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HomeMy WebLinkAboutOrdinance 3480 RLED"FOR4R;ECORD ' 90 APR 27 PM 3 90 ORDINANCE NO . 3480 WASHINGTO co aR e AN ORDINANCE CALLING A SPECIAL ELECTION FOR tHROkMPOSH OF SUBMITTING TO THE ELECTORS OF THE CITY OF FAYETTE - �p VILLE , ARKANSAS , THE QUESTIONS OF ISSUING NOT TO EXCEED $ 33 , 019 , 000 IN CAPITAL IMPROVEMENT BONDS FOR VARIOUS FQ CAPITAL IMPROVEMENTS AND PLEDGING ALL OR A PORTION OF THE PROCEEDS OF THE CITY ' S EXISTING ONE PERCENT ( 1 % ) LOCAL SALES AND USE TAX TO RETIRE SAID CAPITAL IMPROVE- MENT BONDS ; PROVIDING PROCEDURES FOR THE ELECTION ; AND DECLARING AN EMERGENCY WHEREAS , the Board of Directors of the City of Fayetteville , Arkansas ( the " City " ) , has determined that it would be in the best interest of the City to issue bonds to finance , with any other available funds , the costs of acquiring , constructing , reconstruc- ting , improving , renovating , expanding and equipping the various capital improvements described in Section 3 hereof ( the " Improve- ments " ) ; and WHEREAS , the Board of Directors of the City has heretofore levied a one percent ( 1 % ) local sales and use tax pursuant to Ordinance No . 3381 , adopted on October 4 , 1988 , which tax was approved by the electors of the City in an election held on November 8 , 1988 ; and (J WHEREAS , the City can , pursuant to Amendment 62 to the Constitution of the State of Arkansas ( "Amendment 6211 ) and Act 871 of the General Assembly of the State of Arkansas for 1985 , as amended ( " Act 871 " ) , issue capital improvement bonds in principal amount not to exceed $ 33 , 019 , 000 to finance , with any other avail - able funds , the costs of acquiring , constructing , reconstructing , improving , renovating , expanding and equipping the Improvements and related costs of issuance and secure the retirement of such bonds with the proceeds of the City ' s existing one percent ( 1 % ) local sales and use tax ; NOW , THEREFORE , BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE , ARKANSAS THAT : Section 1 . ( a ) The Board of Directors hereby authorizes the issuance of capital improvement bonds under Amendment 62 , as implemented by Act 871 , in principal amount not to exceed $ 33 , 019 , 000 ( the " Bonds " ) , to finance , with any other available funds , the acquisition , construction , reconstruction , improvement renovation , expansion and equipment of the Improvements and related costs of issuance ; provided , however , that the question of issuance of the Bonds shall be submitted to the electors of the City at a special election as hereinafter provided . ( b ) If approved by the electors of the City and issued , the retirement of the Bonds shall be secured by a pledge of all of the i18ER1364PAGE243 proceeds of the City ' s existing one percent ( 1 % ) local sales and use tax levied pursuant to Ordinance No . 3381 , adopted on October 41 1988 , which tax was approved by the electors of the City at an election held on November 8 , 1988 , or such portion of such proceeds as shall be determined by the City to be adequate to obtain satisfactory ratings or insurance on the Bonds . In addition , such proceeds may be pledged to secure the retirement of not to exceed $ 10 , 000 , 000 of educational facilities bonds of the City approved by the electors of the City at the election held on November 8 , 1988 . ( c ) The Mayor and the City Clerk are hereby authorized to execute a trust indenture which defines the terms and provisions of the Bonds and the rights of the owners of the Bonds and provides for the appointment of a trustee for the Bonds . ( d ) The Board of Directors may negotiate and approve , in its sole discretion , bond insurance or other credit enhancement devices with respect to the Bonds . Section 2 . A special election shall be , and the same is hereby , called to be held in the usual polling places in the City on May 29 , 1990 , at which election there shall be submitted to the electors of the City the questions of issuing the Bonds to be secured as described in Section 1 above for each of the Improvements and in the respective amounts specified in Section 3 hereof . Section 3 . The questions shall be placed on the ballot for the election in substantially the following form : There is hereby submitted to the qualified electors of the City of Fayetteville , Arkansas , the issuance of capital improvement bonds under Amendment No . 62 to the Arkansas Constitution , as implemented by Act 871 of 1985 , as amended , in the principal amount set forth in each question below , for the purpose of financing , with any other available funds , the costs of acquiring , constructing , reconstructing , improving , renovating , expanding and equipping capital improvements for the City as described in the respective question below and related costs of issuance , such improvements including ( i ) streets and bridges , ( ii ) water transmission and distribution facilities , ( iii ) drainage improvements , ( iv ) solid waste collection , disposal , compacting and recycling facilities , ( v ) public parks and playgrounds , ( vi ) police equipment , apparatus and facilities , ( vii ) firefighting vehicles , equipment , apparatus and facilities , ( viii ) emergency medical service vehicles , equipment and facilities , ( ix ) the City Youth Center swimming pool and related facilities , ( x ) parking facilities for the Dickson Street area and ( xi ) maintenance and storage buildings and facilities . The City has levied a one percent ( 1$ ) local sales and use tax within _2 _ EIBERI364PAGE244 the City pursuant to Ordinance No . 3381 , adopted on October 41 1988 , to be levied and collected to a maximum of $ 25 . 00 on each single transaction . The retirement of the bonds shall be secured by a pledge of all of the proceeds of such tax or such portion of such proceeds as shall be determined by the City to be adequate to obtain satisfactory ratings or insurance on the bonds . In addition , such proceeds may be pledged to secure the retirement of not to exceed $ 10 , 000 , 000 of educational facilities bonds of the City approved by the electors of the City at an election held on November 8 , 1988 . In the event that the electors shall approve only a portion of the bonds proposed to be issued , there shall only be issued bonds for the purposes approved by the electors . The bonds that are approved may be combined into one or more issues of bonds , which may be issued at one time or in series from time to time . Vote on each question by placing an " X " in one of the squares opposite the question , either for or against : Question One FOR bond issue in principal amount not to exceed $ 12 , 326 , 000 for the purpose of constructing , reconstructing and improving City streets and bridges . L/ AGAINST bond issue in principal amount not to exceed $ 12 , 326 , 000 for the purpose of constructing , reconstructing and improving City streets and bridges . L/ Question Two FOR bond issue in principal amount not to exceed $ 11 , 615 , 000 for the purpose of acquiring , constructing and equipping water transmission and distribution facilities . L/ AGAINST bond issue in principal amount not to exceed $ 11 , 615 , 000 for the purpose of acquiring , constructing and equipping water transmission and distribution facilities . L/ LIBERU PAGE245 - 3 - Question Three FOR bond issue in principal amount not to exceed $ 1 , 773 , 000 for the purpose of acquiring , constructing and reconstructing drainage improvements . V AGAINST bond issue in principal amount not to exceed $ 1 , 773 , 000 for the purpose of acquiring , constructing and reconstructing drainage improvements . U Question Four FOR bond issue in principal amount not to exceed $ 1 , 179 , 000 for the purpose of acquiring , constructing and equipping solid waste collection , disposal , compacting and recycling facilities . L/ AGAINST bond issue in principal amount not to exceed $ 1 , 179 , 000 for the purpose of acquiring , constructing and equipping solid waste collection , disposal , compacting and recycling facilities . L/ Question Five FOR bond issue in principal amount not to exceed $ 561 , 000 for the purpose of acquiring , constructing and equipping public parks and playgrounds . V AGAINST bond issue in principal amount not to exceed $ 561 , 000 for the purpose of acquiring , constructing and equipping public parks and playgrounds . L/ Question Six FOR bond issue in principal amount not to exceed $ 213 , 000 for the purpose of acquiring , constructing and equipping police equipment , apparatus and facilities . L/ AGAINST bond issue in principal amount not to exceed $ 213 , 000 for the purpose of acquiring , constructing and equipping police equipment , apparatus and facilities . L/ IIBu 1364PAGE246 -4 - Question Seven FOR bond issue in principal amount not to exceed $ 1 , 697 , 000 for the purpose of acquiring , constructing and equipping firefighting vehicles , equipment , apparatus and facilities . L/ AGAINST bond issue in principal amount not to exceed $ 1 , 697 , 000 for the purpose of acquiring , constructing and equipping firefighting vehicles , equipment , apparatus and facilities . L/ Question Eight FOR bond issue in principal amount not to exceed $ 69 , 000 for the purpose of acquiring , constructing and equipping emergency medical service vehicles , equipment and facilities . U AGAINST bond issue in principal amount not to exceed $ 69 , 000 for the purpose of acquiring , constructing and equipping emergency medical service vehicles , equipment and facilities . U Question Nine FOR bond issue in principal amount not to exceed $ 998 , 000 for the purpose of expanding and renovating the City Youth Center swimming pool and related facilities . U AGAINST bond issue in principal amount not to exceed $ 998 , 000 for the purpose of expanding and renovating the City Youth Center swimming pool and related facilities . L/ Question Ten FOR bond issue in principal amount not to exceed $ 2 , 013 , 000 for the purpose of acquiring , constructing and equipping parking facilities for the Dickson Street area . L/ AGAINST bond issue in principal amount not to exceed $ 2 , 013 , 000 for the purpose of acquiring , constructing and equipping parking facilities for the Dickson Street area . L/ LIBER 1364-ZPM 247 -5 - Question Eleven FOR bond issue in principal amount not to exceed $ 575 , 000 for the purpose of acquiring , constructing and equipping City maintenance and storage facilities and buildings . L/ AGAINST bond issue in principal amount not to exceed $ 575 , 000 for the purpose of acquiring , constructing and equipping City maintenance and storage facilities and buildings . L/ In order to retire the bonds , the City shall pledge all of the proceeds its one percent ( 1 % ) local sales and use tax previously approved by the electors of the City or such portion of such proceeds as shall be determined by the City to be adequate to obtain satisfactory ratings or insurance on the Bonds . Section 4 . The election shall be held and conducted and the votes cast and the results declared in the manner provided for municipal elections under the election laws of the State of Arkansas as then in effect . Only qualified electors of the City shall have the right to vote at the election . The City Clerk is hereby authorized and directed to give notice of the election by one advertisement in a newspaper having a general circulation within the City , the publication to be not less than ten ( 10 ) days prior to the date of the election . Section 5 . A certified copy of this ordinance shall be furnished to the Washington County Board of Election Commissioners so that it may place the questions on the ballot for the election , provide the necessary election officials and supplies , and canvass the votes on the questions . A certified copy of this ordinance shall also be provided to the Director of the Department of Finance and Administration of the State of Arkansas and to the Treasurer of the State of Arkansas . Section 6 . The results of the election shall be proclaimed by the Mayor . The Mayor ' s proclamation shall be published one ( 1 ) time in a newspaper having general circulation within the City . The results as proclaimed shall be conclusive unless suit is filed in the Circuit Court of Washington County within thirty ( 30 ) days after the date of publication of the proclamation . Section 7 . The aforesaid pledge of sales and use tax proceeds shall continue until the bonds secured thereby shall have been retired in full . Section 8 . All ordinances and parts thereof in conflict herewith are hereby repealed to the extent of such conflict . EIBEB 136 A PAGE24O - 6 - Section 9 . The Board of Directors hereby determines that the City is in dire need of additional capital funds in order to provide essential capital improvements ; that an appropriate way to provide such funds is by the issuance of bonds as authorized by Amendment No . 62 to the Arkansas Constitution and the implementing legislation therefor ; and that this ordinance shall be given immediate effect so that the essential capital improvements may be acquired , constructed and equipped as soon as possible . Therefore , an emergency is hereby declared to exist and this ordinance being necessary for the immediate preservation of the public health , safety and welfare shall be in full force and effect from and after its passage and approval . � JtJIIMHN",,P#1SSED AND APPROVED this aTR day of April , 1990 , N � GARY/'u' By ; lf/.leg�,, • • oeo �,. May6r • • T A TF{S�P UBER1 �3PAGE-249 ' • a ?4 - 7 - aM111tn4/yy , • . N 10 CERTIFICATE OF RECORD I, Alma r V..r, ayar. Ci--uft C'sAc and p��� � ���.. fx-cF;ddo '.uccr^�;' `_-' " *'. rcann Cauntyr state of 8 AbaMti:, ` : HR]i Kffm%,C,ioryr!c1o0irnae5r' fFiiett`evill' Cgty erk and Er. S'P :PE l t sa ::r 'YdM .n ta' Off 09 asi 'ad horeon r.�et ::x: .^me `.Jw for the City of , ^y t Fayetteville, do hereby certify that the accra 3ook and annexed or foregoing is of record In m5 and cer:";ran :?,^_w Fara cs indL.otca m.acson. office and the Same appear8 In 1: f y. : . : aWr,_K._F i havo F'reunto Ordinance & Resolution bookk page a m ° Witness my ayLind sot my hand and affixed the seul of soid Seal tturs— y of C :art en L':e date indicated hereon. 19 Z� o:'.'neyer E=Atficto $BCAYdCC. C:cult io re and Cle[.c G..oi"':io recorder by $ 33 , 019 , 000 City of Fayetteville , Arkansas Sales and Use Tax Capital Improvement Bonds Series 1990 September 13 , 1990 BOND PURCHASE AGREEMENT On the basis of the representations , warranties and agreements and upon the terms and conditions contained herein , the undersigned , Llama Company ( the " Underwriter " ) , hereby offers to purchase the $ 33 , 019 , 000 Sales and Use Tax Capital Improvement Bonds , Series 1990 ( the " Bonds " ) , to be issued by the City of Fayetteville , Arkansas ( the " City " ) , a political subdivision organized and existing under the laws of the State of Arkansas , under and pursuant to an Ordinance adopted by the City on September 13 , 1990 ( the "Authorizing Ordinance " ) , and a Trust Indenture , dated as of October 15 , 1990 ( the " Indenture " ) , between the City and Mcllroy Bank & Trust , in Fayetteville , Arkansas ( the " Trustee " ) . The Bonds are to be issued by the City pursuant to and in accordance with the provisions of Amendment No . 62 to the Constitution of the State of Arkansas , as implemented by Act No . 