HomeMy WebLinkAboutRes 06-60 Authorizing an Agreement with Key Government FinanceTOWN OF WESTLAKE
RESOLUTION NO. 06-60
A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE,
TEXAS, AUTHORIZING A LEASE AGREEMENT WITH KEY GOVERNMENT
FINANCE, INC., A CISCO SYSTEMS CAPITAL PARTNER, FOR THE ANNUAL
HARDWARE AND SOFTWARE SUPPORT OF THE TOWN NETWORK AND PHONE
SYSTEM.
WHEREAS, the Board of Aldermen is always cognizant of savings to the Town of
Westlake; and
WHEREAS, hardware and software support will constantly be a budgeted portion of
the Town of Westlake's budget; and
WHEREAS, the Board of Aldermen finds that entering into this agreement will save the
Town approximately 10% annually.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE
TOWN OF WESTLAKE, TEXAS:
SECTION 1. All matters stated in the Recitals above are found to be true and correct and
are incorporated herein by reference as if copied in their entirety.
SECTION 2, The Board of Aldermen of the Town of Westlake, Texas, does hereby
approve the lease agreement with Key Government Finance, Inc, attached as Exhibit "A"; to
provide the annual hardware and software support of the Town network and phone system and
further authorizes the Town Manager to execute said agreement on behalf of the Town of
Westlake, Texas.
SECTION 3. This Resolution shall become effective upon the date of its passage.
PASSED AND APPROVED ON THIS l I'h DAY OF DECEMBER, 2006.
ATTEST:
R. Awtry, Acting Town Secretary
, ToN>,d Attorney
Scott Bradley, Mayor
Trent O. Petty, To anager
OMM
Key Government Finance, Inc.
1000 South McCaslin Boulevard
Superior, CO 80027-9456
Wednesday, December 06, 2006
Ms. Debbie Piper
"Lown of Westlake
2650 T.T. Dttinger Rd.
Westlake, TX 76262
Re; Key Government Finance, Inc.
Lease No. 5451020
Property Schedule No. 01
Dear Ms. Piper:
Enclosed please find true, exact and correct copies of the fully executed contracts for the recent
'Foxvii of Westlake leasing transaction.
Thank you for choosing Key Government Finance, Inc. to handle your equipment acquisition.
We look forward to meeting your business needs in the future.
Sincerely,
Vk
Lla-son Hennings
Accoiult Manager
720-304-1291
Enclosures
Accepted by Seiler:
Key Government Finance, Inc. ("Seller")
1000 South McCaslin Blvd.
Superior, CO 8Q.W7
B:
Name: JOHN L_ LEKIC
VP, OJginations & 'Syndications
Title:
Date:
Tax -Exempt Payment Plan Agreement, Dated 111912006
Agreed to U Purchaser:
Town of Westlake ("Purchaser")
2650 J.T. Ottinger Rd.
Westlake, TX, 76262
c--�1
B:
Name: t fi
Title: o�,a1.c•� z�
Date: 2Q -0 tip
AGREEMENT: Purchaser has entered into that certain Quote Vs Q5428734, Q5428740 and Q5428744 dated August 15, 2006 and Quote Vs
Q5597534, Q5597655 and 05597579 dated October 10, 2006 with AT&T (the "Vendor") for certain services set forth therein (the "Maintenance
Services") to be provided by Cisco Systems, Inc. ("Cisco') and said Maintenance Contract provides a fixed pricing for multiple years of such
Maintenance Services should the Purchaser pay or cause to be paid to Cisco for multiple years of Maintenance Services at the start of the Maintenance
Contract (the "Multi -Year Service Payment"). Seller agrees to assist Purchaser by making the Multi -Year Service Payment in return for Purchaser's
entering into this Tax -Exempt Payment Plan Agreement, upon the terms and conditions set forth herein and as supplemented by the terms and
conditions set forth in the Schedule. This Tax -Exempt Payment Plan Agreement together with the Schedule shall be defined as the Agreement.
