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HomeMy WebLinkAboutPACKET NOV 02, 2004 wiftr� �.J City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS NOVEMBER 2,2004 1:30 P.M. CONSENT AGENDA * Approval of minutes * Confirmation of committee appointments A) Authorize the payment of fiscal year 2005 dues to the South East Texas Regional Planning Commission(SETRPC) B) Authorize the settlement of the claim of Leah Wingate A City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Andrea S. Deaton, Budget Officer MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 28, 2004 REQUESTED ACTION: Authorize the payment of fiscal year 2005 dues to the South East Texas Regional Planning Commission (SETRPC) in the amount of$42,702.32. RECOMMENDATION Administration recommends approval of the payment of fiscal year 2005 dues to the South East Texas Regional Planning Commission in the amount of$42,702.32. BACKGROUND The SETRPC was established in June of 1970 under enabling legislation as a voluntary association of local governments. Its purpose is to encourage and permit local governments to join and cooperate with one another to improve the health and safety of their citizens; to plan for future development and transportation efforts; and to recognize the needs of agriculture, business and industry, among other things. The City of Beaumont supports the SETRPC and the community projects they perform. Some of the programs these dues will fund are the Criminal Justice Program; the Area Agency on Aging (AAA) Program; the Homeless Coalition; the Foster Grandparents (FGP) Program; and the Retired Senior Volunteer Program (RSVP). BUDGETARY IMPACT Funding is available and budgeted for this expenditure in the General Fund. PREVIOUS ACTION None SUBSEQUENT ACTION None, RECOMMENDED BY: City Manager South East Texas Regional Planning Commission 2210 Eastex Freeway Beaumont, Texas 77703-4929 (409) 899-8444 October 19, 2004 INVOICE City of Beaumont P O Box 3827 Beaumont, Texas 77704 FY 2005 SETRPC MEMBERSHIP DUES SETRPC Dues $13,663.92 Criminal Justice Programs $1,874.34 AAA Program $10,903.02 Homeless Coalition $9,298.56 FGP Program $2,661.28 RSVP Program $4,301.20 Total Invoice $42,702.32 THANK YOU PLEASE RETURN YELLOW COPY WITH PAYMENT �� City of Beaumont qw_ � EL Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Matt Martin, Liability Administrator MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 28, 2004 REQUESTED ACTION: Consider a resolution authorizing the settlement of the claim of Leah Wingate. RECOMMENDATION Council approval of a resolution authorizing the settlement of the claim of Leah Wingate. BACKGROUND Council authorized the settlement of this claim in Executive Session September 29, 2004. BUDGETARY IMPACT There are sufficient funds in the Liability Trust Fund to pay the settlement amount as shown: Leah Wingate & Provost & Umphrey Law Firm $11,500 Provost & Umphrey Law Firm PO Box 4905 Beaumont, TX 77704 PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and City Attorney. G:\CG\AGENDAIRESOLUTIICLAIMLAW.DOC\AGEN MEMO-CLAIM\WINGATE-C-S O4-061--11-04.wpd RESOLUTION NO. WHEREAS, the claim of Leah Wingate has been discussed in an Executive Session properly called and held Tuesday, September 29, 2004; and, WHEREAS, the Council desires to authorize the settlement of the claim; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Attorney be and he is hereby authorized to settle the claim of Leah Wingate in the amount of Eleven-Thousand Five-Hundred ($11,500) Dollars payable to Leah Wingate and Provost & Umphrey Law Firm, L.L.P. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 2nd day of November, 2004. -------------------------------- - Mayor Evelyn M. Lord - 1~ City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS NOVEMBER 2,2004 1:30 P.M. AGENDA CALL, TO ORDER * Invocation Pledge Roll Call * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-6/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Consider approving an ordinance authorizing the issuance of City of Beaumont, Texas, General Obligation Refunding Bonds, Series 2004 and authorizing the advance refunding of certain bonds and obligations 2. Consider authorizing the City Manager to execute a Multiple Use Agreement with the Texas Department of Transportation(TxDOT) for the future M.L. King Park statue site 3. Consider approving the allocation of$7,500 to be used as a revenue guarantee for Delta Airlines to provide air service from the Southeast Texas Regional Airport to Atlanta, Georgia 4. Consider amending Chapter 18 of the Code of Ordinance to adopt new regulations regarding solicitation in and alongside streets 5. Consider amending Ordinance No. 04-041 relating to the structure located at 3491 W. Euclid 6. Consider amending Ordinance No, 04-041 relating to the structure located at 2925 Harriot 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: City of Beaumont vs. House of Praise Deliverance Ministry, Inc. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact Pat Buehrle at 884-3725 a day prior to the meeting. 1 November 2,2004 Consider approving an ordinance authorizing the issuance of City of Beaumont, Texas, General Obligation Refunding Bonds, Series 2004 and authorizing the advance refunding of certain bonds and obligations City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Kandy Daniel, Treasurer MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 29, 2004 REQUESTED ACTION: Council consider an ordinance authorizing the issuance of City of Beaumont, Texas, General Obligation Refunding Bonds, Series 2004, authorizing the advance refunding of certain bonds and obligations and the execution and delivery of an escrow agreement and the subscription for and purchase of certain escrowed securities; and containing other matters related thereto. RECOMMENDATION The Administration requests approval of an ordinance authorizing the issuance of approximately $12,365,000 City of Beaumont, Texas, General Obligation Refunding Bonds, Series 2004, authorizing the advance refunding of certain bonds and obligations and the execution and delivery of an escrow agreement and the subscription for and purchase of certain escrowed securities; and containing other matters related thereto. BACKGROUND On October 26, 2004, First Southwest Company, Morgan Keegan & Company, Inc., Estrada Hinojosa&Company,Inc.,and Southwest Securities,Inc.were selected by City Council to provide underwriting services on the above mentioned bonds. The bonds will mature March 1, 2006 through March 1, 2014 with interest payable semiannually. Wells Fargo Bank N.A.,Houston, Texas will serve as paying agent/registrar and JP Morgan Chase Bank, Dallas, Texas will serve as escrow agent on the refunded bonds. Delivery and receipt of proceeds by the City is expected to be on December 2,2004. Proceeds will be used to refund certain outstanding obligations ofthe City including portions ofthe 1995 Certificates ofObligation,the 1996 Refunding Bonds and the 1996 Certificates of Obligation. The refunding is expected to produce a net cost savings to the City of approximately$550,000. BUDGETARY IMPACT All debt shall be incurred in the Debt Service Fund which is supported by property taxes. PREVIOUS ACTION A resolution was approved by City Council on October 26, 2004 to approve the selection of an underwriter for approximately$12,365,000 City ofBeaumont General Obligation Refunding Bonds. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Finance Officer. DRAFT ORDINANCE NO. NO. 4 ORDINANCE AUTHORIZING THE ISSUANCE OF THE CITY OF BEAUMONT, TEXAS, GENERAL OBLIGATION REFUNDING BONDS, SERIES 2004, AUTHORIZING THE ADVANCE REFUNDING OF CERTAIN BONDS AND OBLIGATIONS AND THE EXECUTION AND DELIVERY OF AN ESCROW AGREEMENT AND THE SUBSCRIPTION FOR AND PURCHASE OF CERTAIN ESCROWED SECURITES; AND CONTAINING OTHER MATTERS RELATED THERETO THE STATE OF TEXAS § COUNTY OF JEFFERSON § THE CITY OF BEAUMONT § WHEREAS, The City of Beaumont, Texas (the "City") has heretofore issued its City of Beaumont, Texas, Refunding Bonds, Series 1996, its City of Beaumont, Texas, Combination Tax & Revenue Certificates of Obligation, Series 1996, and its City of Beaumont, Texas, Combination Tax & Revenue Certificates of Obligation, Series 1995 (collectively the 'Refunded Obligations"), and now desires to refund a portion of certain maturities of the Refunded Obligations in advance of their maturities in order to provide a savings in debt service; and WHEREAS, Chapter 1207, Texas Government Code, as amended(formerly Article 717k of Vernon's Annotated Texas Civil Statutes, as amended), authorizes the City to issue refunding bonds for the purpose of refunding the Refunded Obligations in advance of their maturities, and to accomplish such refunding by depositing directly with any paying agent for the Refunded Obligations the proceeds of such refunding bonds,together with other available funds,in an amount sufficient to provide for the payment or redemption of the Refunded Obligations, and provides that such deposit shall constitute the making of firm banking and financial arrangements for the discharge and final payment or redemption of the Refunded Obligations; and WHEREAS, the City now desires to call certain of the Refunded Obligations for redemption prior to their maturities; and WHEREAS, the City also desires to authorize the execution of an escrow agreement in order to provide for the deposit of proceeds of the refunding bonds to pay and redeem the Refunded Obligations; and WHEREAS, upon issuance of the refunding bonds herein authorized and the deposit of funds referred to above,the Refunded Obligations shall no longer be regarded as being outstanding, except for the purpose of being paid pursuant to such deposits, and the pledges, liens, trusts and all other covenants, provisions, terms and conditions of the ordinances authorizing the issuance of the Refunded Obligations shall be discharged,terminated and defeased; NOW,THEREFORE,BE IT ORDAINED BY THE CITY OF BEAUMONT: 1. Consideration. The matters and facts contained in the preamble to this Ordinance are hereby found to be true and correct, and it is hereby found and determined that issuance of the refunding bonds described herein will benefit the City by providing a savings in debt service equal to a net present value of $ and a gross debt service savings equal to $ , and that such benefit is sufficient consideration for the refunding of the Refunded Obligations. 2. Definitions. Throughout this Ordinance, the following terms and expressions as used herein shall have the meanings set forth below: The term 'Bonds" or "Series 2004 Bonds" shall mean The City of Beaumont, Texas, General Obligation Refunding Bonds, Series 2004 authorized in this Ordinance, unless the context clearly indicates otherwise. The term"City" shall mean The City of Beaumont, Texas. The term"Code" shall mean the Internal Revenue Code of 1986, as amended. 