Act of 1987. Authorized Investments Sec. 2. (a) An incorporated city or town, a county, a public school district, an institution of higher education as defined by Section 61.003 of the Education Code, or any nonprofit corporation acting on behalf of any of those entities may, in accordance with this Act, purchase, sell, and invest its funds and funds under its control in the following: (1) obligations of the United States or its agencies and instrumentalities; (2) direct obligations of the State of Texas or its agencies; (3) other obligations, the principal of and interest on which are unconditionally guaran- teed or insured by the State of Texas or the United States; (4) obligations of states, agencies, counties, cities, and other political subdivisions of any state having been rated as to investment quality by a nationally recognized invest- ment rating firm and having received a rating of not less than A or its equivalent; - (5) certificates of deposit issued by state and national banks domiciled in this state that are: (A) guaranteed or insured by the Federal Deposit Insurance Corporation, or its succes- sor; or (B) secured by obligations that are described by Subdivisions (1)-(4) of this subsection, which are intended to include all direct agency or instrumentality issued mortgage backed securities rated AAA by a nationally recognized rating agency, or by Chapter 726, Acts of the 67th Legislature, Regular Session, 1981 (Article 2529b-1, Vernon's Texas Civil Statutes), and that have a market value of not less than the principal amount of the certificates; and (6) fully collateralized direct repurchase agreements having a defined termination date, secured by obligations described by Subdivision (1) of this subsection, pledged with a third party selected or approved by the political entity, and placed through a primary govern- ment securities dealer, as defined by the Federal Reserve, or a bank domiciled in this state. (b) In addition to investment in obligations, certificates, or agreements described in Subsection (a) of this section, bond proceeds of an incorporated city or town, a county, or a public school district, or local revenue of an institution of higher education, may be invested in common trust funds or comparable investment devices owned or administered by banks domiciled in this state and whose assets consist exclusively of all or a combination of the obligations described by Subdivisions (1)-(4) and (6) of Subsection (a) of this section. Common trust funds of banks domiciled in this state may be used if they: (1) are available; (2) comply with the provisions of the Tax Reform Act of 1986 and applicable federal regulations governing the investment of bond proceeds; and (3) meet the cash flow requirements and the investment needs of the political subdivi- sion or institution. (c) In this section: (1) "Bond proceeds" includes but is not limited to proceeds from the sale of bonds and reserves and funds maintained for debt service purposes. (2) "Repurchase agreement" means a simultaneous agreement to buy, hold for -. specified time, and then sell back at a future date, or, cations described by Subsea (a)(1) of this section, the principal and interest of Iv',Al are guaranteed by the Ur, States or any of its agencies, :, market value of noL than the principal amount o; :. funds disbursed. Bids Sec. 3. (a) Investments under Section 2(b) of this Act may be made only after competitive bids are solicited from at least three banks as provided by this section. The bids may be solicited orally. (b) An incorporated city or town or a public school district must attempt to solicit bids initially from banks located within its boundaries. If there are not three banks available for the investments within the city's, town's, or public school district's boundaries, the city, town, or public school district may solicit bids from banks located within the county or counties in which the city, town, or public school district is located in addition to those banks, if any, that are located within the boundaries of the city, town, or public school district. If there are not three banks available for the investments within the boundaries of the city, town, or public school district, or of the county or counties in which it is located, the city, town, or public school district may solicit bids from any bank within the state in addition to those banks, if any, that are located within the boundaries of the city, town, public school district, county, or counties. (c) A county must attempt to solicit bids initially from banks located within its boundaries. If there are not three banks available for the, investments within the county, the