871 of the General Assembly of Arkansas for the year 1985 , as amended ( the " Act " ) . The Bonds will constitute special obligations of the City secured by a pledge of revenues received by the City from a one percent ( 1 % ) local sales and use tax ( the " Tax Receipts " ) in amounts sufficient to provide for debt service on the Bonds and to maintain a debt service reserve . The levy of the one percent ( 18 ) local sales and use tax was approved by a majority of the qualified electors of the City voting on the question at a special election held November 8 , 1988 . The issuance of the Bonds and the pledge of the Tax Receipts were approved by a majority of the qualified electors of the City voting on the question at a special election held May 29 , 1990 . The Indenture irrevocably pledges a sufficient portion of the Tax Receipts to the payment of the principal of and interest on the Bonds . The Bonds shall be issued in the forms and denominations set forth in the Indenture ; shall be dated October 15 , 1990 ; shall be numbered as provided in the Indenture ; shall mature annually on November 15 of the years 1991 through 2002 , inclusive , and on November 15 , 2005 and November 15 , 2008 , as set forth in Exhibit A hereto ; shall bear interest payable semiannually on May 15 and November 15 of each year commencing May 15 , 1991 , at the rates set forth in the Authorizing Ordinance and in Exhibit A hereto ; and shall be subject to redemption prior to maturity upon the terms and conditions set forth in the Indenture and the Authorizing Ordinance . The issuance of the Bonds will not result in an excess of indebtedness of the City within the meaning of any constitutional or statutory limitation . The proceeds from the sale of the Bonds are to be used , along with other available moneys , to finance costs of acquiring , constructing and equipping certain capital improvements for the City and to pay the costs of issuance of the Bonds . SECTION 1 , REPRESENTATIONS , WARRANTIES , COVENANTS AND AGREEMENTS . By execution hereof , the City hereby represents to , and agrees with , the Underwriter that : ( a ) The City is a city of the first class and political subdivision duly organized and existing under the Constitution and laws of the State of Arkansas . The City is authorized by the provisions of the Act and the Authorizing Ordinance to issue , sell and deliver the Bonds for the purposes specified above , to adopt and perform its obligations under the Authorizing Ordinance , the Indenture and this Bond Purchase Agreement ( this " Agreement " ) , and to irrevocably pledge a portion of the Tax Receipts to the payment of the principal of and interest on the Bonds as provided in the Indenture . ( b ) The City has full power and authority to consummate all transactions contemplated by this Agreement , the Bonds , the Authorizing Ordinance , the Indenture and any and all other agreements relating thereto to which the City is a party . ( c ) The City has duly authorized all action necessary under the Act or otherwise to be taken by it or on its behalf for : ( i ) the issuance and delivery of the Bonds upon the terms set forth in the Act , the Authorizing Ordinance , the Indenture , this Agreement and the Official Statement ( as hereinafter defined ) ; ( ii ) the execution and delivery by it of the Indenture and this Agreement ; ( iii ) the pledge of a portion of the Tax Receipts ; and ( iv ) the adoption of the Authorizing Ordinance and the performance of its duties thereunder . ( d ) The City has previously provided the Underwriter with copies of its Preliminary Official Statement , including the cover page , dated September 7 , 1990 , relating to the Bonds ( the " Preliminary Official Statement " ) . As of its date , the Preliminary Official Statement has been " deemed final " by the City for purposes of SEC Rule 15c2 - 12 ( b ) ( 1 ) . The Preliminary Official Statement , as amended to conform to the terms of this Bond Purchase Agreement , including Exhibit A hereto , and with such other changes and amendments as are mutually agreed to by - 2 . the City and the Underwriter , is herein referred to as the " Official Statement . " ( e ) Except as described in the Official Statement , there is no . action , suit , proceeding , inquiry or investigation at law or in equity or before or by any court , public board or body pending or , to the knowledge of the City , threatened against or affecting it ( or , to its knowledge , any basis therefor ) wherein an unfavorable decision , ruling or finding would adversely affect the transactions contemplated by this Agreement or would adversely affect the validity of the Bonds , the Authorizing Ordinance , the Indenture , this Agreement or any agreement or instrument to which the City is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby . ( f ) The descriptions and information contained in the Official Statement relating to the City , its organization , properties , operations and financial condition and the descriptions of the Bonds , the Indenture and the Tax Receipts are , and at the Closing Date ( as defined in this Agreement and used hereinafter ) will be , true and do not contain , and at the Closing Date will not contain , any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein , in light of the circumstances under which they were made , not misleading . ( g ) Since December 31 , 1969 , there has not been any material adverse change in the properties , financial position or results of operations of the City , whether or not arising from transactions arising in the ordinary course of business , other than any such changes which are disclosed in the Official Statement , and since such date the City has not entered into any transaction or incurred any liability material as to the City , except as disclosed in the Official Statement . ( h ) The City will not take or omit to take any action which will in any way result in the proceeds from the sale of the Bonds being applied in a manner inconsistent with the provisions of the Authorizing Ordinance and the Indenture . ( i ) The Bonds , when executed and delivered by the City , will constitute special obligations of the City enforceable in accordance with their terms , except to the extent that enforcement thereof may be limited by bankruptcy , insolvency or other similar laws affecting creditors ' rights generally and by the application of general principles of equity . ( j ) The Authorizing Ordinance , the Indenture and this Agreement , when executed and delivered by the City , will be the legal , valid and binding obligations of the City enforceable in accordance with their respective terms , except to the extent - 3 - that enforcement thereof may be limited by bankruptcy , insolvency or other similar laws affecting creditors ' rights generally and by the application of general principles of equity . ( k ) The execution and of the Bonds , the Indenture and this Agreement , the adoption of the Authorizing Ordinance , and the performance by the City of its obligations under the aforementioned , do not and will not violate the Act or any court order by which the City is bound , and such actions do not and will not constitute a default under any existing resolution , agreement , indenture , mortgage , lease , note or other obligation or instrument to which the City is a party , and no approval or other action by any governmental authority or agency other than the State Treasurer is required in connection therewith . proposed listing City tnotified has not been ofany listinor that it is a bond issuer whose arbitrage certifications may not be relied upon . SECTION 2 , PURCHASE , SALE , AND DELIVERY OF THE BONDS . On the basis of , and in reliance upon , the warranties , representations and agreements of the City contained herein and in the other documents and agreements referred to herein and subject to the terms and conditions herein set forth , at the Q Closing Time , the Underwriter agrees to purchase from the City and the City agrees to sell to the Underwriter the Bonds at a / price of of the principal amount thereof ) plus accrue7nteres( t fr the date of the Bonds to the date of payment and thereo , 76, 585 The Bonds shall be issued under and secured as provided in the Authorizing Ordinance and the Indenture , and the Bonds shall have the maturities and interest rates and be subject to redemption as set forth in the Authorizing Ordinance . Payment for the Bonds shall be made by certified or official bank check or draft , wire transfer , or otherwise in funds immediately available to the City on the same day , at the offices of Brown & Wood , in New York , New York , at 10 : 00 a . m . on October 18 , 1990 , or at such other place , date and hour as shall be mutually agreed upon between the City and the Underwriter . The date of such delivery and payment is herein called the " Closing Date , " and the hour and date of such delivery and payment is herein called the " Closing Time . " The Bonds shall be printed or lithographed on steel engraved borders , shall bear CUSIP numbers , shall be . prepared and delivered as fully registered bonds in denominations of $ 5 , 000 or integral multiples thereof ( except for one Bond in the - 4 - denomination of $4,000) in such names as the Underwriter may request at least five business days prior to the Closing Date, and shall be made available to the Underwriter at least one business day before the Closing Date for purposes of inspection and packaging. SECTION 3. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The Underwriter's obligations hereunder shall be subject to the due performance by the City of its obligations and agreements to be performed hereunder at or prior to the Closing Time and to the accuracy of and compliance with the representations and warranties of the City contained herein, as of the date hereof and as of the Closing Time, and the Underwriter's obligations hereunder are also subject to the following: (a) A policy of insurance issued by Capital Guaranty Insurance Company, dated the Closing Date, shall have been delivered, which policy shall guarantee payment when due of principal of and interest on the Bonds and shall be in substantially the same form and substance as that attached as Exhibit A to the Preliminary Official Statement. (b) The City shall have received from Standard & Poor's Corporation the rating of "AAA" and from Moody's Investor Service the rating of "A" on the Bonds and letters evidencing such ratings shall have been delivered to the Underwriter. (C) deliverThe nshall been and delivered in the formheretofore approvedauthorized, by thed�executed City in the Authorizing Ordinance with only such changes therein as the Underwriter and the City shall mutually agree upon. (d) At the Closing Time, the Underwriter shall receive two counterpart originals of the following documents, in each case satisfactory in form and substance to the Underwriter: (1) The Official Statement, executed on behalf of the City by its Mayor; (2) The Authorizing Ordinance, certified by the City Clerk as a true, correct and complete copy of the Authorizing Ordinance duly adopted by the City Board of Directors that has not been amended, modified or repealed and is in full force and effect as of the Closing Date; (3) General Counsel The opinions dated of Closing Date of selto the Capital Guaranty Insurance Company, (in substantially the form and substance as that attached hereto as Exhibit B; (B) Jerry Rose, City Attorney, in substantially the -5- form and substance as that attached hereto as Exhibit C; and (C) Brown & Wood, Bond Counsel, in substantially the form and substance as that attached hereto as Exhibit D; (4.) A certificate, in form and substance satisfactory to the Underwriter and Bond Counsel, of the Mayor of the City or any duly authorized officer or official of the City satisfactory to the Underwriter and Bond Counsel, dated as of the Closing Date, to the effect that: (i) each of the City's representations contained herein are true and correct as of the Closing Time; (ii) the City has authorized, by all action necessary under the Act, Ordinance No. 3480 adopted by the City on April 19, 1990 (the "Election Ordinance"), the adoption of the Authorizing Ordinance and the execution, delivery and due performance of the Bonds, the Indenture, this Agreement, and the pledging of a portion of the Tax Receipts; (iii) except as described in the Official Statement, no litigation is pending or, to his knowledge, threatened to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any authority for or the validity of the Election Ordinance, the Authorizing Ordinance, the Indenture, this Agreement, or the pledge of the Tax Receipts; (iv) the Bonds, as executed by the City, are in the form or in substantially the form approved for such execution by appropriate proceedings of the City; (v) since December 31, 1989, there has not been any material adverse change in the properties, financial position or results of operations of the City, whether or not arising from transactions in the ordinary course of business, other than such changes which are disclosed in the Official Statement, and since such date the City has not entered into any transaction or incurred any liability material as to the City except as disclosed in the Official Statement; (vi) there are not pending or, to his knowledge, threatened legal proceedings which are not disclosed in the Official Statement and which are material as to the City, or to which the City is a party, or of which property of the City is subject, or which will adversely affect the transactions contemplated hereby or by the Official Statement; (vii) the information contained in the Official Statement relating to the City, its organization, properties, operations and financial condition and the descriptions of the Bonds and the Tax Receipts are true and correct in all material respects and do not contain any untrue or incorrect statement of a material fact and do not omit to state a material fact S� necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; and (viii) the City has duly authorized by all necessary action the signing of the Official Statement by its Mayor; (5) An arbitrage certificate of the City, in form satisfactory to Bond Counsel, signed by the Mayor; and (6) Such additional certificates and other documents as the Underwriter may reasonably request to evidence performance of or compliance with the provisions of this Agreement and the transactions contemplated hereby and by the Official Statement, all such certificates and other documents to be satisfactory in form and substance to the Underwriter and Bond Counsel. SECTION 4. THE UNDERWRITER'S RIGHT TO CANCEL. The Underwriter shall have the right to cancel its obligation to purchase the Bonds hereunder by notifying the City in writing or by telegram of its election to do so between the date hereof and the Closing Time, if at any time hereafter and prior to the Closing Time: (a) Legislation shall be introduced, by amendment or otherwise, in, or be enacted by the House of Representatives or the Senate, or be recommended to the Congress of the United States for passage by the President of the United States, or a decision by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, shall be rendered, or a ruling, regulation or order of the Treasury Department of the United States or the Internal Revenue Service shall be made or proposed having the purpose or effect of imposing federal income taxation, or any other event shall have occurred which results in the imposition of federal income taxation, upon revenues or other income to be derived by the City or upon the interest received on obligations of the general character of the Bonds, or the Bonds, which, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; (b) Any legislation, ordinance, rule or regulation shall be introduced in or be enacted by any department or agency of the State of Arkansas, or a decision by any court of competent jurisdiction within the State of Arkansas shall be rendered which, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; (c) Legislation shall be introduced, by amendment or otherwise, in, or be enacted by the House of Representatives or the Senate of the Congress of the United States, or a decision -7- by a court of the United States shall be rendered, or a stop order, ruling, regulation or official statement by, or on behalf of the Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter shall be made or proposed, to the effect that the issuance, offering, or sale of obligations of the general character of the Bonds or the Bonds, as contemplated hereby or by