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 DTC Participants. The term "Insurer" shall mean , the issuer of the Municipal Bond Guaranty Insurance Policy. The term "Interest and Sinking Fund" shall mean the interest and sinking fund established by the City pursuant to Section 17 of this Ordinance. The term "Interest Payment Date", when used in connection with any Bond, shall mean March 1,2005, and each September 1 and March 1 thereafter until maturity of such Bond. The term "Municipal Bond Guaranty Insurance Policy" shall mean the municipal bond guaranty insurance policy issued by the Insurer insuring the payment when due of the principal of and interest on the Bonds as provided therein. The term "Ordinance" as used herein and in the Bonds shall mean this ordinance -2- authorizing the Bonds. The term "Owner" shall mean any person or entity who shall be the registered owner of any outstanding Bonds. The term "Paying Agent" shall mean the Registrar. The term "Record Date" shall mean, for any Interest Payment Date, the fifteenth (15th) calendar day of the month next preceding each Interest Payment Date. The term "Refunded Obligations" shall mean a portion of the City's Refunding Bonds, Series 1996, maturing on March 1 in the years 2008 through 2010 in the principal amounts of $790,000, $780,000 and $785,000, respectively, and a portion of the City's Combination Tax & Revenue Certificates of Obligation, Series 1996, maturing on March 1 in the years 2008 through 2014 in the principal amounts of $590,000, $610,000, $680,000, $725,000, $775,000, $825,000 and $850,000, respectively, and the City's Combination Tax &Revenue Certificates of Obligation, Series 1995, maturing on March 1 in the years 2006 through 2014 in the principal amounts of $500,000, $500,000, $500,000, $500,000, $500,000, $500,000, $500,000, $500,000 and $500,000, respectively. 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 Wells Fargo Bank, National Association, Houston, Texas, and its successors in that capacity. The term "Report" shall mean the report of Grant Thornton, L.L.P., Certified Public Accountants, certifying as to the mathematical accuracy of the program designed by RBC Dain Rauscher,Inc., for the City with respect to the defeasance of the Refunded Obligations. The term "SEC" shall mean the United States Securities and Exchange Commission, and its successors. The term "Underwriters" shall mean 3. Authorization. The Bonds shall be issued in fully registered form,without coupons, in the total authorized aggregate amount of TWELVE MILLION THREE HUNDRED SIXTY- FIVE THOUSAND and NO/100 Dollars ($12,365,000.00) for the purpose of(i) refunding certain of the outstanding Refunded Obligations, and(ii)paying all costs of issuance of the Bonds. 4. Designation, Tate and Interest Pay .nt lea . The Bonds shall be designated as the "THE CITY OF BEAUMONT, TEXAS, GENERAL OBLIGATION REFUNDING BONDS, SERIES 2004", and shall be dated November 1, 2004. The Bonds shall bear interest from the later of November 1, 2004, or the most recent Interest Payment Date to which interest has been paid or -3- duly provided for, calculated on the basis of a 360 day year of twelve 30 day months, interest payable on March 1, 2005, and semiannually thereafter on September 1 and March 1 of each year until maturity or earlier redemption. 5. Initial Bends, Numbers and Denominations. The Bonds shall be issued bearing the numbers, in the principal amounts, and bearing interest at the rates set forth in the following schedule, and may be transferred and exchanged as set out in this Ordinance. The Bonds shall mature, in accordance with this Ordinance, on March 1 in each of the years and in the amounts set out in such schedule. Bonds delivered in transfer of or in exchange for other Bonds 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 Bond or Bonds in lieu of which they are delivered. Bond Year of Principal Interest Number Maturity Amount mate R-1 2006 $ 445,000 % R-2 2007 $ 430,000 % R-3 2008 $2,065,000 % R-4 2009 $2,030,000 % R-5 2010 $2,070,000 % R-6 2010 $1,295,000 % R-7 2011 $1,325,000 % R-8 2012 $1,325,000 % R-9 2013 $1,350,000 % R-10 2014 $1,355,000 % The Bonds shall not be subject to redemption prior to their scheduled maturities. 6. Execution of Bends; Seal. The Bonds shall be signed by the Mayor of the City and countersigned by the 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 Bonds shall have the same effect as if each of the Bonds had been signed manually and in person by each of said officers, and such facsimile seal on the Bonds shall have the same effect as if the official seal of the City had been manually impressed upon each of the Bonds. If any officer of the City whose manual or facsimile signature shall appear on the Bonds shall cease to be such officer before the authentication of such Bonds or before the delivery of such Bonds, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes as if such officer had remained in such office. 7. Annr_ o Attorney General- Registration by Comptroller. The Bonds to be initially issued shall be delivered to the Attorney General of Texas for approval and shall be registered by the Comptroller of Public Accounts of the State of Texas. The manually executed -4- registration certificate of the Comptroller of Public Accounts substantially in the form provided in Section 15 of this Ordinance shall be attached or affixed to the Bonds to be initially issued. 8. Authentication. Except for the Bonds to be initially issued, which need not be authenticated by the Registrar, only such Bonds which bear thereon a certificate of authentication, substantially in the form provided in Section 15 of this Ordinance, manually executed by an authorized officer of the Registrar, shall be entitled to the benefits of this Ordinance or shall be valid or obligatory for any purpose. Such duly executed certificates of authentication shall be conclusive evidence that the Bonds so authenticated were delivered by the Registrar hereunder. 9. Payment of Principal and Interest. The Registrar is hereby appointed as the paying agent for the Bonds. The principal of the Bonds shall be payable, without exchange or collection charges, in any coin or currency of the United States of America which, on the date of payment, is legal tender for the payment of debts due the United States of America, upon their presentation and surrender as they become due and payable, at the principal corporate trust office of the Registrar. The interest on each Bond 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. At the request of the registered holder of $1,000,000 or more in aggregate principal amount of Bonds, the Registrar shall pay interest on such Bonds by wire transfer in immediately available funds to the account designated by such holder to the Registrar in writing at least 5 days before the Record Date for such payment. 10. Qwners ; i Tnclaimed Prin inal and Interest. The City, the Registrar and any other person may treat the person in whose name any Bond is registered as the absolute owner of such Bond for the purpose of making and receiving payment of the principal thereof and for the further purpose of making and receiving payment of the interest thereon, and for all other purposes, whether or not such Bond is overdue, and neither the City nor the Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the person deemed to be the Owner of any Bond in accordance with this Section 10 shall be valid and effectual and shall discharge the liability of the City and the Registrar upon such Bond to the extent of the sums paid. Amounts held by the Registrar which represent principal of and interest on the Bonds remaining unclaimed by the Owner after the expiration of 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. 11. Registration, Transfer and Exchange. So long as any Bonds remain outstanding,the Registrar shall keep the Register at its principal corporate trust office in which, subject to such reasonable regulations as it may prescribe, the Registrar shall provide for the registration and transfer of Bonds in accordance with the terms of this Ordinance. Each Bond shall be transferable only upon the presentation and surrender thereof at the -5- principal corporate trust office of the Registrar, duly endorsed for transfer, or accompanied by an assignment duly executed by the registered Owner or his authorized representative in form satisfactory to the Registrar. Upon due presentation of any Bond for transfer, the Registrar shall authenticate and deliver in exchange therefor, within three business days after such presentation, a new Bond or Bonds, registered in the name of the transferee or transferees, in authorized denominations and of the same maturity and aggregate principal amount and bearing interest at the same rate as the Bond or Bonds so presented. All Bonds shall be exchangeable upon presentation and surrender thereof at the principal corporate trust office of the Registrar for a Bond or Bonds of the same maturity and interest rate and in any authorized denomination, in an aggregate principal amount equal to the unpaid principal amount of the Bond or Bonds presented for exchange. The Registrar shall be and is hereby authorized to authenticate and deliver exchange Bonds in accordance with the provisions of this Section 11. Each Bond delivered in accordance with this Section 11 shall be entitled to the benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such Bond is delivered. The City or the Registrar may require the Owner of any Bond to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with the transfer or exchange of such Bond. Any fee or charge of the Registrar for such transfer or exchange shall be paid by the City. 12. Cancellation of Bonds. All Bonds paid in accordance with this Ordinance, and all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and delivered in accordance herewith, shall be cancelled and destroyed upon the making of proper records regarding such payment. The Registrar shall furnish the City with appropriate certificates of destruction of such Bonds. 13. Mutilated, Lost or Stolen Banda. Upon the presentation and surrender to the Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a replacement Bond of like maturity, interest rate and principal amount, bearing a number not contemporaneously outstanding. The City or the Registrar may require the Owner of such Bond to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith and any other expenses connected therewith, including the fees and expenses of the Registrar. If any Bond is lost, apparently destroyed, or wrongfully taken, the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or knowledge that such Bond has been acquired by a bona fide purchaser, shall execute and the Registrar shall authenticate and deliver a replacement Bond of like maturity, interest rate and principal amount, bearing a number not contemporaneously outstanding,provided that the Owner thereof shall have: (1) furnished to the City and the Registrar satisfactory evidence of the -6- ownership of and the circumstances of the loss, destruction or theft of such Bond; (2) furnished such security or indemnity as may be required by the Registrar and the City to save them harmless; (3) paid all expenses and charges in connection therewith, including, but not limited to, printing costs, legal fees, fees of the Registrar and any tax or other governmental charge that may be imposed; and (4) met any other reasonable requirements of the City and the Registrar. If, after the delivery of such replacement Bond, a bona fide purchaser of the original Bond in lieu of which such replacement Bond was issued presents for payment such original Bond,the City and the Registrar shall be entitled to recover such replacement Bond from the person to whom it was delivered or any person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the City or the Registrar in connection therewith. If any such mutilated, lost, apparently destroyed or wrongfully taken Bond has become or is about to become due and payable, the City in its discretion may, instead of issuing a replacement Bond, authorize the Registrar to pay such Bond. Each replacement Bond delivered in accordance with this Section 13 shall be entitled to the benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such replacement Bond is delivered. 