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HomeMy WebLinkAboutPACKET AUG 01 2006 City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS AUGUST 1, 2006 1:30 P.M. CONSENT AGENDA * Approval of minutes * Confirmation of committee appointments A) Approve a bid for the purchase and installation of modular shelving for the Water Utilities Department B) Authorize the City Manager to execute a Quitclaim Deed quitclaiming the City's right to a Drainage Easement to CN&B Development Group, L.L.C. C) Authorize the City Attorney to file and prosecute a lawsuit against Local 399, International Association of Fire Fighters for the judicial review of the Opinion and Award of M. Zane Lumbley, Interest Arbitrator • A City of Beaumont �:U1Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Brenda Beadle, Purchasing Manager MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 25, 2006 REQUESTED ACTION: Council approval to award a bid for the purchase and installation of modular shelving for the Water Utilities Department. RECOMMENDATION Administration recommends the award of a bid to Equipment Depot in the amount of$33,360 for the purchase and installation of a modular steel shelving system for the parts warehouse at Water Utilities Department. BACKGROUND Two (2) bids were received for a shelving system which will be utilized for the storage of parts inventories for the Water Department. The specified system consists of forty-nine(49) 24" deep x 48" wide x 96" high storage units,with various configurations of drawer partitions and shelf bins, and two(2)36"x 96" work benches. The bids received are reflected in the attached bid tabulation. Replacement of the existing wooden shelves used for parts inventory is required due to the extreme weight of materials which are stored on the shelves. A more reliable shelving system is needed to maximize employee safety. Additionally,the alignment of the system and color coded shelving for various part types will improve the efficiency of the daily checkout of necessary parts to work crews, and will put the crews into service quicker. The Water Department researched multiple storage systems and identified the Equipto product line as the best-suited for its usage requirements. City personnel located a minimum of four(4)vendors in Texas that could provide competitive bids for the Equipto shelving line; therefore, bid specifications identified Equipto as the desired shelving product. The apparent low bidder, Library Design Systems of Houston, bid a Borroughs product line. The isBorroughs product is shorter in height, does not provide the workbench width, and has a number of design differences with regard to partitions and bins that the Water Department has determined Purchase and Installation of Modular Steel Shelving System July 25, 2006 Page 2 to be less suitable for their needs. Additionally, the Equipto product line carries a lifetime warranty against product failure under normal usage, while the Borroughs equipment offers five (5)years. Water Utilities and Purchasing personnel have reviewed the product literature provided with the lowest bid, and have determined that given the system's construction and design, it would not stand up as well to the usage required by the Department. The shelving will be delivered and installed within 25 days of the order. BUDGETARY IMPACT Funds for this expenditure are available in the Water Utilities Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Water Utilities Director. i 0 0 0 BID TABULATION: PURCHASE AND INSTALLATION OF MODULAR SHELVING UNITS BID OPENING: THURSDAY, JUNE 8, 2006 @ 2:00 PM BID NUMBER: RF0506-55 Vendor Library Design Systems I Equipment Depot- Beaumont City/State Houston, TX Beaumont, TX Fax Number 713.869.4168 I 409.842.1735 Modular Shelving Units $21,770.00 $29,885.001; Manufacturer/Model Bid: Borroughs Equipto"V-Grip" Shelving Installation Price $2,495.00 $3,475.00 Total $24,265.00 $33,360.00 Delivery time 45 days 20-25 days Installation time: 3 days 3 da s RESOLUTION NO. WHEREAS, bids were received for the purchase and installation of a modular steel shelving system for the parts warehouse at Water Utilities Department; and, WHEREAS, Equipment Depot, Beaumont, Texas, submitted a bid in the amount of $33,360; and, WHEREAS, City Council is of the opinion that the bid submitted by Equipment Depot, Beaumont, Texas, should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the bid submitted by Equipment Depot, Beaumont, Texas, for the purchase and installation of a modular steel shelving system for the parts warehouse at Water Utilities Department in the amount of $33,360 be accepted by the City of Beaumont. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of August, 2006. - Mayor Guy N. Goodson - 0 City of Beaumont err• Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 25, 2006 REQUESTED ACTION: Council approval of a resolution authorizing the City Manager to execute a Quitclaim Deed quitclaiming the City's right to a Drainage Easement to CN&B Development Group, L.L.C. RECOMMENDATION The Drainage Easement was referred to in the Deed of Gift from which Neal T. Foley conveyed to the City of Beaumont 35.91 acres out of the F. Bigner Survey(FC #200047893): Reservations from and Exceptions to Conveyance and Warranty: 2. Rights of parties in and to area designated as drainage easement on plat attached to Earnest Money Contract between Buckner B aptist Benevolencies,as"Seller,and Neal T. Foley, as "Buyer". Administration recommends the execution of a Quitclaim Deed quitclaiming the above Drainage Easement. BACKGROUND The City acquired the above named property through a Deed of Gift in December, 2000, and conveyed it to Curtis Lee in May, 2005 (FC #2005017435). The current owner, CN&B Development Group, L.L.C., has plans to develop the property and the drainage easement is no longer needed since drainage will be handled as part of the development. BUDGETARYIMPACT None. PREVIOUS ACTION None. 4p SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Public Works Director engquitclaim-ib.wpd 25 July,2006 RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to execute a Quitclaim Deed, being 35.91 acres out of the F. Bigner Survey(FC#200047893),quitclaiming the City's right to a Drainage Easement to CN&B Development Group, L.L.C. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of August, 2006. - Mayor Guy N. Goodson - City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tyrone Cooper, City Attorney MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 27, 2006 REQUESTED ACTION: Resolution authorizing the City Attorney to file and prosecute a lawsuit against Local 399, International Association of Fire Fighters for the judicial review of the Opinion and Award of M. Zane Lumbley, Interest Arbitrator RECOMMENDATION The Administration recommends that the Council adopt a resolution authorizing the City Attorney to file and prosecute a lawsuit against Local 399, International Association of Fire Fighters and, if necessary, other parties for the judicial review of the Opinion and Award of M. Zane Lumbley, Interest Arbitrator, in the matter styled In the Matter of Interest Arbitration between City of Beaumont, Texas, Employer and Local 399, International Association of Fire Fighters, Union, FMCS Case No. 050830-58719-3. BACKGROUND The City and the Local 399, International Association of Fire Fighters attempted unsuccessfully to negotiate a labor agreement to replace the one which expired October 1, 2005. The matter proceeded to Arbitration and an Award and Opinion was delivered by M.Zane Lumbley on July 21, 2006. The award granted the Firefighters a pay increase of 10.25% as of October 1, 2005, a pay increase of 9%effective October 1,2006 and another pay increase of 9%effective October 1,2007. This will result in an increase of 31%over current pay by the third year. The average firefighter now earns$54,800 per year including overtime. As of October 1,2007,this same firefighter would earn $71,800 per year. It should be noted that the City's firefighters are the highest paid municipal firefighters in Southeast Texas even prior to this award. There are currently 227 firefighters employed by the City of Beaumont. SMGENDAVIGENDA ITEM MEMOM irefigMers Appealmpd i the Arbitrator erred in several was principal of which is his failure to In rendering the decision, Y � P P consider, as required by the labor agreement, the total compensation and terms and conditions of employment of State Civil Service certified, full-time firefighters in all Texas Cities. BUDGETARY IMPACT If the decision were enacted as rendered, the award would require a tax increase and/or reductions in City services or personnel. The Fire Department currently accounts for 23% of General Fund expenditures. PREVIOUS ACTION This matter was discussed in an Executive Session held on Tuesday, July 25, 2006. SUBSEQUENT ACTION None RECOMMENDED BY City Manager and City Attorney WAGENDAIAGENDA ITEM MEMOSWirefighters Appealmpd RESOLUTION NO. BE IT RESOLVED BY THE C ITY COUNCIL O F THE CITY OF BEAUMONT That the City Attorney or his designee is hereby authorized to file and prosecute a lawsuit against Local 399, International Association of Fire Fighters and, if necessary,other parties for the judicial review of the Opinion and Award of M. Zane Lumbley, Interest Arbitrator, in the matter styled In the Matter of Interest Arbitration between City of Beaumont, Texas, Employer and Local 399, International Association of Fire Fighters, Union, FMCS Case No. 050830-58719-3. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of August, 2006. - Mayor Guy N. Goodson - City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS AUGUST 1, 2006 1:30 P.M. AGENDA CALL TO ORDER * Invocation Pledge Roll Call * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-4/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Consider authorizing the issuance of City of Beaumont, Texas, Waterworks and Sewer System Revenue Refunding Bonds, Series 2006; authorizing the execution of a bond purchase agreement: and containing other matters related thereto 2. Consider authorizing the City Manager to apply for and receive funding through the Department of Homeland Security Port Security Grant Program 3. Consider a request to abandon a 10'x 100'portion of a 30'wide drainage and utility easement along the rear of the property at 4230 Pierre 4. Consider approving a bid for the purchase of three(3)rubber track excavators for use in the Water Utilities Department WORKSESSION * Review proposed amendments to the Animal Control Ordinance COMMENTS * Councilmembers/City Manager comment on various matters • * Public Comment (Persons are limited to 3 minutes) Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact Lenny Caballero at 880-3716 three days prior to the meeting. � 1 August 1, 2006 Consider authorizing the issuance of City of Beaumont, Texas, Waterworks and Sewer System Revenue Refunding Bonds, Series 2006; authorizing the execution of a bond purchase agreement: and containing other matters related thereto City of Beaumont •�• Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Max S. Duplant, Chief Financial Officer MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 26, 2006 REQUESTED ACTION: Council consider an ordinance authorizing the issuance of City of Beaumont,Texas,Waterworks and Sewer System Revenue Refunding Bonds, Series 2006; authorizing the execution of a bond purchase agreement: and containing other matters related thereto. RECOMMENDATION The administration requests approval of an ordinance authorizing the issuance of City of Beaumont, Texas, Waterworks and Sewer System Revenue Refunding Bonds, Series 2006; authorizing the execution of a bond purchase agreement; and containing other matters related thereto. BACKGROUND In August 2002,the City issued$30 million in adjustable rate bonds that were privately placed with JP Morgan. $29,530,000 remain outstanding on these bonds which were fixed for initial rate periods which will end on 9/1/06 and 9/i/07. Although the adjustable rate debt has produced a lower interest cost to the City than a fixed rate would have over the past few years, the current interest rate environment makes it more advantageous for the City to move to a long term fixed rate at this time. JP Morgan has agreed to release all debt outstanding on 9/1/06. Morgan Keegan & Co., Inc., Estrada Hinojosa & Co., Inc., Coastal Securities, First Southwest Company and Lasalle Financial Services were selected to provide underwriting services on the above mentioned refunding bonds. The revenue bonds will mature September 1,2007 through September 1, 2023 with interest payable semiannually in March and September beginning March 1,2007. JP Morgan Chase Bank,N.A.. will serve as paying agent/registrar. Ig Delivery and receipt of proceeds by the City is scheduled for September 1, 2006. Proceeds will be used to refund the 2002 adjustable rate revenue bonds. BUDGETARY IMPACT All debt shall be incurred in the Water Fund which is supported by revenues of the waterworks and sewer system. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Chief Financial Officer. ORDINANCE NO. DRAFT ORDINANCE AUTHORIZING THE ISSUANCE OF THE CITY OF BEAUMONT, TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE REFUNDING BONDS, SERIES 2006; AUTHORIZING THE EXECUTION OF A BOND PURCHASE AGREEMENT; AND CONTAINING OTHER MATTERS RELATED THERETO THE STATE OF TEXAS § COUNTY OF JEFFERSON § THE CITY OF BEAUMONT § WHEREAS, The City of Beaumont, Texas (the "City") is authorized, pursuant to Chapter 1502, Texas Government Code, as amended, to issue bonds payable from the net revenues of its waterworks and sewer system and to issue such bonds, without an election, for money for acquisitions, extensions, construction, improvement or repair of such system; and WHEREAS, the City has also heretofore issued The City of Beaumont, Texas, Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002 (the "Refunded Bonds"); WHEREAS, the City now desires to currently refund certain maturities of the Refunded Bonds in advance of their maturities in order to fix the interest rate payable with respect to Refunded Bonds [and to achieve an interest cost savings]; and WHEREAS, Chapter 1207, Texas Government Code, as amended, authorize the City to issue refunding bonds for the purpose of currently refunding the Refunded Bonds in advance of their maturities, and to accomplish such refunding by depositing directly with any paying agent for the Refunded Bonds the proceeds of such refunding bonds, together with other available funds, in an amount sufficient to provide for the payment or redemption of the Refunded Bonds, and provides that such deposit shall constitute the making of firm banking and financial arrangements for the discharge and final payment or redemption of the Refunded Bonds; and WHEREAS, the City desires to call all of the outstanding Refunded Bonds 1 for redemption prior to their maturities; and WHEREAS, the City desires to provide for the deposit of proceeds of the refunding bonds authorized herein to pay and redeem the Refunded Bonds; and WHEREAS, upon the issuance of the refunding bonds herein authorized and the deposit of funds referred to above, the Refunded Bonds shall no longer be regarded as being outstanding, except for the purpose of being paid pursuant to such deposit, and the pledges, liens, trusts and all other covenants, provisions, terms and conditions of the ordinances authorizing the issuance of the Refunded Bonds shall be discharged, terminated and defeased; Now, Therefore BE IT ORDAINED BY THE CITY OF BEAUMONT, TEXAS: 1. Findings and Determinations. It is hereby found and determined that the transactions contemplated in this Ordinance will benefit the City by providing a savings in debt service, and that such benefit is sufficient consideration for the refunding of the Refunded Bonds. In addition, the matters and facts contained in the preamble to this Ordinance are hereby found to be true and correct. 2. Definitions. Throughout this ordinance the following terms and expressions as used herein shall have the meanings set forth below: The term "Act" shall mean Chapters 1502 and 1207, Texas Government Code, as amended. The term "Additional Parity Bonds" shall mean the additional parity revenue bonds permitted to be issued by the City pursuant to Section 20 of this Ordinance. The term "Blanket Issuer Letter of Representations" means the Blanket Issuer Letter of Representations between the City, the Registrar and DTC. The term "Bond Insurance Policy" shall mean the insurance policy issued by the Bond Insurer guaranteeing the scheduled payment of principal of and interest on the Bonds when due. The term "Bond Insurer" shall mean , or any successor thereto or assignee thereof. The term "Bond Register' shall mean the books of registration kept by the 2 Registrar in which are maintained the names and addresses of, and the principal amounts of the Bonds registered to, each Owner. The term "Bonds" shall mean the $29,075,000 The City of Beaumont, Texas, Waterworks and Sewer System Revenue Refunding Bonds, SERIES 2006 authorized in this Ordinance, unless the context clearly indicates otherwise. The term "Business Day" shall mean any day which is not a Saturday, Sunday, a day on which banking institutions in the city where the principal corporate trust office of the Registrar is located are authorized by law or executive order to close, or a legal holiday. The term "City" shall mean The City of Beaumont, Texas. The term "Closing Date" means the date of the initial delivery of and payment for the Bonds. The term "Code" means the Internal Revenue Code of 1986, as amended. The term "Comptroller' means the Comptroller of Public Accounts of the State of Texas. The term "DTC" means The Depository Trust Company of New York, New York, or any successor securities depository. The term "DTC Participant" means brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created to hold securities to facilitate the clearance and settlement of securities transactions among DTC Participants. The term "Gross Revenues" shall mean all revenues, income and receipts of every nature derived or received by the City from the operation and ownership of the System (but excluding any utility deposits) and the interest income from the investment or deposit of money in the Revenue Fund, the Interest and Sinking Fund, and the Reserve Fund. The term "Interest Payment Date", when used in connection with any Bond, shall mean March 1, 2007, and each March 1 and September 1 thereafter until maturity or earlier redemption of such Bond. The term "Maintenance and Operation Expenses" shall mean the reasonable and necessary expenses of operation and maintenance of the System, including all salaries, labor, materials, repairs and extensions necessary to render efficient service, and all payments under contracts now or hereafter defined as operating expenses by the Legislature of the State of Texas. 3 Depreciation shall never be considered as a Maintenance and Operation Expense. The term "MSRB" shall mean the Municipal Securities Rulemaking Board. The term "Net Revenues" shall mean all Gross Revenues remaining after deducting the Maintenance and Operation Expenses. The term "NRMSIR" means each person whom the SEC or its staff has determined to be a nationally recognized municipal securities information repository within the meaning of the Rule from time to time. The term "Ordinance" as used herein and in the Bonds shall mean this ordinance authorizing the Bonds and all amendments and supplements hereto. The term "Owner" shall mean any person who shall be the registered owner of any outstanding Bonds. The term "Parity Bonds" shall mean the Bonds and the City's outstanding Waterworks and Sewer System Revenue Refunding Bonds, Series 1998, and the City's outstanding Waterworks and Sewer System Revenue Refunding Bonds, Series 1999, and the City's outstanding Waterworks and Sewer System Revenue Bonds, Series 2000, and the City's outstanding Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002, and the City's outstanding Waterworks and Sewer System Revenue Bonds, Series 2004, and the City's outstanding Waterworks and Sewer System Revenue Refunding Bonds, Series 2005, and the City's outstanding Waterworks and Sewer System Revenue Bonds, Series 2005, and each series of Additional Parity Bonds from time to time hereafter issued, but only to the extent such Parity Bonds remain outstanding within the meaning of this Ordinance. The term "Paying Agent" shall mean the Registrar. The term "Record Date" shall mean, for any Interest Payment Date, the fifteenth (15th) calendar day of the month next preceding each Interest Payment Date. The term "Refunded Bonds" shall mean the The City of Beaumont, Texas, Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002, maturing on September 1 in the years 2017 and 2023 in the aggregate principal amount of$29,035,000. The term "Registrar" shall mean JPMorgan Chase Bank, N.A., Dallas Texas, and its successors in that capacity. 4 The term "Reserve Fund Requirement" shall mean an amount equal to the average annual principal and interest requirement on the Parity Bonds, which may be determined and redetermined each year by the City but in no event less frequently than upon the issuance of each series of Parity Bonds. The term "Rule" shall mean SEC Rule 15c-12, as amended from time to time. The term "SEC' shall mean the United States Securities and Exchange Commission. The term "SID" shall mean the Municipal Advisory Council of Texas, which has been designated by the State of Texas as, and determined by the SEC staff to be, a state information depository within the meaning of the Rule. The term "Special Project' shall mean, to the extent permitted by law, any property, improvement or facility declared by the City not to be part of the System and substantially all of the costs of the acquisition, construction and installation of which is paid from proceeds of a financing transaction other than the issuance of bonds payable from ad valorem taxes or Net Revenues of the System, and for which all maintenance and operation expenses are payable from sources other than revenues of the System, but only to the extent that and for so long as all or any part of the revenues or proceeds of which are or will be pledged to secure the payment or repayment of such costs of acquisition, construction and installation under such financing transaction. The term "System" shall mean all properties, facilities, improvements, equipment, interests and rights constituting the waterworks and sewer system of the City, including all future extensions, replacements, betterments, additions, improvements, enlargements, acquisitions, purchases and repairs to the System, but excluding all Special Projects. The term "Underwriters" shall mean Morgan Keegan & Co., Inc., Estrada Hinojosa & Co., Inc., Coastal Securities, First Southwest Company and Lasalle Financial Services. 3. Authorization. The Bonds shall be issued in fully registered form in the total authorized aggregate amount of TWENTY-NINE MILLION SEVENTY- FIVE THOUNSAND DOLLARS ($29,075,000) for the purpose of (i) currently refunding all of the outstanding Refunded Bonds, and (ii) paying all costs of issuance of the Bonds. 4. Designation, Date, and Interest Payment Dates. The Bonds shall be designated as "THE CITY OF BEAUMONT, TEXAS, WATERWORKS AND 5 SEWER SYSTEM REVENUE REFUNDING BONDS, SERIES 2006" and shall be dated August 15, 2006. The Bonds shall bear interest at the rates set forth in Section 5 below from the later of the initial date of delivery, or the most recent Interest Payment Date to which such interest has been paid or duly provided for, calculated on the basis of a 360 day year of twelve 30 day months, payable on March 1, 2007, and semiannually thereafter on September 1 and March 1 of each year until maturity or prior redemption. 5. Initial Bonds; Numbers and Denominations. The Bonds shall be initially issued bearing the numbers, in the principal amounts, and bearing interest at the rates set forth in the following schedule, and may be transferred and exchanged as set out in this Ordinance. The Bonds shall mature, in accordance with this Ordinance, on September 1 in each of the years and in the amounts set out in such schedule. Bonds delivered on transfer of or in exchange for other Bonds shall be numbered (with appropriate prefix) in order of their authentication by the Registrar, shall be in the denomination of $5,000 or integral multiples thereof, and shall mature on the same date and bear interest at the same rate as the Bond or Bonds in lieu of which they are delivered. BONDS Bond Principal Interest Number Year Amount Rate R-1 2007 $ 545,000 % R-2 2008 $ 630,000 % R-3 2009 $ 520,000 % R-4 2010 $ 555,000 % R-5 2011 $ 580,000 % R-6 2012 $ 620,000 % R-7 2013 $1,170,000 % R-8 2014 $1,250,000 % R-9 2015 $1,340,000 % R-10 2016 $1,435,000 % R-11 2017 $1,515,000 % R-12 2018 $1,595,000 % R-13 2019 $1,680,000 % R-14 2020 $1,755,000 % R-15 2021 $4,560,000 % R-16 2022 $4,630,000 % R-17 2023 $4,695,000 % 6 6. Execution of Bonds; Seal. The Bonds shall be signed by the Mayor and countersigned by the City Clerk or Deputy City Clerk, by their manual, lithographed, or facsimile signatures, and the official seal of the City shall be impressed or placed in facsimile thereon. Such facsimile signatures on the Bonds shall have the same effect as if each of the Bonds had been signed manually and in person by each of said officers, and such facsimile seal on the Bonds shall have the same effect as if the official seal of the City had been manually impressed upon each of the Bonds. If any officer of the City whose manual or facsimile signature shall appear on the Bonds shall cease to be such officer before the authentication of such Bonds or before the delivery of such Bonds, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes as if such officer had remained in such office. 7. Approval by Attorney General; Registration by Com troller. The Bonds to be initially issued shall be delivered to the Attorney General of Texas for approval and shall be registered by the Comptroller of Public Accounts of the State of Texas. The manually executed registration certificate of the Comptroller of Public Accounts substantially in the form provided in Section 18 of this Ordinance shall be attached or affixed to the Bonds to be initially issued. 8. Authentication. Except for the Bonds to be initially issued, which need not be authenticated by the Registrar, only such Bonds which bear thereon a certificate of authentication, substantially in the form provided in Section 18 of this Ordinance, manually executed by an authorized representative of the Registrar, shall be entitled to the benefits of this Ordinance or shall be valid or obligatory for any purpose. Such duly executed certificate of authentication shall be conclusive evidence that the Bonds so authenticated were delivered by the Registrar hereunder. 