'TERM: The Term of this Agreement shall commence on the date of payment of the Multi -Year Service Payment to Cisco by Purchaser and shall
terminate upon payment of the final Installment Payment set forth in the Schedule, unless terminated sooner pursuant to this Agreement of the
Schedule.
INSTALLMENT PAYMENTS: Purchaser shall promptly pay Installment Payments in the amounts, and on the dates specified, in the Schedule.
NO OFFSET: SUBJECT TO THE PARAGRAPH ENTITLED 'NONAPPROPRIATION" HEREI, THE OBLIGATIONS OF CUSTOMER TO 'PAY THE
INSTALLMENT PAYMENTS DUE UNDER THE SCHEDULE AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS
CONTAINED IN THIS AGREEMENT SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION,
DEDUCTION, SET-OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS
OR INFIRMITIES IN THE PROPERTY FOR WHICH THE MAINTENANCE SERVICES ARE BEING PROVIDED OR ANY ACCIDENT, CONDEMNATION
OR UNFORESEEN CIRCUMSTANCES, THIS PROVISION SHALL NOT LIMIT PURCHASER'S RIGHTS OR ACTIONS AGAINST CISCO OR THE
VENDOR. Purchaser shall pay when due all taxes and governmental charges assessed or levied against or with respect to the Maintenance Services,
LATE CHARGES: Should Purchaser fall to duly pay any part of any Installment Payment or other sum to be paid to Seller under this Agreement on the
date on which such amount is due hereunder, then Purchaser shall pay late charges on such delinquent payment from the due date thereof until paid at
the rate of 12% per annum or the highest rate permitted by law, whichever is Cess.
INSURANCE FOR PROPERTY RELATER TO MAINTENANCE SERVICES: At all times during the Term, Purchaser shall, at Purchaser's own cost and
expense, cause casualty and property damage insurance to be carried and maintained (or shall provide Seller with a certificate stating that adequate
self-insurance has been provided) with respect to the property for which the Maintenance Services are being,provided (the "Maintained Property"),
sufficient to protect the full replacement value of such Maintained Property. Purchaser shall furnish to Seller certificates evidencing such coverage
throughout the Term.
TAX EXEMPTION: The parties contemplate that interest payable under this Agreement will be excluded from gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Cade"). The tax-exempt status of this Agreement provides the
Inducement for the Seller to offer financing at the interest rate set forth herein. Therefore, should this Agreement be deemed by any taxing authority not
to be exempt from taxation. Purchaser agrees that the interest rate shall be adjusted, as of the date of loss of tax exemption, to an interest rate
calculated to provide Seller or its assignee an after tax yield equivalent to the tax exempt rate and Seller shall notify Purchaser of the taxable rate.
Provided, however, that the provision of the preceding sentence shall apply only upon a final determination that the interest payments are not excludable
from gross income under Section 103(a) of the Code, and shall not apply if the determination is based upon the individual tax circumstances of the
Seller, or a finding that the party seeking to exclude such payments from gross income is not the owner and holder of the obligation under the Code. As
a condition to payment of the Multi -Year Service Payment to Cisco, there shall be provided by Cisco a certificate in the form attached hereto as Exhibit
B.