county may solicit bids from any bank within the state in addition to those banks, if any, that are located within the boundaries of the county. (d) An institution of higher education as defined by Section 61.003 of the Education Code must solicit bids from at least three banks located within the state. (e) A nonprofit corporation acting on behalf of an incorporated city or town, a county, a public school district, or an institution of higher education as defined by Section 61.003 of the Education Code shall follow the procedures identified in Subsection (b), (c), or (d) of this section, as applicable to the entity on behalf of which the nonprofit corporation is acting. (f) If a bank has notified a governmental entity or nonprofit corporation that it is unable or unwilling to bid for investments under Section 2(b) of this Act, the governmen- tal entity or nonprofit corporation that receives the notification may presume that the bank is unable or unwilling to bid for the investments until the bank notifies the governmental entity or nonprofit corporation otherwise in writing. Standard of Care Sec. 4. Investments shall be made with judgment and care, under circumstances then prevailing, that persons of prudence, discretion, and intelligence exercise in the manage- ment of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable incometo be derived. Written Policies Sec. 5. Investments shall be made in accordance with written policies approved by the governing body. The investment policies must address liquidity, diversification, safety of principal, yield, maturity, and quality and capability of investment management, with primary emphasis on safety and liquidity. Nonapplication to Retirement Funds Sec. 6. This Act does not apply to the investment of funds under the control of a public retirement system, as defined by Section 12.001(2), Title 110B, Revised Statutes. Authority is Additional Sec. 7. The authority granted by this Act is in addition to that granted by other law. Acts 1987, 70th Leg., ch. 889, §§ 1 to 7, eff. Aug. 31, 1987. ESCROW AGREEMENT THE STATE OF TEXAS COUNTY OF NUECES § THIS AGREEMENT is made and entered into as of the date of execution hereinafter set forth by and between the Texas State Aquarium Association, a Texas non-profit corporation (the "Association"), the City of Corpus Christi, Texas, a home rule city under the laws of the State of Texas (the "City") and First City Bank of Corpus Christi, Corpus Christi, Texas, a banking association operating under the laws of the State of Texas (the "Bank"). WITNESSETH: WHEREAS, the City has authorized to be issued and sold the following described securities or obligations (the "Securities") to wit: City of Corpus Christi, Texas, Combination Tax and Tax Increment Revenue Certificates of Obligation, Series 1988 (Tax Increment Finance Zone Projects) WHEREAS, the City has determined that a portion of the proceeds of the Securities is the amount to be deposited hereunder in order to provide for the acquisition of an aquarium from the Association; WHEREAS, as of the execution hereof, the aquarium has not been constructed and it is appropriate to provide for the execution of this Escrow Agreement in order to assure funds will be available to purchase the aquarium at the appropriate time, now therefor BE IT AGREED AND UNDERSTOOD AS FOLLOWS: SECTION 1: The City and the Association each represents that attached to this Agreement is a true and correct copy of (i) the "Purchase Agreement" by and between the City and the Association relating to the aquarium, and (ii) the Public Funds Investment Act of 1987, Article 842a-2 V.T.C.S. Such instruments are made a part of this Agreement for all purposes. 27.54 SECTION 2: That this Escrow Agreement relates to $10,000,000 of the original proceeds of the Securities (the "Original Proceeds") plus any investment income or profits earned on the Original Proceeds and the income therefrom during the term of this Escrow Agreement (the "Investment Income"), such Original Proceeds and Investment Income being hereinafter collectively called the corpus of the Trust, which proceeds are hereby made subiect to this Escrow Agreement. The corpus of the Trust shall be held by the Bank until such time as the Bank receives the items described in paragraph 6a of the Purchase Agreement, where- upon the Bank shall perform the tasks described in paragraph 6b of the Purchase Agreement including disbursing to the "Title Agency" from the corpus of the Trust the "total purchase price" and the "total of the City's expenses" as such terms are described in the Purchase Agreement. Notwithstanding anything herein to the contrary, in the event (i) the "closing" contem- plated by paragraph 6 of the Purchase Agreement does not take place within 35 calendar months of the date the Original Proceeds are deposited with the Bank under this Escrow Agreement, (ii) the Association supplies to the Bank a resolution of its Board of Directors to the effect it is abandoning the construction of the aquarium, or (iii) the Association is adjudged to -be bankrupt by a court of competent jurisdiction, then in any of such events, the Bank shall deliver the corpus of the Trust in the hands of the Bank to the City. Upon the performance of the tasks described in paragraph 6b of the Purchase Agreement as defined above, or, alternatively, upon delivery of the corpus of the Trust in the hands of the Bank to the City in the manner and due to the causes outlined above, the Bank shall be discharged from any further duties hereunder, and this Escrow Agreement shall terminate. Except as provided in this paragraph, no part of the corpus of the Trust may be disbursed by the Bank for any purpose other than (i) at the Closing for the purchase of the aquarium as contemplated by paragraph 6 of the Purchase Agreement (and any unexpended balance of the corpus of the Trust being returned to the City), or (ii) being returned to the City (for which provi- sion is made in the preceeding paragraph). In the event, by reason of the Internal Revenue Code of 1986, as amended, the City is required to rebate a portion of the Investment Income to the United States Government, then such amount as is then subject to rebate (as evidenced by a certificate of the City Manager of the City) shall be returned to the City out of the Investment Income (a part of the corpus of the Trust) held by the Bank. For the purpose of this Escrow Agreement, the Investment Income shall (at all times) be considered to be the amount of the corpus of the Trust in excess of $10,000,000. The Bank shall invest the corpus of the Trust held in escrow under this Agreement, at the direction of the Finance Director of the City, in investments authorized by the Public Funds Investment Act of 1987, and any investment income or profits shall bea part of the corpus. The City shall cause its Finance Director to give the Bank timely direction for the investment of the corpus of the Trust. The liability of the Bank to perform its obligations hereunder shall be limited to the corpus of the Trust, absent its willful misconduct, negligence or bad faith. The City and the Association represent to the Bank that according to the best of their knowledge and belief the amount of the Original Proceeds, together with the Investment Income, is sufficient to satisfy the requirements for the closing pursuant to the Purchase Agreement as outlined herein. If, for any reason, the amount of the corpus of the Trust shall be insufficient to effect the closing of the purchase, the Bank shall in no event be liable for the amount of such deficiency. The Bank makes no representations as to the sufficiency of the corpus of the Trust for the purposes contemplated by the Association and the City herein. Notwithstanding the foregoing, the corpus of -the Trust shall be subject to any applicable unclaimed property laws of the State of Texas. SECTION 3: That in the event any dispute shall arise as to whether the City or the Association has complied with the terms and conditions of this Escrow Agreement, the Bank shall not be required at its own peril to settle such dispute but may tender all of the investments and cash then in its possession as a part of the Trust which may be in dispute into a court of competent jurisdiction in Nueces County, Texas by bill of interpleader or otherwise, making the City or the Association and other parties, if any, at interest known to the Bank parties to such suit. Thereupon, the Bank shall stand discharged from any or all liability hereunder and shall be entitled to receive its costs including a reasonable attorney's fee, or the Bank may take such other action as it deems appropriate. SECTION 4: Should the Bank cease to be the depository bank of the City, the Escrow Fund established hereby shall remain in the custody of the Bank and the Bank shall remain subject to this Escrow Agreement until (i) an identical escrow agreement is executed with a new depository and (ii) such depository has trust powers. SECTION 5: This Agreement may be amended or modified only upon the approval and consent of the governing body of the City and the Association, such approval to be in writing and filed with the Bank, but no such amendment or modification shall increase the liability or responsibility or diminish the rights of the Bank without its written consent. SECTION 6: Any notice, demand