14. Special Election for Uncertificated Bonds. Notwithstanding any other provision hereof, upon initial issuance of the Bonds but at the sole election of the Underwriters, the ownership of the Bonds 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 Bonds shall be registered in the name of Cede &Co., as nominee of DTC. The definitive Bonds shall be initially issued in the form of a single separate certificate for each of the maturities thereof. If the purchaser shall elect to invoke the provisions of this Section, then the following provisions shall take effect with respect to the Bonds. With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the City and the Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than an Owner of a Bond, as shown on the Register, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any -7- DTC Participant or any other person, other than an Owner of a Bond, as shown in the Register, of any amount with respect to principal of,premium, if any, or interest on the Bonds. Notwithstanding any other provision of this Ordinance to the contrary, the City and the Registrar shall be entitled to treat and consider the person in whose name each Bond is registered in the Register as the absolute Owner of such Bond for the purpose of payment of principal of, premium, if any, and interest on the Bonds, for the purpose of all matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the respective Owners, as shown in the Register as provided in this 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 Bonds to the extent of the sum or sums so paid. No person other than an Owner as shown in the Register, shall receive a Bond certificate evidencing the obligation of the 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 Representations of the City to DTC, and that it is in the best interest of the beneficial Owners of the Bonds that they be able to obtain certificated Bonds, or if DTC Participants owning at least 50% of the Bonds 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 the beneficial Owners of the Bonds, 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 Bonds to such successor securities depository or (ii) notify DTC of the availability through DTC of Bonds and transfer one or more separate Bonds to DTC Participants having Bonds credited to their DTC accounts. In such event, the Bonds shall no longer be restricted to being registered in the Register in the name of Cede & Co., as nominee of DTC,but may be registered in the name of the successor securities depository, or its nominee, or in whatever name or names Bondholders transferring or exchanging Bonds shall designate,in accordance with the provisions of this Ordinance. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on the Bonds, and all notices with respect to the Bonds, shall be made and given,respectively, in the manner provided in the Letter of Representations from the City to DTC. 15. Form. (a) The Bonds shall be in substantially the following form,including the form of Registrar's Certificate of Authentication,the form of Assignment,the form of Statement of Insurance, and the form of Registration Statement of the Comptroller of Public Accounts, with -8- such additions, deletions and variations as may be necessary or desirable and permitted by this Ordinance: (Face of Bond) United States of America State of Texas County of Jefferson NUMBER DENOMINATION R- $ REGISTERED REGISTERED THE CITY OF BEAUMONT, TEXAS General Obligation Refunding Bond Series 2004 INTF,REST RATE: MATT TRTTY DATE: DATED DATE: Cl JSTP: November 1,2004 REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS The City of Beaumont, in the County of Jefferson, State of 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 bond at the principal corporate trust office of Wells Fargo Bank, National Association, Houston, Texas (the "Registrar"), the principal amount identified above, payable in any coin or currency of the United States of America which on the date of payment of such principal is legal tender for the payment of debts due the United States of America, and to pay 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 November 1,2004, or the most recent interest payment date to which interest has been paid or duly provided for. Interest on this bond shall be paid by check payable on September 1 and March 1, beginning on March 1, 2005, mailed to the registered owner of record as of the previous August 15 and February 15 as shown on the books of registration kept by the Registrar. At the request of the registered holder of $1,000,000 or more in aggregate principal amount of Bonds, the Registrar shall pay interest on such Bonds by wire transfer in immediately available funds to the account designated by such holder to the Registrar in writing at least 5 days before the Record Date for such payment. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE HEREOF, WHICH PROVISIONS SHALL HAVE THE SAME -9- FORCE AND EFFECT AS IF SET FORTH AT THIS PLACE. IN WITNESS WHEREOF, this Bond 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 Bond. (AUTHENTICATION CERTIFICATE) THE CITY OF BEAUMONT,TEXAS Mayor (SEAL) City Clerk (Back Panel of Bond) THIS BOND is one of a duly authorized issue of Bonds, aggregating $12,365,000 (the "Bonds"), issued pursuant to an ordinance adopted by the City Council on November , 2004 (the "Ordinance") for the purpose of refunding prior to maturity(i)a portion of the City's Refunding Bonds, Series 1996, maturing on March 1 in the years 2008 through 2010, (ii) a portion of the City's Combination Tax & Revenue Certificates of Obligation, Series 2004, maturing on March 1 in the years 2008 through 2014 and (ii) the City's Combination Tax & Revenue Certificates of Obligation, Series 1995,maturing on March 1 in the years 2006 through 2014. THE BONDS are not subject to redemption prior to maturity. THIS BOND is transferable only upon presentation and surrender at the principal corporate trust office of the Registrar, duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his authorized representative, subject to the terms and conditions of the Ordinance. THE BONDS are exchangeable at the principal corporate trust office of the Registrar for bonds in the principal amount of$5,000 or any integral multiple thereof, subject to the terms and conditions of the Ordinance. THIS BOND shall not be valid or obligatory for any purpose or be entitled to any benefit under the Ordinance unless this Bond either(i) is registered by the Comptroller of Public Accounts of the State of Texas by registration certificate endorsed hereon or (ii) is authenticated by the Registrar by due execution of the authentication certificate endorsed hereon. -10- IT IS HEREBY certified, recited and covenanted that this Bond has been duly and validly issued and delivered; that all acts, conditions and things required or proper to be performed, to exist and to be done precedent to or in the issuance and delivery of this Bond have been performed, exist and have been done in accordance with law; and that annual ad valorem taxes within the limits prescribed by law sufficient to provide for the payment of the interest on and principal of this Bond, as such interest comes due and such principal matures, have been levied and ordered to be levied against all taxable property in the City and have been pledged irrevocably for such payment. (b) Bonds No. R-1 through R-10 shall be registered by the Comptroller of Public Accounts of the State of Texas, as provided by law. The registration certificate of the Comptroller of Public Accounts shall be printed on Bonds R-1 through R-10 and shall be in substantially the following form: COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this bond has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this bond has been registered by the Comptroller of Public Accounts of the State of Texas. WITNESS MY SIGNATURE AND SEAL this ,2004. XXXXXXXXXXX Comptroller of Public Accounts of the State of Texas (SEAL) (c) Except for Bond Numbers R-1 through R-10, the following form of authentication certificate shall be printed on each of the Bonds: AUTHENTICATION CERTIFICATE This bond is one of the bonds described in and delivered pursuant to the within-mentioned Ordinance. Wells Fargo Bank,National Association,Registrar By Authorized Signature Date of Authentication: -11- (d) The following form of assignment shall be printed on each of the Bonds: ASSIGNMENT For value received, the undersigned hereby sells, assigns, and transfers unto the within bond and hereby irrevocably constitutes and appoints attorney to transfer said bond on the books kept for registration thereof,with full power of substitution in the premises. DATED: Signature Guaranteed: Registered Owner NOTICE: The signature above must correspond to the name of the registered NOTICE: Signature must be owner as shown on the face guaranteed by a member firm of this Bond in every of the New York Stock Exchange particular,without any or a commercial bank or trust alteration, enlargement or company. change whatsoever. (e) The following statement of insurance shall be printed on each of the Bonds: STATEMENT OF INSURANCE 16. Legal (binions; CI TSTP. The approving opinion of Orgain, Bell & Tucker, L.L.P., Beaumont, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Bonds, but errors or omissions in the printing of such opinions or such numbers shall have no effect on the validity of the Bonds. 