REPRESENTATIONS ANIS WARRANTIES OF PURCHASER: Purchaser hereby represents and warrants to Seller that: (a) Purchaser is a State,
possession of the United States, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Code and Treasury Regulations
and Rulings related thereto. If Purchaser is incorporated, it is duly organized and existing under the Constitution and laws of its jurisdiction of
incorporation and will do or cause to be done all things necessary to preserve and keep such organization and existence in full force and effect. (b)
Purchaser has been duly authorized by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which
resolution, if requested by Seller, is attached hereto), to execute and deliver the Maintenance Contract and this Agreement and to carry out its
obligations thereunder and hereunder. (c) All legal requirements have been met, and procedures have been followed, including public bidding, in order
to ensure the enforceability of the Maintenance Contract and this Agreement. (d) The Maintained Property and the Maintenance Services will be used by
Purchaser only for essential governmental or proprietary functions of Purchaser consistent with the scope of Purchase's authority and will not be used
in a trade or business of any person or entity, by the federal government or for any personal, family or household use. Purchaser's need for the
Maintenance Services is not expected to diminish during the term of the Agreement. (e) Purchaser has funds available to pay Installment Payments until
the end of its current appropriation period and Purchaser covenants to include all Installment Payments due under the Schedule in its preliminary annual
budget for submission to the governing body of the Purchaser. (t) The Purchaser shall comply at all times with all applicable requirements of the Code,
including but not limited to the registration and reporting requirements of Section 149, to maintain the federal tax-exempt status of the Agreement. The
Purchaser shall maintain a system with respect to this Agreement, which tracks the name, and ownership interest of each assignee who has both the
responsibility for administration of, and ownership interest in this Agreement. (g) Purchaser's exact legal name Is as set forth on the first page of this
Agreement. Purchaser will not change its legal name in any respect without giving thirty (30) days prior written notice to Seller.
INDEMNIFICATION: To the extent permitted by law, Purchaser shall indemnify and save Seller harmless from and against all claims, losses, costs,
expenses, liability and damages, including legal fees and expenses, arising out of (a) any breach or default on the part of Purchaser in the performance
of any of its obligations under this Agreement or the Maintenance Contract, or (b) any act of negligence of Purchaser, or its successors or assigns, or
any of its agents, contractors, servants, employees, or licensees with respect to the Maintenance Services, (c) the acquisition, delivery, and acceptance
,of the Maintenance Services. No indemnification will be made for negligence or breach of duty under this Agreement by Seller, its directors, officers,
:agents, employees, successors, or assignees. Purchaser's obligations under this Section shall remain valid and binding notwithstanding termination or
assignment of this Agreement.
ASSIGNMENT BY PURCHASER, Without Seller's prior written consent, Purchaser may not, by operation of law or otherwise, assign, transfer, pledge,
hypothecate or otherwise dispose of the Maintenance Services, this Agreement or any interest therein. Purchaser agrees not to take any action with
respect to the Maintained Property that would eliminate the need for the Maintenance Services during the Term; provided that in the event of a
Nona ppropriation, as hereinafter defined, this restriction shall not apply.
ASSIGNMENT BY SELLER: Seller may assign, sell or encumber all or any part of this Agreement, the Installment Payments and any other rights or
Interests of Seller hereunder.
NONAPPROPRIATION: If sufficient funds are not appropriated to make Installment Payments under this Agreement, this Agreement shall terminate
and Purchaser shall not be obligated to make Installment Payments under this Agreement beyond the then current fiscal year for which funds have been
appropriated. Upon such an event, Purchaser shall, no later than the end of the fiscal year for which Installment Payments have been appropriated,
cease receiving Maintenance Services, if Purchaser fails to cease receiving Maintenance Services, the termination shall nevertheless be effective but
Purchaser shall be responsible for the payment of damages in an amount equal to the portion of Installment Payments thereafter coming due that is
attributable to the number of days after the termination during which the Purchaser fails to cease receiving Maintenance Services and for any other loss
suffered by Seller as a result of Purchaser's faiiure to cease receiving Maintenance Services as required. Purchaser shall notify Seller in writing within
seven (7) days after the failure of the Purchaser to appropriate funds sufficient for the payment of the Installment Payments, but failure to provide such
notice shall not operate to extend the Lease Term or resuit in any liability to Purchaser.