9. Payment of Principal and Interest. The Registrar is hereby appointed as the paying agent for the Bonds. The principal of and premium, if any, on the Bonds shall be payable, without exchange or collection charges, in any coin or currency of the United States of America which, on the date of payment, is legal tender for the payment of debts due the United States of America, upon their presentation and surrender as they respectively become due and payable, whether at maturity or by prior redemption, at the principal corporate trust office of the Registrar. The interest on each Bond shall be payable by check on the Interest Payment Date, mailed by the Registrar on or before each Interest Payment Date to the Owner of record as of the Record Date, to the address of such Owner as shown on the Bond Register. Any accrued interest payable at maturity on a Bond shall be paid upon presentation and surrender of such Bond at the principal corporate trust office of the Registrar. 7 If the date for a ment of the principal of or interest on any Bond is not a Business Day, then the date for such pament shall be the next succeeding Business Day, and payment on such date shall have the same force and effect as if made on the original date such payment was due. 10. Successor Registrars. The City covenants that at all times while any Bonds are outstanding it will provide a legally qualified bank, trust company, financial institution or other agency to act as Registrar for the Bonds. The City reserves the right to change the Registrar for the Bonds on not less than 60 days written notice to the Registrar, so long as any such notice is effective not less than 60 days prior to the next succeeding principal or interest payment date on appointment of any the Bonds. Promptly upon the y successor Registrar, the previous Registrar shall deliver the Bond Register or copies thereof to the new Registrar, and the new Registrar shall notify each Owner, by United States mail, first class postage prepaid, of such change and of the address of the new Registrar. Each Registrar hereunder, by acting in that capacity, shall be deemed to have agreed to the provisions of this Section. 11. Special Record Date. If interest on any Bond is not paid on any Interest Payment Date and continues unpaid for thirty (30) days thereafter, the Registrar shall establish a new record date for the payment of such interest, to be known as a Special Record Date. The Registrar shall establish a Special Record Date when funds to make such interest payment are received from or on behalf of the City. Such Special Record Date shall be fifteen (15) days prior to the date fixed for payment of such past due interest, and notice of the date of payment and the Special. Record Date shall be sent by United States mail, first class, postage prepaid, not later than five (5) days prior to the Special Record Date, to each affected Owner of record as of the close of business on the day prior to the mailing of such notice. 12. Ownership; Unclaimed Principal and Interest. The City, the Registrar and any other person may treat the person in whose name any Bond is registered as the absolute owner of such Bond for the purpose of making and receiving payment of principal of and premium, if any, or interest on such Bond, and for all other purposes, whether or not such Bond is overdue, and neither the City nor the Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the person deemed to be the owner of any Bond in accordance with this Section 12 shall be valid and effectual and shall discharge the liability of the City and the Registrar upon such Bond to the extent of the sums paid. Amounts held by the Registrar which represent principal of and interest on the Bonds remaining unclaimed by the Owner after the expiration of three years from the date such amounts have become due and payable shall be reported 8 0 and disposed of by the Registrar in accordance with the applicable provisions of Texas law, including Title 6 of the Texas Property Code, as amended. 13. Registration, Transfer, and Exchange. So long as any Bonds remain outstanding, the Registrar shall keep the Bond Register at its principal corporate trust office and, subject to such reasonable regulations as it may prescribe, the Registrar shall provide for the registration and transfer of Bonds in accordance with the terms of this Ordinance. If the Registrar does not maintain its principal offices in the State of Texas, the City agrees to keep a Bond which is identical to the Bond Register maintained b Register at its offices g Y the Registrar and the Registrar will notify the City as to any changes in the Bond Register within 1 business day. Each Bond shall be transferable only upon the presentation and surrender thereof at the principal corporate trust office of the Registrar, duly endorsed for transfer, or accompanied by an assignment duly executed by the registered Owner or his authorized representative in form satisfactory to the Registrar. Upon due presentation of any Bond in proper form for transfer, the Registrar shall authenticate and deliver in exchange therefor, within 72 hours after such presentation, a new Bond or Bonds, registered in the name of the transferee or transferees, in authorized denominations and of the same maturity and aggregate principal amount and bearing interest at the same rate as the Bond or Bonds so presented. All Bonds shall be exchangeable upon presentation and surrender thereof at the principal corporate trust office of the Registrar for a Bond or Bonds of the same type, maturity and interest rate and in any authorized denomination, in an aggregate amount equal to the unpaid principal amount of the Bond or Bonds presented for exchange. The Registrar shall be and is hereby authorized to authenticate and deliver exchange Bonds in accordance with the provisions of this Section 13. Each Bond delivered in accordance with this Section 13 shall be entitled to the benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such Bond is delivered. The City or the Registrar may require the Owner of any Bond to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with the transfer or exchange of such Bond. Any fee or charge of the Registrar for such transfer or exchange shall be paid by the City. 14. Mutilated. Lost, or Stolen Bonds. Upon the presentation and surrender to the Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a replacement Bond of like maturity, interest rate, and principal amount, bearing a number not contemporaneously outstanding. If any Bond is lost, apparently destroyed, or wrongfully taken, the City, pursuant to the applicable laws of the State of Texas and in the absence of 9 notice or knowledge that such Bond has been acquired by a bona fide purchaser, shall execute and the Registrar shall authenticate and deliver a replacement Bond of like maturity, interest rate and principal amount or Maturity Amount, bearing a number not contemporaneously outstanding. The City or the Registrar may require the Owner of a mutilated Bond to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith and any other expenses connected therewith, including the fees and expenses of the Registrar. The City or the Registrar may require the Owner of a lost, apparently destroyed or wrongfully taken Bond, before any replacement Bond is issued, to: (1) furnish to the City and the Registrar satisfactory evidence of the ownership of and the circumstances of the loss, destruction or theft of such Bond; (2) furnish such security or indemnity as may be required by the Registrar and the City to save them harmless; (3) pay all expenses and charges in connection therewith, including, but not limited to, printing costs, legal fees, fees of the Registrar and any tax or other governmental charge that may be imposed; and (4) meet any other reasonable requirements of the City and the Registrar. If, after the delivery of such replacement Bond, a bona fide purchaser of the original Bond in lieu of which such replacement Bond was issued presents for payment such original Bond, the City and the Registrar shall be entitled to recover such replacement Bond from the person to whom it was delivered or any person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the City or the Registrar in connection therewith. If any such mutilated, lost, apparently destroyed or wrongfully taken Bond has become or is about to become due and payable, the City in its discretion may, instead of issuing a replacement Bond, authorize the Registrar to pay such Bond. Each replacement Bond delivered in accordance with this Section 14 shall be entitled to the benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such replacement Bond is delivered. 15. Cancellation of Bonds. All Bonds paid in accordance with this 10 Ordinance, and all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and delivered in accordance herewith, shall be cancelled and destroyed upon the making of proper records regarding such payment. The Registrar shall furnish the City with appropriate certificates of destruction of such Bonds. 16. Book-Enty System. (a) The Initial Bonds shall be registered in the name of the Underwriters. Except as provided in subparagraph (c) below, all other Bonds shall be registered in the name of Cede & Co., as nominee of DTC. (b) With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the City and the Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than an Owner of a Bond, as shown on the Register, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than an Owner of a Bond, as shown in the Register, of any amount with respect to principal of, premium, if any, or interest on the Bonds. Notwithstanding any other provision of this Ordinance to the contrary, the City and the Registrar shall be entitled to treat and consider the person in whose name each Bond is registered in the Register as the absolute Owner of such Bond for the purpose of payment of principal of, premium, if any, and interest on the Bonds, for the purpose of all matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the respective Owners, as shown in the Register as provided in this Order, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to payment of principal of, premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner as shown in the Register, shall receive a Bond certificate evidencing the obligation of the District to make payments of amounts due pursuant to this Ordinance. Upon delivery by DTC to the Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., the word "Cede & Co." in this Order shall refer to such new nominee of DTC. 11 (c) In the event that the City in its sole discretion determines that the beneficial owners of the Bonds be able to obtain certificated Bonds, or in the event DTC discontinues the services described herein, the City shall (i) appoint a successor securities depository, qualified to act as such under Section 17(a) of the Securities and Exchange Act of 1934, as amended, and notify DTC and DTC Participants, as identified by DTC, of the appointment of such successor securities depository and transfer one or more separate Bonds to such successor securities depository or (ii) notify DTC and DTC Participants, as identified by DTC, of the availability through DTC of Bonds and transfer one or more separate Bonds to DTC Participants having Bonds credited to their DTC , as identified by DTC. In such event, the Bonds shall no longer be restricted to being registered in the Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the successor securities depository, or its nominee, or in whatever name or names Owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Ordinance. (d) The execution and delivery of the Blanket Letter of Representations is hereby approved with such changes as may be approved by the Mayor or City Manager of the City and the Mayor is hereby authorized and directed to execute such Blanket Letter of Representations. (e) Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such Bonds, and all notices with respect to such Bonds, shall be made and given, respectively, in the manner provided in the Blanket Letter of Representations. 17. Optional Redemption. The City reserves the right, at its option, to redeem Bonds having stated maturities on and after September 1, 2017, in whole or in part, on September 1, 2016, or any date thereafter, at a price of par plus accrued interest to the date fixed for redemption. If less than all of the Bonds are to be redeemed, the City shall determine the Bonds, or portions thereof, to be redeemed. Bonds may be redeemed only in integral multiples of $5,000. If a Bond subject to redemption is in a denomination larger that $5,000, a portion of such Bond may be redeemed, but only in integral multiples of $5,000. Upon surrender of any Bond for redemption in part, the Registrar, in accordance with Section 13 hereof, shall authenticate and deliver in exchange therefor a Bond or Bonds of like 12 maturity and interest rate in an aggregate principal amount equal to the unredeemed portion of the Bond so surrendered. Not less than thirty (30) days prior to a redemption date for the Bonds, the City shall cause a notice of redemption to be sent by United States mail, first class, postage prepaid, to each Owner of each Bond to be redeemed in whole or in part, at the address of the Owner appearing on the Register at the close of business on the Business Day next preceding the date of the mailing of such notice. Such notice shall state the redemption date, the redemption price, the place at which Bonds are to be surrendered for payment and, if less than all the Bonds are to be redeemed, the numbers of the Bonds or portions thereof to be redeemed. Any notice of redemption so mailed shall be conclusively presumed to have been duly given whether or not the Owner receives such notice. By the date fixed for redemption, due provision shall be made with the Registrar for payment of the redemption price of the Bonds or portions thereof to be redeemed. When Bonds have been called for redemption in whole or in part and due provision made to redeem the same as herein provided, the Bonds or portions thereof so redeemed shall no longer be regarded as outstanding except for the purpose of being paid solely from the funds so provided for redemption, and the rights of the Owners to collect interest which would otherwise accrue after the redemption date on any Bond or portion thereof called for redemption shall terminate on the date fixed for redemption. 18. Form. The form of the Bonds, including the form of the Registrar's Authentication Certificate, the form of Assignment, the form of Statement of Insurance, and the form of Registration Certificate of the Comptroller of Public Accounts of the State of Texas which shall be attached or affixed to the Bonds initially issued shall be, respectively, substantially as follows, with such additions, deletions and variations as may be necessary or desirable and not prohibited by this Ordinance: FORM OF BOND United States of America State of Texas NUMBER DENOMINATION R- $ REGISTERED REGISTERED 13 i THE CITY OF BEAUMONT, TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE REFUNDING BONDS, SERIES 2006 INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP: August 15, 2006 REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS The City of Beaumont, Texas (the "City") promises to pay, but solely from certain Net Revenues as hereinafter provided, to the Registered Owner identified above, or registered assigns, on the maturity date specified above, upon presentation and surrender of this bond at the principal corporate trust office of JPMorgan Chase Bank, N.A., Dallas, Texas (the "Registrar"), the principal amount identified above, payable in any coin or currency of the United States of America which on the date of payment of such principal is legal tender for the payment of debts due the United States of America, and to pay, solely from such Net Revenues, interest thereon at the rate shown above, calculated on the basis of a 360 day year of twelve 30 day months, from the later of the initial date of delivery, or the most recent interest payment date to which interest has been paid or duly provided for. Interest on this bond is payable by check on March 1 and September 1, beginning on March 1, 2007, mailed to the registered owner of record as shown on the books of registration kept by the Registrar as of the fifteenth day of the month next preceding each interest payment date. Any u accrued interest due at maturity shall be p aid upon p resentation and surrender of this Bond at the p rincipal corporate trust office of the Registrar. THIS BOND is one of a duly authorized issue of Bonds, aggregating $29,075,000 (the "Bonds"), issued for the purpose of currently refunding a portion of the Citys outstanding Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002, pursuant to an ordinance adopted by the City Council on August 1, 2006 (the "Ordinance"), and in accordance with the authority of Chapters 1207 and 1502, Texas Government Code, as amended, and all other applicable law. THIS BOND AND ALL OF THE BONDS OF THIS SERIES are special obligations of the City, and together with the City's outstanding Waterworks and Sewer System Revenue Refunding Bonds, Series 1998, the City's outstanding Waterworks and Sewer System Revenue Refunding Bonds, Series 1999, the 14 City's outstanding Waterworks and Sewer System Revenue Bonds, Series 2000, and the City's outstanding Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002, the City's outstanding Waterworks and Sewer System Revenue Bonds, Series 2004, the City's outstanding Waterworks and Sewer System Revenue Bond, Series 2005, and the City's outstanding Waterworks and Sewer System Revenue Refunding Bonds, Series 2005, are equally and ratably payable from and secured by a first lien on the "Net Revenues" collected and received by the City from the operation and ownership of those properties, facilities, improvements, equipment, interests, rights and powers constituting the waterworks and sewer system of the City which are defined in the Ordinance as the "System", which Net Revenues are required to be set aside for and pledged to the payment of this series of bonds, the outstanding bonds and all additional bonds issued on a parity therewith, in the Interest and Sinking Fund and the Reserve Fund required to be maintained for the payment of all such bonds, all as more fully described and provided for in and subject to the restrictions and limitations imposed by the Ordinance. This Bond and the series of which it is a part, together with the interest thereon, are payable solely from such Net Revenues and do not constitute an indebtedness or general obligation of the City. THE HOLDER OF THIS OBLIGATION IS NOT ENTITLED TO DEMAND PAYMENT OF THIS OBLIGATION OUT OF ANY MONEY RAISED BY TAXATION. THE CITY HAS RESERVED THE RIGHT TO ISSUE ADDITIONAL PARITY REVENUE BONDS, subject to the restrictions and limitations contained in the Ordinance, which shall be equally and ratably paya ble from, and secured 0 by a first lien on and pledge of, the aforesaid Net Revenues in the same manner and to the same extent as this Bond and the series of which it is a part. THE CITY RESERVES THE RIGHT, at its option, to redeem the Bonds having stated maturities on or after September 1, 2017, in whole or in part, on September 1, 2016, or any date thereafter, in integral multiples of $5,000, at a price of par plus accrued interest to the date fixed for redemption. Reference is made to the Ordinance for complete details concerning the manner of redeeming the Bonds. NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior to the date fixed for redemption by first class mail, addressed to the registered owner of each Bond to be redeemed in whole or in part at the address shown on the books of registration kept by the Registrar. When Bonds or portions thereof have been called for redemption and due provision has been made to redeem the same, the principal amounts so redeemed shall be payable solely from the funds provided for redemption and interest which would otherwise accrue on the amounts called for redemption shall terminate on the date fixed for redemption. 15 0 THIS BOND IS TRANSFERABLE only upon presentation and surrender at the principal corporate trust office of the Registrar, duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his authorized representative, subject to the terms and conditions of the Ordinance. THE BONDS ARE EXCHANGEABLE at the principal corporate trust office of the Registrar for bonds in the principal amount of $5,000 or any integral multiple thereof, subject to the terms and conditions of the Ordinance. THIS BOND shall not be valid or obligatory for any purpose or be entitled to any benefit under the Ordinance unless this Bond either (i) is registered by the Comptroller of Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii) is authenticated by the Registrar by due execution of the authentication certificate endorsed hereon. THE REGISTERED OWNER of this Bond, by acceptance hereof, acknowledges and agrees to be bound by all the terms and conditions of the Ordinance. THE CITY has covenanted in the Ordinance that it will at all times provide a legally qualified registrar for the Bonds and will cause notice of any change of registrar to be mailed to each registered owner. IT IS HEREBY certified, recited and covenanted that this Bond has been duly and validly issued and delivered; that all acts, conditions and things required or proper to be performed, to exist and to be done precedent to or in the issuance and delivery of this Bond have been performed, exist and have been done in accordance with law; that the bonds of this series do not exceed any statutory limitation; and that provision has been made for the payment of principal and interest on this bond and all of the bonds of this series by the aforesaid lien on and pledge of the Net Revenues of the System. WITNESS WHEREOF this bond has been signed with the manual or IN 9 facsimile signature of the Mayor and countersigned with the manual or facsimile signature of the City Clerk, and the official seal of the City has been duly impressed, or placed in facsimile, on this bond. 16 (AUTHENTICATION CERTIFICATE) THE CITY OF BEAUMONT, TEXAS (SEAL) Mayor City Clerk The following form of Statement of Insurance shall be printed on the back of or attached to each Bond: Statement of Insurance Form of Registration Certificate of Comptroller of Public Accounts COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this bond has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this bond has been registered by the Comptroller of Public Accounts of the State of Texas. WITNESS MY SIGNATURE AND SEAL this , 2006. Comptroller of Public Accounts (SEAL) of the State of Texas 17 is Form of Registrar's Authentication Certificate AUTHENTICATION CERTIFICATE It is hereby certified that this bond has been delivered pursuant to the Bond Ordinance described in the text of this Bond. JPMorgan Chase Bank, N.A. By: Authorized Signature Date of Authentication: Form of Assignment ASSIGNMENT For value received, the undersigned hereby sells, assigns, and transfers u nto (Please print or type name, address, and zip code of Transferee) (Please insert Social Security or Taxpayer Identification Number of Transferee) the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer said bond on the books kept for registration thereof, with full power of substitution in the premises. DATED Signature Guaranteed: Registered Owner NOTICE: The signature above must correspond to the name of the registered owner as shown NOTICE: Signature must be on the face of this bond in guaranteed by a member firm every particular, without 18 of the New York Stock any alteration, enlargement Exchange or a commercial or change whatsoever. bank or trust company. 18. Legal Opinion; Cusip. The approving opinion of Orgain, Bell & Tucker, L.L.P., Beaumont, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Bonds, but errors or omissions in the printing of such opinion or such numbers shall have no effect on the validity of the Bonds. 19. (a) Pledge and Source of Payment. The City hereby covenants and agrees that all Gross Revenues of the System shall, as collected and received by the City, be deposited and paid into the special funds established in this Ordinance, and shall be applied in the manner hereinafter set forth, in order to provide for (i) the payment of all Maintenance and Operation Expenses, and (ii) the payment of principal, interest and any redemption premiums on the Parity Bonds, and all expenses of paying, securing and insuring the same. The Parity Bonds shall constitute special obligations of the City that shall be payable solely from, and shall be equally and ratably secured by a first lien on, the Net Revenues, as collected and received by the City from the operation and ownership of the System, which Net Revenues shall, in the manner hereinafter provided, be set aside for and are hereby pledged by the City to the payment of the Parity Bonds in the Interest and Sinking Fund and the Reserve Fund as hereinafter provided, and except as otherwise expressly provided herein, the Parity Bonds shall be in all respects on a parity with and of equal dignity with one another. The holders of the Parity Bonds shall never have the right to demand payment of either the principal of or interest on the Parity Bonds out of any funds raised or to be raised by taxation. (b) Rates and Charges. So long as any Parity Bonds remain outstanding, there shall be fixed, charged and collected rates and charges for the use and services of the System, which may be fully sufficient at all times: (i) to pay all Maintenance and Operation Expenses; and (ii) to produce Net Revenues in each fiscal year at least equal to 110 percent of the principal and interest requirements scheduled to occur in such fiscal year on all Parity Bonds then outstanding plus an amount equal to the sum of all deposits required to be made to the Reserve Fund in such fiscal year, but in no event less than the amount required to establish and maintain the Interest and Sinking Fund, the Reserve Fund as hereinafter provided, and, to the extent that funds for such purpose are not otherwise available, to pay all other outstanding obligations payable from the Net Revenues of the System as and when the same become due. 19 The City ovenants that it will not rant or permit an free service from the System except for public buildings and institutions operated by the City. (c) Special Funds. The following special funds shall be maintained and accounted for as hereinafter provided so long as any of the Parity Bonds remain outstanding: (i) Waterworks and Sewer System Revenue Fund (the "Revenue Fund"); (ii) Waterworks and Sewer System Revenue Bond Interest and Sinking Fund (the "Interest and Sinking Fund"); and (iii) Waterworks and Sewer System Revenue Bond Reserve Fund (the "Reserve Fund"). The Revenue Fund shall be maintained as a separate account on the books of the City. The Interest and Sinking Fund and the Reserve Fund shall be maintained at an official depository bank of the City, separate and apart from all other funds and accounts of the City, and shall constitute trust funds which shall be held in trust for the benefit of the holders of the Parity Bonds, and the proceeds of which (except for interest income, which shall be transferred to the Revenue Fund) shall be and are hereby pledged to the payment of the Parity Bonds. All of the Funds named above shall be used solely as provided in this Ordinance so long as any Parity Bonds remain outstanding. (d) Flow of Funds. All Gross Revenues of the System shall be deposited as collected into the Revenue Fund. Moneys from time to time on deposit to the credit of the Revenue Fund shall be applied as follows in the following order of priority: (i) First, to pay Maintenance and Operation Expenses and to provide by encumbrance for the payment of all obligations incurred by the City for Maintenance and Operation Expenses which may include an operating reserve equal to one month's estimated Maintenance and Operation Expenses. (ii) Second, to make all deposits into the Interest and Sinking Fund required by this Ordinance and any ordinance authorizing the issuance of any outstanding Parity Bonds and any ordinance authorizing the issuance of Additional Parity Bonds. (iii) Third, to make all deposits into the Reserve Fund required by this Ordinance and any ordinance authorizing the issuance of any 20 outstanding Parity Bonds and any ordinance authorizing the issuance of Additional Parity Bonds. (iv) Fourth, to pay any amounts due to any bond insurer of Parity Bonds not paid pursuant to subsections (ii) or (iii) above. (v) Fifth, for any lawful purpose, including transfers to the General Fund as permitted by law. Whenever the total amounts on deposit to the credit of the Interest and Sinking Fund and the Reserve Fund shall be equivalent to the sum of the aggregate principal amount of all outstanding Parity Bonds plus the aggregate amount of all interest accrued and to accrue thereon, no further payments need be made into the Interest and Sinking Fund or the Reserve Fund. (e) Interest and Sinking Fund. On or before the last Business Day of each month so long as any Parity Bonds remain outstanding, after making all required payments and provision for payment of Maintenance and Operation Expenses, there shall be transferred into the Interest and Sinking Fund from the Revenue Fund the following amounts: (i) Such amounts, in approximately equal monthly installments, as will be sufficient to pay the interest scheduled to become due on the Parity Bonds on the next interest payment date; and (ii) Such amounts, in approximately equal monthly installments, as will be sufficient to pay the next maturing principal of the Parity Bonds, including the principal amounts of, and any redemption premiums on, any Parity Bonds payable as a result of the exercise or operation of any redemption provision contained in this Ordinance or in any ordinance authorizing the issuance of Parity Bonds. Moneys deposited to the credit of the Interest and Sinking Fund (except for interest income, which shall be transferred to the Revenue Fund) shall be used solely for the purpose of paying principal (either at maturity or prior redemption or to purchase Parity Bonds in the open market to be credited against mandatory redemption requirements), interest and redemption premiums on the Parity Bonds, plus all bank charges and other costs and expenses relating to such payment, on a pro rata basis among all series of Parity Bonds. On or before each principal and/or interest payment date for the Parity Bonds, the City shall transfer from the Interest and Sinking Fund to the paying agents for the Parity Bonds an amount equal to the principal, interest and redemption premiums payable on the Parity Bonds on such date, together with an amount equal to all bank charges and other costs and expenses relating to such payment. The paying agents for the Parity Bonds shall totally destroy all paid Parity Bonds and 21 i coupons (if any) and shall provide the City with an appropriate certificate of destruction. (f) Reserve Fund. Unless the Reserve Fund is fully funded, on or before the last Business Day of each month so long as any Parity Bonds remain outstanding, after making all required payments and provision for payment of Maintenance and Operation Expenses, and after making the transfers into the Interest and Sinking Fund required in the preceding Section, there shall be transferred into the Reserve Fund from the Revenue Fund an amount at least equal to one-sixtieth (1/600) of the average annual principal and interest requirements on the Parity Bonds, so that the Reserve Fund shall contain, in no more than 60 months after the issuance of each such issue of Parity Bonds, money and investments in an aggregate amount at least equal to the average annual principal and interest requirements on all Parity Bonds then outstanding. After such amount has accumulated in the Reserve Fund and so long thereafter as such Fund contains such amount, no further deposits shall be required to be made into the Reserve Fund, and any excess amounts may be transferred to the Revenue Fund. But if and whenever the balance in the Reserve Fund is reduced below such amount, monthly deposits into such Furjd shall be resumed and continued in amounts at least equal to one-sixtieth (1/60u') of the average annu al principal and interes t requirements uirements on the Parity Bonds until the Reserve Fund has been restored to such amount; provided however, if a Reserve Fund Surety Policy has been obtained by the City pursuant to the next paragraph below, then the provisions of such next paragraph shall govern and control with respect to replenishment of amounts drawn under the Reserve Fund Surety Policy. The Reserve Fund shall be used to pay the principal of and interest on the Parity Bonds at any time when there is not sufficient money available in the Interest and Sinking Fund for such purpose and it may be used finally to pay and retire the last Parity Bonds to mature or be redeemed. To the extent permitted by law, the City expressly reserves the right at any time to satisfy all or any part of the amounts required to be on deposit in the Reserve Fund (the "Reserve Fund Requirement") by obtaining for the benefit of the Reserve Fund one or more Reserve Fund Surety Policies (a "Reserve Fund Surety Policy"). In the event the city elects to substitute at any time a Reserve Fund Surety Policy for any funded amounts in the Reserve Fund, it may apply any bond proceeds thereby released, to the greatest extent permitted by law, to any purposes for which the bonds were issued, and if all such purposes have been satisfied, to the payment of debt service on such bonds, and it may apply any other funds thereby released to any of the purposes for which such funds may lawfully be applied including the payment of debt service on the Parity Bonds. A Reserve Fund Surety Policy shall be an insurance policy or other similar guarantee in a principal amount equal to the portion of the Reserve Fund Requirement to be satisfied which is issued by a financial institution or insurance company with a rating for its long term unsecured debt or claims paying ability in 22 the highest letter category by two major municipal securities evaluation sources. The premium for any such policy shall be paid from bond proceeds or other funds of the City lawfully available for such purpose. The City reserves the right to fund any increase in the Reserve Fund Requirement caused by the issuance of Additional Parity Bonds by the purchase of a Reserve Fund Surety Policy in the amount of such increase or by making transfers from the Revenue Fund to the Reserve Fund, in approximately equal monthly installments, in amounts sufficient to accumulate the increase in the Reserve Fund Requirement within sixty (60) months of the issuance of such Additional Parity Bonds. If the Reserve Fund contains only cash and the balance in the Reserve Fund is reduced below the Reserve Fund Requirement at any time, the City shall make monthly transfers from the Revenue Fund to the Reserve Fund, in approximately equal monthly installments, in amounts sufficient to restore the balance in the Reserve Fund to the Reserve Fund Requirement within twelve (12) months of the date on which the balance in the Reserve Fund was so reduced. If the Reserve Fund contains a Reserve Fund Surety Policy (an no cash) and a draw is made against such policy, the City shall make monthly transfers from the Revenue Fund, in approximately equal monthly installments, in amounts sufficient to reimburse the amount drawn under such policy within twelve (12) months. If the Reserve Fund contains a combination of cash and a Reserve Fund Surety Policy, and the balance in the Reserve Fund is reduced below the Reserve Fund Requirement by a combination of cash withdrawals and draws against the Reserve Fund Surety Policy, the City shall make monthly transfers from the Revenue Fund, in approximately equal monthly installments, in amounts sufficient to restore the cash balance in the Reserve Fund and reimburse the amount drawn under such policy within twelve (12) months, with reimbursement to be made for all amounts drawn under such policy before any cash deposits are made into the Reserve Fund. Any reimbursement of amounts drawn against a Reserve Fund Surety Policy shall be limited to the amounts actually paid under such policy, and the City shall have no obligation to make any reimbursement payment with respect to any such policy except as provided herein. (g) Deficiencies in Funds. If in any month there shall not be deposited into any Fund maintained pursuant to this Section 19 the full amounts required herein, amounts equivalent to such deficiency shall be set apart and paid into such Fund or Funds from the first available and unallocated money in the Revenue Fund, and such payment shall be in addition to the amounts otherwise required to be paid into such Funds during the succeeding month or months. To the extent necessary, the rates and charges for the System shall be increased to make up for any such deficiencies. (h) Investment of Funds: Transfer of Investment Money in each Fund maintained pursuant to this Section of this Ordinance may, at the option of the City, be invested as permitted by law, provided that all such deposits and investments shall be made in such manner that the money required 23 0 to be expended from any Fund will be available at the proper time or times, and provided further that in no event shall deposits or investment of money in the Reserve Fund mature later than the final maturity date of the Parity Bonds. Any obligation in which money is so invested shall be kept and held in the Fund from which the investment was made. All such investments shall be promptly sold when necessary to prevent any default in connection with the Parity Bonds. All interest and income derived from such deposits and investments shall be transferred or credited as received to the Revenue Fund, and shall constitute Gross Revenues of the System; provided, however, to the extent such interest and income is derived from bond proceeds, such interest and income shall not constitute Gross Revenues of the System and shall only be used for the purposes for which the bond proceeds may be used. 20. Additional Bonds. (a) Additional Parity Bonds. The City reserves the right to issue, for any lawful purpose, including the refunding of any previously issued Parity Bonds or any other bonds or obligations of the City issued in connection with the System, one or more series of Additional Parity Bonds payable from, and secured by a first lien on and pledge of, the Net Revenues of the System, on a parity with the Bonds and any other Additional Parity Bonds then outstanding; provided, however, that no Additional Parity Bonds may be issued unless: (i) The Additional Parity Bonds mature on September 1, and interest is payable on March 1 and September 1; (ii) The Interest and Sinking Fund and the Reserve Fund each contain the amount of money then required to be on deposit therein; (iii) For either the preceding Fiscal Year or any consecutive 12- month calendar period ending no more than 90 days prior to adoption of the ordinance authorizing such Additional Parity Bonds, Net Revenues were equal to at least 125% of the average annual principal and interest requirements on all Parity Bonds that will be outstanding after the issuance of the series of Additional Parity Bonds then proposed to be issued, as certified by the City's Finance Officer or by an independent certified public accountant or firm of independent certified public accountants; or (iv) If the City cannot meet the test described in (iii) above, but a change in the rates and charges applicable to the System becomes effective at least sixty (60) days prior to the adoption of the ordinance authorizing Additional Parity Bonds and the City's Finance Officer certifies that, had such change in rates and charges been effective for the preceding fiscal year or 12 consecutive calendar month period ending no 24 more than 90 days prior to adoption of said ordinance, the Net Revenues for such period would have met the test described in (iii) above. (b) Subordinate Lien Obligations. The City reserves the right to issue, for any lawful purpose, bonds, notes or other obligations secured in whole or in part by liens on and pledges of the Net Revenues that are junior and subordinate to the lien on and pledge of Net Revenues securing payment of the Parity Bonds. Such subordinate lien obligations may be further secured by any other source of payment lawfully available for such purposes. (c) Special Proiect Bonds. The City reserves the right to issue revenue bonds secured by liens on and pledges of revenues and proceeds derived from Special Projects. 21. Covenants and Provisions Relating to all Parity Bonds. (a) Punctual Payment of Parity Bonds. The City will punctually pay or cause to be paid the interest on and principal of all Parity Bonds according to the terms thereof and will faithfully do and perform, and at all times fully observe, any and all covenants, undertakings, stipulations and provisions contained in this Ordinance and in any ordinance authorizing the issuance of Additional Parity Bonds. (b) Maintenance of System. So long as any Parity Bonds remain outstanding, the City covenants that it will at all times maintain the System, or within the limits of its authority cause the same to be maintained, in good condition and working order and will operate the same, or cause the same to be operated, in an efficient and economical manner at a reasonable cost and in accordance with sound business principles. In operating and maintaining the System, the City will comply with all contractual provisions and agreements entered into by it and with all valid rules, regulations, directions or order of any governmental, administrative or judicial body promulgating same, noncompliance with which would materially an adversely affect the operation of the System. (c) Sale or Encumbrance of System. So long as any Parity Bond remain outstanding, the City will not sell, dispose of or, except as permitted in this Ordinance, further encumber the System; provided, however, that this provision shall not prevent the City from disposing of any portion of the System which is being replaced or is deemed by the City to be obsolete, worn out, surplus or no longer needed for the proper operation of the System. Any agreement pursuant to which the City contracts with a person, corporation, municipal corporation or political subdivision to operate the System or to lease and/or operate all or part of the System shall not be considered as an 25 encumbrance of the System. (d) Insurance. The City further covenants and agrees that it will keep the System insured with insurers of good standing against risks, accidents or casualties against which and to the extent insurance is customarily carried by political subdivisions of the State of Texas operating similar properties, to the extent that such insurance is available. The cost of all such insurance, together hall be a art of the Maintenance and Operation with an additional insurance, s p wi P y Expenses. All net proceeds of such insurance shall be applied to repair or replace the insured property that is damaged or destroyed, or to make other capital improvements to the System, or to redeem Parity Bonds. (e) Accounts. Records and Audits. So long as any Parity Bonds remain outstanding, the City covenants and agrees that it will maintain a proper and complete system of records and accounts pertaining to the operation of the System in which full, true and proper entries will be made of all dealings, transactions, business and affairs which in any way affect or pertain to the System or the Gross Revenues or the Net Revenues thereof. The City shall after the close of each of its Fiscal Years cause an audit report of such records and accounts to be prepared by an independent certified public accountant or independent firm of certified public accountants. Each year promptly after such audit report is prepared, the City shall furnish a copy thereof without cost to the Municipal Advisory Council of Texas and any holders of Parity Bonds who shall request same. All expenses incurred in preparing such audits shall be Maintenance and Operation Expenses. (f) Competition. To the extent it legally may, the City will not grant any franchise or allow for the acquisition, construction or operation of any competing facilities which might be used as a substitute for the System and will prohibit the operation of any such competing facilities. (g) Pledge and Encumbrance of Net Revenues. The City covenants and represents that it has the lawful power to pledge the Net Revenues to the payment of the Parity Bonds and has lawfully exercised such power under the Constitution and laws of the State of Texas. The City further covenants and represents that, other than to the payment of the Parity Bonds, the Net Revenues are not and will not be pledged to the payment of any debt or obligation of the City, or in any other manner encumbered unless such pledge or encumbrance is junior and subordinate to the lien and pledge securing payment of the Parity Bonds. (h) Remedies. This Ordinance shall constitute a contract between the City and the holders of the Parity Bonds from time to time outstanding, and the Bond Insurers, and shall remain in effect until the Parity Bonds and the interest thereon and all amounts owing to the Bond Insurers 26 under any Bond Insurance Policy shall be fully paid or discharged or provision therefor shall have been made as provided herein. In the event of a default in the payment of the principal of or interest on any of the Parity Bonds or a default in the performance of any duty or covenant provided by law or in this Ordinance or a default in respect of any Bond Insurance Policy, the holder or holders of any of the Parity Bonds or any Bond Insurer, as appropriate, may pursue all legal remedies afforded by the Constitution and laws of the State of Texas to compel the City to remedy such default and to prevent further default or defaults. Without in any way limiting the generality of the foregoing, it is expressly provided that any holder of any of the Parity Bonds or any Bond Insurer may at law or in equity, by suit, action, mandamus, or other proceedings, enforce and compel performance of all duties required to be performed by the City under this Ordinance, including the making and collection of reasonable and sufficient rates and charges for the use and services of the System, the deposit of the Gross Revenues thereof into the special funds as herein provided, and the application of such Gross Revenues and Net Revenues in the manner required in this Ordinance. (i) Defeasance. The City may defease the provisions of this Ordinance and discharge its obligation to the holders of any or all of the Parity Bonds to pay principal, interest and redemption-premium (if any) thereon in any manner permitted by law, including, without limitation, by depositing with any paying agent for such Parity Bonds or with the State Treasurer of the State of Texas either: (i) cash in an amount equal to the principal amount and redemption premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or redemption, or (ii) pursuant to an escrow or trust agreement, direct obligations of, or obligations the principal and interest of which are guaranteed by, the United States of America, in principal amounts and maturities and bearing interest at rates sufficient to provide for the timely payment of the principal amount and redemption premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or redemption; provided, however, that if any of such Parity Bonds are to be redeemed prior to their respective dates of maturity, provision shall have been made for giving notice of redemption as provided in the ordinance authorizing such Parity Bonds. Upon such deposit, such Parity Bonds and coupons appertaining thereto shall no longer be regarded to be outstanding or unpaid, and the lien on and pledge of Net Revenues securing such Parity Bonds shall thereupon cease and terminate. 0) Legal Holidays. In any case where the date fixed for payment of interest on or principal of the Parity Bonds or the date fixed for redemption of any Parity Bonds shall be a legal holiday or a day on which a paying agent for the Parity Bonds is authorized by law to close, then payment of interest or principal by such paying agent need not be made on such date but may be made on the next succeeding business day with the same force and effect as if made on the date fixed for such payment and no interest shall accrue 27 for the period from such date to the date of actual payment. (k) Unavailability of Authorized Publication. If, because of the temporary or permanent suspension of any newspaper, journal or other publication, or, for any reason, publication of notice cannot be made meeting any requirements herein established, any notice required to be published by the provisions of this Ordinance shall be given in such other manner and at such time or times as in the judgment of the City shall most effectively approximate such required publication and the giving of such notice in such manner shall for all purposes of this Ordinance be deemed to be in compliance with the requirements for publication thereof. (1) Obligations Owing to Insurers. The City stipulates and agrees that it shall make full and timely payment of all amounts owing to any Insurer under any Financial Guaranty Agreements and there shall be no termination of this Ordinance or redemption, refunding or defeasance of the Parity Bonds unless and until all of such amounts owing under the Financial Guaranty Agreement in respect of those Bonds shall have been paid in full. 22. Further Proceedings. After the Bonds to be initially issued shall have been executed, it shall be the duty of, the Mayor and other appropriate officials and agents of the City to deliver the Bonds to be initially issued and all pertinent records and proceedings to the Attorney General of the State of Texas, for examination and approval. After the Bonds to be initially issued shall have been approved by the Attorney General, they shall be delivered to the Comptroller of Public Accounts of the State of Texas for registration. Upon registration of the Bonds to be initially issued, the Comptroller of Public Accounts (or the Comptroller's bond clerk or an assistant bond clerk lawfully designated in writing to act for the Comptroller) shall manually sign the Comptroller's Registration Certificate prescribed herein and the seal of said Comptroller shall be impressed or placed in facsimile, thereon. 23. Sale; Bond Purchase Agreement; Bond Insurance. The Bonds are hereby sold and shall be delivered to the Underwriters at a price of $ , which represents the par amount of the Bonds of $29,075,000.00, plus a premium of $ , and less and underwriting discount of $ plus any accrued interest thereon from the dated date of the Bonds to the date of issuance, all in accordance with the terms of a bond purchase agreement of even date herewith, presented to and hereby approved by the City Council, which price and terms are hereby found and determined to be the most advantageous reasonably obtainable by the City. The Mayor and other appropriate officials of the City are hereby authorized and directed to execute such bond purchase agreement on behalf of the City, and the Mayor and all other officers, agents and representatives of the City are hereby authorized to do any and all things 28 necessary or desirable to satisfy the conditions set out therein and to provide for the issuance and delivery of the Bonds. The purchase of and payment of the premium for the Bond Insurance Policy by the City, in accordance with the terms of a commitment for such insurance presented to and hereby approved by the City Council is hereby authorized. All officials and representatives of the City are authorized and directed to execute such documents and to do any and all things necessary or desirable to obtain such insurance, and the printing on the Bonds of an appropriate legend regarding such insurance is hereby approved. 24. Tax Exemption. (a) General Tax Covenant. The City intends that the interest on the Bonds shall be excludable from gross income for purposes of federal income taxation pursuant to Sections 103 and 141 through 150 of the Code, and the applicable Income Tax Regulations (the "Regulations"). The City covenants and agrees not to take any action, or knowingly omit to take any action within its control, that if taken or omitted, respectively, would cause the interest on the Bonds to be includable in gross income, as defined in Section 61 of the Code, of the holders thereof for purposes of federal income taxation. In particular, the City covenants and agrees to comply with each requirement of this Section; provided, however, that the City shall not be required to comply with any particular requirement of this Section if the City has received an opinion of nationally recognized bond counsel ("Counsel's Opinion") that such noncompliance will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds or if the City has received Counsel's Opinion to the effect that compliance with some other requirement set forth in this Section will satisfy the applicable requirements of the Code, in which case compliance with such other requirement specified in such Counsel's Opinion shall constitute compliance with the corresponding requirement specified in this Section. The City represents and warrants that the City shall realize present value debt service savings (determined without regard to administrative expenses) in connection with issuance of the Bonds to the extent that the proceeds thereof are used to refund the Refunded Bonds. (b) No Private Use or Payment and No Private Loan Financing. The City shall certify, through an authorized officer, employee or agent that based upon all facts and circumstances known or reasonably expected to be in existence on the date the Bonds are delivered, that the proceeds of the Refunded Bonds have not been used, and that proceeds of the Refunded Bonds and the Bonds will not be used in a manner that would cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code and the Regulations promulgated thereunder. Moreover, the City covenants and agrees that it will make such use of the proceeds of the Refunded Bonds and the Bonds 29 including interest or other investment income derived from Bond proceeds, regulate the use of property financed, directly or indirectly, with such proceeds, and take such other and further action as may be required so that the Bonds will not be "private activity bonds" within the meaning of Section 141 of the Code and the Regulations promulgated thereunder. (c) No Federal Guaranty. The City covenants and agrees not to take any action, or knowingly omit to take any action within its control, that, if taken or omitted, respectively, would cause the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Code and applicable regulations thereunder, except as permitted by Section 149(b)(3) of the Code and such Regulations. (d) No-Arbitrage Covenant. The City shall certify, through an authorized officer, employee or agent, that based upon all facts and estimates known or reasonably expected to be in existence on the date the Bonds are delivered, the City will reasonably expect that the proceeds of the Bonds and the amounts transferred from the Reserve Fund for the Refunded Bonds pursuant to Section 26 of this Ordinance will not be used in a manner that would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of the Code and applicable Regulations thereunder. Moreover, the City covenants and agrees that it will make such use of the proceeds of the Bonds and the amounts so transferred from said Reserve Fund (including interest or other investment income derived therefrom), regulate investments of such proceeds and amounts, and take such other and further action as may be required so that the Bonds will not be "arbitrage bonds" within the meaning of Section 148(a) of the Code and applicable Regulations thereunder. (e) Arbitrage Rebate. If the City does not qualify for an exception to the requirements of Section 148(f) of the Code relating to rebate to the United States, the City will take all necessary steps to comply with the requirement that certain amounts earned by the City on the investment of the "gross proceeds" of the Bonds (within the meaning of Section 148(f)(6)(B) of the Code), be rebated to the federal government. Specifically, the City will (i) maintain records regarding the investment of the gross proceeds of the Bonds as may be required to calculate the amount earned on the investment of the gross proceeds of the Bonds separately from records of amounts on deposit in the funds and accounts of the City allocable to other bond issues of the City or moneys which do not represent gross proceeds of any bonds of the City, (ii) calculate at such times as are required by applicable regulations, the amount earned from the investment of the gross proceeds of the Bonds which is required to be rebated to the federal government, and (iii) pay, not less often than every fifth anniversary date of the delivery of the Bonds, and within sixty days after the retirement of the Bonds, or on such other date as may be permitted under applicable regulations with respect to "gross proceeds" in the Escrow Fund, all 30 amounts required to be rebated to the federal government. Further, the City will not indirectly pay any amount otherwise payable to the federal government pursuant to the foregoing requirements to any person other than the federal government by entering into an investment arrangement with respect to the gross proceeds of the Bonds that might result in a reduction in the amount required to be paid to the federal government because such arrangement results in a smaller profit or a larger loss than would have resulted if the arrangment had been at arm's length and had the yield on the issue not been relevant to either party. (f) Information Reporting. The City covenants and agrees to file or cause to be filed with the Secretary of the Treasury, not later than the 15th day of the second calendar month after the close of the calendar quarter in which the Bonds are issued, an information statement concerning the Bonds, all under and in accordance with Section 149(e) of the Code and applicable regulations thereunder. (g) Continuing Obligation. Notwithstanding any other provision of this Ordinance, the City's obligations under the covenants and provisions of this Section shall survive the defeasance and discharge of the Bonds. 25. Application of Proceeds. Proceeds from the sale of the Bonds, shall, promptly upon receipt by the City, be applied as follows: (i) Accrued interest, if any, shall be deposited into the Interest and Sinking Fund; (ii) $ from the sale of the Bonds shall be deposited with the paying agent of the Refunded Bonds to provide for the refunding of the Refunded Bonds; (iii) $ from the sale of the Bonds shall be used to pay the costs of issuing the Bonds, including the premium for the Bond Insurance Policy in the amount of $ and including the Underwriter's discount of$ ; and (iv) The sum of$ from the sale of the Bonds shall be used as a rounding amount and shall be deposited in the Interest and Sinking Fund for the Bonds; and (v) Any proceeds from the Bonds remaining after making all such deposits and payments shall be deposited into the Interest and Sinking Fund. 31 26. Transfer of Money in Reserve Fund and Interest and Sinking Fund Maintained for Refunded Bonds. On the date of issuance and delivery of the Bonds, amounts contained in the Reserve Fund for the Refunded Bonds shall be transferred to the Reserve Fund for the Bonds and amounts contained in the Interest and Sinking Fund for the Refunded Bonds shall be transferred to the Interest and Sinking Fund for the Bonds and shall be applied as herein provided. 27. Redemption of Refunded Bonds. The City hereby irrevocably calls the following bonds of the City for redemption prior to maturity on the date set forth below, and authorizes and directs notice of such redemption to be given as provided in substantially the form attached hereto as Exhibit "A" (with such changes to this form as any official of the City may approve): Bonds To Be Redeemed Redemption Date The City of Beaumont, Texas, Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002, maturing on September 1 in the years 2017 and 2023 September 1, 2006 In connection therewith, the City hereby approves of the terms of and authorizes the City to enter into the letter agreement with JPMorgan Chase Bank, N.A., the current holder of the Refunded Bonds, in substantially the form attached hereto as Exhibit "B". 28. Deposit. The discharge and defeasance of the Refunded Bonds shall be effectuated by depositing with Wells Fargo Bank, N.A., (and its successors), the paying agent for the Refunded Bonds, $ of the proceeds of the Bonds, (a) to carry out the program designed for the City by RBC Capital Markets (b) to maximize the City's present value savings and/or to minimize the City's costs of refunding, and (c) to comply with all applicable laws and regulations relating to the refunding of the Refunded Bonds. 29. Source of City Funds Used in Refunding. No money of the City other than proceeds of the Bonds shall be used to refund the Refunded Bonds. 30. Related Matters. To satisfy in a timely manner all of the City's obligations under this Ordinance, the Mayor or Mayor Pro Tem, the City Clerk or any Deputy City Clerk, and all other appropriate officers and agents of the City are hereby authorized and directed to take all other actions that are reasonably 32 necessary to provide for the refunding of the Refunded Bonds, including without limitation, executing and delivering on behalf of the City all certificates, consents, receipts, requests, and other documents as may be reasonably necessary to satisfy the City's obligations under this Ordinance and to direct the application of funds of the City consistent with the provisions of this Ordinance. 31. Registrar. The form of agreement setting forth the duties of the Registrar is hereby approved, and the appropriate officials of the City are hereby authorized to execute such agreement for and on behalf of the City. 32. Official Statement. The City Council of the City hereby ratifies, authorizes and approves, in connection with the sale of the Bonds, the preparation and distribution of the Preliminary Official Statement dated July 19, 2006, and an Official Statement dated August 1, 2006, and any further supplement thereto, containing such information as may be necessary to conform to the terms of the Bonds, this Ordinance, and the purchase contract for the Bonds. The appropriate officials of the City are hereby authorized to sign such Official Statement and/or to deliver a certificate pertaining to such Official Statement as prescribed therein, dated as of the date of payment for and delivery of the Bonds. 33. No Personal Liability. No recourse shall be had for payment of the principal of or interest on any Bonds or for any claim based thereon, or on this Ordinance, against any official or employee of the City or any person executing any Bonds. 34. Continuing Disclosure Undertaking. (a) Annual Reports. The City shall provide annually to each NRMSIR and the SID, within six months after the end of each fiscal year, financial information and operating data with respect to the City of the general type included in the final Official Statement authorized in this Ordinance (i) under the headings "SELECTED FINANCIAL INFORMATION", "CITY REVENUE DEBT", "ADMINISTRATION OF THE CITY", `THE SYSTEM — Water and Sewer Rates" and in APPENDIX B. The information to be provided shall include the financial statements of the City prepared in accordance with the accounting principles the City may be required to employ from time to time pursuant to State law or regulation and audited, if the audit is completed within the period during which they must be provided. If the audit of such financial statements is not completed within such period, then the City shall provide unaudited financial statements for the applicable fiscal year to each NRMSI and the SID within such six month period, and audited financial statements when the audit report on such statement becomes available. If the City changes its fiscal year, it will notify each NMSIR and the SID of the change (and of the date of the new fiscal year end) prior to the next date by 33 which the City otherwise would be required to provide financial information and operating data pursuant to this Section. The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document, if it is available from the MSRB) that theretofore has been provided to each NRMSIR and the SID or filed with the SEC. (b) Material Event Notices. The City shall notify the SID and either each NRMSIR or the MSRB, in a timely manner, of any of the following events with respect to the Bonds, if such event is material within the meaning of the federal securities laws: L Principal and interest payment delinquencies; ii. Non-payment related defaults; iii. Unscheduled draws on debt service reserves reflecting financial difficulties; iv. Unscheduled draws on credit enhancements reflecting financial difficulties; V. Substitution of credit or liquidity providers, or their failure to perform; vi. Adverse tax opinions or events affecting the tax-exempt status of the Bonds; vii. Modifications to rights of Bondholders; viii. Bond calls; ix. Defeasances; X. Release, substitution or,sale of property securing repayment of the securities; and A. Rating changes. The City shall notify the SID and either each NRMSIR or the MSRB, in a timely manner, of any failure by the City to provide financial information or operating data in accordance with section (a) above.. (c) Limitations, Disclaimers and Amendments. The City shall be obligated to observe and perform the covenants specified in this Section for so long as, but only for so long as, the City remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the City in any event will give 34 notice of any deposit made in accordance with Texas law that causes Bonds no longer to be outstanding. The provisions of this Section are for the sole benefit of the holders and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the City's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The City does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date. UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION. HOLDERS OR BENEFICIAL OWNERS OF BONDS MAY SEEK AS THEIR SOLE REMEDY A WRIT OF MANDAMUS TO COMPEL THE CITY TO COMPLY WITH ITS AGREEMENT. No default by the City with respect to its continuing disclosure agreement shall constitute a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. The provisions of this Section may be amended by the City from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status or type of operations of the City, if (i) the agreement, as amended, would have permitted the Underwriter to purchase or sell the Bonds in the initial primary offering in compliance with the Rule, taking into account any amendments or interpretations of such rule to the date of such amendment, as well as such changed 35 0 circumstances, and (ii) either (a) the holders of a majority in aggregate principal amount of the outstanding Bonds consent to such amendment, or (b) any person unaffiliated with the City (such as nationally recognized bond counsel) determines the amendment will not materially impair the interests of the holders and beneficial owners of the Bonds. The City may also amend or repeal the obligations and agreement in this Section if the SEC amends or repeals the applicable provisions of the Rule or a court of final jurisdiction determines that such provisions are invalid, and the City may amend the agreement in its discretion in any other circumstance or manner, but in either case only to the extent that its right to do so would not prevent an underwriters from lawfully purchasing or reselling the Bonds in the primary offering of the Bonds in compliance with the Rule. If the City amends its agreement, it must include with the next financial information and operating data provided in accordance with its agreement an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of information and operating data so provided. 35. Open Meeting. It is hereby officially found and determined that the meeting at which this Ordinance was adopted was open to the public, and public notice of the time, place and purpose of said meeting was given, all as required by Chapter 551 of the Texas Government Code. 36. Interpretations. All terms defined herein and all pronouns used in this Ordinance shall be deemed to apply equally to singular and plural and to all genders. The titles and headings of the sections of this Ordinance have been inserted for convenience of reference only and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof. This Ordinance and all of the terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein and to sustain the validity of the Parity Bonds and the validity of the lien on and pledge of the Net Revenues to secure the payment of the Parity Bonds. 37. Provisions Relating to Bond Insurance. Notwithstanding any provision in this Ordinance to the contrary, as long as the Bond Insurance Policy shall be in full force and effect, the City and the Registrar agree to comply with the following provisions: [insert applicable provisions] 36 38. Special Provisions Relating to Reserve Policy. The purchase of and payment of the premium for a Surety Policy to be issued by the Insurer to fund the Reserve Fund requirement under Section 19(f) of this Ordinance in accordance with the terms of a commitment for such policy presented to and hereby approved by the City Council is hereby authorized. Hereinafter such Surety Policy shall be referred to as the "Reserve Policy". So long as the Reserve Policy is in effect, the following provisions shall apply and be applicable: A. In setting the rates and charges for use and services of the System pursuant to Section 19(b) above, the City agrees to establish sufficient rates so as to generate sufficient revenues to pay all amounts owed to the Bond Insurer. B. The Paying Agent/Registrar shall deliver a demand for payment to the Bond Insurer in the form required by the Bond Insurer at least three days prior to the date on which funds are required. C. The Bond Insurer must be paid all amounts owed to it under the terms of the Financial Guaranty Agreement or any other documents before this Bond Order and any financing documents executed in connection herewith may be terminated. D. It shall be the responsibility of the Paying Agent/Registrar to maintain adequate records, verified with the Bond Insurer,as to the amount available to be drawn at an given time udner the Reserve Policy and as to amounts paid and owing to the Bond Insurer under the terms of the Financial Guaranty Agreement. E. There may be no optional redemption of the Bonds or distribution of any funds to the Issuer unless all amounts owed to the Bond Insurer under the terms of the Financial Guaranty Agreement or any other documents have been paid. [The remainder of this page has intentionally been left blank.] 0 37 PASSED AND APPROVED this 1 st day of P Y August, 2006.9 Mayor The City of Beaumont ATTEST: City Clerk The City of Beaumont (SEAL) 38 EXHIBIT "A" NOTICE OF PRIOR REDEMPTION THE CITY OF BEAUMONT, TEXAS, WATERWORKS AND SEWER SYSTEM ADJUSTABLE RATE REVENUE BONDS, SERIES 2002, maturing on September 1 in each of the years 2017 and 2023 in the aggregate principal amount of$29,035,000. NOTICE IS HEREBY GIVEN that The City of Beaumont, Texas has called the City's Waterworks and Sewer System Adjustable Rate Revenue Bonds, Series 2002, maturing on September 1 in the years 2017 and 2023, for redemption on September 1, 2006, at the redemption price hereafter stated. Schedule of Called Bonds Principal Call Maturi Amount Call Date Price CUSIP 9/1/2017 $11,505,000 9/1/2006 100% 9/1/2023 $18,495,000 9/1/2006 100% The redemption price for the above bonds is par plus accrued interest to September 1, 2006, the date fixed for redemption. Such bonds shall be redeemed and shall no longer bear interest after September 1, 2006. The redemption price for such bonds shall be paid upon presentation to Wells Fargo Bank,N.A., the Paying Agent,at its principal payment office in Houston,Texas. By Mail: By Hand Delivery/Overnight Mail: Wells Fargo Bank,N.A. Wells Fargo Bank,N.A. Corporate Trust Services Corporate Trust Services MAC T5001-061 MAC T5001-061 1000 Louisiana, Suite 640 1000 Louisiana, Suite 640 Houston,TX 77002 Houston,TX 77002 IMPORTANT NOTICE Commencing January 1, 1984, in compliance with the Interest and Dividend Compliance Act of 1983, Paying Agents are required to withhold 31% (effective 1/1/93) of gross payments to Bondholders who fail to provide a valid taxpayer identification number on or before the date upon which bonds are presented for payment. Bondholders are additionally subject to a penalty of$50.00 for failure to provide such number. Please provide a taxpayer identification number when presenting bonds for redemption. Please submit with your securities a substitute Form W-9 to avoid this 31%withholding from your payment. Wells Fargo Bank,N.A. As Paying Agent Bondholder Communications(713) Date of Notice: EXHIBIT "B" August 1, 2006 JPMorgan Chase Bank,N.A. 522 5th Avenue 4th Floor New York,N.Y. 10036 United States of America Re: $30,000,000 The City of Beaumont,Texas Waterworks and Sewer System Adjustable Rate Revenue Bonds,Series 2002 Ladies and Gentlemen: This letter will confirm the understanding and agreement between JPMORGAN CHASE BANK, N.A. (`,JP Morgan") and THE CITY OF BEAUMONT, TEXAS (the "Issuer")relating to the above referenced bonds (the"Bonds"). JP Morgan purchased the Bonds from the Issuer at the time the Bonds were originally issued and JP Morgan is currently the holder of the Bonds. The Bonds include the following: Original Bond Number Maturi ty Principal Amount R-_ 9/1/2017 $11,505,000 R- 9/1/2023 $18,495,000 The Bonds currently bear interest at a Long Rate. Under the terms of the Bonds, while the Bonds bear interest at a Long Rate the Bonds are subject to optional redemption by the City on the expiration date of each Rate Period. The Rate Period for the Bond maturing on September 1, 2017 expires on September 1, 2006, and the Rate Period for the Bond maturing on September 1, 2023, expires on September 1, 2007. The City intends to currently refund the Bonds and to exercise its right of option redemption and to call all of the Bonds for redemption upon expiration of the Rate Period for each Bond. The City has requested that JP Morgan agree to amend the terms of the Bonds to allow the City to call all Bonds for optional redemption on September 1, 2006, notwithstanding that the Long Rate for the Bond maturing on September 1, 2023 does not expire until September 1, 2007. JP Morgan has agreed to this request and hereby agrees that all of the Bonds shall be subject to optional redemption by the City on September 1, 2006 or any date thereafter, for an amount equal to the par amount of the Bonds, plus all interest thereon accrued through September 1, 2006. Please sign this letter in the space below to evidence your consent and agreement to the terms set forth above. Very truly yours, THE CITY OF BEAUMONT,TEXAS By: Guy Goodson,Mayor APPROVED AND AGREED TO: JPMORGAN CHASE BANK,N.A. By: Name: Title: i 2 August 1, 2006 Consider authorizing the City Manager to apply for and receive funding through the Department of Homeland Security Port Security Grant Program :9~ 1 City f Beaumont o a Council Agenda Item A c TO: City Council FROM: Kyle Hayes, City Manager PREPARED: Frank C. Coffin, Jr., Chief of Police MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 26, 2006 REQUESTED ACTION: Council authorize the City Manager to apply for and receive funding in the amount of$ 1,135,050 through the Department of Homeland Security Port Security Grant Program. RECOMMENDATION: Administration recommends authorizing the City Manager to apply for and receive funding through the Department of Homeland Security Port Security Grant Program. BACKGROUND: The Department of Homeland Security Port Security Grant Program can be utilized to enhance the security of the Port of Beaumont which has been designated as critical to national infrastructure. Application criteria provides potential for waiver of cash match funds based on undue hardship on the community. Beaumont's position within a presidentially declared disaster district makes our waiver request optimal. The City Manager has written a letter to the Secretary of the Department of Homeland Security in order to possibly obtain a waiver for the 25% cash match requirement based on our disaster recovery efforts. The grant funds would be used for the purchase of portable radios, laptop computers, tactical vests and infrared cameras. Detailed information is attached for your review. BUDGETARY IMPACT: If a waiver is granted, no matching funds will be required from the city; otherwise, the City of Beaumont would be responsible for$283,762.50 of the above listed funding amount. If the waiver is not granted, a recommendation will be made to the Council to possibly use seized funds or Capital Reserve funds. PREVIOUS ACTION: None SUBSEQUENT ACTION: None RECOMMENDED BY: Chief of Police Category Cost Personnel 0 Fringe Benefits 0 Equipment 253 800mhz portable and mobile interoperable radios($3050 ea) total:$771,650 Eight (8)Laptop computers and software ($2500 ea) total: $20,000 Forty two(42)tactical vests for personnel protection ($2200 ea) total: $ 92,400 Twelve(12) Thermal Vision/Infrared Cameras ($14,000 ea) total:$168,000 One(1) Computer Analysis Forensic hardware and software total: $83,000 Supplies 0 Construction 0 Consultants 0 Other Costs 0 Indirect Costs 0 Budget Summarx A. Personnel 0 B.Fringe Benefits 0 C. Travel 0 D. Equipment $1,135,050 E. Supplies 0 F. Construction 0 G. Consultants 0 H. Other Costs 0 I. Indirect Costs 0 Total Project Costs $1,135,050 Federal Request $1,135,050 Non-Federal Amount 0 Budget Narrative • The Beaumont Police Department(BPD)respectfully requests funding to obtain the described equipment to enhance its ability to prevent, detect, prepare for, exercise command and control and respond to any criminal activity on the waterway within the Port of Beaumont infrastructure, and to assist other regional agencies in their support. BPD is depended upon to provide expertise and command and control as well as computer analysis/forensics for intelligence. This equipment is directly tied to mitigating identified security deficiencies, and will reduce vulnerability to the viable threat of IEDs against shipping assets, and reduce the potential for injury by personnel checking for threats. • 61 mobile and 192 portable radios will complete interoperability considerations. All responders require the capability to effectively communicate with police headquarters,the Port of Beaumont,Jefferson County, and other agencies in this region. In order to maintain command and control and coordination of efforts, interoperable communications is imperative. Projected Cost: $771,650 • Eight(8)laptop computers and software are important to maintain communications, command and control, conduct information searches and for incident reporting and coordination. Since current availability is non-existent, the laptops are crucial to support any command and control operation, particularly if an on-scene command post is used and if primary dispatch facilities are unavailable. Projected Cost. $20,000 • Forty two (42)tactical vests are requested to aid in the prevention of personal harm. Currently, response forces will necessarify be poorly protected while conducting security patrols, or when conducting support operations to enhance security and reduce vulnerability for the Port of Beaumont. Tactical vests will be utilized by the tactical team members who conduct prevention and detection operations using the boats being purchased by 2005 Port Security funding. They will also be used to support other Port of Beaumont mutual aid requests and agreements as previously described, such as searches of ships, or in response to potential threats where further investigation is warranted. Projected Cost: $92,400 • Twelve (12) handheld thermal imaging devices provide the capability of search and acquisition of suspects attempting to insert IEDs in the Port environment in darkness, fog (a common enemy to surveillance in Southeast Texas and in the Port of Beaumont), and in other low visibility situations. Often, even when a potential threat has been reported, it is difficult to locate without these capabilities. Most importantly, it allows target acquisition without having to approach closely or exposing the head or torso since it can be used from great distances and can peer around corners or from covered positions. Projected Cost: $168,000 • One (1) computer analysis forensic hardware and software system will be used to enhance BPDs current ability to provide computer intelligence analysis. As stated previously, terrorists used cell phones to set off bombs and IEDs in Spain, plan and coordinate using e-mail messages, telephone calls and internet services, and use cyberspace to threaten citizens. Intelligence developed has been critical to prevention and detection of criminal and terrorist activity and could easily be crucial in the security of the Port of Beaumont, which remains the #1 port of embarkation for military equipment and#4 port for gross tonnage in the United States. Projected Cost: $83,000 Provided with this budget and grant application is a request for waiver of the currently projected 25% cash match by the City of Beaumont. Hurricane Katrina, struck the Gulf coast August 27, 2005, leading to an influx of over 400,000 evacuees in Texas. Most of those came through Beaumont on I1110,the most direct route from southern Louisiana. Approximately 27,000 evacuees were actually processed in our evacuation center located at Ford Park in the City of Beaumont. 1700 people sheltered at Ford Park. Additional evacuees established temporary residence within the city and region, many of whom remain over ten months later. Quickly following what has been labeled as the costliest storm ever, Hurricane Rita struck the Gulf Coast on September 24, 2005, directly impacting Beaumont and Jefferson County. Recovery efforts continue today. This hurricane caused 3.5 million Texans to leave home, a total which includes most of the 113,000 people in the city of Beaumont and the majority of over 380,000 people just from this county. Many evacuees from Galveston and Houston also impacted our area when they used IH10 to access northbound evacuation routes. While the evacuation operations themselves were quite costly for the city, damage from the Hurricane Rita became almost overwhelming. Over four million cubic yards of debris have been removed from Jefferson County. 2.5 million cubic yards is just from City of Beaumont. Damage to city infrastructure and buildings was widespread. In fact, current damage assessments place the cost over$7,000,000,000 (seven billion dollars). Damage to some of the city buildings was so extensive that the Beaumont City Council has contemplated razing them and rebuilding. Yes, FEMA support and insurance payments have kept the city solvent; however,the City of Beaumont is still left with over$1.5 million in unreimbursed expenditures. Continuing recovery operations may even increase that amount. Citizens of this city and region have an even more burdensome expense than our governments. Out of Beaumont's 44,361 households, 901/6 had significant damage, with the average reported damage exceeding $20,000. About 933 homes were totally destroyed or suffered catastrophic damage. Beaumont's losses are statistically significant with this region's, where current analysis reveals over one billion dollars in unmet needs. Primarily affected are the lower to middle income residents, many of whom have no insurance, or whose insurance coverage was insufficient. Other Beaumont infrastructure also suffered significantly. 555 businesses had major damage, and another 2184 required significant repairs. Regionally, damage exceeding $198 million is estimated to critical infrastructure. $68.7 of that is unreimbursed Rita damage to schools and public colleges, the largest portion of which is from Beaumont. As noted in the project narrative, we realize the US economy is also dependent on this region's ability to keep the port infrastructure safe because of its impact on refining, transportation and storage capability. Some critical factors regarding this region include: • The Port of Beaumont is the#1 port of military embarkation in the nation; • 15% of the nation's crude is manufactured or refined in this region; • The Port of Beaumont is the 4`h largest U.S. Port in tonnage and one of two strategic ports in the State of Texas; • The Port of Port Arthur is the 31 st largest U.S. Port in tonnage, and the alternate military outload port for the Port of Beaumont. • Within the next three years, 3 Liquefied Natural Gas (LNG) facilities will be operating within a 2 mile radius of the Sabine-Neches Intercoastal Waterway, bringing with them 800 additional ships per year; • There are 54 petrochemical facilities along with 2,700 storage tanks located in South East Texas(Jefferson, Hardin and Orange); • Two of the nation's four Strategic Petroleum Reserve sites that account for over 50 percent of the nation's reserve storage capacity, are located in our COTP zone. Two back-to-back presidentially declared disasters have caused an unusual budgetary strain on Beaumont and the region. Security of the Port of Beaumont and its infrastructure is important to our nation's economy and residents' livelihood, but the cash match requirement will only cause an increased tax burden on Beaumont citizens. While our intent is to support ongoing vulnerability mitigation efforts directed for the Port of Beaumont infrastructure, our desire is that the cash match requirement for Round 6 of the Port Security Grant be waived in support of ongoing recovery efforts. RESOLUTION NO. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to apply for and receive funding in the amount of$1,135,050 through the Department of Homeland Security Port Security Grant program. BE IT FURTHER RESOLVED that the City Manager be and he is hereby authorized to execute all necessary documents to obtain the said funds. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of August, 2006. - Mayor Guy N. Goodson - Y Y • 3 August 1, 2006 Consider a request to abandon a 10'x 100' portion of a 30'wide drainage and utility easement along the rear of the property at 4230 Pierre • City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 26, 2006 REQUESTED ACTION: Council consider a request to abandon a 10'x 100' portion of a 30' wide drainage and utility easement along the rear of the property at 4230 Pierre. RECOMMENDATION The Administration recommends approval ofthe request to abandon a 10'x 100'portion of a 30'wide drainage and utility easement along the rear of the property at 4230 Pierre subject to the moving of any utilities shall be at the cost of the property owner. BACKGROUND James and Naomi Carter are requesting the abandonment of the south 10' of a 30' wide drainage and utility easement along the rear of their property at 4230 Pierre. The Carters wish to install a swimming pool in their backyard. The original request was for abandoning the entire easement at the rear of their property. This item was sent to all interested parties. Water Utilities, AT&T, Time Warner and Entergy have facilities in this easement. However, all four entities have agreed to abandoning the south 10' of this easement. Since the location of the phone line has not been pinpointed,AT&T has stated that if the line is in the south 10' of the easement,the property owner must bear the cost for relocation of that line. BUDGETARY IMPACT None. PREVIOUS ACTION At a Regular Meeting held July 17, 2006, the Planning Commission voted 5:0 to deny a request to abandon a 30'wide drainage and utility easement along the rear of the property at 4230 Pierre. SUBSEQUENT ACTION None. RECOMMENDED BY Planning Commission, City Manager, Public Works Director and the Planning Manager. ORDINANCE NO. ENTITLED AN ORDINANCE ABANDONING A 10' x 100' PORTION OF A 30' WIDE DRAINAGE AND UTILITY EASEMENT LOCATED AT 4230 PIERRE IN THE CITY OF BEAUMONT, JEFFERSON COUNTY, TEXAS. BE IT ORDAINED BY THE CITY OF BEAUMONT: THAT a 10' x 100' portion of a 30' wide drainage and utility easement located at 4230 Pierre, being the south 10 feet x 100 feet of the 30 foot wide drainage and utility easement along the rear of Lots 5 and 6, Block 6, Fleetwood Addition, City of Beaumont, Jefferson County, Texas, containing 0.0229 acres more or less, as shown on Exhibit"A" attached hereto, be and the same are hereby vacated and abandoned; provided, however, that the relocation of any utilities shall be at the cost of the property owner. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of August, 2006. - Mayor Guy N. Goodson - 0. 1 /V File 695-OS: Request for the abandonment of a 30' drainage and utility easement. NORTE[ Location: 4230 Pierre Drive Applicant: James Carter A& SCALE . V=200` L- I rc- NU ,. ,�� �. ter: ....T ;��: c •��� •a: ;.� N.j:. PARISH ST. JrA �5 PROCTOR ST. u c a� 14 n v LU PIERRE Ij 06�''�r�.. '/'` 0../,k, l '3 .* t•'' '.�,' -� :. ,p." /try /3 •_•N h/EO h .. W: .- Ik'&72••' -- J 6 -tt. �� ry:lt td tf tl .12 1I: t0� '/! )I •/7• 'l� /S.N �H. "• 4 1•�: _ :� � , ``.r S/ PS N � •;� .GR �.� . : z -e .; �° x/1 z,• SIMPSON DR.. s-rs�t Z55.o. so - so '6sa Q^ °r�s.'t..' �r,�' :,•o c,•'. 0-0.0 ri N� 13 IP- .1/ 30 /9 N,tpv /7IST /I'b �� t/, 6 �1. SIMON IN s?z 255.0 :�. .� .`-az94.. s` .��- �` :�• .e. e � �. . .' - �a EXHIBIT "A" 4 August 1, 2006 Consider approving a bid for the purchase of three(3) rubber track excavators for use in the Water Utilities Department City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Brenda Beadle, Purchasing Manager MEETING DATE: August 1, 2006 AGENDA MEMO DATE: July 25, 2006 REQUESTED ACTION: Council approval to award a bid for the purchase of three (3) rubber track excavators. RECOMMENDATION Administration recommends the award of a bid to United Equipment Rentals in the amount of $119,230 for the purchase of three(3) rubber track excavators for the Water Utilities Department. BACKGROUND Four (4) bids were received for furnishing two (2) small rubber track excavators rated at 7,000 pounds, and one (1) medium excavator rated at 10,000 pounds. The small excavators,used in the repair and maintenance of sewer lines,are narrow in design for use in limited space conditions,such as alleys and rights of way in residential areas. The bids received are reflected in the attached bid tabulation. The Kubota models bid by Beaumont Tractor do not comply with bid specifications with regard to the overall maximum width of the machines, the hydraulic flow produced, and the cab design. The excess width reduces the unit's maneuverability, the reduced hydraulic flow limits auxilliary hydraulic equipment which can be attached to the unit, and the lack of a tilt cab limits technician access to the unit's hydraulic lines and controls. The smaller Case models quoted by Equipment Support Services do not meet specifications with regard to horsepower, engine displacement, digging depth, reach, and dump height and radius. Each of these negatively impact the unit's digging capability. The company submitting the lowest bid meeting all specifications is United Equipment Rentals of Beaumont. The City currently has a total of sixteen (16) small and medium excavators in service, with fourteen (14) being Takeuchi models used by Water Utilities. Because the City has a Purchase of Three(3) Small Rubber Track Excavators July 25, 2006 Page 2 preponderance of Takeuchi units in service, parts compatibility and parts inventory should be considered when purchasing new units. The units will be delivered within 45 days of the order. United Equipment Rentals in Beaumont will perform all warranty work for the one (1) year warranty period. The small excavators will replace unit 5121, a 1996 Takeuchi excavator with 4,065 hours of service, and unit 5128, a 1997 Takeuchi with 4,302 service hours. The medium excavator will replace unit 5081, a 1995 Case with 6,600 service hours. The replaced units will be disposed of according to the City's surplus property policies. BUDGETARY IMPACT Funds for this expenditure are available in the Water Utilities Fund. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Water Utilities Director. i 0 0 9 BID TABULATION: PURCHASE OF THREE(3)RUBBER TRACK EXCAVATORS BID OPENING DATE: THURSDAY,JUNE 1,2006 @ 2:00 PM BID NUMBER: RF0506-52 Vendor Beaumont Tractor United Equip Rentals Equipment Support Services Mustang Cat City/State Beaumont,TX Beaumont,TX Houston,TX Beaumont,TX Fax Number I 409.866.5884 409.833.7965 281.987.1393 409.892.6190 Unit Price Ext. Price Unit Price I Ext. Price Unit Price I Ext. Price Unit Price 11 Ext. Price Two-(2)7,000 lb class rubber track excavator $37,000.00 $74,000.00 $37,340.00�1 $74,680.001 $35,955.0011 $71,910.00 42,316.00 $84,632.00 Manufacturer&Model Bid Kubota KX121 Takeuchi TB135 I Case CX Cater illar One(1) 10,000 lb rubber track excavator $44,000.0011 $44,000.00 $44,550.0011 $44,550.00 $50,097.0011 $50,097.00'1 $48,337.00 $48,33 1.00 Manufacturer&Model Bid Kubota KX161 Takeuchi TB145 Case CX Caterpillar TOTAL BID: $118,000.00 $119,230.00 $122,007.00 $132,969.00 Delivery Time: 45 days _ !� 21 to 45 days 60 days IL 180 days RESOLUTION NO. WHEREAS,bids were received for the purchase of three(3)rubber track excavators for the Water Utilities Department; and, WHEREAS, United Equipment Rentals, Beaumont, Texas, submitted a bid in the amount of $119,230; and, WHEREAS, City Council is of the opinion that the bid submitted by United Equipment Rentals, Beaumont, Texas, should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the bid submitted by United Equipment Rentals, Beaumont,Texas,for the purchase of three (3) rubber track excavators for the Water Utilities Department in the amount of $119,230 be accepted by the City of Beaumont. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of August, 2006. - Mayor Guy N. Goodson - • WORKSESSION 'a Review proposed � amendments to the Animal Control Ordinance • • PROPOSED CH- ANGES ADDITIONS CITY OF BEAUMONT ANIMAL � ORDINANCE July 2006 ITEMS TO BE ADDRESSED: Proposed Animal Cruelty Ordinances City of Beaumont 1. A person commits an offense if s/he sells trades barters, leases, rents, gives away, or p � displays for any of the above purposes any living animal on any roadside, public right of way, commercial parking lot, or outdoor special sale, swap meet, flea market, or similar event. 2. REGARDING MOTOR VEHICLES, a person commits an offense if a. S/he leaves an animal in any standing or parked vehicle in such a way as to endanger the animal's health, safety, or welfare, or throws or allows an animal to jump from a moving or non-moving vehicle in a manner likely to injure the animal. b. S/he transports or carries any animal in a motor vehicle unless the animal is safely enclosed within the vehicle; if traveling in an unclosed vehicle (including but not limited to convertibles and pickup trucks), the animal must be safely confined by a vented container or cage, by chain, rope, or other device cross-tied to prevent the animal from falling or jumping from the motor vehicle or from strangling on a single leash. 3. REGARDING TETHERING, a person commits an offense if- a. S/he restrains a dog by a fixed point chain or tether for more than eight (8) hours in a 24-hour day unless the chain or tether is at least ten(10) feet long, has swivels at each end, and is attached to a pulley or trolley mounted cable that is mounted no more than seven(7)feet above ground level. b. S/he restrains a dog with a chain or tether wrapped directly around the dog's neck, without properly fitting collar or harness wom by the dog, and said chain or tether must by design and placement, be unlikely to become entangled. c. S/he restrains a dog with a chain or tether that weighs more than 1/18 of the dog's body weight, or in a manner that does not allow the dog to have access to necessary shelter and water. 4. A person commits an offense if s/he beats, torments overloads, overworks, maims, disfigures, burns, scalds, mutilates, or needlessly kills his own or any other animal, or carries or transports an animal in any vehicle or other conveyance in a cruel or inhuman manner, or permits any animal to remain in its own filth, or if s/he causes any of these to occur. 5. A person commits an offense if s/he fails to provide an animal with sufficient good and wholesome food and water, adequate housing consisting of a three-sided structure with a cover or roof, shelter, and protection from the weather, veterinary care when needed to prevent suffering, and with human care and treatment. 6. A person commits an offense if s/he crops an ear, docks a tail, removes dew claws or other claws, or performs other surgical procedures on an animal except as provided by the Veterinary Licensing Act. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 1 CURRENT Beaumont Animal Control City Ordinance Population= 111,799 ARTICLE I. IN GENERAL Sec. 5-1. Abandoning or dumping in city. Replacement Requested on pgs 20-21 It shall be unlawful for any person to abandon or dump any dog, cat or other animal within the city. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-2. Sale in food establishments. It shall be unlawful to keep for sale any bird or domestic animal in any department store, novelty store or any other store or business establishment where food is served or sold to the public, unless such animals and birds are confined in enclosures and kept completely separated from the part of the store where food is served or sold. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-2.1. Baby animals; distribution or changing color of prohibited. (a) It shall be unlawful for any person, firm or corporation to knowingly sell, offer for sale, barter, lease or give away baby chickens, ducklings, goslings, skunks, raccoons, foxes, turtles, opossums or bats under three (3) weeks of age or rabbits under six (6) weeks of age as pets, or to color, dye, stain or otherwise change the natural color of baby chickens, ducklings, goslings, skunks, raccoons, foxes, opossums, bats,turtles or rabbits. (b) It is a defense to this section that the sale or exchange of such baby chickens, ducklings, goslings, skunks, raccoons, foxes, opossums, bats, turtles or rabbits was for commercial breeding purposes or for scientific, educational, or governmental purposes. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-3. Wounded or sick animals, fowl or birds; killing. When, from any cause, any animal within the city shall be sick, wounded, maimed or injured, so as to render its recovery hopeless, it shall be permissible for the local health authority to destroy, or cause to be destroyed, such animal so ill or injured, and as soon after such injury as practicable, and in such manner as in his judgment shall be the least painful, and to cause the carcass thereof to be removed. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-4. Livestock permitted, number. (a) Definition: For purposes of this article the term "livestock" shall mean any horse, mule, cattle, hog, sheep, goal, guinea pig, hamster, rabbit or similar animal classified as livestock. (b) It shall be unlawful, except as provided in section 5-4(c) of this chapter for any person to keep, possess, or maintain, or permit keeping on any premises owned by him or under his control, any livestock within the city limits. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 2 (c) Area limitations and maintenance requirements for the keeping of livestock and poultry. The provisions of section 54(b) shall not apply to the following situations: (1) Bona fide zoos, stock shows, fairs, animal judging and shows, and circuses. (2) Bona fide public or private school projects, when conducted upon school property and under faculty supervision. (3) Facilities owned and used by a licensed veterinarian in connection with his practice of veterinary medicine. (4) Guinea pigs, hamsters, rabbits, chickens ducks or other animals or fowl of similar size which are kept entirely within an enclosed building, which building is of such design and material as to retain any noises or odors caused by such animals or fowl. (5) Livestock (other than hogs or pigs) which are kept in compliance with the following requirements: a. Horses or other equine animals, as a private stable (not for commercial purposes) and other livestock and poultry may be kept an tracts of land with not less than twenty thousand (20,000) square feet. b. Bovine animals maybe kept for personal use (not for commercial purposes)on tracts of land with not less then forty thousand(40,000) square feet. c. Livestock which are kept as pets for non-commercial purposes only, shall be provided not less than twenty thousand (20,000) square feet of land area in the tract for each animal unit. The following animal units values are to be assigned to livestock, except for small animals described in subsection (c)(4) above, in determining the number of animals which may be kept on a tract of land: Each lamb or sheep 1/5 animal unit Each goat 1/6 animal unit Each horse or other equine animal 1/2 animal unit Each cow or other large animal One animal unit Offspring of equine animals may be kept for a period of eighteen (18) months and other livestock for a period of twelve(12) months, after birth before bein g g an assigned animal unit values. Y d. In connection with all of the above described exceptions, the premises and facilities used for the keeping of animals and fowls authorized to be kept under any of the provisions of this section must be kept in a manner as to prevent the emission of odor or noise offensive to persons of ordinary sensibilities in the residing vicinity or the existence of any nuisance dangerous to the public health. Also, any premises and facilities used for the keeping of animals or fowls authorized to be kept under any provision of this section must be approved for such purposes by the city public health department. (Ord. No. 84-166, § 1, 12-18-84; Ord. No. 01-080, § 1, 10-16-01) Sec. 5-5. Minimum distance from dwellings, etc. The keeping on any premises in the city of any livestock not prohibited by section 54(b), is prohibited unless the pens, stalls, or other facilities for keeping the same shall be so located that the livestock cannot come within one hundred fifty (150) feet of any dwelling, church, school, hospital or business building owned, used or maintained by any person other than the keeper of the livestock, or within five hundred (500) feet of any food service establishment or food processing establishment, regardless of ownership or occupancy of such establishment. A variance in the one hundred fifty (150) feet distance requirement may be granted by the health director if all property owners who have a dwelling, church, school, hospital or business within one hundred fifty (150) feet of the area within which livestock are kept give their written consent for such a variance. Such July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 3 variance shall specify the minimum distance requirement approved and shall not be less than seventy-five(75) feet. This provision shall not apply to fowl which are kept in completely enclosed and solidly walled facilities, or to species of birds other than poultry. (Ord. No. 84-166, § 1, 12-18-84; Ord. No. 01-080, § 2, 10-16-01) Sec. 5-6. Noisy animals and fowl, prohibited. It shall be unlawful and constitute the creation and maintenance of a public nuisance, for any person to stable or keep any animal or fowl in the city in such manner that such animal or fowl by stamping or kicking, braying, bleating, barking, yelping, neighing, crowing or making any other utterance or disturbance, creates such a noise which disturbs those living in the vicinity. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-7. Removal of livestock transport vehicles. It shall be unlawful and constitute the creation and maintenance of a public nuisance for the owner, operator, agent, or driver of any truck, trailer or other vehicle that has been used for the hauling of any livestock, animals or fowl, and when same has been parked in or on any highway, street, alley, vacant lots, or tract of land, either public or private, or in any service station or garage within the city, to fail to move such truck, trailer or other vehicle, containing manure or excreta or liquid discharge to a location which will not disturb the inhabitants of the city by reason of the odor, gases or fumes caused by the contents of such truck,trailer or other vehicle. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-8. Unclean animal pens, etc.--Generally. It shall be unlawful and constitute the creation and maintenance of a public nuisance, for any person owning or having charge of any stable, stall, shed, or yard or appurtenance thereto, in which any horse, cow, or other animal shall be kept, or any place within the city in which manure or liquid discharge of such animal shall collect and accumulate, to allow such stable, stall, shed, or yard or appurtenance thereto to be kept in other than a clean and sanitary condition, or allow the same to remain in a condition which would constitute a breeding place for flies, provided, nothing in this section shall be so construed as to include manure deposits upon private property for the purpose of cultivation or to be used as fertilizer. The maintaining or keeping of all animals within the city shall be allowed only if the presence of noise, flies, mosquitoes, insects, vermin, rodent harborage, odors, dust ponded water, accumulation of manure, garbage, refuse or other obnoxious or putrescible material or any other objectionable matter or effect does not cause, create, contribute to or become a health nuisance. (Ord. No. 84-166, § 1, 12-18-84; Ord.No. 01-080, § 3, 10-16-01) Sec. 5-9. Same--Kept by distillers, butchers, etc. No distiller, butcher, stock dealer, or other person shall collect or keep any cows in a pen, or otherwise confine any cows in the city so as to create a stench or so as to become a nuisance. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-10. Same--Fowl, rodents. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 4 It shall be unlawful and constitute the creation and maintenance of a public nuisance for any person to keep or cause to be kept any chickens, geese, ducks, guineas, pigeons, or rabbits or other rodents in pens or enclosed areas in an unclean condition or in such a manner as to become offensive, producing odors capable of annoying persons living in the vicinity. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-11. Wild animals; restrictions on keeping. Replacement Requested on pgs 21-22 No wild animals may be kept within the city; provided, however, wild animals may be kept for exhibition purposes by circuses, zoos and educational institutions in accordance with all laws and regulations. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-12. At large--Livestock; prohibited. It shall be unlawful for the owner or other person in charge of any livestock to permit the same to run at large or to be found unattended in the city. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-13. Same--Confinement of fowl or other bird; impounding. (a) It shall be required of every person owning or having control of any domestic fowl or any other bird, to keep the same confined within his own premises, and it shall be unlawful for any person within the city to suffer, permit or allow any domestic fowl or any other bird which he may own or have the charge of to go or be found upon any street or other public place of the city or upon the premises of another without the consent of the owner or the person in charge of the premises upon which such domestic fowl or other bird may be found. (b) It shall be the duty of the local health authority to take up any domestic fowl or other bird found at large and confine such domestic fowl or bird in the city shelter for seventy- two (72) hours. If the owner of a domestic fowl impounded fails to claim such fowl within seventy-two (72) hours, it shall be the duty of the local health authority to humanely destroy the confined fowl or bird. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-14. Same.-Impounding fees. The city shall collect from the owner or other person to whom impounded domestic fowl or other bird or birds are delivered an impounding fee as provided in section 13-16 for the period of time the domesticated fowl or other bird or birds remains in the possession and custody of the local health authority. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-15. Local health authority designated. The city animal control superintendent will be designated as the local health authority for the purpose of this chapter. His duties will be to enforce all city and state laws pertaining to the control of animals within the City of Beaumont. (Ord. No. 84-166, § 1, 12-18-84) July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 5 Sec. 5-16. Carcasses of animals and fowl, removal. Replacement Requested on pg. 22 It shall be unlawful for any person to deposit or cause to be deposited or permit to remain upon any premises owned or occupied by him, or on premises adjacent thereto or in or upon any of the streets, sidewalks, alleys or other public rights-of-way or places in the City of Beaumont, the carcass or parts thereof of any dead animal or fowl owned by him or under his control, but all such carcasses or parts thereof, exceeding the permissible weight for depositing in garbage receptacles, shall be removed by such person to the city's sanitary landfill, or otherwise disposed of as may be directed by the appropriate officer having jurisdiction over garbage and refuse disposal, or the same may be removed by the city at the cost of such person. If the owner of such dead animal or fowl be unknown, or the owner refuses or fails to remove the same, the city shall nevertheless remove any such carcass or parts thereof and the city shall have the right to collect the cost of such service from the owner, if known, by suit. Small animals not to exceed eighty(80) pounds placed next to the street the same as garbage will be picked up by the health department. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-17. Kennel--Commercial; dog and cat fancier's permit; license required; fee. (a) Commercial kennel. (1) The words "commercial kennel" shall mean any lot, building, structure, enclosure or premise where one (1) or more dogs, cats or other pet animals are kept for commercial purposes, including boarding, breeding, sale of goods or animals, or the rendering of services for profit. No person, group of persons or business entity shall operate a commercial kennel without first having obtained a valid commercial kennel license from the Beaumont Health Department. For the purposes hereof, the breeding and sale of the litter of animals kept and maintained as household pets and/or the litter of animals kept and maintained by the holder of a dog and cat fancier's permit, shall not be deemed and considered a commercial kennel. Unless the premises are covered by a commercial kennel license, only one (1) litter from animals kept as household pets or one (1) litter from animal of a holder of a dog and cat fancier's permit shall be allowed on premises at any given time. (2) Such license shall be for the calendar year or any part thereof during which such kennel shall be maintained. The yearly license fee for kennels shall be in accordance with section 13-16 of the Code of Ordinances. The fee shall be due and payable in advance on or before January 1 of each year. No kennel license shall be issued or renewed until an inspection certificate shall have been issued by the health department giving evidence that a sanitary inspection of the premises has been made by the department of health of the city. The license issued shall specify the maximum number of animals permitted to be kept, handled or exhibited by the licensee. It shall be unlawful for the licensee to keep, handle or exhibit any number of animals in excess of the maximum specified on the license. All applicants for a kennel license with the city, if required by state statute to be licensed by the Texas Department of Health, must have a valid license issued by said department to qualify for licensure by the city. The possession of a state license shall not in itself assure that a city license will be granted. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 6 (3) Should the health authority or its designee believe a commercial kennel licensed under this section is in violation of any zoning law, health law, or any other applicable law of the city or state or believe the commercial kennel is maintained in such a manner as to be detrimental to the health, safety or peace of mind of persons residing in the immediate vicinity, the health authority may provide written notice to the person, group of persons, or business entity operating the commercial kennel specifically stating the nature and facts supporting the nature of the alleged violation or detrimental condition. Such notice shall also state the intention to repeal the commercial kennel license and provide an effective date of such license repeal not less than twenty-five(25) days after the date of the letter of notice. Should the person or persons holding the commercial kennel license desire to appeal the decision of the health authority or its designee such appeal should be made in writing within ten (10) days of the date of the letter of notice and in such case the health authority shall convene the animal health advisory committee to hear the appeal. The decision of the animal health advisory committee shall be final concerning revocation or nonrevocation of the commercial kennel license. The decision of the committee shall be made prior to the date of repeal set out in the notice letter; if the decision is not timely made, the license shall continue in full force and effect until such time as such decision is made. (4) This section shall not apply to and will not be construed to require a commercial kennel license for: a. A veterinary hospital operated by a licensed veterinarian which retains animals for veterinary medical care; b. A bona fide publicly or privately owned zoological park; c. A bona fide research institution using animals for scientific research; d. A publicly owned animal shelter. (5) A certificate shall be issued by the health department to the person paying for a commercial kennel license, which certificate shall contain the data specified in this section and which certificate shall be displayed at all times in a prominent place in the kennel. (6) The department of health shall keep a permanent record of all commercial kennel licenses issued under the terms of this section, which record shall show the name and address of persons being issued a kennel license, the name and address of the kennel, the number of the commercial kennel license, the date issued and the amount paid therefor. (b) Permit; dog and cat fancier. (1) The words "dog and cat fancier's premise" shall mean any lot, building, structure, enclosure or other premise where five (5) or more dogs, each of which is over the age of four(4) months, five (5) or more cats, each is over the age of four(4) months, or a total of five (5) or more dogs and cats, each over the age of four(4) months are kept, harbored or maintained: a. For showing in recognized dog shows, obedience trials, or field trials. b. For working and hunting. c. For exhibition in shows and trials. d. For household pets. (2) No person may operate a dog and cat fancier's premise without first having obtained a valid permit from the health authority or its designee. Persons shall apply for such permits with the Beaumont Health Department. A person may apply for a permit for a dog and cat fancier's premise prior to purchase of such premise, in such case, the permit if issued may be issued subject to such purchase. The application shall be in writing and shall provide sufficient information to document the following: July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 7 a. That the animals will not create nuisance conditions for adjoining or nearby properties; b. That all animals will be securely confined to the property; c. That adequate methods for sanitation and sewage disposal are provided; d. A list of all animals by number, breed, sex, age, and color. (3) Outside structures or enclosures used to maintain the animals should be located only in the back yard and shall not occupy more than twenty (20) per cent of the yard area. (4) Upon receipt of the application, the health authority or its designee shall provide written notice to owners or occupants of all property within five hundred (500) feet of the property line of the proposed permitted location. The notice shall inform the owner that an application for a dog and cat fancier's permit is pending, the location at which the permit is pending and shall specifically include a returnable card addressed to the city providing a means by which the recipient of the notice may either agree to or object to the issuance of the permit. For purposes of this section, notification is adequate if addressed to the owner of the property as such owner appears on the current tax roll of the city. The time limit for such objection shall be stated on the notice but shall not be less than fourteen (14) days from the date of the issuance of the notice. A dog and cat fancier's permit may not be issued if two (2) or more written objections are received within the time limit set out in the notice. (5) Applicant shall pay to city a nonrefundable fee of two hundred dollars ($200.00) at the time the application is submitted. If two (2) or more objections to issuance of the permit are not received and the application is otherwise acceptable to the health authority or its designee, the permit shall be granted for a one-year period, otherwise the permit shall be denied. Appeals of denials will be handled in accordance with the provisions of section 5-17(b)(7). (6) Permits will be issued for one-year periods and must be renewed annually by the payment of a renewal fee of fifty dollars ($50.00). A permitted dog and cat fancier's premises is an allowable use in any zoning classification. Prior to issuance of any permit either original or renewal, the health authority shall inspect the premises to assure compliance with this ordinance. The number, breed, sex, age, and color or colors of all animals shall be listed on the permit. No new animals may be added nor shall exchanges be allowed unless application for amendment to the permit is made and approved. (7) Permits may be revoked by the health authority or its designee if provisions of this section, other ordinances of the city or the laws of the state, or the terms and conditions of the permit are violated. Appeals of revocation of a permit or the refusal to grant a permit shall be made to the health authority or its designee. The request for appeals shall be made in writing within five (5) days of the receipt of the written notification of the refusal to grant the permit or the revocation of the permit. Upon receipt of request for such an appeal, the health authority shall convene the animal health advisory committee to hear the appeal. The decision of the animal health advisory committee shall be final. (Ord. No. 84-166, § 1, 12-18-84; Ord. No. 86-16, § 1, 2-25-86; Ord. No. 91-69, § 1, 9-3- 91) Sec. 5-17.1. Same--Regulations. (a) General structure. (1) Structural strength. Housing facilities shall be structurally sound and shall be maintained in good repair in order to protect the animals from injury, to contain them, and to prevent exposure to other animals. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 8 (2) Water and electric power. Reliable and adequate electric power, if required to comply with other provisions of this subpart, and adequate potable water shall be available. (3) Storage. Supplies of food and bedding shall be stored in facilities which adequately protect such supplies against infestation or contamination by vermin. Refrigeration shall be provided for supplies of perishable food. (4) Waste disposal. Provision shall be made for the removal and disposal of animal and food waste, bedding, dead animals and debris. Disposal facilities shall be so provided and operated as to minimize vermin infestations, odors, and disease hazards. (5) Washrooms and sinks. Facilities for personal hygiene such as washrooms, basins or sinks, shall be provided for employees. (b) Indoor facilities. (1) Heating. Indoor housing facilities shall be sufficiently heated when necessary to protect the animals. (2) Ventilation. Indoor housing facilities shall be adequately ventilated to provide for the health and comfort of the animals at all times. Such facilities shall be provided with fresh air either by means of windows, doors, vents, or air conditioning and shall be ventilated so as to minimize drafts, odors, and moisture condensation. (3) Lighting. Indoor housing facilities shall have ample light of sufficient intensity to permit routine inspection and cleaning during the entire work period. Primary enclosures shall be situated to protect the animals from excess illumination. (4) Interior surfaces. The interior building surfaces shall be constructed and maintained so that they are impervious to moisture and may be readily sanitized. (5) Drainage. A suitable drainage method shall be provided to rapidly eliminate excess water from indoor housing facilities. If drains are used, they shall be properly constructed and kept in good repair to avoid foul odors therefrom. If closed drainage systems are used, they shall be equipped with traps and so installed as to prevent any backup of sewage onto the floor of room. (c) Outdoor facilities. (1) Outdoor holding facilities shall be of adequate size and construction to handle any animal housed therein. (2) Adequate shelter shall be provided to protect animals from any form of overheating or cold or inclement weather. (3) Outdoor holding facilities must be constructed in such manner that they will protect the animal, be readily sanitized, and will not create a nuisance. A suitable method shall be provided to rapidly eliminate excess water. (d) Primary enclosures. Primary enclosures shall: (1) Be structurally sound and maintained in good repair. (2) Provide convenient access to clean food and water. (3) Enable the animal to remain dry and clean. (4) Be constructed so as to protect the animal's feet and legs from injury. (5) Provide sufficient space to allow each animal to turn around fully, stand, sit and lie in a comfortable, normal position. (e) Feeding. (1) Dogs and cats shall be fed at least once a day except as otherwise might be directed by a licensed veterinarian. The food shall be free from contamination, wholesome, palatable, and of sufficient quality and nutritive value to meet the normal daily requirements for the condition and size of the dog or cat. (2) Food receptacles shall be accessible to all dogs and cats and shall be located so as to minimize contamination by excreta. Feeding pans shall be durable and kept clean and sanitary. Disposable food receptacles may be used but must be discarded after each July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 9 feeding. Self feeders may be used for the feeding of dog food, and shall be kept clean and sanitary to prevent molding, deterioration, or caking of food. (f) Watering. (1) If potable water is not accessible to the dogs and cats at all times, it shall be offered to them at least twice daily for periods of not less than one (1) hour, except as directed by a licensed veterinarian. (2) Watering receptacles shall be kept clean and sanitary. (g) Sanitation. (1) Cleaning of primary enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of the inhabitants and to reduce disease hazards and odors. (2) Sanitation of primary enclosures. Cages, rooms and pens shall be maintained in a sanitary condition. (3) Building and premises shall be kept clean. (4) A regular program for the control of insects, ectoparasites, and other pests shall be established and maintained. (Ord. No. 86-16, § 2, 2-25-86) Editor's note: Ord. No. 86-16, § 2, (Exhibit A), adopted Feb. 25, 1986, did not specifically amend the Code, but was included as § 5-17.1 at the editor's discretion. ARTICLE II. DOGS, CATS Sec. 5-18. Barldng dogs. It shall be unlawful and constitute the creation and maintenance of a public nuisance for any person to harbor or keep on his premises or in or about his premises, or premises under his control, any dog or animal of the dog kind, which by loud or unusual barking, howling, or yelping, shall cause the peace and quiet of the neighborhood or the occupants of adjacent premises to be disturbed. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-19. Dangerous/vicious animals. (a) A dangerous/vicious animal shall be defined as an animal which: (1) Has inflicted severe injury or death to a person or bites a person other than the owner or a member of the owner's immediate family,without provocation on public or private property; (2) Has killed or severely injured a domestic animal without provocation while off the owner's property; (3) Has a known or apparent propensity, tendency or disposition to attack unprovoked, to cause injury,or to otherwise threaten the safety of persons or domestic animals;or (4) Is trained or harbored for fighting which may be determined based on whether the animal exhibits behavior and or bears physical scars or injuries which indicate that the animal has been trained or used for the purpose of fighting. (b) If an animal acts as stated in subsection (a)(1) or (a)(2) of this section or is trained or harbored for fighting, the animal control officer shall impound the animal immediately if it is at large; or, if it is in the possession of some person, the animal control officer may issue a notice requiring that the animal be taken to a designated location for impoundment. An animal which is impounded shall not be released until a final determination is made on the disposition of the animal. (Ord. No. 03-065, § 1, 7-29-03) Editor's note: Ord. No. 03-065, § 1,repealed section 5-19 in its entirety and replaced it with new sections 5-19, 5-19.1-5-19.6.Former section 5-19 pertained to vicious animals; confinement,and derived from Ord. No. 84-166, § 1,adopted Dec. 18, 1984. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 10 Sec. 5-19.1. Declaration of a dangerous animal. (a) The health director or his/her designee may declare an animal to be a dangerous animal if the official has sufficient cause to believe that an animal is dangerous as defined under section 5- 19(a)(1), (2),(3), (4). (b) Within five(5)working days of declaring an animal to be a dangerous animal,written notice shall be given to the owner that the health director or his/her designee has determined that the animal is a dangerous animal. This notice shall also set out the requirements for a dangerous animal which the owner must comply with as set forth in section 5-19.2. This notice shall be given to the owner by personal service or by certified mail, return receipt requested. In the event that certified mail, return receipt requested cannot be delivered, the animal control division may then give notice by ordinary mail. (c) The owner of an animal declared to be dangerous,may appeal the determination of the health director or his/her designee. The request for a determination hearing must be in writing and must be received by the director of the city health department or his/her designee no later than five (5) working days from receipt by the owner of the dangerous animal declaration. Failure to appeal the declaration within five (5) working days shall result in the health director's declaration as final. (d) If the owner of a dangerous animal cannot be determined after reasonable efforts to do so and after holding the animal for seventy-two (72) hours, the animal may be disposed of in a humane manner. If the owner of a dangerous animal which has been impounded is known but cannot be located for service of the notice required herein either in person or by mail,the animal may be disposed of in a humane manner after a reasonable effort has been made to locate such owner. Nothing herein shall be construed to require the city to hold the dangerous animal longer than seventy-two(72)hours because it is unclaimed. (e) Determination hearing. (1) Upon written request for a determination hearing by the owner of an animal declared dangerous herein,the director of the city health department or his/her designee shall schedule said hearing. The hearing committee shall be made up of members of the animal health advisory committee. The determination hearing shall be conducted within ten (10) days of receipt of the request for such hearing. The owner shall be notified of said hearing by first class mail. Failure of the owner to appear at the determination hearing shall in no way prevent the hearing committee from proceeding with the hearing. The decision of the committee shall be the final administrative determination by the city. (2) Pending the outcome of the determination hearing, the animal must be securely confined in the animal control facility or at the request of the owner of the animal,with a licensed veterinarian at the expense of the owner. The costs of securing said animal at the animal control facility pending the determination hearing shall be borne by the owner. (Ord.No. 03-065, § 1,7-29-03) Sec. 5-19.2. Requirements for owner of a dangerous animal. (a) No later than fifteen(15)days after an animal is declared dangerous the owner must comply with all of the following requirements before the subject animal can be released to the owner by animal control: (1) Register the animal as a dangerous animal with the animal control authority for the areas in which the animal is kept. The cost for registration shall be fifty dollars($50.00)per year. (2) Obtain and maintain liability insurance coverage or show financial responsibility in an amount of at least one hundred thousand dollars ($100,000.00) to cover damages resulting from an attack by the dangerous animal causing bodily injury to a person or for damages to any person's property resulting from the keeping of such dangerous animal. A certificate of insurance or other evidence of meeting the above requirements shall be filed with the city animal control facility before said dangerous animal shall be returned to the owner if it is being held by the city or a veterinarian. (3) Restrain the dangerous animal at all times on a leash in the immediate control of a person or in a "secure enclosure." The enclosure must have secure sides, a secure top attached to July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 11 the sides; and a secure bottom which is either attached to the sides or else the sides of the structure must be embedded in the ground no less than two (2) feet. In addition, the secure enclosure must be: a. Locked; b. Capable of preventing the escape or release of the animal; c. Clearly marked as containing a dangerous animal. (4) The owner shall post a sign on his premises warning that there is a "dangerous animal on the property." This sign shall be visible and capable of being read from the public street or highway. In addition, the area where the animal is kept must be kept secure from small children from gaining access. (5) The dangerous animal, when taken outside the enclosure, must be securely muzzled in a manner that will not cause injury to the animal nor interfere with its vision or respiration,but shall prevent if from biting any person or animal. (6) A dangerous animal may not be chained to any object outside the dwelling or locked enclosure either on or off the property of the owner. (b) If the owner of an animal declared to be dangerous is unable or unwilling to comply with the ownership requirements listed above at any time, the animal must be euthanized by the city animal control division or a licensed veterinarian or removed from the city of Beaumont. An animal declared to be dangerous under this chapter shall not be offered for adoption or sale within the city unless the new owner is willing to comply with the provisions of sections 5-19, and 5-19.1-5-19.6. Transfer of the dangerous animal to a new owner must be approved by the animal health advisory committee. (Ord.No. 03-065, § 1, 7-29-03) Sec. 5-19.3. Reporting significant events. (a) The owner of an animal declared dangerous under the provisions of this article shall report any of the following events within five(5)days to the animal control officer: (1) Permanent removal of the animal from the city. (2) Death of the animal. (3) The birth of any offspring of the animal, including the number, markage, color and sex. (4) Change of location within the city. (b) The owner of an animal declared dangerous under the provisions of this article shall report immediately to the animal control supervisor the escape of the animal or an attack or biting of a person or other animal. (Ord.No. 03-065, § 1,7-29-03) Sec. 5-19.4. Penalties for violation. The owner of an animal declared to be dangerous herein shall also be subject to a fine of not less than fifty dollars ($50.00) but not more than five hundred dollars ($500.00) for each violation of subsection 5-19.2 or 5-19.3 of this chapter or for interference with enforcement of this chapter. This penal provision is in addition to any administrative determination by the animal control officer or the director of the city health department. (Ord.No. 03-065, § 1,7-29-03) Sec. 5-19.5. Notice to law enforcement authorities and victims before euthanasia or disposal of animal involved in fatal or serious injury to persons. (a) No animal known or believed to have inflicted a serious injury or fatality of a person shall be euthanized or disposed of pursuant to section 5-19.1(d), section 5-19.2(b), or any other provision of this chapter, unless and until the city police department, and any other law enforcement authority known or believed to be involved in an investigation of the incident, has been notified of the intention of the city public health department to euthanize or dispose of the animal and July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 12 such law enforcement authorities have been given a reasonable opportunity to assume custody of the animal should they choose to do so. (b) No animal known or believed to have inflicted a serious injury or fatality of a person shall be euthanized or disposed of pursuant to section 5-19(d), section 5-19(b), or any other provision of this chapter, unless and until the victim, the victim's next-of-kin or the victim's legal representative has been notified of the intention of the city public health department to euthanize or dispose of the animal and such person given a reasonable opportunity to investigate the animal and gather evidence(such as size and weight measurements,photographs and videotapes)as they deem appropriate and a reasonable opportunity to secure an order concerning preservation and continuing custody of the animal as evidence from a court of competent jurisdiction, should they choose to do so. (Ord. No. 03-065, § 1, 7-29-03) Sec. 5-19.6. Exceptions. (a) No animal shall be declared a dangerous animal if the threat, injury or damage caused by the animal was the result of a willful trespass upon another's property, or the person injured was tormenting, abusing or assaulting the animal or its owner, or was committing or attempting to commit a crime at the time of injury unless other independent grounds exist for such a declaration. (b) If the sole cause of the attack was that the animal was injured and responding to pain. (c) The provisions of this article shall not apply to animals under the control of law enforcement or military agency. (Ord.No. 03-065, § 1,7-29-03) Sec. 5-20. Dogs at large prohibited. It shall be unlawful for any dog to be at large within the city. Any dog on the streets, alleys or public places or on private premises not under the control of the owner, possessor, keeper or harborer of such dog within the city shall be considered to be at large in violation of this section, except that a dog being under the control of a person by means of a leash of sufficient strength to hold such dog shall not be deemed to be at large. A person who owns, possesses,keeps or harbors any dog that is found at large shall be in violation of this section. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-21. Impounding--Holding periods; reclaiming; shelter fee; sustenance for animals. It shall be the duty of the local health authority or any police officer of the city to take up any dog found at large and confine such dog in the city animal shelter for seventy-two (72)hours in the case of a dog without a collar or harness with tag attached, and for one hundred twenty (120) hours in the case of a dog wearing a current tag, during which time the owner or person entitled to such dog, upon satisfactory proof to the local health authority of ownership, may redeem his dog upon the payment of a shelter fee in accordance with section 13-16 and all other such applicable fees provided by that section. The local health authority shall provide, at the cost of the city, suitable and necessary sustenance for all dogs so impounded. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-22. Same--Notice to owner. As soon as possible after any dogs or cats have been impounded at the city shelter it shall be the duty of the local health authority to maintain a list of each animal impounded describing each of such dogs or cats, whether bearing an immunization tag or not and giving the number of the tag and the name of the person registering the dog or cat in the case where the dog or cat bears an immunization tag. In case the dog or cat bears an immunization tag, then in addition to maintaining a list as required herein, it shall be the duty of the local health authority to notify such person to whom such immunization tag was issued, by letter,postal card, or telephone. The July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 13 mailing of such letter or postal card shall be deemed sufficient notice whether or not the person addressed shall receive the same. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-23. Same--Refusal to deliver an animal to officer. It shall be unlawful for any person to refuse to deliver any unimmunized dog or cat to the local health authority or any of his deputies or any city policeman upon demand for impounding. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-24. Same--Redemption or destruction of unclaimed animals. (a) The person entitled to the possession of any dog or cat impounded as provided herein, upon proper application within the time limits specified in this article,after the impounding of such dog or cat, shall be entitled to have the dog or cat given to him, provided such dog or cat is not affected or thought to be affected with rabies, upon the payment of the impounding fee as provided in section 13-16 for each dog or cat impounded. (b) If the owner of a dog or cat impounded fails to claim such animal within seventy-two (72) hours, in the case of a dog or cat without collar and immunization tag attached, the local health authority shall deliver such dog or cat to the first person who shall apply for possession of such dog or cat within the applicable time limit specified above, provided such dog or cat is not affected or thought to be affected with rabies. Such delivery shall be made upon payment of the impounding fee provided for in section 13-16, and in addition thereto, in the case of unimmunized dogs or cats, upon obtaining an immunization for such dog or cat as provided in this article. (c) If the owner of a dog or cat impounded fails to claim such dog or cat and no person applies for possession of said dog or cat, it shall be the duty of the local health authority to destroy the dog or cat without collar and vaccination tag at the expiration of the seventy-two (72) hours and the dog or cat with collar and immunization tag attached at the expiration of one hundred twenty (120)hours. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-25. Same--Interference with officers. It shall be unlawful for any person to interfere with or attempt to prevent the local health authority or any of his deputies or any city policemen, from catching or impounding any dog or cat going at large, whether on public or private property not under the control of the owner, possessor,keeper or harborer of such animal. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-26. Cats; taking possession of. The local health authority is hereby authorized to take possession of cats delivered to him by any person,picked up on the street or public property within the City of Beaumont, or picked up or delivered to him as a suspected rabid animal. Whenever such a cat shall come into the possession of the local health authority,it shall be the duty of the local health authority to confine such cat in the city animal shelter for seventy-two (72) hours during which time any person may redeem such cat upon proof of ownership and payment of a shelter fee and all other fees as provided for in section 13-16, provided that the cat is not affected or thought to be affected with rabies. If the cat is a rabies suspect, it will be held for ten (10) days. If the cat is not redeemed as provided herein, it shall be the duty of the local health authority to destroy the cat at the expiration of seventy-two (72) hours, or on the third day after the ten-day holding period as a rabies suspect. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-27. Veterina ry fees. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 14 A fee will be charged for each trip made by the local health authority to pick up two (2) dead animals from veterinarians. The fees charged for this service will be in accordance with section 13-16 of the Code of Ordinances. The Humane Society shall be exempt from the payment of these fees. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-28. Destruction of animals which are dangerous, sick, or pose a threat to public safety. The director of public health or the local health authority,or any person designated by the director of public health, city manager, or city council of the City of Beaumont is authorized to kill any dangerous animal of any kind when it is necessary for the protection of any person or property. (Ord. No. 84-166, § 1, 12-18-84) ARTICLE III. RABIES CONTROL Sec. 5-29. Report of bites; suspected rabies. (a) Any person having knowledge that an animal capable of transmitting rabies has bitten or scratched a person, dog or other animal shall immediately report the incident to the local health authority. The report shall include, if known, the name and address of any victim and of the owner of the animal and any other data which may aid in the locating of the victim or the animal. (b) It shall be the duty of every physician or other practitioner to report to the local health authority the names and addresses of persons treated for bites or scratches inflicted by animals capable of transmitting rabies, together with such other information as will be helpful in rabies control. (c) Any veterinarian who clinically diagnoses rabies or any person who suspects rabies in a dog or any other domestic or wild animal shall immediately report the incident to the local health authority or his agent stating as precisely as possible where such animal may be found. If a known or suspected rabid animal bites or attacks a domestic animal such incident shall also be reported as required above. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-30. Taking up and observing. (a) The owner of a dog or cat which has bitten, scratched or attacked a person, dog or other animal shall be notified of the incident and shall cause such animal to be immediately quarantined at the owner's expense for a period of not less than ten (10) days in the city animal shelter or a veterinary hospital in this city operated by a duly licensed veterinarian. A fee shall be charged for each day of confinement at the animal shelter when an animal is under observation in bite cases. This boarding fee shall be assessed in accordance with section 13-16 of the Code of Ordinances. Refusal or failure to produce said dog or other animal constitutes a violation of this section and each day of such refusal or failure shall constitute a separate individual violation. (1) The animal control supervisor may authorize a dog or cat owner's request for home quarantine subject to the following requirements: a. Secure facilities are available at the owner's home; b. The animal has a current vaccination against rabies; c. The animal was not a stray or otherwise wandering loose or at large when the bite occurred; d. A licensed veterinarian must examine the dog on the first day and last day of the ten-day quarantine period;and, e. The animal control division must be advised immediately if the dog becomes sick or a change in its condition develops. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 15 (2) If the above requirements are met, home quarantine may only be allowed under the following circumstances: a. The owner or owner's spouse or child is the bite victim; b. The bite victim is an animal; or c. The bite victim or parent or guardian of a minor bite victim agrees to and signs an agreement form allowing home quarantine. (3) Dogs owned by the city and used actively by the police department in police work are exempt from the confinement requirements of this section if the bite incident occurs while the dog is actively involved in police work. However, such animals will be subject to examination on the day of the bite and ten(10)days after the day of the bite by a veterinarian licensed to practice in the State of Texas and chosen by the City of Beaumont. Should the police dog become sick or noticeably different in behavior, the police officer responsible for the dog shall report such change in behavior to his immediate superior who shall have the dog examined immediately by a veterinarian. The veterinarian will notify the animal control division of his findings concerning the dog. Should the dog become mortally injured or die during the ten-day period after a bite it shall be delivered to the animal control division. (4) The animal control supervisor is responsible for developing forms and procedures necessary to accomplish the provisions of this section. (5) Any person who is the keeper or has custody and control of an animal shall be deemed the owner for purposes of this section. If it is determined by a veterinarian that an animal shows the clinical signs of the disease of rabies,the local health authority shall humanely destroy the animal. (b) If the animal dies or is destroyed while in quarantine,the local health authority shall remove the head or brain of the animal and submit it to the nearest Texas Department of Health laboratory for testing. If a veterinarian determines that a quarantined animal does not show the clinical signs of rabies, the local health authority shall release it to the owner following the quarantine period if: (1) The owner has an unexpired rabies vaccination certificate for the animal;or (2) The animal is vaccinated against rabies by a licensed veterinarian at the owner's expense. The owner of an animal that is quarantined under this act shall pay to the local health authority the reasonable costs of the quarantine and disposition of the animal as set out herein and the local health authority may bring suit to collect those costs. The local health authority shall destroy an animal that the owner or custodian does not take possession of on or before the third day following the final day of the quarantine. (Ord.No. 84-166, § 1, 12-18-84;Ord.No. 85-77, § 1, 8-6-85;Ord.No. 92-51, § 1, 7-14-92) Sec. 5-31. Vaccination. Revision requested on pg. 20 Every owner of a dog or cat four (4) months of age or older shall have such animal immunized against rabies once every twelve (12) months by a veterinarian duly licensed to practice in the State of Texas. There shall be a fee charged for vaccinations administered at the city animal shelter. The fee shall be as provided for in section 13-16 of the Code of Ordinances. Any person moving into the City of Beaumont from a location outside the city shall comply with this section within ten (10) days after having moved into the city. To prevent improper vaccination of animals against and the accidental exposure of humans to rabies, modified live virus rabies vaccine for animals shall be administered only by or under the direct supervision of a veterinarian who is licensed to practice in this state. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-32. Inspecting dog or cat to determine immunization, right of entry therefor. The local health authority and his authorized deputies shall have the right at any reasonable time to inspect any dog or cat to determine if such animal is vaccinated as required by this article and shall have the authority, with a warrant properly issued by a magistrate, to enter July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 16 any premises for such purpose, and it shall be unlawful for any person to refuse entrance to the local health authority or his deputies or to impede, obstruct or exclude such health authority or his deputies when attempting to enter such premises for the purpose of inspecting such dog or cat. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-33. Tag, certificate from veterinarian required. The owner or keeper of any dog or cat immunized against rabies shall procure a written certificate of vaccination on forms to be provided by the veterinarian giving an accurate description of the animal, the date of immunization and the name and address of the owner of such dog or cat,which certificate shall be signed by the veterinarian administering the vaccine. A metal tag will be issued bearing a number corresponding to the number placed on such certificate and with lettering showing immunization, which tag shall be attached to the collar or harness of the dog or cat for which it was issued and shall be worn in a conspicuous place on the collar or harness at all times. The tag issued shall be valid for one (1) year after the date of vaccination of the dog or cat to which issued and shall be nontransferable. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-34. Removal of tag prohibited. It shall be unlawful for any person to remove any metal tag issued under the provisions of this article from any dog or cat without the written consent of the owner of such animal. (Ord. No. 84-166, § 1, 12-18-84) Sec. 5-35. Proof of vaccination. It shall be unlawful for any person who owns or harbors a vaccinated dog or cat to fail or refuse to exhibit his copy of the certificate of vaccination upon demand to any person charged with enforcement of this article. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-36. Animals exposed to rabies. Any person having knowledge of the existence of any animal known to have been or suspected of having been exposed to rabies must immediately report such knowledge to the local health authority giving him any information which he may require.When any animal is known to have been or is suspected of having been exposed to rabies,the following rules shall be enforced by the local health authority: (1) Unvaccinated animals which have been bitten or directly exposed by physical contact with a rabid animal or its fresh tissue shall be: a. Humanely killed; or b. If sufficient justification for preserving the animal exists,the exposed animal should be immediately vaccinated against rabies, placed in strict isolation for six (6) months and given a booster vaccination one (1) month prior to release from isolation at the owner's expense. (2) Vaccinated animals which have been bitten or otherwise significantly exposed to a rabid animal shall be: a. Humanely killed;or b. If sufficient justification for preserving the animal exists, the exposed, vaccinated animal shall be given a booster rabies vaccination and placed in strict isolation for three(3)months at the owner's expense. (3) These provisions apply only to domestic animals for which an approved rabies vaccine is available. (Ord.No. 84-166, § 1, 12-18-84) Sec. 5-37. Animal health advisory committee established. (a) There is hereby established an animal health advisory committee of the city to act in an advisory capacity to the city council and to the department of health concerning rules and July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 17 regulations pertaining to the operations of the animal shelter and to make recommendations to the director of public health concerning animal control by the city. (b) Such committee shall consist of six (6) members composed of the city veterinarian, the director of health, the city animal control supervisor, a representative from the city police department and two(2) individuals from the Humane Society, all of whom shall be appointed for two-year terms. (c) The advisory committee shall meet as needed. (Ord.No. 84-166, § 1, 12-18-84;Ord.No. 04-097, § 1, 12-7-04) July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 18 Changes ( amendments) to Current City of Beaumont Ordinance July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 19 REVISE: (Addition in red) Current City of Beaumont Ordinance Sec. 5-31. Vaccination. Every owner of a dog, cat, or ferret four (4) months of age or older shall have such animal immunized against rabies once every twelve (12) months by a veterinarian duly licensed to practice in the State of Texas. There shall be a fee charged for vaccinations administered at the city animal shelter. The fee shall be as provided for in section 13-16 of the Code of Ordinances. Any person moving into the City of Beaumont from a location outside the city shall comply with this section within ten (10) days after having moved into the city. To prevent improper vaccination of animals against and the accidental exposure of humans to rabies, modified live virus rabies vaccine for animals shall be administered only by or under the direct supervision of a veterinarian who is licensed to practice in this state DELETE: Current City of Beaumont Ordinance Sec. 5-1. Abandoning or dumping in city. It shall be unlawful for any person to abandon or dump any dog,cat or other animal within the city. (Ord No. 84-166,§ 1, 12-18-84) REPLACE WITH: Abandoning or Dumping in City: During Evacuation It shall be unlawful for any person to abandon or dump any dog, cat or other animal within the city. No owner or person shall abandon or dump any animal during a time of evacuation of the City due to natural or man-made disasters. Abandonment, or leaving an animal/pet animal behind, during a time of evacuation is unacceptable and will be considered a punishable violation of this Ordinance. Risks for animals/pet animals during an evacuation include but are not limited to: • Starvation deaths-it could be days or possibly weeks before it is deemed for citizens to safely return to their homes, • Flooding could cause needless drowning deaths of pet animals left alone; • Insects or wild animals foraging for food can invade a home through structural damage caused by the storm creating a danger to an animal/pet animal; • Fence enclosures may be knocked down, resulting in a previously contained outdoor animal being at large; July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 20 • Power failures could endanger an indoor animal's health, safety or welfare due to heat or co&4 lack of food or water, or such other circumstances as may cause injury or death of the animal. DELETE: Current City of Beaumont Ordinance Sec. 5-11. Wild animals; restrictions on keeping. No wild animals may be kept within the city; provided,however, wild animals may be kept for exhibition purposes by circuses,zoos and educational institutions in accordance with all laws and regulations. (Ord.No. 84-166,§ 1, 12-18-84) REPLACE WITH: Wild/Exotic Animals;Keeping/Selling Certain Animals-Prohibited It shall be unlawful for any person to harbor or maintain within the city limits the following animals: (a) Bats; (b) Skunks; (c) Poisonous exotic pets including but not limited to: reptiles, amphibians or arachnids; (d) Any wild animal whose normal mature weight exceeds forty(40)pounds; (e) Any "dangerous wild animal' (t) Any snake over 4 feet in length; snakes under 4 feet in length must be contained in a secured, locked enclosure preventing escape. Same—Exceptions The provisions of this section shall not apply to or prohibit the keeping of wild animals by the following: (a) A publicly or privately owned zoo maintained or operated by a nonprofit organization or governmental entity; (b) Publicly or privately maintained circus, traveling show or rodeo which does not remain in this city longer than thirty(30) days out of each year; (c) Hospitals, clinics and other premises operated by licensed veterinarians for the care and treatment of animals; Any dangerous animal on exhibition, or as apart of a circus, must not be closer than 20 feet to the public. Sale of Dangerous Wild Animals A. It shall be a violation for any person to sell, offer to sell, give away, offer to give away, or otherwise transfer or attempt to transfer ownership of a Dangerous Wild Animal, unless specifically allowed by some other provision of this Chapter. Any person who finds a dangerous wild animal that is at large must immediately notify the Animal Control Facility. This section shall not be interpreted to restrict a person from giving ill, injured, or orphaned wildlife to a state and/or federally licensed wildlife rehabilitator or to a permitted Wildlife Educational Center. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 21 B. For the purposes of this chapter, the Animal Control Supervisor shall make the determination of whether any animal in question is a Pet Animal, a Wild Animal, or a Dangerous Wild Animal. In addition,for the purposes of this chapter, immediately shall mean within thirty (30) minutes of the person finding that a wild animal or dangerous wild animal is at large. DELETE: Sec. 5-16. Carcasses of animals and fowl, removal. It shall be unlawful for any person to deposit or cause to be deposited or permit to remain upon any premises owned or occupied by him, or on premises adjacent thereto or in or upon any of the streets, sidewalks, alleys or other public rights-of-way or places in the City of Beaumont, the caress or parts thereof of any dead animal or fowl owned by him or under his control, but all such carcasses or parts thereof, exceeding the permissible weight for depositing in garbage receptacles, shall be removed by such person to the city's sanitary landfill,or otherwise disposed of as may be directed by the appropriate officer having jurisdiction over garbage and refuse disposal,or the same may be removed by the city at the cost of such person. If the owner of such dead animal or fowl be unknown,or the owner refuses or fails to remove the same, the city shall nevertheless remove any such carcass or parts thereof and the city shall have the right to collect the cost of such service from the owner, if known, by suit. Small animals not to exceed eighty(80)pounds placed next to the street the same as garbage will be picked up by the health department. (Or&No.84-166, § 1, 12-18-84) REPLACE WITH: Dead Animals Disposal;Leaving Carcass Exposed a Nuisance No person shall place or deposit the exposed carcass of any animal or fowl on any street, alley, highway or public place or upon private property or permit to stand any truck or other vehicle containing such carcass on any street, alley, highway or public place or on Private property within the city. The term "exposed"as used in this section is meant the exposure of the carcass of an animal so that putrefying odors may escape and contaminate the air. Such person or persons shall cause the carcass of such animal or fowl to be disposed of as follows: (a) Putting the carcass in tied, double plastic bags and placing at the edge of the driveway, close but not on the roadway; (b) Phoning Animal Control in a timely manner to pick-up and dispose of the bagged, dead animal* before such time that the carcass begins to putrefy, decay and/or become infested with maggots; 'Any animal weighing 801bs or more must be disposed of by the owner or person in possession of dead animal July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 22 • PROPOSED • * * NEW * * ADDITIONS July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 23 Purpose It is the intent and purpose of this chapter to provide a safe and healthy environment within the city for both animals and people. While a person may own and keep animals within the city, the conduct of those animals and the conditions that the animals are kept in should be safe and healthy and should not infringe on the surrounding homes and their inhabitants. Penalties Any animal that is found to be in violation of this chapter may be impounded by the Animal Control Division. Additionally, any person or owner who violates or fails to comply with any portion of this chapter may receive a citation from Animal Control or any local law enforcement agency in accordance with Texas Penal Code, Title 9, Chapter 42, 42.09. Each day of violation of this Chapter shall constitute a separate offense. Tex. Penal Code, Title 9, Chapter 42, 42.09 Cruelty to animals is defined as: " (1)tortures an animal; (2) fails unreasonably to provide necessary food, care, or shelter for an animal in the person's custody; (3) abandons unreasonably an animal in the person's custody; (4) transports or confines an animal in a cruel manner; (5) kills, seriously injures, or administers poison to an animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner's effective consent; (6) causes one animal to fight with another; (7)uses a live animal as a lure in dog race training or in dog coursing on a racetrack; (8) trips a horse; (9) injures an animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner's effective consent; or(10) seriously overworks an animal." • Sections (2), (3), (4), (9), or (10) (provide necessary food, care, shelter; abandons; transports in a cruel manner; injures, or seriously overworks) are a Class A Misdemeanor with a fine up to$4000 and/or imprisonment up to 1 year. • The third conviction of the above - Sections (2), (3), (4), (9), or (10) - is a State Jail Felony, with a fine up to $10,000 and/or imprisonment from 180 days to 2 years. • Sections (1), (5), (6), (7), or (8) (tortures; kills, seriously injures or poisons; animal fighting; uses as a lure; trips a horse) is a State Jail Felony with a fine up to$10,000 and/or imprisonment from 180 days to 2 years. • A third conviction of the above is a - Sections (1), (5), (6), (7), or (8) - Felony of the Third Degree with a fine up to $10,000 and/or imprisonment from 2 to 10 years. Exemptions are made for bona fide scientific research, protection of property or persons, fishing, hunting or trapping, wildlife control, and animal husbandry. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 24 Abatement and Imminent Threat; Right of Entry; Search Warrants A. Animal Control Officers or other law enforcement officers shall have the power to impound animals which create an animal nuisance per se for the purpose of abating a nuisance and in cases where Animal Control Officers have reason to believe an animal has been or is being cruelly treated, has rabies or exhibits other violations of law as follows: (1) On public property, in all cases, (2) On private property, if. (a) The consent of the resident or property owner is obtained, (b) The officer reasonably believes there is immediate and imminent danger or peril to the public if the animal in question is not impounded, or (c) Authorized by appropriate courts of law. (3) The officer has the right to pursue and apprehend animals running at large onto private property while enforcing the provisions of this chapter. B. Any animal observed by the Animal Control Officer or other law enforcement officer to be in immediate danger, in the officer's opinion, may be removed from such situation by the quickest and most reasonable means available. It shall be the responsibility of the animal's owner to repair any damage caused by the removal of the animal from the dangerous situation by the Animal Control Officer or other law enforcement officer. C. The Health Director, Animal Control Supervisor, or assigned designee may order the abatement of the conditions which are not in accordance with this ordinance, other applicable state or federal regulations or laws, or which otherwise constitute a nuisance. Failure to comply with the written notice constitutes grounds for the City to obtain any relief available to by law, including, but not limited to relief by injunction. Additionally, failure to comply with the written notice may subject the violator to administrative proceedings and criminal charges. Selling of Animals (addresses item # 1, pg. 1) Private Animal Sales No owner or person shall display for commercial purpose, offer, sell, trade, barter, lease, rent, or give away, any live animal, on any roadside, public right-of-way, commercial parking lot, or any flea market. This provision does not prohibit the sale or purchase of animals from a person's private residence. Commercial Sale of Animals in a Public Place A. If an animal is offered for sale in a public place within the city, the person offering the animal for sale, the owner of the animal, the manager of the property which is the public place on which the offer is being made, and the owner of the property which is the public place on which the offer is being made, shall be responsible for ensuring July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 25 that all City of Beaumont Ordinances are complied with in regard to the animal offered for sale in a public place during the time the animal is in the public place. B. The term "public place" as used herein shall mean any business to which the public or a substantial group of the public has access. It shall include, but is not limited to pet shops and stores. C. If an animal offered for sale in a public place is kept within a cage or pen of any type, such cage or pen shall comply with the following requirements: (1) The cage or pen must be large enough for the animal to stand on all of its legs and hold its head in a natural position and not be in a crouched position. The cage or pen must also have enough room for the animal to turn around or move without stepping on another animal, animal feces or food or water provided for the animal. (2) The cage or pen must either have room for water and food or have water and food situated so that the animal has access to it throu gh the cage. (3) The cage or pen must be situated so that air may circulate through it, so that any animal kept within the cage or pen is not exposed to extreme heat. During cold or inclement weather, cages or pens should be situated so that animals contained therein may stay warm and stay dry. Inducement (addresses item # 1, pg. 1) A. It shall be a violation of this chapter for any person to give away any live animal, reptile, fowl, livestock or wildlife as a prize or as an inducement to enter any place of amusement, contest, game, raffle, or other competition or an inducement to enter a place of business or to offer such animal as an incentive to enter into any business agreement whereby the offer was for the purpose of attracting trade. This prohibition shall apply to carnivals, fairs and circuses. B. This section shall not be interpreted to restrict any animal from being offered for sale at auction, provided that such sale does not otherwise violate any other section of this Ordinance. C. The prohibition contained in this section shall not apply to fish or to animals given as prizes at a rodeo contest or livestock show or as part of an FFA, 4-H or similar project. Care and Humane Treatment of Animals (addresses items # 2 - # 6, pg. 1) A. Animal Control Officers or law enforcement officers shall utilize the authority granted by federal, state and local laws to lawfully seize and impound any animal if the investigating Animal Control Officer or law enforcement officer has reason to July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 26 believe that an animal has been, or is being cruelly treated, pending a hearing before any Justice of the Peace or any municipal court judge on the issues of cruelty and disposition of the animal. Seizure of the subject animal prior to receiving a warrant is hereby authorized if such a delay endangers the life or well-being of the animal, or if it would unreasonably prolong the suffering of the animal needing immediate attention. B. Animals shall be cared for, treated, maintained, and transported in a humane manner and not in violation of any provision of law, including federal, state, and local laws, ordinances, and administrative rules. C. No person shall leave any animal in any standing or parked vehicle or trailer in such a way as to intentionally, knowingly, recklessly, or with criminal negligence endanger the animal's health, safety or welfare due to heat or cold, lack of food or water, or such other circumstances as may cause injury or death of the animal. An Animal Control Officer, or other law enforcement officer is authorized to use reasonable force to remove the animal from the vehicle whenever it appears that the animal's health, safety or welfare is or will be endangered if the owner of the vehicle cannot be located after reasonable attempts. The animal shall be taken to the animal shelter or to a veterinarian if the animal is in distress. A written notice bearing the name of the officer removing the animal, a telephone number where he can be contacted and the location where the animal may be claimed by the owner shall be attached to the vehicle. Any person violating this section shall bear the full cost and expense incurred by the city in the care, medical treatment, impoundment cost and disposal of the animal, including the removal from a vehicle. It shall be the responsibility of the animal's owner/ owner of the vehicle to repair any damage caused by the removal of ithe animal from the dangerous situation D. Any person who, as the operator of a motor vehicle within the city, strikes any animal shall report the accident to the police department within a reasonable time if the animal stricken is on or near the roadway so that it constitutes a potential traffic hazard. It shall be an affirmative defense to any violation under this section that the incident occurred while the operator was responding to an emergency and that the incident was reported as soon as possible. E. Cages, pens, or enclosures used to confine animals shall be of sufficient size to maintain all of the animals within such pen or enclosures comfortably and in good health. F. In addition, any person, including but not limited to the owner and/or the person who has the care, custody or control of such animal, commits an offense if they: (1) Fail to provide an animal with sufficient good and wholesome food and water; (2) Fail to provide an animal with adequate housing consisting of a three- sided structure with a cover or roof, and a floor that is sufficient to keep the animals dry and ensure that they do not have to lay in water as well as provide shelter and protection from the weather (sun, wind, precipitation in any form, or other inclement weather conditions); Plastic air shipping containers and/or pet carriers shall not be used as outdoor shelters; (3) Fail to provide veterinary care when needed to prevent suffering, and with human care and treatment; July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 27 (4) Fail to provide such animal with sanitary living conditions by removing animal waste from an interior or exterior pen, shelter, yard or other keeping area at least once every 48 hours. Discarding waste on any public or private property shall be considered a violation of this section. (5) Beat, torment, cruelly treat, abuse, overload, seriously overwork, maim, disfigure, burn or scald, mutilate, club, shoot or attempt to shoot with any air rifle, bow and arrow, slingshot, or firearm, or by any other means torture an animal or needlessly kill or injure any animal, wild or owned; (6) Tease, annoy, disturb, molest or irritate an animal that is confined to the owner's premises; (7) Carry or transport an animal in any vehicle or conveyance in a cruel, inhumane, or unsafe manner or fail to effectively restrain such animal (by means of a secured, vented container or cage; by collar or harness tethered to a chain, rope, or other device cross-tied; and upon a nonmetal mat to prevent burning from the metal truck bed) in an unclosed vehicle (including, but not limited to convertibles and pickup trucks) so as to prevent the animal from leaving or being accidentally thrown from the vehicle during normal operation of the vehicle or fail to restrain the animal so as to prevent infliction of bodily harm to passersby; (8) Cruelly confine an animal or force, allow, or permit any animal to remain in its own filth; (9) Crop a dog's ears, dock a tail, remove dew claws, or perform other surgical procedures on a dog or cat, except as provided by the Veterinary Licensing Act by a licensed veterinarian; (10) Use any steel jawed, killer-type, toothed trap designed in such a fashion as to reasonably ensure the cutting, slicing, tearing, or otherwise traumatizing of entrapped prey and commonly known as a "bear trap, wolf trap, or coyote trap" in any zoning district within the city limits,; (11) Abandon an animal, including abandoning an animal in the owner's custody without making reasonable arrangements for the assumption of custody by another person; (12) Instigate or permit any dog fight, cock fight, bullfight, or other combat between animals or between animals and humans; (13) Leave any animal unsupervised in any vehicle without proper ventilation or leave any animal in a standing or parked vehicle in such a way as to endanger the animal's health, safety, or welfare; it shall be considered a violation of this section if any animal is found in a vehicle where the inside temperature of the interior of the vehicle is extremely hot or extremely cold; (14) Throw or allow an animal to jump from a moving or non-moving vehicle in a manner likely to injure the animal; (15) Tie or tether a dog or other animal to a stationary object for a period of time or in a location so as to create an unhealthy situation for the animal or a potentially dangerous situation for a pedestrian, "Unhealthy situation" and "potentially dangerous situation" shall include, but not be limited to: July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 28 (a) Tethering an animal in such a manner as to permit the animal access upon any public "right-of-way;" or to leave it unattended while tethered, chained or fastened on public property; (b) Tethering an animal in such a manner as to cause the animal injury or pain; (c) Tethering an animal in such a manner that does not permit the animal to reach shelter, food, or water; or otherwise create an unsafe or unhealthy situation; (d)Tethering an animal in such a manner that it is subject to attacks by persons or other animals, stinging bites from outdoor insects, or other similar hazards that pose an unreasonable threat of injury to the animal; (e) Failing to remove waste from the tethered area on a daily basis; (f) Using a choke-type collar to tether the animal. (g) Tethering any animal in such as manner as to permit the animal to leave the owner's property; (h) Using a tether that weighs more than one eighteenth (1/18) of the animal's body weight; (i) Tethering with a chain or rope directly around the animal's neck, without a properly fitting collar or harness; It shall be minimally required that the tether used must be at least ten(10) feet in length, equipped with swivel ends, and is attached to a pulley or trolley mounted cable that is mounted no more than seven (7) feet above ground level and positioned in such a manner as to prevent the animal from becoming entangled with any obstruction, from partially or totally jumping any fence, or from leaving any part of its owner's property, and that is secured to the animal using a properly fitted collar or harness. (16) Kill an animal, except as allowed by law; (17) Expose an animal to any poisonous substance, whether mixed with food or not, so that the poison is likely to be ingested by an animal. Provided, however, it shall not be a violation of this section for a person, on his own property, to expose rats or mice to common rat poison intended for the purpose of exterminating the rats or mice; (18) Attach a collar or harness to an animal that is of an inadequate size so that it restricts the animal's growth or causes damage to the animal's skin; (19) Keep, shelter, or harbor any animal having a potentially life-threatening infestation of ticks, fleas, or other parasites, any other obvious life threatening illness, or injury, or any other communicable illness transmissible to animal or human, without having sought and obtained proper treatment from a licensed veterinarian for such infestation or illness; (20) Physically remove from its mother by selling, giving away, delivering, trading, or bartering any dog, cat, ferret, or rabbit less than six (6) weeks old or any other animal that is not yet weaned, except as advised by a licensed veterinarian; 0 (21) Raise or kill a dog or cat for the skin or fur; (22) Mutilate any animal, whether such animal is dead or alive (medical or veterinary medical research, medical or veterinary medical necropsy, and biology class use of animals shall not be considered mutilation); July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 29 (23) Breed or cause to be bred, any animal within the public view; (24) Allow any pet reptile to be loose or"worn" in public; (25) Cause any of the enumerated acts(1-24)listed to be done. Any animal, which is not provided the basic levels of care and protection as outlined in this section may be immediately removed and impounded at the city animal shelter. The animal will remain at the shelter until the conditions are improved and the Animal Control Supervisor has determined that such animal can be safely returned to the owner. The owner reclaiming such animal will be responsible for paying all applicable fees. Same--Exceptions This section shall not be interpreted to restrict the extermination of rats, mice, insects, other vermin, or any such animal deemed a nuisance by state law, through the use of traps, poisons, or other commercially available means when used in accordance with the manufacturer's directions as long as reasonable precautions are taken to ensure that no human, pet, or wild animal, other than the targeted species, comes into contact with the traps, poisons, or other means and that such use does not violate any other section of this Ordinance. This section shall not be interpreted to restrict rodeos, 4H Clubs, or FFA Club activities and operations. Placement and Baiting of Animal Trans A. It shall be unlawful for any person to place or place and bait or to permit the placing or placing and baiting of any trap designed for trapping animals in any highway, street, alley or other public place within the city limits unless specific permission by Animal Control has been granted. However, nothing in this chapter shall prohibit an Animal Control Officer from placing such traps on public or private property as may be necessary to capture animals running at large; B. It shall be unlawful for any person to remove, alter, damage, or otherwise tamper with a trap or equipment belonging to or set out by the Animal Control Division; C. Residents wishing to trap unwanted animals on personal private property may do so with the use of humane cage traps. Traps may be obtained, with a deposit and usage fee, from Animal Control; D. Any traps mentioned in this article found upon public property are hereby declared to be abandoned traps and any Animal Control Officer or law enforcement officer is hereby authorized and directed to impound any such trap and process the same as abandoned property in accordance with the applicable provisions of this Code; E. It shall be unlawful for any person to place or place and bait or to permit the placing or placing and baiting of any steel jawed trap (commonly known as a "bear trap", "wolf trap", "leg hold trap", or "coyote trap")within the city limits. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 30 Office of Animal Services Manager Established; Duties; Enforcement. A. The Animal Control Supervisor, any Animal Control Officer, and any law enforcement officer of the City shall have the authority to issue citations or file charges in Municipal Court for any violation of this chapter and any other power or duty stated within the terms of this chapter. B. It shall be unlawful for any person to knowingly prevent, interfere with, or obstruct the Animal Control Supervisor, an Animal Control Officer, or any law enforcement officer in the performance of their duties. It shall be unlawful for any person to fail to comply with any lawful order of the local Health Director, Animal Control Supervisor, or any Animal Control Officer of the City. C. The local Animal Control Supervisor, any Animal Control Officer, or any peace officer is authorized to, including but not limited to: (1) Humanely euthanize an animal which poses an imminent danger to a person or property or when a real or apparent immediate necessity exists for the destruction of an animal; (2) Impound an animal which is diseased or endangers the health of a person or another animal; (3) Impound any animal found to be running at large within the city; (4) Humanely euthanize an impounded animal if the animal is suffering from injury, disease, or illness; (5) Humanely euthanize any animal suspected of having rabies, or which animal manifests a disposition to bite, when such animal(s) is found at large after having made a reasonable, but unsuccessful, effort to capture the animal; (6) Humanely euthanize any impounded dangerous animal immediately upon impoundment, unless there is reason to believe that it has an owner; (7) Humanely euthanize any wild animal immediately upon impoundment, so long as such act does not violate state of federal laws; (8) Humanely euthanize any nursing baby animal impounded without the mother, or where the mother cannot or refuses to provide nutritious milk, to prevent further suffering; (9) Humanely euthanize an animal when an owner no longer wishes responsibility for an animal or believes the animal to be in an ill or injured condition upon the owner signing a waiver, supplied by the animal shelter, allowing the animal to be immediately euthanized; (10) Humanely euthanize any animal which is diseased or contagious immediately upon capture to prevent contamination of other impounded animals. D. In any complaint and in action or proceeding brought for the enforcement of any provision of this chapter, it shall not be necessary to negate any exception, excuse, July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 31 proviso, or exemption contained in this chapter; and the burden of proof of any such exception, excuse, proviso, or exemption shall be on the owner or defendant as an affirmative defense. E. The City shall be entitled to pursue all other criminal and civil remedies to which it is entitled to under the authority of federal, state or local law. F. No person shall interfere in any manner or give false information to the Local Health Director, Animal Control Supervisor, Animal Control Officers, law enforcement officers and other authorized employees of the City in the performance of their duties. Immediate Euthanasia Authorized A. The Director of Public Health, the Local Health Authority, the Animal Control Supervisor, or any person designated by either the Director of Public Health, City Manager, or City Council acting on behalf of the City, is authorized to kill or immediately euthanize any animal found at large or any impounded animal in the following circumstances: (1) The animal appears to be suffering from serious injury; (2) The animal appears to be suffering from communicable and serious illness, disease or condition; (3) The animal otherwise appears to be suffering extreme pain or agony; (4) Circumstances exist which reasonably cause the Animal Control Supervisor to believe that the animal presents a serious risk to the health or safety of the public; (5) Circumstances exist which reasonably cause the Animal Control Supervisor to believe that the animal presents a serious risk to the health or safety of the animal population of the City Animal Shelter or the animal population of the City; (6) Any dangerous animal of any kind when it is necessary for protection of any person or property; (7) Any feral cat. B. The Animal Control Division may euthanize any impounded animal immediately upon declaration of evacuation of the City due to natural or man-made disasters; any quarantined animals will be handled on a case by case basis at the discretion of the Animal Control Supervisor, who is authorized to do one of the following: (a) Humanely euthanize any quarantined animal, remove the head or brain of the animal and submit it to the nearest Texas Department of Health laboratory for testing of rabies; (b) Release the quarantined animal to the owners, requiring the return of said animal upon return. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 32 Animal in Heat Any person who owns, harbors or keeps any female dog or cat shall, during the period that such animal is in heat or in estrus, shall keep such dog or cat in a secured area that prevents a male dog or cat from having access to such female except for controlled breeding permitted by the owner of the female. Additionally, the female dog or cat shall not be chained or tethered in a manner that prevents her from defending herself or from avoiding a male. Nuisance Animals As used in this article, a nuisance animal shall be defined as any animal which commits any of the acts listed herein: (1) Molests or chases pedestrians, passersby or passing vehicles, including bicycles; (2) Is repeatedly at large; specifically, three or more times per 12-month period; (3) Damages private or public property; (4) Defecates on property not belonging to or under the control of its owner; (5) Barks, whines, howls, crows, crackles or makes any noise excessively and continuously, and such noise disturbs a person of ordinary sensibilities; (6) Is unconfined when in heat; Honeybees. No person shall construct, place or maintain any beehive within 300 feet of any residence other than that of the owner except with the written consent of the occupants of all such residences. It shall be the responsibility of the property owner to remove any beehive which is a nuisance on their property. July 19,2006 Proposed Changes&Additions to City of Beaumont Animal Ordinance 33 The Proposed Animal Cruelty Ordinances have been created from actual ordinances from the following cities: ABILENE Population= 114,757 6 Animal Control Officers Hours of Operation: Mon - Fri 9am—6pm Saturday 1 Oam—2pm �r■■r■■■■■•■■■■...■■.■■rrrrr....■■■■rr■■r.■■■■.rrrrrrrr...r.rr....rrr.rr...■ BEAUMONT Population= 111,799 3 Animal Control Officers Hours of Operation: Mon— Fri 8am— 5pm CARROLLTON Population= 118,870 6 Animal Control Officers (5 regular officers& 1 senior officer) Hours of Operation: Mon, Wed, Fri loam— 5pm Tues & Thurs 10am—6pm Saturday 1:30pm— 5pm LUBBOCK Population=209,737 9 Animal Control Officers Hours of Operation: Mon—thru Fri Sam— 8pm WACO Population= 120,465 5 Animal Control Officers Hours of Operation: Mon—thru Fri lam—5pm Sat & Sun 9am— 5pm