or other communication required or permitted to be given to either party hereunder shall be in writing and shall be deemed to have been delivered when actually received or, regardless of whether or not received, upon being deposited in the United States mail, registered or certified mail, return receipt requested, postage prepaid, addressed to the respective party at the address indicated below, or to such other address as may hereafter be indicated by written notice delivered in accordance with the terms hereof to the other party: If to the City: City Manager City Hall P. O. Box 9277 Corpus Christi, TX 78469 If to the Association: Texas State Aquarium Association P. O. Box 331307 Corpus Christi, TX 78404 If to the Bank: First City Bank of Corpus Christi 615 Upper N. Broadway P. O. Box 780 Corpus Christi, TX 78403 IN WITNESS WHEREOF, the City, the Association and the Bank have caused this Agreement to be executed by the respective officers and officials duly authorized to sign on their behalf, as of the day of , 1988. TEXAS STATE AQUARIUM ASSOCIATION By: Print Name: Print Title: FIRST CITY BANK OF CORPUS CHRISTI, Corpus Christi, Texas By: Attest: Title: (BANK SEAL) Attest: Print Name: Print Title: CITY OF CORPUS CHRISTI, TEXAS Print Name: City Secretary (SEAL) APPROVED: day of HAL GEORGE, CITY ATTORNEY By: , 198 Print Name: Print Title: City Manager That the foregoing ordinance was read second reading on this the o,.‹) day following vote: Betty N. Turner David Berlanga, Sr. a ' Leo Guerrero OLLUJJE Clif Moss (AL U That the foregoing ordinance was read third reading on this the ,3 day following vote: Betty N. Turner David Berlanga, Sr. kAlt;L,, Leo Guerrero (Up Clif Moss ()) That the foregoing ordinance was read this the IG day of Betty N. Turner David Berlanga, Sr. Leo Guerrero Clif Moss for to first of (.L) time Bill Pruet Mary Rhodes Frank Schwing, Jr. Mary Pat Slavik Linda Strong and19 passed rt, to its by the for the second time and passed to its of at, Bill Pruet Mary Rhodes Frank Schwing, Jr. Mary Pat Slavik Linda Strong for the third time , 19 , by the Bill Pruet Mary Rhodes Frank Schwing, Jr. Mary Pat Slavik Linda Strong PASSED AND APPROVED, this the ) 0 day o ATTEST: City Secretary APPROVED: 2 47Z DAY OF HAL GEORGE, CITY ATTORNEY By , 19 Amt City Attorney 99.044.01 , 19 's , by the la) and passed finally on following vote: THE CITY OF CORPUS CHRISTI, TEXAS 20309 PUB! ISHER'S AFFIDAVIT State of Texas, ] City of C C County of Nueces ] ss: Ad # 48788 Before me, the undersigned, a Notary Public, this day personally came Deanne D. Palmer, who being first duly sworn, according to law, says that she is a Senior Accounting Clerk of the Corpus Christi Caller - Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Refugio, San Patricio, Nueces, and Victoria Counties, and that the publication of "NOTICE OF INTENTION TO ISSUE CITY OF CORP~~ ot which the annexed is a true copy, was published in the Cor Christi Caller -Times on the 11th,1Bth day of April 1988, and. -a- h day thereafter for two nonconsecutive day(s). - two Times $ 159.60 Senior Accounting Clerk Suba .,.bed and sw before me this 19th day of April 1988. 1 a Cortez Notary Public, Nueces County, Texas My commission expires on 6..30.89 OF INTENTION TO ISSUE CITY Of CORPUS CHRISTI, TEXAS, • CERTIFICATES OF OBLIGATION TAKE NOTICE that the City Council of the City of Corpus Christi, Texas, Shall convene : 26th dai of April, 1988, at its regular *meting place in the City Half of Said city, and, dur- ing suck meeting, the City_ Council will consider the pas- sage et an ordinance - authorkiqg the issuance of certificaSs .* of obligation [to 1 be known 'as City of Corpus Chris* Texas, Combination , Tax and Tax Increment Fund I Revenue Certificates of Obli- gation, Series 1988 (Tax Increment Finance Zone Proj- 1 ect)] in an amount not to , exceed S11,900,000 for the purpose of paying contractual obligations to be incurred for (i) the purchase of land and a building (an Aquarium), (ii) the expansion of the Corpus Christi museum, and (iii) pro- fessional services, such certificates to be payable from a lien on and pledge of certain tax increment reve- nuet to be deposited in the Tax Increment Fund hereto- fore created by the City for Reinvestment Zone Number One established and operating under the Tax Increment Fi- nancing Act, such pledge of tax increment revenues being junior and subordinate to any prior lien pledge of such reve- nues which may hereafter be made and from ad valorem taxes. The cprtificates are to be issued: and this notice is given, under and pursuant to dat jarbvisions of Subchapter C of Chapter 271, Local Gov- erninent Code. Armando Chaps, City Sacretary