EVENTS OF DEFAULT: Purchaser shall be in default under this Agreement upon the occurrence of any of the following events or conditions ("Events of
Default"), unless such Event of Default shall have been specifically waived by Seller in writing: (a) Default by Purchaser in payment of any Installment
Payment or any other indebtedness or obligation now or hereafter owed by Purchaser to Seller under this Agreement or in the performance of any
obligation, covenant or liability contained In this Agreement and the continuance of such default for ten (10) consecutive days after written notice thereof
by Seller to Purchaser, or (b) any warranty, representation or statement made or furnished to Seller by or on behalf of Purchaser proves to have been
false in any material respect when made or furnished, or (c) dissolution, termination of existence, discontinuance of the Purchaser, insolvency, business
failure, failure to pay debts as they mature, or appointment of a receiver of any part of the property of, or assignment for the benefit of creditors by the
Purchaser, or the commencement of any proceedings under any bankruptcy, reorganization or arrangement laws by or against the Purchaser.
REMEDIES OF SELLER: Upon the occurrence of any Event of Default and at any time thereafter, Seller may, without any further notice, exercise one or
more of the following remedies as Seller in its sole discretion shall elect: (a) terminate the Agreement and all of Purchaser's rights hereunder as to any
or all items of Maintenance Services, including notifying Cisco to cease providing the Maintenance Services to Purchaser, which shall be binding on
Cisco and the Purchaser; (b) proceed by appropriate court action or actions to enforce performance by Purchaser of its obligations hereunder or to
recover damages for the breach hereof or pursue any other remedy available to Seller at law or in equity or otherwise; (c) declare all unpaid Installment
Payments and other sums payable hereunder during the current fiscal year of the Term to be immediately due and payable without any presentment,
demand or protest andlor take any and all actions to which Seller shall be entitled under applicable law. No right or remedy herein conferred upon or
reserved to Seller is exclusive of any right or remedy herein or at law or in equity or otherwise provided or permitted, but each shall be cumulative of
every other right or remedy given hereunder or now or hereafter existing at law or In equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. Purchaser agrees to pay to Seller or reimburse Seller for, in addition to all other amounts due hereunder, all of Seller's
costs of collection, including reasonable attorney fees, whether or not suit or action Is filed thereon. Purchaser and Seller hereby irrevocably waive all
right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement.
NOTICES: All notices, and other communications provided for herein shall be deemed given when delivered or mailed by certified mail, postage
prepaid, addressed to Seller or Purchaser at their respective addresses set forth herein or such other addresses as either of the parties hereto may
designate in writing to the other from time to time for such purpose.
AMENDMENTS AND WAIVERS: This Agreement and the Schedule executed by Seller and Purchaser constitute the entire agreement between Seller
and Purchaser with respect to the Maintenance Services and this Agreement may not be amended except in writing signed by both parties,
CONSTRUCTION: This Agreement shall be governed by and construed in accordance with the laws of the state in which Purchaser is located. Titles of
sections of this Agreement are for convenience only and shall not define or limit the terms or provisions hereof. Time is of the essence under this
Agreement. This Agreement shall inure to the benefit of and shall be binding upon Seller and Purchaser and their respective successors and assigns.
This Agreement may be simultaneously executed in counterparts, each shall be an original with all being the same instrument.
Schedule to Tax -Exempt Payment Plan Agreement
This Schedule is entered into pursuant to Tax -Exempt Payment Plan Agreement dated as of 11/9/2006 between Seller and Purchaser.
1. Inte retation. The terms and conditions of the Tax -Exempt Payment Plan Agreement (the "Agreement") are incorporated herein.
2. Maintenance Services Description. The Maintenance Services subject to this Schedule are described in Exhibit A. attached hereto.
3. Term and Payments. Term and Installment Payments are per the table below, Installment Payments shall be annual and in advance,
or as defined below. If the Payment Due Dates are not defined, they shall be defined as the date of receipt of the Multi -Year
Services Payment by Cisco as certified in the Cisco Certificate in the form attached as Exhibit B, and the anniversary of such day of
each year thereafter. Purchaser shall have the option to prepay the Installment Payments due under this Schedule by paying the
Concluding Balance shown in the table below, plus any other amounts due and owing at the time of prepayment, subject to per diem
adjustment.