the Official Statement, is or would be in violation of any provision of the Securities Act of 1933, as amended and as then in effect, or the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect, or with the purpose or effect of otherwise prohibiting the issuance, offering, or sale of obligations of the general character of the Bonds or the Bonds, as contemplated hereby or by the Official Statement; (d) Any event shall have occurred or information become known which, in the Underwriter's opinion, makes untrue, incorrect or misleading in any material respect any statement or information contained in the Official Statement (or any appendices thereto) as originally circulated, or has the effect that the Official Statement (or any appendices thereto) as originally circulated, contains an untrue, incorrect or misleading statement of a material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; (e) Additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; (f) A general banking moratorium shall have been established by federal or Arkansas authorities; (g) A default shall have occurred with respect to the obligations of, or proceedings have been instituted under the federal bankruptcy laws or any similar state laws by or against, any state of the United States or any city located in the United States having a population in excess of one million persons or any entity issuing obligations on behalf of such a city or state which, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; (h) Any rating of the Bonds shall have been downgraded or withdrawn by a national rating service; or (i) A war involving the United States shall have been declared, or any conflict involving the armed forces of the United States shall have escalated into armed conflict, or any other national emergency relating to the effective operation of -8- government which, in affects the or the financial the Underwriter's market price of the community shall have occurred, opinion, materially adversely Bonds. SECTION 5. CONDITIONS TO THE OBLIGATIONS OF THE CITY. The obligations of the Underwriter's performance of its further condition that at the ,receive the opinions described City hereunder are subject to the obligations hereunder, and the Closing Time the Underwriter shall in Section 3(d)(3) hereof. SECTION 6. INDEMNIFICATION. To the extent permitted by law, the City agrees to indemnify and hold harmless the Underwriter, any member, officer, official or employee of the Underwriter, and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act of 1933, as amended (collectively, the "Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses whatsoever caused by any untrue statement or misleading statement or allegedly misleading statement of a material fact contained in the Official Statement or caused by any omission or alleged omission from the Official Statement of any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by any such untrue or misleading statement or omission or allegedly untrue or misleading statement or omission in the information contained under the captions "UNDERWRITING" or "FINANCIAL GUARANTY BOND" or in Exhibits A and B or otherwise relating to the Financial Guaranty Bond or Capital Guaranty Insurance Company. In case any action shall be brought against one or more of the Indemnified Parties based upon the Official Statement and in respect of which indemnity may be sought against the City, the Indemnified Parties shall promptly notify the City in writing and, to the extent permitted by law, the City shall promptly assume the defense thereof, including the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless employment of such counsel has been specifically authorized by the City. The City shall not be liable for any settlement of any such action effected without its consent by any of the Indemnified Parties, but if settled with the consent of the City or if there be a final judgment for the plaintiff in any such action against the City or any of the Indemnified Parties, with or without the consent of the City, the City agrees to indemnify and hold -9- harmless the Indemnified Parties to the extent provided in this Agreement and to the extent permitted by law. SECTION 7. DELIVERY OF OFFICIAL STATEMENT. The City shall supply to the Underwriter a final Official Statement, in form satisfactory to the Underwriter, within seven business days of the date hereof and in time to accompany any confirmation that requests payment from any customer, and in a sufficient quantity to comply with SEC Rule 15c2 -12(b)(4) and the rules of the Municipal Securities Rulemaking Board. Such Official Statement shall be signed on behalf of the City by its Mayor. The City hereby authorizes the use of copies of the Indenture, the Authorizing Ordinance and the Official Statement and the information therein contained by the Underwriter in connection with the public offering and the sale of the Bonds. The City ratifies and confirms the use by the Underwriter prior to the date hereof of the Preliminary Official Statement in connection with the public offering of the Bonds. SECTION 8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All representations and agreements of the City shall remain operative and in full force and effect, regardless of any investigations made by or on the Underwriter's behalf, and shall survive delivery of the Bonds to the Underwriter. SECTION 9. PAYMENT OF EXPENSES. If the Underwriter accepts delivery of and pays for the Bonds as set forth herein, all expenses and costs to effect the authorization, preparation, issuance, delivery and sale of the Bonds (including, without limitation, the fees and disbursements of Brown & Wood as Bond Counsel and the expenses and costs for the preparation, printing, photocopying, execution and delivery of the Bonds, the Preliminary Official Statement, the Official Statement, the Authorizing Ordinance, and all other agreements and documents contemplated thereby) shall be paid by the City. Whether or not the Underwriter accepts delivery of and pays for the Bonds as set forth herein, the Underwriter shall pay all costs and disbursements incurred by it in connection with the transaction including, without limitation, fees and expenses of any counsel for the Underwriter. SECTION 10. NOTICE. Any notice or other communication to be given to the City under this Agreement may be given by mailing or delivering the same in writing to the City Manager, City of Fayetteville, City Hall, 113 West Mountain, Fayetteville, Arkansas 72701; and any notice or other communication to be given to the Underwriter -10- (S E A L) under this Agreement may be given by delivering the same in writing to Llama Company, One Mcllroy Plaza, Suite 302, Fayetteville, Arkansas 72701, Attention: David M. Phillips. SECTION 11. APPLICABLE LAW; NONASSIGNABILITY. This Agreement shall be governed by the laws of the State of Arkansas and shall not be assigned by the City or the Underwriter. SECTION 12. EXECUTION OF This Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. SECTION 13. SEVERABILITY. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. C By: LLAMA COMPANY By: 204y 4 'ft Authorized Repres tative -11- EXHIBIT A $33,019,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds Series 1990 Maturity Schedule Year Rate of November 15 Amount Interest 1991 $ 824,000 6.00% 1992 1,065,000 6.10 1993 1,130,000 6.20 1994 1,205,000 6.30 1995 1,280,000 6.40 1996 1,360,000 6.50 1997 1,450,000 6.60 1998 1,545,000 6.70 1999 1,650,000 6.80 2000 1,765,000 6.90 2001 1,890,000 7.00 2002 2,020,000 7.05 2003 2,165,000* 7.15 2004 2,325,000* 7.15 2005 2,495,000 7.15 2006 2,675,000* 7.25 2007 2,870,000* 7.25 2008 3,305,000 7.25 * Mandatory redemptions -12- FORM OF OPINION OF COUNSEL -- CAPITAL GUARANTY INSURANCE COMPANY October _, 1990 City of Fayetteville Llama Company City Hall One Mcllroy Plaza, Suite 302 113 West Mountain Fayetteville, AR 72701 Fayetteville, AR 72701 Brown & Wood Rose Law Firm, One World Trade Center a Professional Association New York, NY 10048 120 East Fourth Street Little Rock, AR 72201 Mcllroy Bank & Trust One Mcllroy Plaza, Box 1327 Fayetteville, AR 72702 Re: $33,019,000 City of Fayetteville, Arkansas Sales and Use Tax Capital Improvement Bonds, Series 1990 (the "Obligations") Ladies and Gentlemen: I am the General Counsel of Capital Guaranty Insurance Company, a stock insurance company incorporated in the State of Maryland ("Capital Guaranty") and, as such, am familiar with the corporate affairs of Capital Guaranty. In connection with the issuance by Capital Guaranty on the date hereof of a certain financial guaranty bond (the "Financial Guaranty Bond") insuring the payment of the principal of and interest on the above -captioned Obligations, I have examined such documents and reviewed such questions of law and procedures as I deemed necessary or appropriate for the purpose of this opinion and, on the basis of such knowledge, examination and review, you are advised that in my opinion: (1) Capital Guaranty has been duly incorporated and is validly existing and in good standing under the laws of the State of Maryland. (2) The Financial Guaranty Bond was course of business and constitutes binding obligation of Capital G accordance with its terms, subject to bankruptcy, insolvenc rehabilitation and other simila applicability relating to or and/or claimants' rights against and to general equity principles. -13- issued in the ordinary the legal, valid and uaranty enforceable in , as to enforcement, y, reorganization, r laws of general affecting creditors' insurance companies (3) The statements contained in the Official Statement dated September 13, 1990, under the caption "FINANCIAL GUARANTY BOND" and in Appendix A entitled "FORM OF FINANCIAL GUARANTY BOND" and in Appendix B entitled "FINANCIAL STATEMENT OF CAPITAL GUARANTY INSURANCE COMPANY", insofar as such statements constitute summaries of the matters referred to therein, accurately reflect and fairly present the information purported to be shown and, insofar as such statements purport to describe Capital Guaranty and the Financial Guaranty Bond, fairly and accurately describe Capital Guaranty and the Financial Guaranty Bond. Capital Guaranty is organized under the laws of the State of Maryland. I am admitted to practice law in the State of California and do not hold myself out as expert in, generally familiar with, or qualified to express legal conclusions as to the laws of any other state, except for the matters expressly set forth in the foregoing opinion. This opinion is intended solely for your benefit and is not to be relied upon by any person other than you without my prior written consent. Very truly yours, [Name] [Title] -14- October _, 1990 Mcllroy Bank & Trust, as Trustee and Bond Registrar One Mcllroy Plaza, Box 1327 Fayetteville, Arkansas 72702 Brown & Wood One World Trade Center New York, New York 10048 Llama Company One Mcllroy Plaza, Suite 302 Fayetteville, Arkansas 72701 Rose Law Firm, a Professional Association 120 East Fourth Street Little Rock, Arkansas 72201 Ladies and Gentlemen: I am City Attorney for the City of Fayetteville, Arkansas (the "City"), and have acted in that capacity in connection with the issuance and sale by the City of its $33,019,000 Sales and Use Tax Capital Improvement Bonds, Series 1990 (the "Bonds), which Bonds are being sold pursuant to a Bond Purchase Agreement dated September 13, 1990 (the "Bond Purchase Agreement"), between Llama Company (the "Underwriter") and the City. The terms defined in the Bond Purchase Agreement are used in this letter with the meaning assigned to them in the Bond Purchase Agreement. In this connection, I have reviewed certain documents with respect to the Bonds, and such records, certificates and other documents as I have considered necessary or appropriate for the purposes of this opinion, including the Ordinance adopted by the City on October 4, 1988 (the "Levying Ordinance"), the Ordinance adopted by the City on April 19, 1990 (the "Election Ordinance") and the Ordinance adopted by the City on Septmber 13, 1990 (the "Authorizing Ordinance"), the Trust Indenture dated as of October 15, 1990 (the "Indenture"), between the City and -15- October _, 1990 Page Two Mcllroy Bank & Trust, in Fayetteville, Arkansas, the Preliminary Official Statement dated September 7, 1990, and the final Official Statement dated September 13, 1990, with respect to the Bonds (collectively, the "Official Statement"), and a closing certificate of the City. Based on such review and such other considerations of law and fact as I believe to be relevant, I am of the opinion that: 1. The City has been properly formed and is validly existing as a city of the first class and political subdivision of the State of Arkansas with full power and authority to adopt the Levying Ordinance, the Election Ordinance and the Authorizing Ordinance and to execute and deliver the Bonds, the Indenture, the Official Statement and the Bond Purchase Agreement. 2. The adoption of the Levying Ordinance, the Election Ordinance and the Authorizing Ordinance, the issuance of the Bonds, the execution and delivery of the Indenture and the Bond Purchase Agreement, and the performance of the City's obligations thereunder do not and will not result in a violation of any provision of, or in default under, any other ordinance or any other agreement or instrument to which the City is a party or by which it or its properties are bound. 3. Excepting those matters discussed in the Official Statement, the City is not in violation of any provision of any agreement or instrument the violation of or default under which would materially and adversely affect the business, properties, assets, liabilities or condition (financial or other) of the City. 4. Excepting those matters discussed in the Official Statement, there are no legal or governmental actions, proceedings, inquiries or investigations pending or threatened by governmental authorities or to which the City is a party or to which any property of the City is subject which, if determined adversely, would individually or in the aggregate (i) materially and adversely affect the validity or the enforceability of the Bonds, the Indenture or the Bond Purchase Agreement, (ii) otherwise materially and adversely affect the ability of the City to comply with its obligations on the Bonds or under the Authorizing Ordinance, the Indenture or the Bond Purchase Agreement, or (iii) materially and adversely affect the transactions contemplated by the Official Statement to be engaged in by the City. -16- October _, 1990 Page Three 5. The aggregate amount which may reasonably be expected to be recovered in litigation pending or threatened against the City does not appear to be material to the Owners of the Bonds taking into account insurance coverage. 6. I have reviewed and considered the information contained in the Official Statement and nothing has come to my attention which leads me to believe that the Official Statement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made therein not misleading. I express no opinion as to information included in the Official Statement under the captions "TAX EXEMPTION", "UNDERWRITING", and "FINANCIAL GUARANTY BOND" or in Appendices A and B thereto. I hereby consent to the references made to me in the Official Statement. Very truly yours, Jerry Rose -17- October _, 1990 Mcllroy Bank & Trust, as Trustee and Bond Registrar One Mcllroy Plaza, Box 1327 Fayetteville, Arkansas 72702 City of Fayetteville City Hall 113 West Mountain Fayetteville, Arkansas 72701 Ladies and Gentlemen: Llama Company One Mcllroy Plaza, Suite 302 Fayetteville, Arkansas 72701 Rose Law Firm, a Professional Association 120 East Fourth Street Little Rock, Arkansas 72201 We have examined a certified copy of proceedings of the City of Fayetteville, Arkansas (the "City"), and other documents pertaining to the issuance by the City of its $33,019,000 aggregate principal amount of Sales and Use Tax Capital Improvement Bonds, Series 1990 (the "Bonds"). The Bonds are being issued for the purpose of providing the funds necessary to finance the costs of acquiring, constructing and equipping certain capital improvements within the City (the "Improvements"), to fund a debt service reserve, and to pay the costs of issuance of the Bonds. The Bonds are issued under the authority of Amendment No. 62 to the Constitution of the State of Arkansas, as implemented by Act No. 871 of the General Assembly of the State of Arkansas for the year 1985, as amended (the "Act"), pursuant to Ordinance No. _ of the City adopted September 13, 1990 (the "Authorizing Ordinance"), and a Trust Indenture, dated as of October 15, 1990 (the "Indenture"), between the City and Mcllroy Bank & Trust, of Fayetteville, Arkansas, as bond registrar, paying agent and trustee (the "Trustee"). In accordance with the Act and pursuant to Ordinance No. 3381 of the City adopted October 4, 1988 (the "Levying Ordinance"), the City has levied a one percent (1%) local sales and use tax (the "Sales Tax"). In accordance with the Act and pursuant to the Authorizing Ordinance, the City has pledged receipts from the Sales Tax (the -18- Approving Opinion October _, 1990 Page Two "Tax Receipts") in amounts sufficient to provide for debt service on the Bonds and to maintain a debt service reserve. The Bonds are not secured by a lien on or security interest in the Improvements or the revenues thereof. The issuance of the Bonds and the pledge of the Tax, Receipts has been approved by a majority of the qualified electors of the City voting on the question at a special election held May 29, 1990, pursuant to the provisions of Ordinance No. 3480 adopted April 19, 1990 (the "Election Ordinance"). The Bonds are being issued in fully registered form in denominations of $5,000 or integral multiples thereof, except for one Bond in the denomination of $4,000. The Bonds are dated October 15, 1990, and mature on November 15 in the years 1991 to 2002, inclusive, and on November 15, 2005 and on November 15, 2008. Interest is payable on the Bonds from their date semiannually on each May 15 and November 15, commencing May 15, 1991, by check or draft mailed by the trustee to the registered owners thereof. The Bonds are subject to redemption prior to maturity as set forth in the Indenture and the Authorizing Ordinance and the Bonds. Based on the above, we are of the opinion, under existing law, that: Attorney, 1. In reliance of even date on the opinion of Jerry Rose, City herewith, the City is duly created and validly existing as a city of the first class of the State of Arkansas, Election with the power Ordinance and the to adopt the Levying Ordinance, Authorizing Ordinance, to execute the and deliver the Indenture, to perform the agreements on its part contained in the Indenture and to issue the Bonds. 2. The Bonds have been duly authorized and issued by the City and are valid and binding special obligations of the City enforceable in accordance with their terms. 3. The Bonds are secured by an irrevocable pledge a portion of the Tax Receipts as provided in the Indenture and the Authorizing Ordinance. 4. The Indenture has been duly executed and delivered by the City to the Trustee and is legally binding and enforceable in accordance with its terms. -19- Approving Opinion October _, 1990 Page Three 5. Under existing statutes, regulations and court decisions and assuming compliance by the City with certain covenants and requirements of the Internal Revenue Code of 1986, as amended (the "Code") regarding use, expenditure and investment of Bond proceeds and the timely payment of certain investment earnings to the United States Treasury, interest on the Bonds is not includable in the gross income of the Owners of the Bonds for purposes of federal income taxation. . Interest on the Bonds will not be treated as a preference item in calculating alternative minimum taxable income of individuals; however, interest on the Series 1990 Bonds will be included in the calculation of the alternative minimum tax and environmental tax liabilities of corporations. The Code contains other provisions that could result in tax consequences, upon which we render no opinion, as a result of ownership of the Bonds or the inclusion in certain computations (including, without limitation, those related to the corporate alternative minimum tax and environmental tax) of interest that is excluded from gross income. 6. The Bonds and interest thereon are exempt from all state, county and municipal taxes in the State of Arkansas. 7. Nothing has come to our attention which would lead us to believe that the information in the Official Statement under the captions "Introductory Statement", "The Series 1990 Bonds", "Security for the Series 1990 Bonds", "Certain Definitions", "Summary of Portions of the Indenture" and "Tax Exemption" contains an untrue statement of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. With regard to matters expressed in this opinion, please be advised that the rights of the owners of the Bonds and the enforceability of the Bonds and the Indenture may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. Very truly yours, Brown & Wood -20- OFFICIAL BALLOT CAPITAL IINPFO E�IIIHOT j19P1�'SED 47• 51 CITY OF FAYETTEVILLE INSTRUCTIONS TO VOTER 1. To vote you must blacken the Oval ( m ) completely next to "FOR" or "AGAINST" in each question. 2. Use only the pencil provided. 3. After voting, deposit ballot in ballot box. There is hereby submitted to the qualified electors of the City of Fayetteville, Arkansas, pursuant to ordinance No. 3480 of the City. The issuance of capital improvement bonds under Amendment No. 62 to the Arkansas Constitution, as Im- plemented by Act 871 of 1985, as amended, in the principal amount set forth in each question below, for the purpose of financing, with any other available funds, the costs of acquiring, constructing, reconstruc- ting, improving, renovating, expan- ding and equipping capital im- provements for the City as describ- ed in the respective question below and related costs of issuance, such Improvements Including (1) streets and bridges, (ii) water transmission and distribution facilities, (iii) drainage Improvements, (iv) solid waste collection, disposal, compac- ting and recycling facilities, (v) public parks and playgrounds, (vi) police equipment, apparatus and facilities, (vii) firefighting vehicles, equipment, apparatus and facilities, (viii) emergency medical service vehicles, equipment and facilities, (Ix) the City Youth Center swimming pool and related facilities, (x) park- Ing facilities for the Dickson Street area and (xi) maintenance and storage buildings and facilities. The City has levied a one percent (1 %) local sales and use tax within the Ci- ty pursuant.to Ordinance No. 3381, adopted on October 4, 1988, to be levied and collected to a maximum of $25.00 on each single transac- tion. The retirement of the bonds shall be secured by a pledge of all of the proceeds of such tax or such portion of such proceeds as shall be determined by the City to be ade- quate to obtain satisfactory ratings or insurance on the bonds. In addi- tion, such proceeds may be pledg- ed to secure the retirement of not to exceed $10,000,000 of educa- tional facilities bonds of the City ap- proved by the electors of the City at an election held on November 8, 1988. In the event that the electors shall approve only a portion of the bonds proposed to be issued, there shall only be issued bonds for the purposes approved by the electors. The bonds that are approved may be combined into one or more issues of bonds, which may be Issued at one time or in series from time to time. QUESTION ONE A bond issue in principal amount not to ex,.eed 512,326,000 for the purpose of constructing, reconstructing and improving City streets and bridges. (_)FOR O AGAINST QUESTION TWO A bond issue in principal amount not to exceed 511.615,000 for the purpose of acquiring, constructing and equipping water transmission and distribution facilities. O FOR p AGAINST QUESTION