17. Interest and Sinking Fund; T wy, Assessment and Collection of Taxes. There is hereby established a separate fund of the City to be known as the "Series 2004 General Obligation Refunding Bonds Interest and Sinking Fund" which shall be kept separate and apart from all other funds of the City. The proceeds from all taxes levied, assessed and collected for and on account of the Bonds authorized by this Ordinance shall be deposited, as collected, in the Interest and Sinking Fund. While the Bonds or any part of the principal thereof or interest thereon remain outstanding and unpaid, there is hereby levied and there shall be annually assessed and collected in due time, form and manner, and at the same time other City taxes are assessed, levied and collected, in each -12- year, beginning with the current year, a continuing direct annual ad valorem tax upon all taxable property in said City sufficient to pay the current interest on said Bonds as the same becomes due, and to create and provide a sinking fund of not less than two percent (2%) of the original principal amount of the Bonds or of not less than the amount required to pay each installment of the principal of said Bonds as the same matures, whichever is greater, 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 said Bonds and to no other purpose. In addition, interest accrued from the date of the Bonds until their delivery and premium, if any, is to be deposited in such fund. To pay the interest coming due on the Bonds on March 1, 2005, and the interest coming due on September 1, 2005, there is hereby appropriated from current funds on hand, which are certified to be on hand and available for such purpose, an amount sufficient to pay such interest, and such amount shall be used for no other purpose. 18. Further Proceedings. After the Bonds to be initially issued shall have been executed, it shall be the duty of the Mayor of the City to deliver the Bonds to be initially issued and all pertinent records and proceedings to the Attorney General of the State of Texas, for examination and approval by the Attorney General. After the Bonds to be initially issued shall have been approved by the Attorney General, they shall be delivered to the Comptroller of Public Accounts of the State of Texas for registration. Upon registration of the Bonds to be initially issued, the Comptroller of Public Accounts (or a deputy lawfully designated in writing to act for the Comptroller) shall manually sign the Comptroller's Registration Certificate prescribed herein to be printed and endorsed on the Bonds to be initially issued, and the seal of said Comptroller shall be impressed, or placed in facsimile,thereon. 19. Sale of Bonds and Bond Insurance. The Bonds are hereby sold and shall be delivered to the Underwriters at a price of $ , representing the principal amount of Bonds of$ ,plus a premium of$ , and less an underwriter's discount of$ ,plus accrued interest on the Bonds, calculated on the basis of a 360-day year of twelve 30-day months from November 1, 2004, to the date of Closing, in accordance with the terms of the Purchase Contract presented to and hereby approved by the City Council, which price and terms are hereby found and determined to be the most advantageous reasonably obtainable by the City. The Mayor and other appropriate officials of the City are hereby authorized and directed to do any and all things necessary or desirable to satisfy the conditions set out herein and to provide for the issuance and delivery of the Bonds. The purchase of and payment of the premium for the Municipal Bond Guaranty Insurance Policy in accordance with the terms of the commitment for such insurance presented to the City Council are hereby approved and authorized. All officials and representatives of the City are authorized and directed to execute such documents and to do any and all things necessary, desirable or appropriate to obtain the Municipal Bond Guaranty Insurance Policy, and the printing on the Bonds covered by the Municipal Bond Guaranty Insurance Policy of an appropriate legend regarding such insurance is hereby approved and authorized. -13- 20. Tax Exemption. The City intends that the interest on the Bonds shall be excludable from gross income of the owners thereof for federal income tax purposes pursuant to Sections 103 and 141 through 150 of the Internal Revenue Code of 1986, as amended, (the "Code") and all applicable temporary, proposed and final regulations (the "Regulations") and procedures promulgated thereunder and applicable to the Bonds. For this purpose, the City covenants that it will monitor and control the receipt, investment, expenditure and use of all gross proceeds of the Bonds and take or omit to take such other and further actions as may be required by Sections 103 and 141 through 150 of the Code and the Regulations to cause the interest on the Bonds to be and remain excludable from the gross income, as defined in Section 61 of the Code, of the owners of the Bonds for federal income tax purposes. Without limiting the generality of the foregoing, the City shall comply with each of the following covenants: (a) The City will use all of the proceeds of the Bonds to (i) acquire non- callable obligations of the United States of America(the "Escrowed Securities") sufficient to pay the principal of, premium, if any, and interest on the Refunded Obligations and (ii)to pay the costs of issuing the Bonds except for amounts, if any, described in the Report (as defined in the Escrow Agreement) as the rounding amount and the ending cash balance in the Escrow Fund (as defined in the Escrow Agreement). (b) The City will not directly or indirectly take any action or omit to take any action, which action or omission would cause the Bonds or the Refunded Obligations to constitute "private activity bonds"within the meaning of Section 141(a) of the Code. (c) Principal of and interest on the Bonds will be paid solely from ad valorem taxes collected by the City, investment earnings on such collections, and as available,proceeds of the Bonds. (d) Based upon all facts and estimates now known or reasonably expected to be in existence on the date the Bonds are delivered, the City reasonably expects that the proceeds of the Bonds and the Refunded Obligations (to the extent any of such proceeds remain unexpended) will not be used in a manner that would cause the Bonds or the Refunded Obligations or any portion thereof to be "arbitrage bonds" within the meaning of Section 148 of the Code. (e) At all times while the Bonds are outstanding, the City will identify and properly account for all amounts constituting gross proceeds of the Bonds in accordance with the Regulations. The City will monitor the yield on the investments of the proceeds of the Bonds and, to the extent required by the Code and the Regulations, will restrict the yield on such investments to a yield which is not materially higher than the yield on the Bonds. To the extent necessary to prevent the Bonds from constituting "arbitrage bonds," the City will make such payments as are necessary to cause the yield on all yield-restricted nonpurpose investments allocable to the Bonds to be less than the yield that is materially higher than the yield on the Bonds. -14- (f) The City will not take any action or knowingly omit to take any action, if taken or omitted, would cause the Bonds to be treated as "federally guaranteed" obligations for purposes of Section 149(b) of the Code. (g) The City represents that not more than fifty percent (50%) of the proceeds of any new money portion of the Bonds or any new money issue refunded by, the Refunded Obligations was invested in nonpurpose investments (as defined in Section 148(f)(b)(A) of the Code) having a substantially guaranteed yield for four years or more within the meaning of Section 149(g)(3)(A)(ii) of the Code, and the City reasonably expected at the time each issue of the Refunded Obligations was issued that at least eighty-five percent (85%) of the spendable proceeds of the Bonds or the Refunded Obligations would be used to carry out the governmental purpose of such Bonds within the corresponding three-year period beginning on the respective dates of the Bonds or the Refunded Obligations. (h) The City will take all necessary steps to comply with the requirement that certain amounts earned by the City on the investment of the gross proceeds of the Bonds, if any, be rebated to the federal government. Specifically,the City will (i)maintain records regarding the receipt, investment and expenditure of the gross proceeds of the Bonds as may be required to calculate such excess arbitrage profits separately from records of amounts on deposit in the funds and accounts of the City allocable to other obligations of the City or moneys which do not represent gross proceeds of any obligations of the City and retain such records for at least six years after the day on which the last outstanding Bond is discharged, (ii) account for all gross proceeds under a reasonable, consistently applied method of accounting, not employed as an artifice or device to avoid, in whole or in part, the requirements of Section 148 of the Code, including any specified method of accounting required by applicable Regulations to be used for all or a portion of the gross proceeds, (iii) calculate, at such times as are required by applicable Regulations, the amount of excess arbitrage profits, if any, earned from the investment of the gross proceeds of the Bonds and (iv) timely pay, as required by applicable Regulations, all amounts required to be rebated to the federal government. In addition, the City will exercise reasonable diligence to assure that no errors are made in the calculations required by the preceding sentence and, if such an error is made, to discover and promptly correct such error within a reasonable amount of time thereafter, including payment to the federal government of any delinquent amounts owed to it, including interest thereon and penalty. (i) 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 Bonds that might result in a reduction in the amount required to be paid to the federal government because such arrangement results in smaller profit or a larger loss than would have resulted if such arrangement had been at arm's length and had the yield on the issue not been relevant to either party. -15- 0) The City will timely file or cause to be filed with the Secretary of the Treasury of the United States the information required by Section 149(e) of the Code with respect to the Bonds on such form and in such place as the Secretary may prescribe. (k) The City will not issue or use the Bonds as part of an "abusive arbitrage device" (as defined in Section 1.148-10(a) of the Regulations). Without limiting the foregoing, the Bonds are not and will not be a part of a transaction or series of transactions that attempts to circumvent the provisions of Section 148 of the Code and the Regulations, by (i) enabling the City to exploit the difference between tax-exempt and taxable interest rates to gain a material financial advantage, or (ii) increasing the burden on the market for tax-exempt obligations. (1) Proper officers of the City charged with the responsibility for issuing the Bonds are hereby directed to make, execute and deliver certifications as to facts, estimates or circumstances in existence as of the Issue Date and stating whether there are facts, estimates or circumstances that would materially change the City's expectations. On or after the Issue Date, the City will take such actions as are necessary and appropriate to assure the continuous accuracy of the representations contained in such certificates. (m) The covenants and representations made or required by this Section are for the benefit of the Bond holders and any subsequent Bond holder, and may be relied upon by the Bondholder and any subsequent Bondholder and bond counsel to the City. (n) In complying with the foregoing covenants, the