4. Expiration. Seller, at its sole determination, may choose not to accept this Schedule if the fully executed, original Agreement (including
this Schedule and all ancillary documents) are not received by Seller at its place of business by 1111412006.
5. Multi -Year Services Payment. The Multi -Year Services Payment to Cisco Systems, Inc., shall be $21,452.00.
6. Opinion of Counsel. Purchaser has provided the opinion of its legal counsel substantially in the form as attached as Exhibit C, hereto.
Pav #
Date
Payment
Principal
Interest Termination
Balance
1
14 -Nov -2006
7,528.48
7,528.48
0.00 14,341.23
2
14 -Nov -2007
7,528.48
6,779.39
749.09 7,358.45
3
14 -Nov -2008
7, 528.48
7,144.13
384.35 0.00
IN WITNESS WHEREOF, Seller and Purchaser have caused this Schedule to be executed in their names by their duly authorized
representatives,
Seller: Key Government Finance, Inc.
Name:
Title:
91P, OriginationG 8, Syndications
Purchaser: Town of Westlake
By:
Name: _7; C..+.J 0c
Title: c� We�
v
Attest:
B
Name:
Title:
EXHIBIT A
Maintenance Services Description
The Maintenance Services are as set forth in that certain Quote Vs Q5428734, Q5428740 and Q5428744 dated August 15, 2006
and Quote Vs Q5597534, Q5597655 and Q5597579 dated October 10, 2006 (the "Maintenance Contract'), between Purchaser
and AT&T.
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Form 8038 -GC Information Return for Small Tax -Exempt
(Rev. November 2440) 1
governmental Bond Issues, Leases, and Installment Sales
Department of the Treasury Under Internal Revenue Codesection 149(e)
Internal Revenue Service Caution: if the issue price of the issue is $900, 000 or more, use Form 8098-G
ss
Town of Westlake
Number an street
CMB No. 1545-0720
2650 J.T. Ottln er Rd.
4 City, town, or post office, state, and ZIP code 5 Report number
Westlake, TX 76252 5-01
6 Name and title of officer or legal representative whom the IRS may all for more information 7 Telephone number of oM7r or _I -Val
Ms, Debbie Piper, Finance director representative
817-490-5712
Description of Obligations Check if reporting: a single issue 0 or on a consolidated basis
Sa Issue price of obli atlon s see instructions ea $21,452
b Issue date (single issue) or calendar year (consolidated) (see instructions) 11'. ('zf tp io 7,777
9 Amount of the reported obligations on line 8a:
a Used to refund priorlssue(s)............................................................ ga 0.00
b Representing a loan from the proceeds of another tax-exempt obligations (e.g., bond bank) ........... 9b 0.00
.10 If the Issuer has designated any issue under section 265(b)(3)(B)(I)(I11) (small issuer exception), check this box ► ❑
11 If any obligation Is in the form of a lease or installment sale, check this box ............ . . . .................... . ...... . . . . . . ►
-12 If the Issuer has elected to pay a penalty In lieu of arbitrage rebate, check this box .......................................... ► p
Under ni2i` ties of
PLEASE knowsg and
SIGN
HERE
General Instructions
Section references are to the Internal Revenue
Code unless othanvise noted.
I declare that I have examined this return and accompanying schedules and statements, and to the best of my
are true, correct and complete.
Purpose of Form
Form 8038 -GC is used by issuers of
tax-exempt governmental obligations to provide the
IRS with the Information required by section 149(a)
and to monitor the requirements of sections 141
through 15C.
Who Must File
issuers of tax-exempt governmental obligations with
issue prices of less than $100,000 must file Form
8038 -GC.
Issuers of a tax-exempt governmental obligation
with an issue price of $100,000 or more must file
Form 8038-0, Information Return for Tax -Exempt
Governmental Qbllgatons.