THREE A bond issue in principal amount not to exceed $1,773,000 for the purpose of acquiring, constructing and reconstructing drainage Improvements. p FOR p AGAINST QUESTION FOUR A bond issue in principal amount not to exceed 51,179,000 for the purpose of acquiring, constructing and equipping solid waste collec- tion, disposal, compacting and recycling facilities. (_)F0R p AGAINST QUESTION FIVE A bond issue in principal amount not to exceed $561,000 for the pur- pose of acquiring, constructing and equipping public parks and playgrounds. p FOR - AGAINST QUESTION SIX A bond issue in principal amount not to exceed $213,000 for the pin - pose of acquiring, constructing and equipping police equipment, ap- paratus and facilities. O FOR O AGAINST QUESTION SEVEN A bond issue in principal amount not to exceed SI.697.000 for the purpose of acquiring, constructing and equipping firefighting vehicles, equipment, apparatus and facilities. t FOR O AGAINST 1990 QUESTION EIGHT A bond issue In principal amount not to exceed 569.000 for the pur- pose of acquiring, constructing and equipping emergency medical ser- vice vehicles, equipment and facilities. O FOR O AGAINST QUESTION NINE A bond issue in principal amount not to exceed 5998,000 for the pur- pose of expanding and renovating the City Youth Center swimming pool and related facilities. O FOR Q AGAINST QUESTION TEN A bond issue in principal amount not to exceed $2,013,000 for the purpose of acquiring, constructing and equipping parking facilities for the Dickson Street area. O FOR O AGAINST QUESTION ELEVEN A bond Issue in principal amount not to exceed $575,000 for the pur- pose of acquiring, constructing and equipping City maintenance and storage facilities and buildings. O FOR O AGAINST In order to retire the bonds, the City shall pledge all of the proceeds Its one percent (1 %) local sales and use tax previously approved by the electors of the City or such portion of such proceeds as shall be deter- mined by the City to be adequate to obtain satisfactory ratings or in- surance on the bonds. TRINITY METHODIST ;tf, o " a �, V,'^ tt 34 ARCHIVED AGREEMENT This Agreement dated as of October 18, 1990 between the City of Fayetteville, Arkansas (the "City") and Mcllroy Bank & Trust, Fayetteville, Arkansas (the "Bank"). WHEREAS, the City and the Bank are parties to a Trust Indenture dated as of October 15, 1990 (the "Indenture") pursuant to which the Bank acts as trustee and bond registrar for the owners of $33,019,000 City of Fayetteville, Arkansas Capital Improvement Sales and Use Tax Bonds, Series 1990 (the "Bonds"); and WHEREAS, the City has filed a written designation with the State Treasurer of the State of Arkansas (the "State Treasurer") for the Bank to receive collections of the City's 1% sales and use tax identified in the Indenture (the "Tax"); and WHEREAS, Section 502 of the Indenture directs the Bank, as trustee for the owners of the Bonds, to apply Tax collections that it receives on the last business day of each month as specified in such Section; and WHEREAS, the purpose of this Agreement is to provide for the handling and investment of Tax collections from the date of receipt from the State Treasurer until the last business day of each month; NOW, THEREFORE, for good and valuable consideration, the City and Bank agree as follows: Section 1. There is hereby established an account in the Bank in the name of the City designated "Sales and Use Tax Account" (the "Account") into which shall be deposited as and when received by the Bank from the State Treasurer all Tax collections. The Bank is hereby appointed to act as custodian of the Account upon the terms and conditions set forth in this Agreement. Section 2. All moneys deposited in the Account in excess of the amount guaranteed by the Federal Deposit Insurance Corporation or other federal agency shall be continuously secured in such manner as may then be required or permitted by applicable State of Arkansas or federal laws or regulations regarding the security for, or granting a preference in the case of, the deposit of municipal funds; provided, however, that it shall not be necessary for the Bank to give security for any moneys which shall be represented by obligations purchased under the provisions of Section 3 as an investment of such moneys. Section 3. Moneys held for the credit of the Account shall, as nearly as may be practicable, be continuously invested and reinvested by the Bank in Investment Obligations (as defined in the Indenture) which shall mature, or which shall be subject to redemption by the holder thereof at the option of such holder, not later than the last business day of each month. The City shall direct the Bank in writing or by telephone, confirmed in writing, as to the investment of all moneys required to be invested hereunder, subject, however to the provisions of this Agreement. The Bank shall invest such moneys as so directed by the City or, in the event that the City does not provide the Bank with direction as to any investment, as the Bank considers to be appropriate, subject, however, to the provisions of this Agreement. The Bank shall sell or present for payment or redemption any Investment Obligations so acquired whenever it shall be necessary so to do in order to provide moneys on the last business day of each month. Neither the Bank nor any agent thereof shall be liable or responsible for any loss resulting from any investment. Investment Obligations may be purchased by the Bank through its own trust investment division or other bank facilities for such purpose. Section 4. All amounts in the Account on the last business day of each month shall be withdrawn from the Account and applied by the Bank as set forth in Section 502 of the Indenture in its role as trustee for the owners of the Bonds. Section 5. The Bank shall furnish the City with statements at least monthly of all receipts, investments and disbursements with respect to the Account. Section 6. The responsibility of the Bank is limited to the duties set forth in this Agreement and to the faithful observance of due care and diligence in the custody of the Investment Obligations and money held by it hereunder in the Account and acting pursuant to this Agreement. In no event, however, shall the Bank be liable for losses due to investment selections. Section 7. The City agrees to be responsible for all expenses, taxes or other charges or liabilities incurred by the Bank in connection with the Account, and the Bank is hereby authorized to charge the Account accordingly. Section 8. This Agreement may be terminated by (a) the mutual agreement of the parties or (b) by the City or the Bank by giving thirty (30) days written notice to the other party or (c) upon the earlier of (i) the date there are no longer any Bonds outstanding under the Indenture or (ii) the date of the Bank no longer serves as trustee under the Indenture. Section 9. This Agreement will inure to the benefit of and be binding upon the City, the Bank, the owners of the Bonds, Capital Guaranty Insurance Company and their successors as their interest may be under the Indenture and will not confer any rights upon any other person. Section 10. The deposits into the Account of Tax collections shall not be deemed to be payment of Tax collections to the Trustee until such collections are applied on the last business day of each month and the City shall continue to be obligated to provide sufficient moneys from other Tax collections in order for the deposits required by the Indenture to be made by the Trustee on the last business day of each month in the event moneys in the Account are not sufficient for such purposes. Section 11. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. IN WITNESS WHEREOF, the City and the Bank have caused this Agreement to be executed on the date first above written. M Y B K & ST Fayeevi1�rkana� - By -- \\\jj-- - - - - - - SE ICR VICE PRESIDENT - &T4Wst-0iwsi8n#araget--------- (Title) CITY OF FAYETTEVILLE, ARKANSAS Ma ger ATTEST: City Clerk (SEAL)