City may rely upon an unqualified opinion issued to the City by nationally recognized bond counsel that any action by the City or reliance upon any interpretation of the Code or Regulations contained in such opinion will not cause interest on the Bonds to be includable in gross income for federal income tax purposes under existing law. (o) Notwithstanding any other provision of this Ordinance, the City's representations and obligations under the covenants and provisions of this Section shall survive the defeasance and discharge of the Bonds for as long as such matters are relevant to the exclusion of interest on the Bonds from the gross income of the owners for federal income tax purposes. Section 21. Application of Proceeds. The proceeds from the sale of the Bonds in the amount of$ shall,promptly upon receipt by the City,be applied as follows: (a) Accrued interest shall be deposited into the Interest and Sinking Fund for the Bonds; (b) To establish the escrow fund to refund the Refunded Obligations as provided in Section 24 below, $ from the sale of the Bonds shall be deposited with the Escrow Agent pursuant to Section 24 below. -16- (c) $ from the sale of the Bonds shall be used to pay the costs of issuing the Bonds, including the premium of $ for the Municipal Bond Guaranty Insurance Policy,not later than 90 days after such issuance; and (d) The sum of $ from the sale of the Bonds shall be used as a rounding amount and shall be deposited in the Interest and Sinking Fund for the Bonds; and (e) Any proceeds from the Bonds remaining after making all such deposits and payments shall be deposited into the Interest and Sinking Fund. 22. Transfer of Money in Interest and SinkinR Funds Maintained for the Refiinded Obligations. On the date of delivery of the Bonds, any amounts contained in the Interest and Sinking Funds for the Refunded Obligations shall be transferred to the Interest and Sinking Fund for the Bonds and shall be applied as herein provided. 23. Rec3e mntion of R .fimded Obligation-,. The City hereby irrevocably calls the following bonds of the City for redemption prior to maturity on the date set forth below, and authorizes and directs notice of such redemption to be given as provided in substantially the form attached hereto as Exhibit "B" (with such changes to this form as any official of the City may approve): SEE SCHEDULE "A" ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE. 24. Escrow Agreement. The discharge and defeasance of the Refunded Obligations shall be effectuated pursuant to the terms and provisions of an Escrow Agreement to be entered into by and between the City and JPMorgan Chase Bank, Dallas, Texas, as Escrow Agent, which shall be substantially in the form attached hereto as Exhibit "C", the terms and provisions of which are hereby approved, subject to such insertions, additions and modifications as shall be necessary(a)to carry out the program which has been designed for the City by RBC Dain Rauscher Inc., and which shall be certified as to mathematical accuracy by Grant Thornton, L.L.P., in the Report, (b) to maximize the City's present value savings and minimize the City's costs of refunding, (c)to comply with all applicable laws and regulations relating to the refunding of the Refunded Obligations and (d)to carry out the other intents and purposes of this Ordinance, and the Mayor is hereby authorized to execute and deliver the Escrow Agreement on behalf of the City in multiple counterparts and the City Clerk or an Assistant City Clerk is hereby authorized to attest thereto and affix the City's seal. 25. Source of Funds i TS d in R fiinding. No money of the City other than proceeds of the Bonds shall be used to refund the Refunded Obligations. -17- 26. Purchase of Escrowed S . .uriti . To assure the purchase of the Escrowed Securities as described in the Report and in the Escrow Agreement,the Mayor,the City's Finance Officer, and the Escrow Agent are hereby authorized to subscribe for, agree to purchase, and purchase such Escrowed Securities in such amounts and maturities and bearing interest at such rates as may be provided for in the Report, and to execute any and all subscriptions, purchase agreements, commitments, letters of authorization and other documents necessary to effectuate the foregoing, and any actions heretofore taken for such purpose are hereby ratified and approved. 27. Open Meeting. It is hereby officially found and determined that the meeting at which this Ordinance was adopted was open to the public, and public notice of the time, place and purpose of said meeting was given, all as required by Chapter 551 of the Texas Government Code Annotated,Vernon's 1994, as amended. 28. Official Statement. The Preliminary Official Statement and the Official Statement prepared in the initial offering and sale of the Bonds 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 Bonds by the Underwriters 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 Bonds. 29. Registrar. The Registrar, by undertaking the performance of the duties of the Registrar and in consideration of the payment of fees or deposits of money pursuant to this Ordinance and a Paying Agent/Registrar's Agreement, accepts and agrees to abide by the terms of this Ordinance and such Agreement. The City hereby approves the form of the Paying Agent/Registrar's Agreement presented to the City Council and hereby authorizes the Mayor or any other official of the City to execute such agreement on behalf of the City, with such changes and revisions thereto as may be approved by the official executing such agreement. The City covenants that at all times while any Bonds are outstanding, it will provide a bank, trust company, financial institution or other entity duly qualified and authorized to act as Registrar for the Bonds. The City reserves the right to replace the Registrar or its successor at any time 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 Bonds. If the Registrar is replaced by the City, the new Registrar shall accept the previous Registrar's records and act in the same capacity as the previous 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. Any successor Registrar shall be either a national or state banking institution and a corporation or association organized and doing business under the laws of the United States of America or any State authorized under such laws to exercise trust powers and subject to supervision or examination by Federal or State authority. Each Registrar hereunder, by acting in that capacity, shall be deemed to have agreed to the provisions of this Section. -18- 30. Related Matters. To satisfy in a timely manner all of the City's obligations under this Ordinance, the Mayor, the Mayor Pro Tem, the City Manager,the City Clerk, or Assistant City Clerk, and all other appropriate officers and agents of the City are hereby authorized and directed to take all other actions that are reasonably necessary to provide for issuance of the Bonds, including, without limitation, executing and delivering on behalf of the City all certificates, consents,receipts, requests and other documents as may be reasonably necessary to satisfy the City's obligations under this Ordinance and to direct the application of funds of the City consistent with the provisions hereof. 31. No Personal Liability. No recourse shall be had for payment of the principal of or premium, if any, or interest on any Bonds, or for any claim based thereon, or on this Ordinance, against any official or employee of the City or any person executing any Bonds. 32. Sever. 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. 33. RM eater. All orders, resolutions, and ordinances, and parts thereof inconsistent herewith are hereby repealed to the extent of such inconsistency. 34. Additional Obligation-,- The City undertakes and agrees for the benefit of the holders of the Bonds to provide directly, on or before six months after the end of the City's fiscal year,which fiscal year presently ends on September 30: a. to each nationally recognized municipal securities information repository and to the appropriate state information depository, if any, annual financial information(which may be unaudited) and operating data regarding the City for fiscal years ending on or after January 1, 2004 which annual financial information and operating data shall be of the type included in the following listed sections contained in the Final Official Statement: SELECTED FINANCIAL INFORMATION CITY TAX DEBT(except for"Estimated Overlapping Debt") TAX DATA SELECTED FINANCIAL DATA INVESTMENT AUTHORITY AND INVESTMENT OBJECTIVES OF THE CITY—Current Investments -19- Appendix B b. to each nationally recognized municipal securities information repository and to the appropriate state information depository, if any, audited financial statements for the City for fiscal years ending on or after January 1, 2004, 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, to each nationally recognized municipal securities information repository or to the Municipal Securities Rulemaking Board, and to the appropriate state information depository, if any, notice of any of the following events with respect to the Bonds, if material within the meaning of the federal securities laws to a decision to purchase or sell Bonds: i. Principal and interest payment delinquencies; ii. Non-payment related defaults; iii. Unscheduled draws on debt service reserves reflecting financial difficulties; iv. Unscheduled draws on credit enhancements reflecting financial difficulties; V. Substitution of credit or liquidity providers, or their failure to perform; vi. Adverse tax opinions or events affecting the tax-exempt status of the Bonds; vii. Modifications to rights of Bondholders; viii. Bond calls; ix. Defeasances; X. Release, substitution or sale of property securing repayment of the securities; xi. Rating changes; and d. in a timely manner, to each nationally recognized municipal securities information repository or to the Municipal Securities Rulemaking Board, and to the appropriate state information depository, if any, 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. 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 -20- Standards Board, and, subject to changes in applicable law or regulation, such principles will be applied in the future. If the City changes its fiscal year, it will notify each nationally recognized municipal securities information repository and the appropriate state information depository 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,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 Bonds 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 BONDS MAY SEEK AS THEIR SOLE REMEDY A WRIT OF MANDAMUS TO COMPEL THE CITY TO COMPLY WITH ITS AGREEMENT. No default by the City with respect to its continuing disclosure agreement shall constitute a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this 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 34 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 Underwriters to purchase or sell the Bonds 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 Bonds 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 Bonds. The City may also amend or repeal the obligations and agreement in this Section 34 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 Underwriters from lawfully purchasing or reselling the Bonds in the primary offering of the Bonds 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. -21- 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 Bonds. -22- PASSED AND APPROVED this day of November,2004. Mayor THE CITY OF BEAUMONT, TEXAS ATTEST: City Clerk THE CITY OF BEAUMONT,TEXAS (CITY SEAL) -23- EXHIBIT"A" SCHEDULE OF OBLIGATIONS TO BE REDEEMED EXHIBIT "B" FORM OF NOTICE OF REDEMPTION EXHIBIT "C" ESCROW AGREEMENT 2 November 2,2044 Consider authorizing the City Manager to execute a Multiple Use Agreement with the Texas Department of Transportation(TxDOT) for the future M.L. King Park statue site :1~1 City of Beaumont 7eij- 1Council Agenda Item �A ' L T O: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 26, 2004 REQUESTED ACTION: Council authorize the City Manager to execute a Multiple Use Agreement with the Texas Department of Transportation(TxDOT) for the future M.L. King Park statue site. RECOMMENDATION Administration recommends approval of the execution of a Multiple Use Agreement with the TxDOT for the future M.L. King Park statue site. BACKGROUND In 1996, the M.L. King Commission prepared a project nomination application for potential funding of the M.L. King statue through TxDOT's Statewide Enhancement Program. Upon review of the application by TxDOT, it was determined that the funding of the statue was not an eligible project under the Statewide Enhancement Program. Although the project was not eligible, the pedestals, marble wall and landscaping were installed by TxDOT. The improvements constructed by TxDOT are located in the median north of the M.L. King Parkway and Wall Street intersection. Since its construction, the marble wall has been hit by vehicles and/or vandalized on several occasions. Additionally, if the statue was to be installed at this location, it would not be easily accessible to the public. For these reasons, it was determined it would be beneficial to relocate these improvements to another location along the parkway. Several potential properties were reviewed and the location that was determined to be the most aesthetically pleasing is located on the east side of M.L. King between College and Wall Streets. This property is currently owned by TxDOT and is a portion of the M.L. King right-of-way. The TxDOT will allow the use of this property by means of a multiple use agreement. The Multiple Use Agreement, in substantial form, is enclosed. BUDGETARYIMPACT None. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager, Internal Service Director and Public Works Director. TWMLKParkStatueSite.wpd October 26,2004 Form 2044 (Rev.05/2002) (GSD-EPC) Pagel of 10 MULTIPLE USE AGREEMENT STATE OF TEXAS § COUNTY OF TRAVIS § THIS AGREEMENT made by the State of Texas by and between the Texas Department of Transportation, hereinafter referred to as"State", party of the first part, and City of Beaumont , hereinafter called City , party of the second part, is to become effective when fully executed by both parties. WITNESSETH WHEREAS, on the day of , 20 , the governing body for the City , entered into Resolution/Ordinance No. hereinafter identified by reference, authorizing the City 's participation in this agreement with the State; and WHEREAS, the City has requested the State to permit the construction, maintenance and operation of a public park on the highway right of way, (General description of area) shown graphically by the preliminary conceptual site plan in Exhibit"A"and being more specifically described by metes and bounds of Exhibit"B", which are attached and made a part hereof; and WHEREAS, the State has indicated its willingness to approve the establishment of such facilities and other uses conditioned that the City will enter into agreements with the State for the purpose of determining the respective responsibilities of the City and the State with reference thereto, and conditioned that such uses are in the public interest and will not damage the highway facilities, impair safety, impede maintenance or in any way restrict the operation of the highway facility, all as determined from engineering and traffic investigations conducted by the State. Form 2044 (Rev.05/2002) Page 2 of 10 AGREEMENT NOW,THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto to be by them respectively kept and performed as hereinafter set forth, it is agreed as follows: 1. DESIGN AND CONSTRUCTION The City will prepare or provide for the construction plans for the facility, and will provide for the construction work as required by said plans at no cost to the State. Said plans shall include the design of the access control, necessary horizontal and vertical clearances for highway structures, adequate landscape treatment, adequate detail to ensure compliance with applicable structural design standards, sufficient traffic control provisions, and general layout. They shall also delineate and define the construction responsibilities of both parties hereto. Completed plans will be submitted to State for review and approval and when approved shall be attached to the agreement and made a part thereof in all respects. Construction shall not commence until plans have been approved by the State. Any future revisions or additions shall be made after prior written approval of the State. 2. INSPECTION Ingress and egress shall be allowed at all times to such facility for Federal Highway Administration personnel and State Forces and equipment when highway maintenance operations are necessary, and for inspection purposes; and upon request, all parking or other activities for periods required for such operations will be prohibited. 3. PARKING REGULATIONS Parking regulations shall be established limiting parking to single unit motor vehicles of size and capacity no greater than prescribed for 11/2 ton trucks, such vehicles to conform in size and use to governing laws. Parking shall be permitted only in marked spaces. Parking shall be prohibited when a security threat, as determined by TxDOT, exists. 4. PROHIBITION/SIGNS Regulations shall be established prohibiting the parking of vehicles transporting flammable or explosive loads and prohibiting use of the area in any manner for peddling, advertising or other purposes not in keeping with the objective of a public facility. The erection of signs other than those required for proper use of the area will be prohibited. All signs shall be approved by the State prior to the actual erection. Form 2044 (Rev.05/2002) Page 3 of 10 5. RESPONSIBILITIES Maintenance and operation of the facility shall be entirely the responsibility of the City . Such responsibility shall not be transferred, assigned or conveyed to a third party without the advanced written approval of the State. Further, such responsibility shall include picking up trash, mowing and otherwise keeping the facility in a clean and sanitary condition, and surveillance by police patrol to eliminate the possible creation of a nuisance or hazard to the public. Hazardous or unreasonably objectionable smoke,fumes,vapor or odors shall not be permitted to rise above the grade line of the highway, nor shall the facility subject the highway to hazardous or unreasonably objectionable dripping, droppings or discharge of any kind, including rain or snow. 6. FEES Any fees levied for use of the facilities in the area shall be nominal and no more than are sufficient to defray the cost of construction, maintenance and operations thereof, and shall be subject to State approval. 7. TERMINATION UPON NOTICE This provision is expressly made subject to the rights herein granted to both parties to terminate this agreement upon notice, and upon the exercise of any such right by either party, all obligations herein to make improvements to said facility shall immediately cease and terminate. 8. MODIFICATION/TERMINATION OF AGREEMENT If in the sole judgment of the State it is found at any future time that traffic conditions have so changed that the existence or use of the facility is impeding maintenance, damaging the highway facility, impairing safety or that the facility is not being properly operated, that it constitutes a nuisance, is abandoned, or if for any other reason it is the State's judgment that such facility is not in the public interest, this agreement under which the facility was constructed may be : (1) modified if corrective measures acceptable to both parties can be applied to eliminate the objectionable features of the facility; or (2) terminated and the use of the area as proposed herein discontinued. 9. PROHIBITION OF STORAGE OF FLAMMABLE MATERIALS All structures located or constructed within the area covered by the agreement shall be fire resistant. The storage of flammable, explosive or hazardous materials is prohibited. Operations deemed to be a potential fire hazard shall be subject to regulation by the State. Form 2044 (Rev.05/2002) Page 4 of 10 10. RESTORATION OF AREA The City shall provide written notification to the State that such facility will be discontinued for the purpose defined herein. The City shall,within thirty(30) days from the date of said notification, clear the area of all facilities that were its construction responsibility under this agreement and restore the area to a condition satisfactory to the State. 11. PREVIOUS AGREEMENTS It is understood that this agreement in no way modifies or supersedes the terms and provisions of any existing agreements between the parties hereto. 12. INDEMNIFICATION The City acknowledges that it is not an agent, servant or employee of the State, and that it is responsible for its own acts and deeds and for those of its agents or employees during the performance of contract work. Neither party hereto intends to waive, relinquish, limit or condition its right to avoid any such liability by claiming its governmental immunity. When notified by the State to do so,the other party hereto shall within thirty (30) days from receipt of the State's written notification pay the State for the full cost of repairing any damages to the highway facility which may result from its construction, maintenance or operation of the facility, and shall promptly reimburse the State for costs of construction and/or repair work made necessary by reason of such damages. Nothing in this agreement shall be construed as creating any liability in favor of any third party against the State and the City . Additionally, this agreement shall not ever be construed as relieving any third party from any liability against the State and the City , but the City shall become fully subrogated to the State and shall be entitled to maintain any action over and against the third party which may be liable for having caused the City to pay or disburse any sum of money hereunder. Form 2044 (Rev.05/2002) Page 5 of 10 13. INSURANCE The City shall provide necessary safeguards to protect the public on State maintained highways including adequate insurance for payment of any damages which might result during the construction, maintenance and operation of the facility occupying such airspace or thereafter, and to save the State harmless from damages,to the extent of said insurance coverage and insofar as it can legally do so. Prior to beginning work on the State's right of way, the City 's construction contractor shall submit to the State a completed insurance form (TxDOT Form No. 1560) and shall maintain the required coverage during the construction of the facility. 