Filing a separate return.—Issuers have the option
Jo file a separate Form 8038 -GC for any tax-exempt
governmental obligation with an issue price of less
$100,000.
An issuer of a tax-exempt bond used to finance
construction expenditures must file at separate Form
8038 -GC for each issue to give notice to the IRS
that an election was made to pay a penalty In lieu of
arbitrage rebate (see the line 12 instructions).
Filing a consolidated return. — For all tax-exempt
governmental obligations with issue prices of less
than $100,000 that are not reported on a separate
Form 8038 -GC, an Issuer must file a consolidated
information return including all such Issues Issued
within the calendar year.
Date Type of print naaYe and title
Thus, an issuer may the a separate Form e038 -
GC for each of a number of small Issues and report
the remalnderof small issues issued during the
calendar year on one consolidated Form 8038 -GC.
However, a separate Form 8038 -GC must be filed to
give the IRS notice of the election to pay a penatty in
lieu of arbitrage rebate.
When To File
To file a separate return, file Form 8038 -GC on or
before the 15th day of the second calendar month
after the close of the calendar quarter In which the
Issue is Issued.
To file a consolidated return, file Form 8038 -GC
an or before February 15th of the calendar year
following the year in which the Issue is issued.
Late filing. An Issuer may be granted an extension
of time to file Form 8038 -GC under Section 3 of
Rev. Proo. 88-10, 1988-1 C,B, 835, if it is
determined that the failure to file on time Is not due
to willful neglect. Type or print at the bottom of the
form, "This Statement Is Submitted In Accordance
with Rev. Proc. 88-10." Attach to the Form 8038 -GC
a letter Melly stating why the form was not
submitted to the IRS on time. Also indicate whether
the obligation in question is under examination by
the IRS. Do not submit copies of any bond
documents, leases, or Installment sale documents.
See Where to Fila below,
Where To File
File Form 8038 -GC, and any attachments, with the
Interna! Revenue Service Center, Ogden, UT 84201.
Other Forms That May Be Required
For rebating arbitrage (or paying a penalty in Ilau of
arbitrage rebate) to the Federal government, use Form
8038-T, Arbitrage Rebate and Penalty in Lleu of Arbitrage
Rebate. For private activity bunds, use Form 8038,
Information Return for Tax -Exempt Private Activity Bond
Issues.
Rounding Off to Whole Dollars
You may show the money items an this return as whole -
dollar amounts. To do so, drop any amount less than 50
cents and Increase any amount from 50 cents through 99
cents to the next higher dollar.
Definitions
Obligations. This refers to a single tax-exempt
governmental obligation if Form 8038 -GC Is used for
separate reporting or to multiple tax-exempt
governmental obligations if the form Is used for
consolidated reporting.
Tax-exempt obligation. This is a bond, Installment
purchase agreement, or a financial lease, on which the
Interest is excluded from Income under section 103.
Tax-exempt governmental obligation. A tax-exempt
obligation that is not a private activity, bond (see below) is
a tax-exempt governmental obligation. This Includes a
bond Issued by a qualified volunteer fire department
under section 160(e).
Private activity bond. This Includes an obligation Issued
as part of an Issue in which:
• More than 10% of the proceeds are to be used for any
private business use, and
Cat, No. 64108E Form 8038 -GC (Rev. 11-2000)
INVOICE INSTRUCTIONS
(The information you provide enables us to invoice you correctly.)
Town of Westlake
BILL TO ADDRESS:
'g, 050 --s- -1- ® +-t 1 "1 A 1,
BILLING CONTACT:
I. First, M. I. and Last Name: b �' r � I'
Title: f-1
+�o4xz+ e . 1� ► t' e.� �°
Phone Number:
Fax Number:
PURCHASE ORDER NUMBER:
Invoices require purchase order numbers: YES NO
Purchase Order Number:
FEDERAL TAX ID NUMBER: Cl
2-
ADDITIONAL INFORMATION NEEDED ON INVOICE: