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Home My WebLink AboutPACKET DEC 01 2009 RICH WITH OPPORRTUNITY ILI ► � T • E - X • A • S REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS DECEMBER 1, 2009 1:30 P.M. CONSENT AGENDA * Approval of minutes * Confirmation of committee appointments A) Approve a contract with LD Construction of Beaumont for the placement of hot mix asphaltic concrete which is used for street rehabilitation B) Authorize the granting of a Pipeline License Agreement with TE Products Pipeline Company, LLC A RICH WITH OPPORTUNITY r T • E • x • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager g�(� PREPARED BY: Laura Clark, Chief Financial Officer)"' MEETING DATE: December 1, 2009 REQUESTED ACTION: Council consider authorizing the award of a contract for asphaltic concrete pavement placement. RECOMMENDATION The administration recommends the award of an annual contract to LD Construction of Beaumont, with an estimated total expenditure of$60,000. BACKGROUND Bids were requested for a one (1) year contract for the placement of hot mix asphaltic concrete (HMAC)pavement. HMAC is used for repairs to large street sections in the Street Rehabilitation Program. The Public Works Department, Streets and Drainage Division is responsible for the placement of HMAC. LD Construction will provide the equipment and manpower to lay the asphaltic concrete according to City specifications with the material being supplied by the City. The use of a contracted vendor will allow current work loads to progress at a much faster rate. Six (6) vendors were notified with three (3)bids submitted, as reflected below. Specifications requested pricing for both quantity and type of work. Annual Contract for Asphaltic Concrete Placement December 1,2009 Page 2 Description LD CMM ALLCO Construction Construction Construction Placement of 1-1/2: HMAC 0-1,200 sq. yd $1.00/yd $2.00/yd $14.00/yd 1,201 -3,600 sq. yd $1.00/yd $2.00/yd $12.00/yd over 3,601 sq. yd $0.85/yd $0.90/yd $10.00/yd Placement Level Up 0-1,200 sq. yd $1.00/yd $1.00/yd $14.00/yd 1,201 -3,600 sq. yd $1.00/yd $1.00/yd $12.00/yd over 3,601 sq. yd $0.85/yd $1.00/yd $10.00/yd Street Radius $1.00/yd $1.00/yd $25.00/yd Driveways $2.00/yd $1.00/yd $25.00/yd BUDGETARY IMPACT Funds are available in the Capital Program for the hot laid asphaltic concrete which is used for street rehabilitation. BID TABULATION: ANNUAL CONTRACT FOR HOT MIX ASPHALTIC CONCRETE PAVEMENT PLACEMENT BID OPENING DATE: THURSDAY, NOVEMBER 19, 2009 BID NUMBER: BF1010-04 CMM CONSTRUCTION LID CONSTRUCTION ALLCO CONSTRUCTION BEAUMONT, TX BEAUMONT, TX BEAUMONT, TX DESCRIPTION PRICE (SQ. YD.) PRICE (SQ. YD.) PRICE (SQ. YD.) Placement of 1-1/2" HMAC: 0-1,200 sq. yd $2.00 $1.00 $14.00 1,201-3,600 sq. yd $2.00 $1.00 $12.00 over 3,601 sq. yd $0.90 $0.85 $10.00 Placement Level Up: 0-1,200 sq. yd $1.00 $1.00 $14.00 1,201-3,600 sq. yd $2.35 $1.00 $12.00 over 3,601 sq. yd $1.05 $0.85 1 $10.00 Street Radius $1.00 $1.00 $25.00 !Driveways $1.00 $2.00 $25.00 RESOLUTION NO. WHEREAS, bids were solicited for an annual contract for hot mix asphaltic concrete (HMAC) pavement placement for the Public Works Department, Streets and Drainage Division; and, WHEREAS, LD Construction of Beaumont, Texas, submitted a bid in the estimated amount of $60,000 in the unit amounts shown below: Description Placement of 1-1/2: HMAC 0-1,200 sq. yd $1.00/yd 1,201 - 3,600 sq. yd 1.00/yd over 3,601 sq. yd 0.85/yd Placement Level Up 0-1,200 sq. yd 1.00/yd 1,201 - 3,600 sq. yd 1.00/yd over 3,601 sq. yd 0.85/yd Street Radius 1.00/yd Driveways 2.00/yd and, WHEREAS, City Council is of the opinion that the bid submitted by LD Construction should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the bid submitted by LD Construction for an annual contract for HMAC pavement placement for the Public Works Department, Streets and Drainage Division, in the estimated amount of $60,000 in the unit amounts shown above be accepted by the City of Beaumont. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of December, 2009. - Mayor Becky Ames - B RICH WITH OPPORTUNITY 11CM ( T • E • x • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Director of Public WorksTP& MEETING DATE: December 1, 2009 REQUESTED ACTION: Council consider authorizing the granting of a Pipeline License Agreement within City of Beaumont limits. RECOMMENDATION The Administration recommends authorization to grant a Pipeline License Agreement to cross within City of Beaumont limits near West Port Arthur Road. BACKGROUND TE Products Pipeline Company, LLC (TEPPCO) has requested permission to install a 10" (ten inch) Valero Lateral pipeline within the city limits of Beaumont. The pipeline is for the purpose of transporting oil, gas, water or their refined products from TEPPCO's tank farm in southeast Beaumont to just east of West Cardinal Drive and will be constructed in accordance with City requirements. BUDGETARY IMPACT There is a one-time fee of$500 for the Pipeline License Agreement. engteppco-ib 20 November 2009 r HDD ENTRY AT DEPTH 70" VALERO LATERAL STA. 6+29 " X= 3,531,914.96' I+ } Y= 13,948,403.1 T . , LA T. 30' 00' 41.72,. LON. 94. 03' 31.64" HDD EXIT s�U� 10" VALERO LATERAL STA. 12+48.69 ♦ s X= 3,531,533.89' ♦ �� Y= 13,947,914.22' STA. O+DO LA T. 30' DO' 3704" LON 94' 03' 36.21" • BEGINNING OF PROPOSED 10" VALERO LATERAL PIPELINE `- BORE ENTRY STA. STA 48+38 ( ) f X= 3,529,898.74' Y= 13,945,149.56' LA T. 94 00' 10.38" O LON 94 03' 56.11" E TEPPCO c TANK FARM 49+38 529,814.53' p945,095.63'00' 09.88"03' 57.70" O �O t •f LNUA CROS IIX6 O GARNER LATERAL HDD EXIT AT DEPTH STA. 59+26.78 10" VALERO LATERAL d,• X= 3,529,083.95' STA 54+14.50 Y= 13,944,442.07' _ X= 3,529,424.43' LA T. 30' 00' 3.72" Y= 13,944,824.82' LON. 94' 04' 5.77" . LA T. 30' DO' 07.37' LON. 94' 04' 01.66' STA. 65+33 END OF PROPOSED HDD ENTRY AT DEPTH 10" VALERO LATERAL 10" VALERO LATERAL PIPELNE STA. 62+74.50 X= 3,528,892.72' Y= 13,944,227.09' LAT 30' 00' 01.68" LON. 94' 04' 07.99" 0' 400' 800' GRAPHIC SCALE PROJECT CONSULTING SERVICES;INC. F PROPOSED 10' PIPELINE PLAN VIEW N � o 4 mm ev w WE OBA41co ,arm A-PWV n BY WE @ CHMM W RPC WE 08A4/09 1 IPPWM)BY - DUE - w ■w'a ..em...s, scmz AS o pI,,nA i sir , aMM 1OfLf EW y w — F� y�yy i.,LL'�rjsv �s v� e CITY LIMITS OF BEALMONT, JEFFERSON COUNTY. TEXAS q i K � ii '� .RN' tti i 9 •S I ly 4 (>T 8 r X= 3,532,434.29 Y=13,948,457.42' n. m LAT: 30 00' 42.04' N } { � �r; LON• 94' 03' 25.71' W r pphh r• •� •.. � �.�-,�i ,x� '�� "��¢ PROPOSED 10' 'a� s•+ X= 3,528,874.83' �, ^'��. ,zy, '� r. PIPEIJRNE�� 0' 5000' 10,000' PROJECT CONSULTING SERVICES.INC. .t ' GRAPHIC SCALE 1 NOTES. 1. TEXAS COORDINATE SYSTEM, (1983 SOUTH CENTRAL ZONE) PROPOSED 10" PIPELINE JEFFERSON COUNTY, TEXAS PROJECT ROUTE MAP 1� 0RA11N er erg CAn 10/09/09 T PPW APPROVED er DATE C1EOW W WC 6VE 10/00/09 8 APPRROM ar - dOE - neea"� near rew SC E As RMM 10PROJROIITE SHM 1 OF ra •(''��'i..l •, _,-�—r�5,� .-sb�.-x".j�- r • i,7i` ( >>" it..'. - t�.� t1..i�c � - .. - 1I C �li ..•„ eta, t ?: �� }.l ✓j his rlb�hY._ "� �..r! ��i' /. , Z71 ;gw ' r 1 •+:- V `yz'y✓:r� 27''� •, i�i� X` ri rw.`r��` I `I N, s - 2z �'�il f „a �} •' ./y ir t 5e' ✓ rM$Ei P 'otl i1lDr r .Y i ` gw_rr• /'ry-1 t i't l�':wb !� •� ••,, 51�,_r( ✓ �� 1• - " A PROPOSED 10 �, �t�� i � '� 2 ♦ -..yi- '` VALERO LATERAL i r'.PIPELINE LWA CANAL }r'i.( t.> TEPPCO ' ,,.TANK FARAI�t� l04 i•, Gmder. BUJr4 V-r•- -- / •:� �y :t)l l Al �O� w 1 � �•� �oo�oa�ofi s - " a � � _ ' _ ---- -- mow: - •! - -_ - _.�.,,,-.-y...ora""___.�. lr _ �-.r',. Fir �--_ _- I � `, �� << -_ - � �•A �r ,�`.....� f_. _ ,.rte +� O \ ' /i .,>p. try r •t ,�.: - , i '-. �- nn.., t ----" •�••1,`��'tl, Vie,. 0l�` 0' 2000' 4000' GRWAAPHIC S PROJECT CONSULTING SERVICES;INC. AF E n PROPOSED 10' PIPELINE PROJECT LOCATION VICINITY MAP � I5 a DRANK We On 0.11E 08/41/09 1 704=APPROYFD BY DAM ao CHEM or III 611E 00/4 4/09 APPWAD m - 0.11E - ,.•�, .� R� C T V - � 1�° 1 1OPROJLOGMCMAP 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 grant a Pipeline License Agreement to TE Products Pipeline Company, LLC, to install a ten inch (10")Valero lateral pipeline to cross within City of Beaumont limits near West Port Arthur Road for the purpose of transporting oil, gas, water or related refined products. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of December, 2009. - Mayor Becky Ames - RICH WITH OPPORTUNITY 11111 ► ( T - E - X - A - S REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS DECEMBER 1, 2009 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 approving an ordinance authorizing the issuance and sale of up to $30 Million City of Beaumont, Texas, Certificates of Obligation, Series 2009; levying taxes to provide for payment thereof, and containing other matters related thereto 2. Consider approving a resolution to provide for the reimbursement of costs incurred prior to issuance of Certificates of Obligation or other tax exempt obligations 3. Consider approving the purchase of Heating, Ventilating, and Air Conditioning (HVAC) automation controls for use in various city facilities 4. Consider approving a contract for the purchase of asphaltic concrete for use by the Streets and Drainage Division COMMENTS * Councilmembers/City Manager comment on various matters * Public Comment (Persons are limited to 3 minutes) EXECUTIVE SESSION * Consider matters related to contemplated or pending litigation in accordance with Section 551.071 of the Government Code: In Re: City of Beaumont, Texas, and Local 399, AAA Case No. 70 390 00042 09, Disciplinary Appeal of James Mathews, Jr. 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 December 1, 2009 Consider approving an ordinance authorizing the issuance and sale of up to $30 Million City of Beaumont, Texas, Certificates of Obligation, Series 2009; levying taxes to provide for payment thereof; and containing other matters related thereto ILI .[I 1�1 [I I T T • E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer MEETING DATE: December 1, 2009 REQUESTED ACTION: Council consider an ordinance authorizing the issuance and sale of up to $30 Million City of Beaumont, Texas, Certificates of Obligation, Series 2009; levying taxes to provide for payment thereof; and containing other matters related thereto. RECOMMENDATION The administration requests approval. BACKGROUND Results of the sale will be presented by the City's Financial Advisor, Ryan O'Hara of RBC Capital Markets. A recommendation will be made to award the bonds to the underwriters. The certificates will mature March 1, 2011 through March 1, 2034 with interest payable semiannually in March and September beginning March 1, 2010. The Bank of New York Trust Company, N.A., Dallas, Texas, will serve as paying agent/registrar. Delivery and receipt of proceeds by the City are scheduled for December 29, 2009. Proceeds will be used to provide funds for various street, drainage and general improvement projects. BUDGETARY IMPACT All debt shall be incurred in the Debt Service Fund which is supported by property taxes. The current debt service property tax rate is $.199723/$100 assessed valuation. It is anticipated that in Fiscal Year 2011 one-half of one cent will need to be shifted from the General Fund to the Debt Service Fund to meet debt service requirements on these and existing certificates. A.8 ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF $30,000,000 THE CITY OF BEAUMONT,TEXAS, CERTIFICATES OF OBLIGATION, SERIES 2009; LEVYING TAXES TO PROVIDE FOR PAYMENT THEREOF; AND CONTAINING OTHER MATTERS RELATED THERETO THE STATE OF TEXAS § COUNTY OF JEFFERSON § THE CITY OF BEAUMONT § WHEREAS, the City Council of The City of Beaumont,Texas (the "City"), has heretofore authorized the publication of a notice of intention to issue certificates of obligation to the effect that the City Council would meet on December 1, 2009, the date tentatively set for passage of an ordinance and such other action as may be deemed necessary to authorize the issuance of certificates of obligation payable from City ad valorem taxes and a pledge of certain revenues of the City's waterworks and sewer system, or as soon thereafter as may be practicable, for the purpose of evidencing the indebtedness of the City for the cost of(1) reconstruction of Cedar Street between Eleventh Street and the Amtrak Station and construction of adjacent Police Substation and parking lot; (2) construction of improvements to existing Athletic Complex Tennis Center, including new clubhouse, tennis courts, lighting, parking, landscaping, bleachers and fencing; (3) design services for a new Central Fire Station in vicinity of Gulf and Caldwell Streets; (4) improvements to the Civic Center, including improvements to kitchen, a new warehouse, dock and ticket booth; (5) expansion of Communications Building, including expansion and additional equipment; (6) construction of a new Downtown Event Center and Lake Park adjacent to MLK Parkway, Crockett Street, and Neches Street, including construction of improvements and a two-acre lake; (7) construction and furnishing of a new downtown library on Crockett Street; (8) construction of a downtown waterway and infrastructure improvements to connect new Event Center and Lake Park to Pearl Street, including sidewalks, lighting and amenities; (9) construction of EMS Station No. 2 on Washington Boulevard; (10) relocation and construction of Fire Station No. 2 on Helbig Road near East Lucas Street; (11) relocation and construction of Fire Station No. 7 on College Street between Lindberg and Langham, (12) relocation and construction of Fire Station No. 11 on Sabine Pass Street; (13) construction of a Fleet Fire Maintenance shop facility for the Fire Department at Lafin Road Fleet Service Center; (14) reconstruction of parking lot for existing Fleet Service Center; (15) construction of a hiking and biking trail between Delaware Street and Folsom Road; (16) rehabilitation and improvements to Beaumont Municipal Airport, including work on runways and aprons and new equipment; (17) interior renovations and new roof and generator for the existing Municipal Court/911 Dispatch/EOC Building; (18) renovations to Police Department Property Building to be used for storage and offices; (19) construction of a new Public Health Complex office building (new site not yet identified) and furnishings and equipment; (20) acquisition of properties for the Downtown Event Center and Lake Park (see item 6 above) and demolition of substandard structures; (21) stabilization of bank of existing Riverfront Park and replacement of lighting and renovations at Park; (22) construction of a new senior citizens' center to replace existing Best Year's Center; (23) acquisition of a building to house Emergency Management supplies; (24) construction of a new Transportation Operations Shop at existing Fair Park site; (25) construction of addition to Tyrrell Historical Library; (26) construction of a new community center and other improvements at Tyrrell Park; (27) repair and maintenance of walking trails at various City parks; (28) authorized street and drainage improvements throughout the City; (29) the cost of professional services incurred in connection with the respective projects; and (30) costs of issuance of debt and related fees; and WHEREAS, such notice was published at the times and in the manner required by the Constitution and the laws of the State of Texas and the United States of America, respectively, particularly Chapter 271, Texas Local Government Code, as amended; and WHEREAS, no petition signed by at least five percent (5%) of the qualified voters of the City has been received by the City Clerk prior to the date of this Ordinance protesting the issuance of the certificates of obligation; and WHEREAS, the City Council of the City has determined to authorize such certificates of obligation for the purposes set out in this Ordinance; and WHEREAS, the City is authorized, pursuant to Chapter 1502, Texas Government Code, as amended, to make a limited, junior and subordinate pledge not more than $10,000 of the net revenues of the City's waterworks and sewer system as security for the certificates of obligation authorized herein; WHEREAS, the Certificates hereinafter authorized shall be issued as current interest certificates of$ and premium capital appreciation certificates of S as hereinafter provided NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT, TEXAS: 1. Preamble. 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 'Business Day" shall mean any day which is not a Saturday, Sunday, a legal holiday, or a day on which the Registrar is authorized by law or executive order to close. The term "Certificates" or "Series 2009 Certificates" shall mean the Certificates of Obligation, Series 2009, authorized in this Ordinance, unless the context clearly indicates otherwise, and which shall include $ of Premium Capital Appreciation Certificates and S of Current Interest Certificates, as hereinafter authorized and provided. The term "Certificates Insurance Policy" shall mean, if a policy is acquired pursuant to the authorization herein, the municipal bond guaranty insurance policy issued by the Insurer insuring the payment when due of the principal of and interest on the Certificates as provided therein. The term "City" shall mean The City of Beaumont, Texas. - 2 - The term "Code" shall mean the Internal Revenue Code of 1986, as amended. The term "Comptroller" shall mean the Comptroller of Public Accounts of the State of Texas. The term "Construction Fund" shall mean the construction fund established by the City pursuant to Section 20 of this Ordinance. The term "Current Interest Certificates" shall mean the $ of Current Interest Certificates authorized in Section 5(a) hereof. The term "DTC" shall mean The Depository Trust Company of New York, New York, or any successor securities depository. The term 'DTC Participant" shall mean 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 the DTC Participants. The term "Insurer" shall mean the issuer of the Certificates Insurance Policy. The term "Interest and Sinking Fund" shall mean the interest and sinking fund established by the City pursuant to Section 20 of this Ordinance. The term "Interest Payment Date", when used in connection with any Certificate, shall mean March 1, 2010, and each March 1 and September 1 thereafter until maturity or earlier redemption. The term "Issuer" shall mean the City. The term "Maturity Amount" shall mean the amount payable to the Owner of a Premium Capital Appreciation Certificate at the maturity thereof, which shall include principal, premium and accrued and compounded interest. The term "Net Revenues" shall mean the revenues of the System remaining after deduction of the reasonable and necessary expenses of operation and maintenance of the System. The term "Obligations" shall mean the Certificates. The tern "Ordinance" as used herein and in the Certificates shall mean this Ordinance authorizing the Certificates. The tern "Owner" or "Registered Owner", when used with respect to any Certificate, shall mean the person or entity in whose name such Certificate is registered in the Register. The term "Paying Agent" shall mean the Registrar. - 3 - The term "Premium Capital Appreciation Certificates" shall mean the S of Premium Capital Appreciation Bonds authorized in Section 5(b)hereof. The term "Record Date" shall mean, for any Interest Payment Date, the 15th day of the month next preceding such Interest Payment Date. The term "Register" shall mean the books of registration kept by the Registrar in which are maintained the names and addresses of and the principal amounts registered to each Owner. The term "Registrar" shall mean THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Dallas, Texas, and its successors in that capacity. The term "SEC" shall mean the United States Securities and Exchange Commission and its successors. The term "System" shall mean the City's waterworks and sewer system. The term "Underwriter" shall mean, collectively, Estrada Hinojosa & Co., Inc, Wells Fargo Securities, LLC, and Coastal Securities. 3. Authorization. The Certificates shall be issued in fully registered form, without coupons, in the total authorized aggregate amount of Dollars (S ), for the purpose of evidencing the indebtedness of the City for the cost of(1) reconstruction of Cedar Street between Eleventh Street and the Amtrak Station and construction of adjacent Police Substation and parking lot; (2) construction of improvements to existing Athletic Complex Tennis Center, including new clubhouse, tennis courts, lighting, parking, landscaping, bleachers and fencing; (3) design services for a new Central Fire Station in vicinity of Gulf and Caldwell Streets; (4) improvements to the Civic Center, including improvements to kitchen, a new warehouse, dock and ticket booth; (5) expansion of Communications Building, including expansion and additional equipment; (6) construction of a new Downtown Event Center and Lake Park adjacent to MLK Parkway, Crockett Street, and Neches Street, including construction of improvements and a two- acre lake; (7) construction and furnishing of a new downtown library on Crockett Street; (8) construction of a downtown waterway and infrastructure improvements to connect new Event Center and Lake Park to Pearl Street, including sidewalks, lighting and amenities; (9) construction of EMS Station No. 2 on Washington Boulevard; (10) relocation and construction of Fire Station No. 2 on Helbig Road near East Lucas Street; (11) relocation and construction of Fire Station No. 7 on College Street between Lindberg and Langham, (12) relocation and construction of Fire Station No. 11 on Sabine Pass Street; (13) construction of a Fleet Fire Maintenance shop facility for the Fire Department at Lafin Road Fleet Service Center; (14) reconstruction of parking lot for existing Fleet Service Center; (15) construction of a hiking and biking trail between Delaware Street and Folsom Road; (16) rehabilitation and improvements to Beaumont Municipal Airport, including work on runways and aprons and new equipment; (17) interior renovations and new roof and generator for the existing Municipal Court/911 Dispatch/EOC Building; (18) renovations to Police Department Property Building to be used for storage and offices; (19) construction of a new Public Health Complex office building (new site not yet identified) and furnishings and equipment; (20) - 4 - acquisition of properties for the Downtown Event Center and Lake Park (see item 6 above) and demolition of substandard structures; (21) stabilization of bank of existing Riverfront Park and replacement of lighting and renovations at Park; (22) construction of a new senior citizens' center to replace existing Best Year's Center; (23) acquisition of a building to house Emergency Management supplies; (24) construction of a new Transportation Operations Shop at existing Fair Park site; (25) construction of addition to Tyrrell Historical Library; (26) construction of a new community center and other improvements at Tyrrell Park; (27) repair and maintenance of walking trails at various City parks; (28) authorized street and drainage improvements throughout the City; (29) the cost of professional services incurred in connection with the respective projects; and (30) costs of issuance of debt and related fees, which projects shall be financed with the proceeds of the Certificates in such order of priority as determined by the City Council. 4. Designation Date and Interest Payment Dates. The Certificates shall be designated as the "THE CITY OF BEAUMONT, TEXAS, CERTIFICATES OF OBLIGATION, SERIES 2009", and shall be dated December 1, 2009. The Current Interest Certificates shall bear interest at the rates set forth in the schedule in Section 5 below, from the later of December 1, 2009, or the most recent Interest Payment Date to which interest has been paid or duly provided for, calculated on the basis of a 360-day year of twelve 30-day months, which interest shall be payable on March 1, 2010, and semiannually thereafter on March 1 and September 1 of each year until maturity or earlier redemption. Interest on the Premium Capital Appreciation Certificates shall accrete from the date of their initial delivery and will be payable only at maturity and will compound on each March 1 and September 1 of each year, commencing March 1, 2010. 5. Certificates, Numbers and Denominations. (a) The Current Interest Certificates shall be in the total aggregate principal amount of $ and shall be issued in the principal amounts, and bearing interest at the rates set forth in the following schedule, shall be numbered from CR-1 and upward, and may be transferred and exchanged as set out in this Order. The Current Interest Certificates shall mature on March 1 in each of the years and in the amounts set out in such schedule. Current Interest Certificates delivered in transfer of or in exchange for other Current Interest Certificates shall be numbered in order of their authentication by the Registrar, shall be in the denomination of$5,000 or integral multiples thereof, and shall mature on the same date and bear interest at the same rate as the Current Interest Certificate or Current Interest Certificates in lieu of which they are delivered. Certificate Year Principal Interest Number of Maturity Amount Rate CR-1 2011 CR-2 2012 CR-3 2013 CR-4 2014 SEE EXHIBITA CR-5 2015 CR-6 2016 CR-7 2017 CR-8 2018 - 5 - CR-9 2019 CR-10 2020 CR-11 2021 CR-12 2022 CR-13 2023 CR-14 2024 CR-15 2025 CR-16 2026 CR-17 2027 CR-18 2028 CR-19 2029 CR-20 2030 CR-21 2031 CR-22 2032 CR-23 2033 CR-24 2034 (b) The Premium Capital Appreciation Certificates shall be in the total principal amount of$ and shall be issued in the principal amounts, and bearing interest at the rates set forth in the following schedule, shall be numbered from PC-1 and upward, and may be transferred and exchanged as set out in this Ordinance. The Premium Capital Appreciation Certificates shall mature on March 1 in each of the years and in the Maturity Amounts set out in such schedule. Premium Capital Appreciation Certificates delivered in transfer of or in exchange for other Premium Capital Appreciation Certificates shall be numbered 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 Premium Capital Appreciation Certificate or Premium Capital Appreciation Certificates in lieu of which they are delivered. Certificate Year of Principal Yield to Maturity Number Maig!ily Amount Maturity Rate Amount CP-I CP-2 SEE EXHIBIT A CP-3 C P-4 6. Execution of Certificates; Seal. The Certificates shall be signed by the Mayor or Mayor Pro Tem of the City and countersigned by the City Clerk or Deputy City Clerk of the City, 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 Certificates shall have the same effect as if each of the Certificates had been signed manually and in person by each of said officers, and such facsimile seal on the Certificates shall have the same effect as if the official seal of the City had been manually impressed upon each of the Certificates. If any officer of the City whose manual or facsimile signature shall appear on the Certificates shall cease to be such officer before the authentication of such Certificates or before the delivery of such Certificates, such - 6 - 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 Comptroller. The Certificates to be initially issued shall be issued in the name of Cede & Co. and delivered to the Attorney General of the State 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 17 of this Ordinance shall be attached or affixed to the initial Certificates. 8. Authentication. Except for the Certificates to be initially issued, which need not be authenticated by the Registrar, only Certificates which bear thereon a certificate of authentication, substantially in the form provided in Section 17 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 Certificates 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 Certificates. The principal of the Certificates 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 become due and payable, at the designated corporate trust office of the Registrar. The interest on each Certificate shall be payable by check payable 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 Register. If the date for payment of the principal of or interest on any Certificate is not a Business Day, then the date for such payment 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 payment was due. 10. Successor Registrars. The City covenants that at all times while any Certificates are outstanding it will provide a bank, trust company, financial institution or other entity duly qualified and duly authorized to act as Registrar for the Certificates. The City reserves the right to change the Registrar on not less than sixty (60) days' written notice to the Registrar, so long as any such notice is effective not less than sixty (60) days prior to the next succeeding principal or interest payment date on the Certificates. Promptly upon the appointment of any successor Registrar, the previous Registrar shall deliver the 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 Certificate 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 - 7 - 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) business 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 Certificate is registered as the absolute Owner of such Certificate for the purpose of making payment of principal or interest on such Certificate, and for all other purposes, whether or not such Certificate 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 Certificate in accordance with this Section 12 shall be valid and effectual and shall discharge the liability of the City and the Registrar upon such Certificate to the extent of the sums paid. Amounts held by the Registrar which represent principal of and interest on the Certificates remaining unclaimed by the Owner after the expiration of three (3) years from the date such amounts have become due and payable shall be reported and disposed of by the Registrar in accordance with the provisions of Texas law, including to the extent applicable, Title 6 of the Texas Property Code, as amended. 13. Registration, Transfer, and Exchange; Special Election for Uncertificated Certificates. So long as any Certificates remain outstanding, the Registrar shall keep the 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 Certificates in accordance with the terms of this Ordinance. Each Certificate 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 Certificate for transfer, the Registrar shall authenticate and deliver in exchange therefor, within three (3) Business Days after such presentation, a new Certificate or Certificates, 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 Certificate or Certificates so presented. All Certificates shall be exchangeable upon presentation and surrender thereof at the principal corporate trust office of the Registrar for a Certificate or Certificates of the same maturity and interest rate in any authorized denomination, in an aggregate principal amount equal to the unpaid principal amount of the Certificate or Certificates presented for exchange. The Registrar shall be and is hereby authorized to authenticate and deliver exchange Certificates in accordance with the provisions of this Section 13. Each Certificate delivered in accordance with this Section 13 shall be entitled to the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in lieu of which such Certificate is delivered. The City or the Registrar may require the Owner of any Certificate to pay a sum sufficient - 8 - to cover any tax or other governmental charge that may be imposed in connection with the transfer or exchange of such Certificate. Any fee or charge of the Registrar for such transfer or exchange shall be paid by the City. Neither the City nor the Registrar shall be required to transfer or exchange any Certificate called for redemption, in whole or in part, within forty-five (45) days of the date fixed for redemption; provided, however, such limitation on transfer shall not be applicable to an exchange by the Owner of the unredeemed balance of a Certificate called for redemption in part. Notwithstanding any other provision hereof, but at the sole election of the Underwriter, the ownership of the Certificates shall be registered in the name of Cede & Co., as nominee of DTC, and except as otherwise provided in this Section, all of the outstanding Certificates shall be registered in the name of Cede & Co., as nominee of DTC. The definitive Certificates shall be initially issued in the form of a single separate certificate for each of the maturities thereof. If the Underwriter shall elect to invoke the provisions of this Section, then the following provisions shall take effect with respect to the Certificates. With respect to Certificates 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 Certificates. 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 Certificates, (ii) the delivery to any DTC Participant or any other person, other than an Owner of a Certificate, as shown on the Register, of any notice with respect to the Certificates, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than an Owner of a Certificate, as shown in the Register, of any amount with respect to principal of, premium, if any, or interest on the Certificates. 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 Certificate is registered in the Register as the absolute Owner of such Certificate for the purpose of payment of principal of, premium, if any, and interest on the Certificates, for the purpose of all matters with respect to such Certificates, for the purpose of registering transfers with respect to such Certificates, and for all other purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest on the Certificates only to or upon the order of the respective Owners, as shown in the Register as provided in this Ordinance, 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 Certificates to the extent of the sum or sums so paid. No person other than an Owner as shown in the Register, shall receive a certificate for a Certificate evidencing the obligation of the City 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 Ordinance shall refer to such new nominee of DTC. In the event that the City or the Registrar determines that DTC is incapable of discharging its responsibilities described herein and in the Letter of Representation and that it is in the best interest of the beneficial Owners of the Certificates that they be able to obtain certificated - 9 - Certificates, or if DTC Participants owning at least 50% of the Certificates outstanding based on current records of the DTC determine that continuation of the system of book-entry transfers through the DTC (or a successor securities depository) is not in the best interest of such beneficial Owners of the Certificates, or in the event DTC discontinues the services described herein, the City or the Registrar 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 of the appointment of such successor securities depository and transfer one or more separate Certificates to such successor securities depository or (ii) notify DTC of the availability through DTC of Certificates and transfer one or more separate Certificates to DTC Participants having Certificates credited to their DTC accounts. In such event, the Certificates 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 Certificates shall designate, in accordance with the provisions of this Ordinance. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Certificates 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 the Certificates, and all notices with respect thereto, shall be made and given in the manner provided in the Letter of Representation. 14. Mutilated, Lost, or Stolen Certificates. Upon the presentation and surrender to the Registrar of a mutilated Certificate, the Registrar shall authenticate and deliver in exchange therefor a replacement Certificate of like maturity, interest rate and principal amount, bearing a number not contemporaneously outstanding. If any Certificate is lost, apparently destroyed, or wrongfully taken, the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or knowledge that such Certificate has been acquired by a bona fide purchaser, shall execute and the Registrar shall authenticate and deliver a replacement Certificate of like amount, bearing a number not contemporaneously outstanding. The City or the Registrar may require the Owner of a mutilated Certificate to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith and any other associated expenses, 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 Certificate, before any replacement Certificate 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 Certificate; (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 - 10 - (4) meet any other reasonable requirements of the City and the Registrar. If, after the delivery of such replacement Certificate, a bona fide purchaser of the original Certificate in lieu of which such replacement Certificate was issued presents for payment such original Certificate, the City and the Registrar shall be entitled to recover such replacement Certificate 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 Certificate has become or is about to become due and payable, the City in its discretion may, instead of issuing a replacement Certificate, authorize the Registrar to pay such Certificate. Each replacement Certificate delivered in accordance with this Section 14 shall be entitled to the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in lieu of which such replacement Certificate is delivered. 15. Cancellation of Certificates. All Certificates paid in accordance with this Ordinance, and all Certificates in lieu of which exchange Certificates or replacement Certificates 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 Certificates. 16. Optional and Mandatory Redemption; Defeasance. (a) The City reserves the right, at its option, to redeem Current Interest Certificates having stated maturities on and after March 1, 2020, in whole or in part, on March 1, 2019, or any date thereafter, at a price of par plus accrued interest to the date fixed for redemption. If less than all of the Certificates are to be redeemed, the City shall determine the Certificates, or portions thereof, to be redeemed. The Current Interest Certificates maturing in the year 20_ (the "Term Certificates") are also subject to mandatory redemption prior to scheduled maturity, in the amount, on the date, and on the terms set out in the form of Certificates in this Ordinance, at a price of par plus accrued interest to the date fixed for redemption. Certificates may be redeemed only in integral multiples of$5,000. If a Certificate subject to redemption is in a denomination larger that $5,000, a portion of such Certificate may be redeemed, but only in integral multiples of$5,000. Upon surrender of any Certificate for redemption in part, the Registrar, in accordance with Section 13 hereof, shall authenticate and deliver in exchange therefor a Certificate or Certificates of like maturity and interest rate in an aggregate principal amount equal to the unredeemed portion of the Certificate so surrendered. Not less than thirty (30) days prior to a redemption date for the Certificates, the City shall cause a notice of redemption to be sent by United States mail, first class, postage prepaid, to each - 11 - Owner of each Certificate 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 Certificates are to be surrendered for payment and, if less than all the Certificates are to be redeemed, the numbers of the Certificates 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 Certificates or portions thereof to be redeemed. When Certificates have been called for redemption in whole or in part and due provision made to redeem the same as herein provided, the Certificates 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 Certificate or portion thereof called for redemption shall terminate on the date fixed for redemption. (b) The Premium Capital Appreciation Certificates shall not be subject to redemption prior to maturity. (c) The City may defease the provisions of this Ordinance and discharge its obligation to the Owners of any or all of the Certificates to pay principal, interest and redemption premium, if any, thereon in any manner permitted by law, including by depositing with the Paying Agent/Registrar, or if authorized by Texas law, with any national or state bank having trust powers and having combined capital and surplus of at least $50 million, or with the State Treasurer of the State of Texas either: (a) cash in an amount equal to the principal amount and redemption premium, if any, of such Series 2009 Certificates plus interest thereon to the date of maturity or redemption; or (b) pursuant to an escrow or trust agreement, cash and/or direct obligations of, or obligations the principal of and interest on which are guaranteed by or secured by the pledge of direct obligations of 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 Certificates plus interest thereon to the date of maturity or redemption; provided, however, that if any of such Series 2009 Certificates are to be redeemed prior to their respective dates of maturity, provision shall have been made for giving notice of redemption as provided in this Ordinance. Upon such deposit, such Certificates shall no longer be regarded to be Outstanding or unpaid. Any surplus amounts not required to accomplish such defeasance shall be returned to the City. Notwithstanding anything herein to the contrary, in the event that the principal and/or interest due on the Certificates shall be paid by Insurer pursuant to the Insurance Policy, the Certificates shall remain outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and the assignment and limited pledge of the Net Revenues and all covenants, agreements and obligations of the City to the registered owners shall continue to exist and shall run to the benefit of Insurer, and Insurer shall be subrogated to the rights of such registered owners. 17. Forms. (a) The form of the Current Interest Certificates, including the form of the Registrar's Authentication Certificate, the form of Assignment, and the form of Registration Certificate of the - 12 - Comptroller of Public Accounts of the State of Texas which shall be attached or affixed to the Certificates 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 CURRENT INTEREST CERTIFICATE UNITED STATES OF AMERICA STATE OF TEXAS COUNTY OF JEFFERSON NUMBER DENOMINATION CR $ REGISTERED REGISTERED THE CITY OF BEAUMONT, TEXAS CERTIFICATE OF OBLIGATION SERIES 2009 INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP: December 1, 2009 REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS THE CITY OF BEAUMONT, TEXAS (the "City"), promises to pay to the registered owner identified above, or registered assigns, on the date specified above, upon presentation and surrender of this certificate at the designated corporate trust office of THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Dallas, Texas (the "Registrar"), or at its principal payment office in Dallas, Texas, 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 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 Dated Date specified above, or the most recent interest payment date to which interest has been paid or duly provided for. Interest on this Certificate is payable by check on March 1, 2010, and semiannually thereafter on each March 1 and September 1, mailed to the registered owner as shown on the books of registration kept by the Registrar as of the 15th day of the month next preceding each interest payment date. THIS CERTIFICATE is one of a duly authorized issue of Certificates of Obligation, that includes both Current Interest Certificates and Premium Capital Appreciation Certificates, aggregating $ (the "Certificates"), issued in accordance with the Constitution and the laws of the State of Texas, particularly Chapter 271, Texas Local Government Code, as amended, for the cost of construction of authorized street, drainage, building, park and other capital improvements, the purchase of equipment and the cost of issuance of the Certificates, pursuant to - 13 - an ordinance duly adopted by the City Council of the City on December 1, 2009 (the "Ordinance"), which Ordinance is of record in the official minutes of the City Council. This Certificate is part of the Current Interest Certificates authorized by the City. THE CITY RESERVES THE RIGHT, at its option, to redeem the Current Interest Certificates having stated maturities on or after March 1, 2020, in whole or in part, on March 1, 2019, 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 Certificates. THE CERTIFICATES maturing in the year 20_(the"Term Certificates") are also subject to mandatory redemption prior to maturity in the amounts and on the dates set out below, at a price equal to the principal amount to be redeemed plus accrued interest to the redemption date: TERM CERTIFICATES DUE MARCH 1 20 Date Amount The Paying Agent shall select for redemption by lot, or by any other customary method that results in random selection, a principal amount of Term Certificates equal to the aggregate principal amount of such Term Certificates to be redeemed, shall call such Term Certificates for redemption on the scheduled mandatory redemption date, and shall give notice of such redemption in accordance with the Ordinance authorizing the Certificates. The principal amount of Term Certificates required to be mandatorily redeemed shall be reduced by the principal amount of Term Certificates which, at least 45 days prior to the mandatory redemption date, shall have been delivered to the Registrar for cancellation or shall have been optionally redeemed and not previously credited against a mandatory redemption requirement. NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior the date fixed for redemption by first class mail, addressed to the registered owner of each Certificate to be redeemed in whole or in part at the address shown on the books of registration kept by the Registrar. When Certificates 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. The Certificates may be defeased as provided in the Ordinance authorizing the Certificates. THIS CERTIFICATE 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 CERTIFICATES are exchangeable at the principal corporate trust office of the - 14 - Registrar for Certificates in the principal amount of$5,000 or any integral multiple thereof, subject to the terms and conditions of this Ordinance. NEITHER THE CITY NOR THE REGISTRAR shall be required to transfer or exchange any Certificate called for redemption, in whole or in part, within forty-five (45) days of the date fixed for redemption; provided, however, such limitation on transfer shall not be applicable to an exchange by the Owner of the unredeemed balance of a Certificate called for redemption in part. THIS CERTIFICATE shall not be valid or obligatory for any purpose or be entitled to any benefit under the Ordinance unless this Certificate either (i) is registered by the Comptroller of Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii) authenticated by the Registrar by due execution of the authentication certificate endorsed hereon. THE REGISTERED OWNER of this Certificate, 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 Certificates 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 Certificate 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 Certificate have been performed, exist and have been done in accordance with law; and that annual ad valorem taxes sufficient to provide for the payment of the interest on and principal of this Certificate, as such interest comes due and such principal matures, have been levied, within the limits prescribed by law, against all taxable property in the City, and have been pledged irrevocably for such payment. IT IS FURTHER certified, recited and represented that the net revenues (the "Net Revenues") to be derived from the operation of the City's waterworks and sewer system (the "System"), but only to the extent of and in an amount not to exceed Ten Thousand Dollars ($10,000.00) in the aggregate, are also pledged to the payment of the principal of and interest on this Certificate and the series of Certificates of which it is a part to the extent that taxes may ever be insufficient or unavailable for said purpose, all as set forth in the Ordinance to which reference is made for all particulars; provided, however, that such pledge of Net Revenues is and shall be junior and subordinate in all respects to the pledge of such Net Revenues to the payment of any obligation of the City, whether authorized heretofore or hereafter, which the City designates as having a pledge senior to the pledge of such Net Revenues to the payment of this Certificate and that series of Certificates of which it is a part, and the City also reserves the right to issue, for any lawful purpose at any time, in one or more installments, bonds, certificates of obligation and other obligations of any kind payable in whole or in part from the Net Revenues of the System, secured by a pledge of the Net Revenues of the System that may be prior and superior in right to, on a parity with, or junior and subordinate to the pledge of Net Revenues securing this Certificate and the series of Certificates of which it is a part. IN WITNESS WHEREOF, this Certificate has been signed with the manual or facsimile - 15 - signature of the Mayor of the City and countersigned with the manual or facsimile signature of the City Clerk of the City and the official seal of the City has been duly impressed, or placed in facsimile, on this Certificate. THE CITY OF BEAUMONT, TEXAS Mayor (SEAL) City Clerk FORM OF REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this certificate has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this certificate has been registered by the Comptroller of Public Accounts of the State of Texas. WITNESS MY SIGNATURE AND SEAL this day of , 2009. xxxxxxxx Comptroller of Public Accounts (Seal) of the State of Texas FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE AUTHENTICATION CERTIFICATE It is hereby certified that this Certificate has been delivered pursuant to the Ordinance described in the text of this Certificate. The Bank of New York Mellon Trust Company,N.A. Dallas, Texas By: Authorized Signature Date of Authentication: - 16 - FORM OF ASSIGNMENT ASSIGNMENT For value received, the undersigned hereby sells, assigns, and transfers unto (Please print or type name, address, and zip code of Transferee) (Please insert Social Security or Taxpayer Identification Number of Transferee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises. DATED: Signature Guaranteed: NOTICE: The signature above must correspond to the name of the registered NOTICE: Signature must be owner as shown on the face guaranteed by a member firm of this Certificate in of the New York Stock Exchange every particular, without or a commercial bank or trust any alteration, enlargement company. or change whatsoever. FORM OF STATEMENT OF INSURANCE STATEMENT OF INSURANCE (the "Insurer"), a -domiciled insurance company, has delivered its financial guaranty insurance policy (the "Policy") with respect to the scheduled payments of principal of and interest on this Certificate to The Bank of New York Mellon Trust Company, N.A., as paying agent on behalf of the holders of the Certificates (the "Paying Agent"). Such Policy is on file and available for inspection at the principal office of the Paying Agent and a copy thereof may be obtained from the Insurer or the Paying Agent. All payments required to be made under the Policy shall be made in accordance with the provisions thereof. The owner of this Certificate acknowledges and consents to the subrogation rights of the Insurer as more fully set forth in the Policy. END OF FORM OF CURRENT INTEREST CERTIFICATE - 17 - (b) The Premium Capital Appreciation Certificates shall be in substantially the following form, including the form of Registrar's Certificate of Authentication, the form of Assignment, and the form of Registration Certificate of the Comptroller of Public Accounts 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 PREMIUM CAPITAL APPRECIATION CERTIFICATE UNITED STATES OF AMERICA STATE OF TEXAS COUNTY OF JEFFERSON NUMBER DENOMINATION CP- $ REGISTERED REGISTERED THE CITY OF BEAUMONT, TEXAS CERTIFICATE OF OBLIGATION SERIES 2009 INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP: December 1, 2009 REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS MATURITY AMOUNT: The City of Beaumont, Texas (the "City"), promises to pay to the Registered Owner identified above, or registered assigns, on the maturity date specified above, upon presentation and surrender of this certificate at the principal corporate trust office of The Bank of New York Mellon Trust Company, N.A., Dallas, Texas (the "Registrar"), the Maturity Amount identified above, representing the principal amount hereof and premium and accrued and compounded interest hereon, 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. The date of this Certificate is December 1, 2009, but interest shall accrue on the principal amount from the date of delivery of this Certificate to the Registered Owner at the per annum rate of interest set forth above. The compounded value (per $5,000 of Maturity Amount) as of the date of delivery and as of each March 1 and September 1 is set forth in the Table of Compound Values. Such value as of any other date shall be determined by straight-line interpolation between such values. THIS CERTIFICATE is one of a duly authorized issue of Certificates of Obligation, that - 18 - includes both Current Interest Certificates and Premium Capital Appreciation Certificates, aggregating $ (the "Certificates"), issued in accordance with the Constitution and the laws of the State of Texas, particularly Chapter 271, Texas Local Government Code, as amended, for the cost of construction of authorized street, drainage, building, park and other capital improvements, the purchase of equipment and the cost of issuance of the Certificates, pursuant to an ordinance duly adopted by the City Council of the City on December 1, 2009 (the "Ordinance"), which Ordinance is of record in the official minutes of the City Council. This Certificate is part of the Premium Capital Appreciation Certificates authorized by the City which pay interest only at maturity. IN CONSIDERATION of the Registered Owner's acceptance hereof, which acceptance shall constitute the Registered Owner's assent hereto and to the terms and conditions of the Order, the District covenants with the Registered Owner of this Certificate that on or before the Maturity Date for the payment of this Certificate, the District will make available to the Registrar, from the debt service fund created by the Ordinance, the amounts required to provide for the payment, in immediately available funds, of the Maturity Amount of this Certificate when due. THIS CERTIFICATE is not subject to redemption prior to maturity. This Certificate may be defeased as provided in the Ordinance authorizing these certificates. THIS CERTIFICATE 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 CERTIFICATES are exchangeable at the principal corporate trust office of the Registrar for Certificates in the principal amount of$5,000 or any integral multiple thereof, subject to the terms and conditions of this Ordinance. NEITHER THE CITY NOR THE REGISTRAR shall be required to transfer or exchange any Certificate called for redemption, in whole or in part, within forty-five (45) days of the date fixed for redemption; provided, however, such limitation on transfer shall not be applicable to an exchange by the Owner of the unredeemed balance of a Certificate called for redemption in part. THIS CERTIFICATE shall not be valid or obligatory for any purpose or be entitled to any benefit under the Ordinance unless this Certificate either (i) is registered by the Comptroller of Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii) authenticated by the Registrar by due execution of the authentication certificate endorsed hereon. THE REGISTERED OWNER of this Certificate, 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 Certificates and will cause notice of any change of registrar to be mailed to each registered owner. - 19 - IT IS HEREBY certified, recited and covenanted that this Certificate 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 Certificate have been performed, exist and have been done in accordance with law; and that annual ad valorem taxes sufficient to provide for the payment of the interest on and principal of this Certificate, as such interest comes due and such principal matures, have been levied, within the limits prescribed by law, against all taxable property in the City, and have been pledged irrevocably for such payment. IT IS FURTHER certified, recited and represented that the net revenues (the "Net Revenues") to be derived from the operation of the City's waterworks and sewer system (the "System"), but only to the extent of and in an amount not to exceed Ten Thousand Dollars ($10,000.00) in the aggregate, are also pledged to the payment of the principal of and interest on this Certificate and the series of Certificates of which it is a part to the extent that taxes may ever be insufficient or unavailable for said purpose, all as set forth in the Ordinance to which reference is made for all particulars; provided, however, that such pledge of Net Revenues is and shall be junior and subordinate in all respects to the pledge of such Net Revenues to the payment of any obligation of the City, whether authorized heretofore or hereafter, which the City designates as having a pledge senior to the pledge of such Net Revenues to the payment of this Certificate and that series of Certificates of which it is a part, and the City also reserves the right to issue, for any lawful purpose at any time, in one or more installments, bonds, certificates of obligation and other obligations of any kind payable in whole or in part from the Net Revenues of the System, secured by a pledge of the Net Revenues of the System that may be prior and superior in right to, on a parity with, or junior and subordinate to the pledge of Net Revenues securing this Certificate and the series of Certificates of which it is a part. TABLE OF COMPOUND VALUES The Compound Amount per$5,000 of Maturity Amount (which includes both principal and accrued interest compounded at the approximate yield stated)is as follows: SEE EXHIBIT ATTACHED IN WITNESS WHEREOF, this Certificate has been signed with the manual or facsimile signature of the Mayor of the City and countersigned with the manual or facsimile signature of the City Clerk of the City and the official seal of the City has been duly impressed, or placed in facsimile, on this Certificate. The date of delivery of this Certificate is 12009. THE CITY OF BEAUMONT, TEXAS Mayor (SEAL) City Clerk - 20 - FORM OF REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this certificate has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this certificate has been registered by the Comptroller of Public Accounts of the State of Texas. WITNESS MY SIGNATURE AND SEAL this day of , 2009. xxxxxxxx Comptroller of Public Accounts (Seal) of the State of Texas FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE AUTHENTICATION CERTIFICATE It is hereby certified that this Certificate has been delivered.pursuant to the Ordinance described in the text of this Certificate. The Bank of New York Mellon Trust Company,N.A. Dallas, Texas By: Authorized Signature Date of Authentication: FORM OF ASSIGNMENT ASSIGNMENT For value received, the undersigned hereby sells, assigns, and transfers unto (Please print or type name, address, and zip code of Transferee) (Please insert Social Security or Taxpayer Identification Number of Transferee) - 21 - the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises. DATED: Signature Guaranteed: NOTICE: The signature above must correspond to the name of the registered NOTICE: Signature must be owner as shown on the face guaranteed by a member firm of this Certificate in of the New York Stock Exchange every particular, without or a commercial bank or trust any alteration, enlargement company. or change whatsoever. FORM OF STATEMENT OF INSURANCE STATEMENT OF INSURANCE (the "Insurer"), a -domiciled insurance company, has delivered its financial guaranty insurance policy (the "Policy") with respect to the scheduled payments of principal of and interest on this Certificate to The Bank of New York Mellon Trust Company, N.A., as paying agent on behalf of the holders of the Certificates (the "Paying Agent"). Such Policy is on file and available for inspection at the principal office of the Paying Agent and a copy thereof may be obtained from the Insurer or the Paying Agent. All payments required to be made under the Policy shall be made in accordance with the provisions thereof. The owner of this Certificate acknowledges and consents to the subrogation rights of the Insurer as more fully set forth in the Policy. END OF FORM OF PREMIUM CAPITAL APPRECIATION CERTIFICATE 18. Legal Opinion; Cusip Numbers. The approving opinion of Orgain Bell&Tucker, LLP, Beaumont, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Certificates, but errors or omissions in the printing of such opinion or such numbers shall have no effect on the validity of the Certificates. 19. Interest and Sinking Fund; Tax Levy; Pledge of Revenues; Construction Fund. The proceeds from all taxes levied, assessed and collected for and on account of the Certificates authorized by this Ordinance are hereby irrevocably pledged and shall be deposited, as collected, in a special fund to be designated "City of Beaumont, Texas, Certificates of Obligation, Series 2009, - 22 - Interest and Sinking Fund". While the Certificates or any part of the principal or Maturity Amount thereof or interest thereon remain outstanding and unpaid, there is hereby levied and there shall be annually levied, assessed and collected in due time, form and manner within the limits prescribed by law, and at the same time other City taxes are levied, assessed and collected, in each year, beginning with the current year, a continuing direct annual ad valorem tax upon all taxable property in the City sufficient to pay the current interest on the Certificates as the same becomes due, and to provide and maintain a sinking fund adequate to pay each installment of the principal or Maturity Amount of the Certificates as the same matures but in each year never less than 2% of the original principal or Maturity Amount of the Certificates, full allowance being made for delinquencies and costs of collection, and said taxes when collected shall be applied to the payment of the interest on and principal of the Certificates and to no other purpose. The Net Revenues of the System, but only to the extent of and in an amount not to exceed $10,000 in the aggregate, are hereby irrevocably pledged to the payment of the principal of and interest on the Certificates as the same come due; provided, however, that such pledge of Net Revenues is and shall be junior and subordinate in all respects to the pledge of the Net Revenues to the payment of any obligation of the City, whether authorized heretofore or hereafter, which the City designates as having a pledge senior to the pledge of such Net Revenues to the payment of the Certificates; and the City also reserves the right to issue, for any lawful purpose at any time, in one or more installments, bonds, certificates of obligation and other obligations of any kind payable in whole or in part from the Net Revenues of the System that may be prior and superior in right to, on a parity with, or junior and subordinate to the pledge of Net Revenues securing this series of Certificates. There is hereby created and there shall be established on the books of the City a separate account to be entitled the "City of Beaumont, Texas, Certificates of Obligation, Series 2009, Construction Fund". Immediately after the sale and delivery of the Certificates, that portion of the proceeds of the Certificates to be used for the cost of construction of authorized projects and the cost of issuance of the Certificates shall be deposited into the Construction Fund and disbursed for such purposes. Pending completion of construction of such projects, interest earned on such proceeds may be used, at the City's discretion, for such projects and shall be accounted for, maintained, deposited and expended as permitted by the provisions of Section 1201.043, Texas Government Code Annotated, as from time to time in effect, or as otherwise required by applicable law. Thereafter, such interest shall be deposited in the Interest and Sinking Fund. Upon completion of such projects, the monies, if any, remaining in the Construction Fund shall be transferred and deposited by the City into the Interest and Sinking Fund. IT IS ORDERED AND DIRECTED that this Ordinance pledging ad valorem tax revenue of the City and limited net revenues of the system for the payment of the Certificates to the extent provided herein be filed and recorded in the records of the City as necessary to cause the pledge to be valid under Section 1201.44 of the Government Code of Texas. At any time while any of the Certificates are outstanding, it is determined by the City or demanded by the holder of any Certificates that further action by the City is required to make the pledge valid or maintain the validity of the pledge, the City covenants and hereby directs the officers of the City to make such filings, including but not limited to appropriate filings under Chapter 9 of the Business and Commerce Code of Texas as are necessary to make the pledge valid or continue its validity. - 23 - 20. Further Proceedings. After the Certificates shall have been executed, it shall be the duty of the Mayor of the City to deliver the Certificates 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 Certificates to be initially issued shall have been approved by the Attorney General of the State of Texas, the Certificates shall be delivered to the Comptroller of Public Accounts of the State of Texas for registration. Upon registration of the Certificates to be initially issued, the Comptroller of Public Accounts (or a deputy lawfully designated in writing to act for the Comptroller) shall manually sign the Comptroller's Registration Certificate prescribed herein to be affixed or attached to the Certificates to be initially issued, and the seal of the Comptroller shall be impressed, or placed in facsimile, thereon. In addition, the Mayor, the Mayor Pro Tem, the City Clerk, the City Manager and other appropriate officials of the City are hereby authorized and directed to do any and all things necessary or convenient to carry out the purposes of this Ordinance, and each of such persons are authorized, acting alone and without the joinder of the others, to execute any and all closing certificates, instruments and such other documents as may be necessary or appropriate to carry out the purposes of this Ordinance. 21. Sale of Certificates. The Certificates are hereby sold and shall be delivered to the Underwriter at a price of$ , which represents the par amount of the Certificates of $ , less a net original issue discount on the Current Interest Certificates of $ plus a premium on the Premium Capital Appreciation Certificates of $ and less an underwriting discount of $ , plus any accrued interest thereon from the dated date of the Certificates 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. Each of the Mayor and the Mayor Pro Tem and other appropriate officials of the City are hereby authorized and directed to execute such bond purchase agreement on behalf of the City, and each of the Mayor and Mayor Pro Tem and all other officers, agents and representatives of the City are hereby authorized to do any and all things necessary or desirable to satisfy the conditions set out therein and to provide for the issuance and delivery of the Certificates. The purchase of and payment of the premium for the Certificates 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 Certificates of an appropriate legend regarding such insurance is hereby approved. The City finds that the net effective interest of the Certificates is %. 22. Tax Exemption. (a) The City intends that the interest on the Certificates shall be excludable from gross income for purposes of federal income taxation pursuant to Sections 103 and 141 through 150 of the Code, and applicable 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 Certificates 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 22; - 24 - provided, however, that the City shall not be required to comply with any particular requirement of this Section 22 if the City has received an opinion of nationally recognized bond counsel (a "Counsel's Opinion") that such noncompliance will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Certificates or if the City has received a Counsel's Opinion to the effect that compliance with some other requirement set forth in this Section 22 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 22. (b) The City covenants and agrees that its use of Net Proceeds (as defined below) of the Certificates will at all times satisfy the following requirements: (i) The City will use all of the Net Proceeds of the Certificates for the cost of construction of authorized street, drainage, building, park, and other capital improvements, equipment purchases and the cost of issuance of the Certificates. The City has limited and will limit with respect to the Certificates the amount of original or investment proceeds thereof to be used (other than use as a member of the general public) in the trade or business of any person other than a governmental unit to an amount aggregating no more than 10% of the Net Proceeds of the Certificates ("private-use proceeds"). For purposes of this Section, the term "person" includes any individual, corporation, partnership, unincorporated association, or any other entity capable of carrying on a trade or business; and the term "trade or business" means, with respect to any natural person, any activity regularly carried on for profit and, with respect to persons other than natural persons, any activity other than an activity carried on by a governmental unit. Any use of proceeds of the Certificates in any manner contrary to the guidelines set forth in Revenue Procedure 93-19, including any revisions or amendments thereto, shall constitute the use of such proceeds in the trade or business of one who is not a governmental unit; (ii) The City has not permitted and will not permit more than 5% of the Net Proceeds of the Certificates to be used in the trade or business of any person other than a governmental unit if such use is unrelated to the governmental purpose of the Certificates. Further, the amount of private-use proceeds of the Certificates in excess of 5% of the Net Proceeds thereof("excess private-use proceeds") did not and will not exceed the proceeds of the Certificates expended for the governmental purpose of the Certificates to which such excess private-use proceeds relate; (iii) Principal of and interest on the Certificates shall be paid solely from ad valorem tax receipts collected by the City and from the Net Revenues of the System to the extent pledged hereunder. Further, no person using more than 10% of the Net Proceeds of the Certificates in a trade or business, other than a governmental unit, has made or shall make payments (other than as a member of the general public), directly or indirectly, accounting for more than 10%of such receipts; (iv) The City has not permitted and will not permit with respect to the Certificates an amount of proceeds thereof exceeding the lesser of(a) $5,000,000 or (b) 5% of the Net Proceeds of the Certificates to be used, directly or indirectly, to finance loans to persons - 25 - other than a governmental unit; and (v) The City will use $ of the Net Proceeds of the Certificates to pay the costs of issuance of the Certificates, including the cost of the Certificates Insurance Policy in the amount of$ When used in this Section, the term "Net Proceeds" of the Certificates shall mean the proceeds from the sale thereof to the Underwriter, including investment earnings on such proceeds, less accrued interest with respect to such issue. (c) 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 Certificates 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 or as permitted by laws hereinafter enacted. (d) 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 Certificates are delivered, the City will reasonably expect that the proceeds of the Certificates will not be used in a manner that would cause the Certificates 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 Certificates, including interest or other investment income derived from the proceeds of the Certificates, regulate investments of such proceeds and amounts, and take such other and further action as may be required so that the Certificates will not be "arbitrage bonds" within the meaning of Section 148(a) of the Code and applicable regulations thereunder. (e) 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 Certificates (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 Certificates as may be required to calculate the amount earned on the investment of the gross proceeds of the Certificates 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 Certificates which is required to be rebated to the federal government, and (iii) pay, not less often than every 5th anniversary date of the delivery of the Certificates, and within sixty (60) days after retirement of the Certificates, all 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 any investment arrangement with respect to the gross proceeds of the Certificates 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 larger loss than would have resulted if the arrangement had been at arm's length and had the yield on the issue not been relevant to either party. - 26 - (t) 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 Certificates are issued, an information statement concerning the Certificates, all under and in accordance with Section 149(e) of the Code and applicable regulations thereunder. 23. Application of Proceeds. Proceeds from the sale of the Certificates shall, promptly upon receipt by the City, be applied as follows: (a) Accrued interest received from the sale of the Certificates shall be deposited into the Series 2009 Certificates of Obligation Interest and Sinking Fund; (b) The sum of $ will be used to pay the premium for the Certificates Insurance Policy; (c) The sum of $ shall be used to pay costs of issuance of the Certificates, with any amount left over to be transferred to the 2009 Certificates of Obligation Construction Fund; and (d) The remaining proceeds from the sale of the Certificates, together with investment earnings thereof. shall be deposited into the Series 2009 Certificates of Obligation Construction Fund and shall be used for the purposes set out in Section 3 of this Ordinance, with any remainder to be deposited into the Series 2009 Certificates of Obligation Interest and Sinking Fund. 24. Open Meeting. 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 Annotated, Vernon's 1994, as amended, and such notice as given is hereby authorized, approved, adopted and ratified. 25. Re ig stray. 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. 26. Official Statement. The Preliminary Official Statement and the Official Statement prepared in the initial offering and sale of the Certificates have been and are hereby authorized, approved and ratified as to form and content. The use of the Preliminary Official Statement and the Official Statement in the reoffering of the Certificates by the Underwriter is hereby approved, authorized and ratified. The proper officials of the City are hereby authorized to execute and deliver a certificate pertaining to the Preliminary Official Statement and the Official Statement as prescribed therein, dated as of the date of payment for and delivery of the Certificates. 27. Partial Invalidity. If any Section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such Section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. 28. Related Matters. To satisfy in a timely manner all of the City's obligations under - 27 - this Ordinance, the Mayor, the City Clerk, the City Treasurer, and all other appropriate officers and agents of the City are hereby authorized and directed to take all other actions that are reasonably necessary to provide for issuance of the Certificates, 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 hereof. 29. No Personal Liability. No recourse shall be had for payment of the principal of or premium, if any, or interest on Certificate, or for any claim based thereon, or under this Ordinance, against any official or employee of the City or any person executing any Certificate. 30. Additional Obligations. The City undertakes and agrees for the benefit of the holders of the Certificates to provide the following to the Municipal Securities Rulemaking Board ("MSRB"), in electronic format as prescribed by the MSRB, directly or through a designated agent, on or before six months after the end of the City's fiscal year, which fiscal year presently ends on September 30, a. annual financial information (which may be unaudited) and operating data regarding the City for fiscal years ending on or after January 1, 2009 which annual financial information and operating data shall be of the type included in the following listed sections contained in the Final Official Statement: DEBT STATEMENT TAX DATA SELECTED FINANCIAL DATA ADMINISTRATION OF THE CITY Appendix "B" b. audited financial statements for the City for fiscal years ending on or after January 1, 2009, when available, if the City commissions an audit and it is completed by the required time; provided that if audited statements are not commissioned or are not available by the required time, the City will provide unaudited statements when and if they become available. C. in a timely manner, notice of any of the following events with respect to the Certificates, if material within the meaning of the federal security laws to a decision to purchase or sell Certificates: i. Principal and interest payment delinquencies; ii. Non-payment related defaults; iii. Unscheduled draws on debt service reserves reflecting financial difficulties; - 28 - 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 Certificates; vii. Modifications to rights of Certificate holders; viii. Calls; ix. Defeasances; X. Release, substitution or sale of property securing repayment of the Certificates; and xi. Rating changes. d. in a timely manner, notice of a failure of the City to provide required annual financial information and operating data, on or before six months after the end of the City's fiscal year. e. all documents provided to the MSRB shall be accompanied by identifying information as prescribed by the MSRB. These undertakings and agreements are subject to appropriation of necessary funds and to applicable legal restrictions, if any. The accounting principles pursuant to which the City's financial statements are currently prepared are generally accepted accounting principles set out by the Government Accounting Standards Board, and, subject to changes in applicable law or regulations, such principles will be applied in the future. If the City changes its fiscal year, it will notify the MSRB of the change (and of the new fiscal year end) prior to the next date by which the City otherwise would be required to provide annual financial information. The City's obligation to update information and to provide notices of material events shall be limited to the agreements herein. The City shall not be obligated to provide other information that may be relevant or material to a complete presentation of its financial results of operations, condition, or prospects and shall not be obligated to update any information that is provided, except as described herein. The City makes no representation or warranty concerning such information or concerning its usefulness to a decision to invest in or sell Certificates at any future date. THE CITY DISCLAIMS ANY CONTRACTUAL OR TORT LIABILITY FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ITS CONTINUING DISCLOSURE AGREEMENT OR FROM ANY STATEMENT MADE PURSUANT TO ITS AGREEMENT. HOLDERS OR BENEFICIAL OWNERS OF CERTIFICATES MAY SEEK AS THEIR SOLE REMEDY A WRIT OF MANDAMUS TO COMPEL THE CITY TO COMPLY WITH THIS AGREEMENT. No default by the City with respect to its continuing disclosure agreement shall constitute a breach of or default - 29 - under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this paragraph is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. The City may amend its continuing disclosure obligations and agreement in this Section 30 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 the agreement, as amended, would have permitted the Underwriter to purchase or sell the Certificates in compliance with SEC Rule 15c2-12, taking into account any amendments or interpretations of such Rule to the date of such amendment, as well as such changed circumstances, and either the holders of a majority in aggregate principal amount of the outstanding Certificates consent or 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 Certificates. The City may also amend or repeal the obligations and agreement in this Section 30 if the SEC amends or repeals the applicable provisions of Rule 15c2-12 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 the Underwriter from lawfully purchasing or reselling the Certificates in the primary offering of the Certificates in compliance with Rule 15c2-12. 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. The City's continuing obligation to provide annual financial information and operating data and notices of events will terminate if and when the City no longer remains an "obligated person" (as such term is defined in SEC Rule 15C2-12) with respect to the Certificates. 31. Repealer. All orders, resolutions, and ordinances, and parts thereof inconsistent herewith are hereby repealed to the extent of such inconsistency. 32. Effective Date. This Ordinance shall be in force and effect from and after its final passage, and it is so ordered. 33. Amendment of Order. (a) If and to the extent permitted by this Ordinance, the owners of the Series 2009 Certificates aggregating in the principal amount of 51% of the aggregate principal amount of the outstanding Series 2009 Certificates shall have the right from time to time to approve any amendment to this Ordinance which may be deemed necessary or desirable by the City provided, however, that without the consent of the owners of all of the Series 2009 Certificates at the time outstanding, nothing herein contained shall permit or be construed to permit the amendment of the terms and conditions in this Ordinance or in the Certificates so as to: (1) Make any change in the maturity of the outstanding Series 2009 Certificates; - 30 - (2) Reduce the rate of interest borne by any of the outstanding Series 2009 Certificates; (3) Reduce the amount of the principal payable on the outstanding Series 2009 Certificates; (4) Modify the terms of payment of principal of or interest on the outstanding Series 2009 Certificates, or impose any conditions with respect to such payment; (5) Affect the owners of less than all of the outstanding Series 2009 Certificates then outstanding; (6) Change the percentage of the principal amount of outstanding Series 2009 Certificates, necessary for consent to such amendment. (b) If at any time the City shall desire to amend this Ordinance under this Section, the City shall cause notice of the proposed amendment to be published in a financial newspaper or journal published in The City of New York, New York, once during each calendar week for at least two successive calendar weeks. Such notice shall briefly set forth the nature of the proposed amendment and shall state that a copy thereof is on file at the principal office of the Paying Agent for inspection by all owners of Series 2009 Certificates. Such publication is not required, however, if notice in writing is given to each owner of the outstanding Series 2009 Certificates. Not less than thirty (30) days' notice of the proposed amendment shall also be given by the City to the Underwriters. (c) Whenever at any time not less than thirty (30) days, and within one (1) year, from the date of the publication of said notice or other service of written notice the City shall receive an instrument or instruments executed by the owners of at least 51% in aggregate principal amount of Series 2009 Certificates then outstanding, which instrument or instruments shall refer to the proposed amendment described in said notice and which specifically consent to and approve such amendment in substantially the form of the copy thereof on file with the Paying Agent, the City Council may adopt the amendatory resolution in substantially the same form. (d) Upon adoption of any amendatory resolution pursuant to the provision of this Section, this Ordinance shall be deemed to be amended in accordance with such amendatory resolution, and the respective rights, duties and obligations under this Ordinance of the City and all the owners of then outstanding Series 2009 Certificates shall thereafter be determined, exercised and enforced hereunder, subject in all respect to such amendments. (e) Any consent given by the owner of outstanding Series 2009 Certificates, pursuant to the provisions of this Section shall be irrevocable for a period of six months from the date of the first publication of the notice provided for in this Section, and shall be conclusive and binding upon all future owners of the same Series 2009 Certificates during such period. Such consent may be revoked at any time after six months from the - 31 - date of the first publication of such notice by the owner who gave such consent, or by a successor in title, by filing notice thereof with the Paying Agent and the City, but such revocation shall not be effective if the owners of 51% in aggregate principal amount of the then outstanding Series 2009 Certificates as in this Section defined have, prior to the attempted revocation, consented to and approved the amendment. (f) For the purpose of this Section, the fact of the owning of Series 2009 Certificates by any owner of Series 2009 Certificates and the amount and number of such Series 2009 Certificates and the date of their owning same shall be determined by the Registration Books of the Paying Agent/Registrar. (g) The foregoing provisions of this Section notwithstanding, the City by action of the City Council may amend this Ordinance for any one or more of the following purposes: (1) To add to the covenants and agreements of the City in this Ordinance contained, other covenants and agreements thereafter to be observed, grant additional rights or remedies to the owners of bonds or to surrender, restrict or limit any right or power herein reserved to or conferred upon the City. (2) To make such provisions for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained in this Ordinance, or in regard to clarifying matters or questions arising under this Ordinance, as are necessary or desirable and not contrary to or inconsistent with this Ordinance and which shall not adversely affect the interests of the owners of the Series 2009 Certificates. (3) To modify any of the provisions of this Ordinance in any other respect whatever, provided that: (i) such modification shall be, and be expressed to be, effective only after all Series 2009 Certificates outstanding at the date of the adoption of such modification. 34. The Certificates are hereby designated by the City as "qualified tax-exempt obligations" for financial institutions under Section 265(b)(3)(B)(i)(III) of the Code. The City covenants to take such action as is within its authority that will assure, and to refrain from taking any action that would adversely affect the treatment of the Certificates as "qualified tax-exempt obligations" for financial institutions. The City represents that the amount of the Certificates, when added to the amount of all other tax-exempt obligations (not including obligations which are not taken into account for such purpose under Section 265(b)(3)(C)(ii)) issued or reasonably anticipated to be issued by or on behalf of the City during 2009 shall not exceed $30,000,000 and the City has not and will not designate more than $30,000,000 in qualified tax-exempt obligations (including the Certificates) during 2009. 35. Provisions Relating to Bond Insurance. The purchase of bond insurance from Insurer in accordance with the terms of a commitment for such insurance presented to and hereby approved by the City is hereby authorized. All officials and representatives of the City are - 32 - 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 or attachments to the Certificates of an appropriate legend regarding such insurance is hereby approved. Notwithstanding any provision in this Ordinance to the contrary, as long as the Certificates Insurance Policy shall be in full force and effect, the following provisions and terms shall be in effect and applicable: A. Notices and Other Information. 1. Any notice that is required to be given to holders of the Obligations (the "Certificateholders"), nationally recognized municipal securities information repositories or state information depositories pursuant to Rule 15c2-12(b) (5) adopted by the Securities and Exchange Commission or to the Registrar pursuant to this Certificate Ordinance or any of the financing documents executed by the Issuer in connection with the Obligations (hereinafter sometimes referred to as the "Financing Documents") shall also be provided to (the "Insurer"), simultaneously with the sending of such notices. In addition, to the extent that the Issuer has entered into a continuing disclosure agreement with respect to the Obligations, all information furnished pursuant to such agreement shall also be provided to the Insurer, simultaneously with the furnishing of such information. All notices required to be given to the Insurer shall be in writing and shall be sent by registered or certified mail addressed to it at , Attention: General Counsel, with a copy to it, Attention: Risk Management Department — Public Finance Surveillance. 2. The Insurer shall have the right to receive such additional information as it may reasonably request. 3. The Issuer will permit the Insurer to discuss the affairs, finances and accounts of the Issuer or any information the Insurer may reasonably request regarding the security for the Obligations with appropriate officers of the Issuer, and will use best efforts to enable the Insurer to have access to the facilities, books and records of the Issuer on any business day upon reasonable prior notice. 4. The Registrar shall notify the Insurer of any failure of the Issuer to provide notices, certificates and other information under the Documentation. B. Defeasance. In the event that the principal and/or interest due on the Obligations shall be paid by the Insurer pursuant to the Policy, the Obligations shall remain outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and the assignment and pledge of the trust estate and all covenants, agreements and other obligations of the Issuer to the registered owners shall continue to exist and shall run to the benefit of the Insurer, and the Insurer shall be subrogated to the rights of such registered owners including, without limitation, any rights that such owners may have in respect of securities law violations arising from the offer and sale of the Obligations. In addition to any other applicable requirements under this Ordinance or applicable law, if - 33 - the Issuer intends to defease the Obligations, and the Insurer will require the following items: 1. An opinion of counsel that the defeasance will not adversely impact the exclusion from gross income for federal income tax purposes of interest on the Obligations or refunded bonds. 2. An escrow agreement and an opinion of counsel regarding the validity and enforceability of the escrow agreement. 3. The escrow agreement shall provide that: a. Any substitution of securities shall require verification by an independent certified public accountant and the prior written consent of the Insurer. b. The Issuer will not exercise any optional redemption of Obligations secured by the escrow agreement or any other redemption other than mandatory sinking fund redemptions unless (i) the right to make any such redemption has been expressly reserved in the escrow agreement and such reservation has been disclosed in detail in the official statement for the refunding bonds, and (ii) as a condition of any such redemption there shall be provided to the Insurer a verification of an independent certified public accountant as to the sufficiency of escrow receipts without reinvestment to meet the escrow requirements remaining following such redemption. C. The Issuer shall not amend the escrow agreement or enter into a forward purchase agreement or other agreement with respect to rights in the escrow without the prior written consent of the Insurer. C. Registrar. 1. The Insurer shall receive prior written notice of any name change of the Registrar or the removal, resignation or termination of the Registrar. 2. No removal, resignation or termination of the Registrar shall take effect until a successor, acceptable to the Insurer, shall be appointed. 3. The Registrar may be removed at any time, at the request of the Insurer, for any breach of its obligations under the financing documents. D. Amendments and Supplements. With respect to amendments or supplements to this Ordinance or any of the Financing Documents, which do not require the consent of the Certificateholders, the Insurer must be given notice of any such amendments or supplements. - 34 - With respect to amendments or supplements to this Ordinance or any of the Financing Documents, which require the consent of the Certificateholders, the Insurer's prior written consent is required. Copies of any amendments or supplements to this Ordinance or any Financing Document which are consented to by the Insurer shall be sent to the rating agencies that have assigned a rating to the Obligations. Notwithstanding any other provision of this Ordinance, in determining whether the rights of Certificateholders will be adversely affected by any action taken pursuant to the terms and provisions thereof, the Registrar shall consider the effect on the Certificateholders as if there were no Policy. E. The Insurer as Third Party Beneficiary. To the extent this Ordinance or any financing document executed by the Issuer in connection herewith confers upon or give or grant to the Insurer any right, remedy or claim under or by reason of this Ordinance or any financing document executed by the Issuer in connection herewith, the Insurer is explicitly recognized as being a third party beneficiary hereunder and thereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder or thereunder. F. Control Rights. The Insurer shall be deemed to be the holder of all of the Obligations for purposes of(a) exercising all remedies and directing the Registrar to take actions or for any other purposes following an Event of Default (as defined in this Ordinance), and (b) granting any consent, direction or approval or taking any action permitted by or required under this Ordinance to be granted or taken by the holders of such Obligations. Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, the Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted to the Certificateholders or the Registrar for the benefit of the Certificateholders under this Ordinance. G. Consent Rights of the Insurer. 1. Consent of the Insurer. Any provision of this Ordinance expressly recognizing or granting rights in or to the Insurer may not be amended in any manner that affects the rights of the Insurer hereunder without the prior written consent of the Insurer. 2. Consent of the Insurer in Addition to Certificateholder Consent. Wherever this Ordinance requires the consent of Certificateholders, the Insurer's consent shall also be required. 3. Consent of the Insurer in the Event of Insolvency. Any reorganization or liquidation plan with respect to the Issuer must be acceptable to the Insurer. In the event of any reorganization or liquidation, the Insurer shall have the right to vote on behalf of all Certificateholders who hold Obligations guaranteed by the Insurer, absent a default by the Insurer under the Policy. - 35 - 4. Consent of'lhe Insurer Upon Default. Upon the occurrence of an event of default as defined herein, the Registrar may, with the consent of the Insurer, and shall at the direction of the Insurer or the Certificateholders with the consent of the Insurer, by written notice to the Issuer and the Insurer, declare the principal of the Obligations to be immediately due and payable, whereupon that portion of the principal of the Obligations thereby coming due and the interest thereon accrued to the date of payment shall, without further action, become and be immediately due and payable, anything in this Ordinance or the Obligations to the contrary notwithstanding. H. Payment Procedure Under the Policy. 1. At least two (2) Business Days prior to each payment date on the Obligations, the Registrar, will determine whether there will be sufficient funds to pay all principal of and interest on the Obligations due on the related payment date and shall immediately notify the Insurer or its designee on the same Business Day by telephone or electronic mail, confirmed in writing by registered or certified mail, of the amount of any deficiency. Such notice shall specify the amount of the anticipated deficiency, the Obligations to which such deficiency is applicable and whether such Obligations will be deficient as to principal or interest or both. If the deficiency is made up in whole or in part prior to or on the payment date, the Registrar shall so notify the Insurer or its designee. 2. The Registrar, shall after giving notice to the Insurer as provided above, make available to the Insurer and, at the Insurer's direction, to any Fiscal Agent, the registration books of the Issuer maintained by the Registrar and all records relating to the funds maintained under this Ordinance or any financing document executed by the Issuer in connection herewith. 3. The Registrar shall provide the Insurer and any Fiscal Agent with a list of registered owners of Obligations entitled to receive principal or interest payments from the Insurer under the terms of the Policy, and shall make arrangements with the Insurer, the Fiscal Agent or another designee of the Insurer to (i) mail checks or drafts to the registered owners of Obligations entitled to receive full or partial interest payments from the Insurer and (ii) pay principal upon Obligations surrendered to the Insurer, the Fiscal Agent or another designee of the Insurer by the registered owners of Obligations entitled to receive full or partial principal payments from the Insurer. 4. The Registrar, shall, at the time it provides notice to the Insurer of any deficiency pursuant to clause 1. above, notify registered owners of Obligations entitled to receive the payment of principal or interest thereon from the Insurer (i) as to such deficiency and its entitlement to receive principal or interest, as applicable, (ii) that the Insurer will remit to them - 36 - all or a part of the interest payments due on the related payment date upon proof of its entitlement thereto and delivery to the Insurer or any Fiscal Agent, in form satisfactory to the Insurer, of an appropriate assignment of the registered owner's right to payment, (iii) that, if they are entitled to receive partial payment of principal from the Insurer, they must surrender the related Obligations for payment first to the Registrar, which will note on such Obligations the portion of the principal paid by the Registrar and second to the Insurer or its designee, together with the an appropriate assignment, in form satisfactory to the Insurer, to permit ownership of such Obligations to be registered in the name of the Insurer, which will then pay the unpaid portion of principal, and (iv) that, if they are entitled to receive full payment of principal from the Insurer, they must surrender the related Obligations for payment to the Insurer or its designee, rather than the Registrar, together with the an appropriate assignment, in form satisfactory to the Insurer, to permit ownership of such Obligations to be registered in the name of the Insurer. 5. In addition, if the Registrar has notice that any holder of the Obligations has been required to disgorge payments of principal or interest on the Obligations previously Due for Payment pursuant to a final non-appealable order by a court of competent jurisdiction that such payment constitutes an avoidable preference to such holder within the meaning of any applicable bankruptcy laws, then the Registrar shall notify the Insurer or its designee of such fact by telephone or electronic notice, confirmed in writing by registered or certified mail. 6. The Registrar will be hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for holders of the Obligations as follows: a. If and to the extent there is a deficiency in amounts required to pay interest on the Obligations, the Registrar shall (a) execute and deliver to the Insurer, in form satisfactory to the Insurer, an instrument appointing the Insurer as agent for such holders in any legal proceeding related to the payment of such interest and an assignment to the Insurer of the claims for interest to which such deficiency relates and which are paid by the Insurer, (b) receive as designee of the respective holders (and not as Registrar) in accordance with the tenor of the Policy payment from the Insurer with respect to the claims for interest so assigned, and (c) disburse the same to such respective holders; and b. If and to the extent of a deficiency in amounts required to pay principal of the Obligations, the Registrar shall (a) execute and deliver to the Insurer, in form satisfactory to the Insurer, an instrument appointing the Insurer as agent for such holder in any legal proceeding related to - 37 - the payment of such principal and an assignment to the Insurer of the Obligation surrendered to the Insurer in an amount equal to the principal amount thereof as has not previously been paid or for which moneys are not held by the Registrar and available for such payment (but such assignment shall be delivered only if payment from the Insurer is received), (b) receive as designee of the respective holders (and not as Registrar) in accordance with the tenor of the Policy payment therefore from the Insurer, and (c) disburse the same to such holders. 7. Payments with respect to claims for interest on and principal of Obligations disbursed by the Registrar from proceeds of the Policy shall not be considered to discharge the obligation of the Issuer with respect to such Obligations, and such Obligations shall remain outstanding for all purposes, shall not be defeased or otherwise satisfied and shall not be considered paid by the Issuer, and the Insurer shall become the owner of such unpaid Obligation and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise; and the assignment and pledge of the trust estate and all covenants, agreements and other obligations of the Issuer to the registered owners shall continue to exist and shall run to the benefit of the Insurer, and the Insurer shall be subrogated to the rights of such registered owners including, without limitation, any rights that such owners may have in respect of securities law violations arising from the offer and sale of the Obligations. S. Irrespective of whether any such assignment is executed and delivered, the Issuer and the Registrar hereby agree for the benefit of the Insurer that: a. they recognize that to the extent the Insurer makes payments directly or indirectly (e.g., by paying through the Registrar), on account of principal of or interest on the Obligations, the Insurer will be subrogated to the rights of such holders to receive the amount of such principal and interest from the Issuer, with interest thereon as provided and solely from the sources stated in the financing documents and the Obligations; and b. they will accordingly pay to the Insurer the amount of such principal and interest, with interest thereon as provided in the financing documents and the Obligations, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Obligations to holders, and will otherwise treat the Insurer as the owner of such rights to the amount of such principal and interest. 9. The Insurer shall be entitled to pay principal or interest on the Obligations that shall become Due for Payment but shall be unpaid by reason of - 38 - Nonpayment by the Issuer (as such terms are defined in the Policy) and any amounts due on the Obligations as a result of acceleration of the maturity thereof in accordance with this agreement, whether or not the Insurer has received a Notice (as defined in the Policy) of Nonpayment or a claim upon the Policy. 10. In addition, the Insurer shall to the extent it makes any payment of principal or interest on the Obligations become subrogated to the rights of the recipients of such payments in accordance with the terms of the Policy, and to evidence such subrogation (i) in the case of claims for interest, the Registrar shall note the Insurer's rights as subrogee on the registration books of the Issuer maintained by the Registrar, upon receipt of proof of payment of interest thereon to the registered holders of the Obligations, and (ii) in the case of claims for principal, the Registrar, if any, shall not the Insurer's rights as subrogee on the registration books of the Issuer maintained by the Registrar, upon surrender of the Obligations together with receipt of proof of payment of principal thereof. 11. The Issuer hereby agrees to pay or reimburse the Insurer, to the extent permitted by law and subject to annual appropriation by the Issuer, (A) for all amounts paid by the Insurer under the terms of the Policy, and (B) any and all charges, fees, costs and expenses which the Insurer may reasonably pay or incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, in connection with (i) any accounts established to facilitate payments under the Policy, (ii) the administration, enforcement, defense or preservation of any rights in respect of the trust agreement or any other financing document including defending, monitoring or participating in any litigation or proceeding (including any bankruptcy proceeding in respect of the Issuer or any affiliate thereof) relating to this agreement or any other Financing Document, any party to this agreement or any other Financing Document or the transaction contemplated by the Financing Documents, (iii) the foreclosure against, sale or other disposition of any collateral securing any obligations under this agreement or any other Financing Document, or the pursuit of any remedies under this agreement or any other Financing Document, to the extent such costs and expenses are not recovered from such foreclosure, sale or other disposition, or (iv) any amendment, waiver or other action with respect to, or related to, this agreement or any other Financing Document whether or not executed or completed; costs and expenses shall include a reasonable allocation of compensation and overhead attributable to time of employees of the Insurer spent in connection with the actions described in clauses (ii) - (iv) above. In addition, the Insurer reserves the right to charge a reasonable fee as a condition to executing any amendment, waiver or consent proposed in respect of this agreement or any other Financing Document. - 39 - 12. In addition to any and all rights of reimbursement, subrogation and any other rights pursuant hereto or under law or in equity, the Issuer agrees, to the extent permitted by law, to pay or reimburse the Insurer any and all charges, fees, costs, claims, losses, liabilities (including penalties), judgments, demands, damages, and expenses which the Insurer or its officers, directors, shareholders, employees, agents and each Person, if any, who controls the Insurer within the meaning of either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, may reasonably pay or incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, of any nature in connection with, in respect of or relating to the transactions contemplated by this agreement or any other financing document by reason of: a. any omission or action (other than of or by the Insurer) in connection with the offering, issuance, sale, remarketing or delivery of the Obligations; b. the negligence, bad faith, willful misconduct, misfeasance, malfeasance or theft committed by any director, officer, employee or agent of the Issuer in connection with any transaction arising from or relating to this agreement or any other financing document; C. the violation by the Issuer of any law, rule or regulation, or any judgment, order or decree applicable to it; d. the breach by the Issuer of any representation, warranty or covenant under this agreement or any other financing document or the occurrence, in respect of the Issuer, under this agreement or any other financing document of any "event of default" or any event which, with the giving of notice or lapse of time or both, would constitute any "event of default"; or e. any untrue statement or alleged untrue statement of a material fact contained in any official statement, if any, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such claims arise out of or are based upon any untrue statement or omission in information included in an official statement, if any, and furnished by the Insurer in writing expressly for use therein. [The remainder of this page has intentionally been left blank]. - 40 - PASSED AND APPROVED this 1 st day of December, 2009. MAYOR THE CITY OF BEAUMONT, TEXAS ATTEST: CITY CLERK THE CITY OF BEAUMONT,TEXAS (SEAL) - 41 - 2 December 1,2009 Consider approving a resolution to provide for the reimbursement of costs incurred prior to issuance of Certificates of Obligation or other tax exempt obligations CI T • E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer MEETING DATE: December 1, 2009 REQUESTED ACTION: Council consider a resolution to provide for the reimbursement of costs incurred prior to issuance of Certificates of Obligation or other tax exempt obligations. RECOMMENDATION Administration recommends approval. BACKGROUND A maximum of$30 Million in Certificates of Obligation will be issued in December 2009 to fund public works and general improvement projects that have been previously approved by Council and are listed in the 2010 Capital Program. It is necessary to incur some of the costs associated with these projects prior to the issuance of the obligations. A resolution allowing for the reimbursement of costs is routine and will allow the City to continue projects that are currently underway. It is the intent of the City to reimburse itself out of proceeds of the obligations for all such costs which are paid prior to issuance. These costs shall include fees paid for engineering and other professional services, expenditures for materials, and construction costs. BUDGETARY IMPACT All debt and related expenses shall be incurred by the Debt Service Fund which is supported by property taxes. A.10 RESOLUTION CONCERNING CERTIFICATES OF OBLIGATION, SERIES 2009, AND OFFICIAL INTENT TO USE PROCEEDS THEREFROM TO REIMBURSE THE CITY FOR ORIGINAL EXPENDITURES PAID PRIOR TO THE ISSUE DATE OF SUCH CERTIFICATES ON PROJECTS TO BE FINANCED THEREBY WHEREAS, the City of Beaumont, Texas (the "City") desires and intends to construct, and make improvements within the City and to expand and improve City streets, drainage, buildings, parks and other capital improvements located within the City described in Exhibit A attached hereto (collectively, the "Project"); and WHEREAS, in order to finance and pay the costs of the Project, the City intends to issue Certificates of Obligation, Series 2009 in the maximum aggregate principal amount of up to $30,000,000 (the "Obligations"), payable from ad valorem taxes and any other sources pledged to the payment thereof, and WHEREAS, the City reasonably expects to pay a portion of the capital expenditures for the Project prior to the issue date of the Obligations from other available sources ("Original Expenditures") WHEREAS, the City finds, intends and declares that this resolution and order shall constitute its official binding commitment and official declaration of intent made pursuant to the Internal Revenue Code of 1986, as amended (the "Code") and the regulations pertaining thereto, including but not limited to Treasury Regulation Section 1.150-2, whereas, subject to the terms hereof, the City declares that it intends to reimburse itself out of the proceeds of the Obligations for some of the Original Expenditures in connection with the Project paid prior to the issuance of the Obligations; and WHEREAS, the City Council, on behalf of the City, finds, considers and declares that the issuance and sale of the Obligations in the amount and for the purposes set forth will be appropriate and consistent with the objectives of the City and the laws authorizing the issuance of the Obligations, and that the adoption of this resolution and order is and constitutes and is intended as (1) an inducement to proceed with providing for the acquisition, expansion, renovation, construction, reconstruction, repairs, equipping, furnishing and improvement of the Project, and (2) the taking of affirmative official action by the City, acting by and through the City Council, toward the issuance of the Obligations and the reimbursement to the City out of the proceeds of the Obligations for Original Expenditures paid in connection with the Project prior to the issuance of the Obligations, all within the meaning of federal income tax laws and regulations with respect to issuance of tax-exempt obligations; and WHEREAS, the City has given notice of the meeting at which this Resolution is to be adopted as required by the Texas Open Meetings Law, Chapter 551 of the Texas Government Code Annotated Vernon's 1994, as amended. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT, TEXAS, THAT: Section 1. Subject to the terms hereof, the City Council adopts this resolution on behalf of the City of its official intent to a. Issue the Obligations after the date hereof to provide for the financing of the Project, in the maximum aggregate principal amount up to $30,000,000, if the City Council determines that the terms of such financing are in the City's best interest; b. Take such action and authorize the execution of such documents as may be necessary in connection with the issuance of the Obligations, providing, among other things, for payment of the principal of, interest on, paying agents' charges and other fees, if any, on the Obligations, and the acquisition, expansion, renovation, construction, reconstruction, repairs, equipping, furnishing, improvement, use and operation of the Project, all as shall be authorized, required or permitted by law and shall be satisfactory to the City; C. Pay such Original Expenditures on the Projects as are necessary to be incurred and paid prior to the issue date of the Obligations; d. Pay such Original Expenditures out of one or more of the following funds or accounts: Streets and Drainage Improvement Fund e. Reimburse the City out of proceeds of the Obligations, when issued, for Original Expenditures paid not more than sixty (60) days prior to the date of adoption of this resolution of official intent; f. Take or cause to be taken such other actions as may be required to implement the aforesaid undertakings or as the City may deem appropriate in pursuance thereof. Section 2. The City Manager and Chief Financial Officer are authorized to make reimbursement allocations from the proceeds of the Obligations in writing that evidences the use of such proceeds to reimburse the Original Expenditures paid not more than sixty (60) days prior to the date of adoption of this resolution of Official Intent and to do so in compliance with the requirements of Treasury Regulation Section 1.150-2. Section 3. This resolution shall constitute the official declaration of Official Intent by the City pursuant to which the City declares that it intends to reimburse itself out of the proceeds of the Obligations for Original Expenditures as provided herein, and is made pursuant to Treasury Regulation Section 1.150-2 and generally with the laws and regulations of the federal income tax laws governing the issuance of tax-exempt obligations. -2- Section 4. This resolution and order and the declaration of official intent herein shall be available for public inspection at all times at the City's business office and shall remain available for public inspection until the Obligations are issued and thereafter this resolution shall be maintained as part of the permanent records of the City Council of the City. PASSED AND APPROVED this 1 st day of December, 2009. THE CITY OF BEAUMONT, TEXAS By: MAYOR ATTEST: CITY CLERK THE CITY OF BEAUMONT, TEXAS (SEAL) -3- 3 December 1,2009 Consider approving the purchase of Heating, Ventilating, and Air Conditioning (HVAC) automation controls for use in various city facilities RICH WITH OPPORTUNITY [I ILI . � T • E • X • A • S City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Director of Public Works MEETING DATE: December 1, 2009 REQUESTED ACTION: Council consider the purchase of Heating, Ventilating, and Air Conditioning (HVAC) automation controls. RECOMMENDATION Administration recommends the purchase and installation of HVAC automation controls for seven (7) City-owned facilities in the amount of$688,000 from Automated Logic United Environmental Services of Beaumont through the Texas Multiple Award Schedule (TXMAS) contract. BACKGROUND The TXMAS Program, established by State of Texas Procurement and Support Services office, adapts existing competitively awarded federal government contracts to the procurement needs of the State and other government entities within Texas. The contracts meet all state bidding requirements. Automated Logic United Environmental Services is a contracted vendor with the TXMAS Program. Previously, Council approved the application and acceptance of a grant through the Energy Efficiency and Conservation Block Grant (EECBG) Program. The EECBG Program, funded by the American Recovery and Reinvestment Act of 2009, represents a Presidential priority to implement the most reliable energy technologies for energy efficiency and conservation throughout the United States. Beaumont has been awarded a grant in the amount of$1,104,200. A portion of the grant funding will be used to install HVAC automation controls in the Civic Center, City Hall, Police Building, Julie Rogers Theatre, Tyrrell Historical Library, Municipal Court and the Main Library. These facilities either lack controls entirely or have nonfunctioning controls that have deteriorated beyond repair and are no longer supported by the manufacturer(s). The HVAC units in these buildings run 24 hours a day, seven (7) days a week to maintain a constant temperature and humidity control. Automated Logic will provide all engineering, materials, and labor for a turnkey installation of controls that will enable the City's existing HVAC equipment to run more efficiently. For Purchase of HVAC Controls November 19, 2009 Page 2 example, the new control systems will include an optimized start feature that calculates the start time for each piece of HVAC equipment so it does not start any earlier than required for the building's occupancy load. Some buildings, such as City Hall, could be set to reduce temperature at 6:00 p.m. and increase temperature at 6:00 a.m. Monday through Friday with reduced temperatures on Saturday and Sunday. Others that operate on various time schedules would be set accordingly. The computerized control system will be monitored by Building Services staff. Failures at any of the buildings controlled by the system will be known immediately, thus eliminating an uncomfortable building temperature during an event. During nights and weekends, a message can be sent to a cell phone or pager notifying staff of a failure in the system. Many of the issues can be controlled or corrected by accessing the system via a laptop computer. BUDGETARYIMPACT The $688,000 required for the purchase and installation of the HVAC automation controls is available from the EECBG grant which requires no matching funds. 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 approve the purchase and installation of heating, ventilating, and air conditioning (HVAC) automation controls in the amount of $68,000 from Automated Logic United Environmental Services of Beaumont, Texas, through the Texas Multiple Award Schedule (TXMAS)contract for installation in the Civic Center, City Hall, Police Building, Julie Rogers Theatre, Tyrrell Historical Library, Municipal Court and the Main Library. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of December, 2009. - Mayor Becky Ames - 4 December 1, 2009 Consider approving a contract for the purchase of asphaltic concrete for use by the Streets and Drainage Division RICH WITH OPPORTUNITY r T • E • x • A • s City Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer MEETING DATE: December 1, 2009 REQUESTED ACTION: Council consider authorizing the award of a contract for asphaltic concrete. RECOMMENDATION The administration recommends the award of a six (6) month contract to APAC-Texas, Inc., of Beaumont, with an estimated total expenditure of$626,065. BACKGROUND Bids were requested for a six (6) month contract for asphaltic concrete to be used by the Public Works Department, Streets and Drainage Division. Cold laid asphaltic concrete is used for repairing potholes and small sections of street, while hot laid asphaltic concrete is used for repairs to larger street sections. It is estimated that approximately 9,600 tons of hot laid asphaltic concrete and 700 tons of cold laid asphaltic concrete will be used during the term of the contract. Four(4)vendors were notified with only APAC-Texas responding with a bid as reflected below. Specifications requested pricing for both plant pickup by City personnel and job site delivery by the vendor. The bidder met all product requirements specified and has previously held the contract satisfactorily. Six Month Contract for Asphaltic Concrete December 1, 2009 Page 2 The contract provides for the vendor to furnish asphaltic concrete at the following fixed unit prices: Description Plant Pickup Job Site Delivery Hot Laid Concrete $59.75/ton $65.10/ton Cold Laid Concrete $74.95/ton $79.55/ton The prior contract period prices were as follows: Description Plant Pickup Job Site Delivery Hot Laid Concrete $63.75/ton $71.85/ton Cold Laid Concrete $74.95/ton $81.70/ton BUDGETARY IMPACT Funds for the cold laid concrete are available in the Public Works operating budget. Funds are available in the Capital Program for the hot laid concrete which is used for street rehabilitation. BID TABULATION: SIX(6) MONTH CONTRACT FOR ROAD MATE BID OPENING DATE: THURSDAY, NOVEMBER 19, 2009 BID NUMBER: BF1010-03 APAC TEXAS BEUMONT UNIT TOTAL DESCRIPTION QTY PRICE/TON PRICE HOT MIX/HOT LAID ASPHALTIC CEMENT - 9,600 $59.75 $573,600.00 FOB VENDOR PLANT HOT MIX/HOT LAID ASPHALTIC CEMENT - $65.10 FOB JOB SITE HOT MIX/HOT LAID ASPHALTIC CEMENT - 700 $74.95 $52,465.00 FOB VENDOR PLANT HOT MIX/HOT LAID ASPHALTIC CEMENT - $79.55 FOB JOB SITE ESTIMATED TOTAL CONTRACT PRICE $626,065.00 RESOLUTION NO. WHEREAS, bids were solicited for a six (6) month contract for the purchase of asphaltic concrete for the Public Works Department, Streets and Drainage Division; and, WHEREAS, APAC-Texas, Inc., submitted a bid in the estimated amount of $626,065 in the unit amounts shown below: Description Plant Pickup Job Site Delivery Hot Laid Concrete $59.75 /ton $65.10 /ton Cold Laid Concrete $74.95 /ton $79.55 /ton and, WHEREAS, City Council is of the opinion that the bid submitted by APAC-Texas, Inc., should be accepted; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the bid submitted by APAC-Texas, Inc., for the purchase of asphaltic concrete for the Public Works Department, Streets and Drainage Division, in the estimated amount of $664,465 in the unit amounts shown above be accepted by the City of Beaumont. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1st day of December, 2009. - Mayor Becky Ames -