14. USE OF RIGHT OF WAY It is understood that the State by execution of this agreement does not impair or relinquish the State's right to use such land for highway purposes when it is required for the construction or re-construction of the traffic facility for which it was acquired, nor shall use of the land under such agreement ever be construed as abandonment by the State of such land acquired for highway purposes, and the State does not purport to grant any interest in the land described herein but merely consents to such use to the extent its authority and title permits. 15. ADDITIONAL CONSENT REQUIRED The State asserts only that it has sufficient title for highway purposes. The City shall be responsible for obtaining such additional consent, permits or agreement as may be necessary due to this agreement. This includes, but is not limited to, appropriate permits and clearances for environmental, ADA and public utilities. 16. FHWA ADDITIONAL REQUIREMENTS If the Facility is located on the Federal-Aid Highway System, "ATTACHMENT A", which states additional requirements as set forth in the Federal Highway Administration's Title 23, Code of Federal Regulations, §710, shall be attached to and become a part of this agreement. Form 2044 (Rev.05/2002) Page 6 of 10 17. CIVIL RIGHTS ASSURANCES The City for itself, its personal representatives, successors and interests and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no persons, on the ground of race, color, sex, age, national origin, religion or disabling condition, shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in the use of said facility; (2)that in the construction of any improvements on, over or under such land and the furnishing of services thereon, no person on the ground of race, color, sex, age, national origin, religion or disabling condition, shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; (3) that the The City shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-Assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. That if in the event of any breach of the above non-discrimination covenants,the State shall have the right to terminate the agreement and reenter and repossess said land and the facilities thereon, and hold the same as if said agreement had never been made or issued. 18. AMENDMENTS Any changes in the time frame, character or responsibilities of the parties hereto shall be enacted by a written amendment executed by both parties hereto. 19. LEGAL CONSTRUCTION In case one or more of the provisions contained in this agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any provision hereof and this agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this agreement. Form 2044 (Rev.0512002) Page 7 of 10 20. NOTICES All notices required under this agreement shall be mailed or hand delivered to the following respective addresses: STATE (Name of other party) (Mailing Address) (Mailing Address) Texas Department of Transportation Maintenance Division 125 East 11th Street Austin, Texas 78701-2483 21. WARRANTS The signatories to this agreement warrant that each has the authority to enter into this agreement on behalf of the party represented. List of Attached Exhibits: Exhibit A-General Layout Exhibit B- Metes and Bounds Description Exhibit C -Approved Construction Plans Exhibit D - Certificate of Insurance (TxDOT Form 1560) Exhibit E -Attachment A (FHWA Additional Requirements) Form 2044 (Rev.05/2002) Page 8 of 10 IN WITNESS WHEREOF, the parties have hereunto affixed their signature, the on the day of 20 , and the State on the day of 20 STATE OF TEXAS Executed and approved for the Texas (Name of other party) Transportation Commission for the purpose and effect of activating and/or carrying out the orders, and established policies or work programs By: Title heretofore approved and authorized by the Texas Transportation Commission. Printed Name By: Director, Maintenance Division Date Printed Name Date APPROVAL RECOMMENDED: District Engineer Printed Name Date Form 2044 (Rev.05/2002) Page 9 of 10 IN WITNESS WHEREOF,the parties have hereunto affixed their signature, the on the day of 20 , and the State on the day of 20 RECOMMENDED BY: (Name of other party) By: Executive Director Texas Department of Transportation By: Title Printed Name Printed Name Date Date Executed for the State of Texas by the State's Chief Executive Officer in accordance with Texas Constitution, Article IV, § 10. By: Governor of Texas Printed Name Date Form 2044 (Rev.05/2002) Page 10 of 10 ATTACHMENT A Inasmuch as this project is on the Federal-Aid highway system,the following additional requirements as applicable with the Federal Highway Administration's Title 23, Code of Federal Regulations, §710. 1. Any significant revision in the design or construction of the facility shall receive prior approval by the Texas Department of Transportation subject to concurrency by the FHWA. 2. Any change in the authorized use of airspace shall receive prior approval by the Texas Department of Transportation subject to concurrence by the FHWA. 3. The airspace shall not be transferred, assigned or conveyed to another party without prior Texas Department of Transportation approval subject to concurrence by the FHWA. 4. This agreement will be revocable in the event that the airspace facility ceases to be used or is abandoned. EXHIBIT E 3 November 2,2004 Consider approving the allocation of$7,500 to be used as a revenue guarantee for Delta Airlines to provide air service from the Southeast Texas Regional Airport to Atlanta, Georgia Woftr City of Beaumont sea W Council Agenda Item TO: Mayor and City Council FROM: Kyle Hayes, City Manager MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 29, 2004 REQUESTED ACTION: Consider approving the allocation of $7,500 to be used a revenue guarantee for Delta Airlines to provide air service from the Southeast Texas Regional Airport to Atlanta, Georgia. BACKGROUND The City Council approved a $15,000 revenue guarantee on February 3, 2004 for Delta Airlines to provide air service to Dallas. The City has an economic development contract with the Beaumont Chamber of Commerce that was amended to allow the City to pay the revenue guarantee through the Chamber of Commerce. Delta defaulted on the original agreement with the Southeast Texas Coalition for Air Service, and is now requesting a new revenue guarantee of $300,000 to provide service to Atlanta effective February 1, 2005. The City of Beaumont can apply all or a portion of the original$15,000 toward the new guarantee or the City can request all or a portion of the funds be returned. I recommend that the City Council approve the allocation of$7,500 of the original$15,000 toward the new guarantee for service to Atlanta and that the remainder of funds ($7,500) be kept in the escrow account at Texas State Bank. Service to Atlanta will offer significant connections to an alternative airport hub. There are 62 cities served through Atlanta that are not served from the Houston airports. Service to Atlanta will continue the many economic benefits we now enjoy as a result of having a second airline. Delta Airlines would provide two flights per day, seven days a week, to Atlanta. If Delta Airlines does not meet their revenue targets, the revenue guarantee will make up the difference up to $300,000. After one year of service to Atlanta, the Coalition will participate in an audit of Delta's records to determine whether or not any of the revenue guarantee must be paid. After the audit is complete, any funds remaining will be paid back to the contributors based on a pro rata share. The original escrow agreement expires July 1, 2005. The Southeast Texas Coalition for Air Service will continue efforts to locate a carrier to provide service to Dallas. If the Coalition is successful in this endeavor,the City Council can consider appropriating the remaining funds. The City of Beaumont may also request a refund of the $7,500. Texas State Bank cannot release any funds until the Letter of Credit issued to Delta has been fully released and the time line for the release is not known at this time. A letter from the Southeast Texas Coalition for Air Service, LLC is attached for your review. October 4,2004 Dear Revenue Guarantee Investor, First, we want to again offer "thanks" for your revenue guarantee investment and overall support of the efforts of the Southeast Texas Coalition for Air Service. One of the greatest successes of the effort earlier this y ear was the private/public partnerships and regional unity o f the v arious g roups w ithin Southeast Texas. As you are aware, Delta has defaulted on our original agreement and has presented Southeast Texas with an offer to provide service to Atlanta effective February 1. They have requested a new revenue guarantee be developed capped at$300,000. We realize air service to Atlanta does not meet the needs of many with business and personal matters in Dallas, but it does offer significant connections to an alternative airport hub. There are 62 cities served via A tlanta that are n of s erved from the H ouston airports. Keeping a second airline at the Southeast Texas Regional Airport with the associated landing fees, local jobs, and potential sales tax impact from car rentals and hotels seems worth a strong effort to keep Delta flying. It provides choices for domestic and international travel and positions Southeast Texas for expanded business activity. In the meantime,we are continuing efforts to locate a carrier to provide service to Dallas.Given factors affecting the airline industry, we feel it's important for you to understand that we currently have no viable prospects for that service at this time. We are presenting several options for you to consider,clearly noting that your investment is being managed by Texas State Bank and is safe. One option is to keep the money in the escrow account pending prospects for a new alternative for service to Dallas. The original escrow agreement expires July 1,2005. Many of you have expressed support toward the new revenue guarantee for service to Atlanta. Those of you wishing to apply all or a portion of your funds to that guarantee can simply respond by contacting Jim Rich at jimrichna,bmtcoc.org or Verna Rutherford at verna@portarthurtexas.com by 5 p.m., October 15. During the next several weeks, another escrow agreement will be prepared and submitted for your signature. Those of you who would like all or a portion of your funds returned to you as soon as possible can respond to us in the same way. Please understand that Texas State Bank as our escrow agent cannot release your funds until the Letter of Credit issued to Delta has been fully released. We do not know exactly what date that will be accomplished. We realize the decision for some public entities and others may have to be placed on your agendas for action,so just let us know the dates,and we will attend to respond to questions. In any case, we commend you for your commitment to economic development in Southeast Texas. Jim Rich,President Verna Rutherford,President Beaumont Chamber of Commerce Port Arthur Chamber of Commerce 4 November 2,2004 Consider amending Chapter 18 of the Code of Ordinance to adopt new regulations regarding solicitation in and alongside streets City of Beaumont � c Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tom Warner, Public Works Director MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 26, 2004 REQUESTED ACTION: Council amend Chapter 18 of the Code of Ordinances to adopt new regulations regarding solicitation in and alongside streets. RECOMMENDATION Administration recommends approval of an ordinance adopting new regulations regarding solicitation in and alongside streets. BACKGROUND The City was contacted by a representative from a charitable organization that wished to solicit contributions for their organization. The Texas Transportation Code presently makes it unlawful for a person to stand in the roadway to engage in a charitable solicitation activity unless municipal regulations allowing for such solicitation exist. The adoption of this ordinance will allow charitable solicitation within the streets of the City under certain conditions and prohibit sales of goods or services in or along side streets within the public rights-of-way. The Police Department will be responsible for the application process and the subsequent monitoring for compliance with the ordinance. A copy of the proposed ordinance and the list of approved intersections are enclosed. BUDGETARY IMPACT There is a $50 application fee to defray the City's costs of both processing the application and compliance monitoring. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager, City Attorney, Police Chief and Public Works Director TWSolicitationStreets.wpd October 26,2004 ORDINANCE NO, ENTITLED AN ORDINANCE AMENDING CHAPTER 18 OF THE CODE OF ORDINANCES OF THE CITY OF BEAUMONT TO ADD A NEW ARTICLE VII REGULATING SOLICITATION IN AND ALONGSIDE STREETS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL; AND PROVIDING A PENALTY. Section 1. WHEREAS, §552.057, Transportation Code of the state of Texas presently make it unlawful for a person to stand in a roadway to engage in a charitable solicitation activity; and, WHEREAS, such statute allows for municipal regulation of such solicitation; and, WHEREAS, the council desires to allow charitable solicitation within the streets of the City under certain conditions and prohibit sales of goods or services in or alongside streets within public rights of way. NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT THAT Chapter 18 of the Code of Ordinances of the City of Beaumont be and the same is hereby amended to add a new Article VII to read as follows: ARTICLE VII. SOLICITING IN AND ALONGSIDE THE STREET Sec.18-32. Definitions. For purpose of this section, the following terms have the meaning stated here: "charitable organization," or"organization" means an entity that the United States Internal SAPUBLIC WORKS%SOUCITATIONRevised102604.wpd Revenue Service recognizes to be a charitable organization or a church. "Contribution" means currency, coin, or check. "Location" means the approaches to an intersection equipped with a traffic control signal light and within one-hundred feet of such an intersection that has been approved by the Public Works Director or his designee. Sec.18-33. No person shall stand in or alongside a street or highway within the public right of way and sell or attempt to sell any goods or services or solicit, or attempt to solicit, employment, business or contributions from the occupant of any vehicle. The prohibition, however, does not apply to a person soliciting contributions for charitable organizations which have been issued a permit under this Article and who are in compliance with other provisions of this Article. Sec. 18-34. In order to solicit contributions while standing in or alongside a street or highway within the public right-of-way, a charitable organization must comply with the following requirements: (a) Not less than thirty (30) days prior to the date desired for soliciting, submit a complete application to the City Police Chief or designee for a permit. The Police Department shall create a form and review procedure for this purpose. The form shall require the name of the charitable organization, a point of contact for the organization (meaning the name and phone number of the individual seeking the permit for the organization);the desired date(s) SAPUBLIC WORMSOUMATIONReWsed102604.wpd and specific locations(s) for soliciting; the name, address, phone number and age of each individual who may solicit contributions on behalf of the organization and,an agreement of the organization indemnifying the city and holding it harmless from any and all claims, suits, demands, damages, and attorney fees arising out of or related to the acts or omissions of persons soliciting for the organization. The form may require further information that is reasonably necessary to the direct enforcement of this section and the purposes of this article. (b) At the time of submitting a completed application,the organization shall also submit the following items and failure to do so renders the application incomplete: (1) Fee payment in the sum of fifty($50)dollars(cash or money order only) to defray the City's costs of both processing the application and compliance monitoring on the Street. This fee is non-refundable, unless the permit is denied. (2) Provide written proof of liability insurance in the minimum amounts of Two-hundred fifty-thousand ($250,000) Dollars for personal injury or death to any one (1) person, and Five-hundred Thousand ($500,000) Dollars per occurrence of death or personal injury, and One-hundred Thousand ($100,000) Dollars per occurrence of property damage or destruction. The City must be an additional named insured on the policy S:\PUBLr-WCRKS\SOLCffATIONRevisedlo26D4.wpd and specify that such insurance is primary. The insurance policy must be issued by a company authorized to do business in Texas and have an effective date that covers the date(s) of street soliciting. (3) Provide written proof that the organization is a charitable organization, along -with a copy of the organization's charter (or if a foreign organization, then a copy of its certificate of authority to do business in Texas). (c) No more than three (3) permits per calendar year may be issued to an organization. For purposes of this subsection, local chapters of a state, national or international organization are deemed separate organizations, but committees or other subdivisions of an organization are not so deemed. (d) A permit shall authorize street soliciting only for three (3) consecutive calendar days, between the period of 9:00 a.m. and one (1) hour prior to sunset, at the approved locations(s) specified in the permit. (e) The Police Chief or designee shall not issue an organization a permit for a given date(s) or location(s) if a permit has already been issued to another organization for such date(s) and location(s). (f) The Police Chief or designee shall grant a permit if the organization provides the information and documents, and meets the requirements stated in the above subsections (a) through (e) inclusive. The Police Chief or designee shall advise the organization's point of contact of the decision to grant or SAPUBLIC WORKSISOLICITATIONRevised1 02604.wPd deny the permit, not later than the tenth day after date of receiving the application fee and all required information. (g) Permits may only be issued for street segments and intersections approved by the Public Works director. A list of approved locations may be obtained from the Police Department. Sec. 18-35. If a permit is granted, it shall state the name of the organization, the names of persons who will be soliciting contributions for the organization and,the approved date(s) and location(s). The organization shall at its expense make sufficient copies of the permit to have a copy with each solicitor at each approved location and, shall readily present such copy for inspection upon demand by any person. Sec. 18-36. It is an offense for a person to solicit or attempt to solicit contributions, for a charitable organization that is issued a permit and fail to: (a) Be at least sisteen (16) years of age; or, (b) Be named on the organization's permit; or, (c) Wear a reflective orange or yellow visibility vest as the outer-most garment; or, (d) Be in the street or highway only when the controlling traffic signal light prohibits vehicle movement in that lane; or, SAPUBIIC WORKS ISOUCITATIONRWiSW102604.wpd (e) Place an orange traffic control cone, not less than twenty-four (24) inches in height, on the center stripe of each street and highway approaching the intersection, at least one-hundred (100) to one-hundred and fifty (150)feet from the intersection, to warn drives of a hazard ahead; or, (f) Present for inspection a copy of the permit upon demand by any person. (g) Place a sign or signs at the intersection which complies with the requirements of Exhibit A. and the Texas Manual on Uniform Traffic Control Devices. Sec. 18-37. It is an offense for any person to obstruct, tamper with, alter, cover, or post any object on or to a traffic control device. Traffic control device includes but is not limited to: median markers, reflectors, signal control boxes, regulatory signs, directional signs, warning signs, and pedestrian walk lights. Sec. 18-38. Any peace officer observing any violation of any requirement or prohibition of this section is authorized to issue a citation for the person to appear in municipal court to answer the charge. Upon issuance of the citation, such person shall immediately cease soliciting or attempting to solicit any charitable contribution under that organization's permit. However, it is not the intent of this provision to bar such person from participating in future charitable solicitations approved under th provisions of this article. S.WBLIC WORKSISM1CrrAT"R&ASW102W4.wpd Section 2. That if any section, subsection, sentence, clause or phrase of this ordinance, or the application of same to a particular set of persons or circumstances, should for any reason be held to be invalid, such invalidity shall not affect the remaining portions of this ordinance, and to such end the various portions and provisions of this ordinance are declared to be severable. SAPUBLIC WORKS\SOLJCITATIONRevisedlo2604.wpd Section 3. That all ordinances or parts of ordinances in conflict herewith are repealed to the extent of the conflict only. Section 4. That any person who violates any provision of this ordinance shall, upon conviction, be punished as provided in Section 1-8 of the Code of Ordinances of the City of Beaumont, Texas. PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of_ , 2004. -Mayor Evelyn M. Lord - S:TUBUC WORKS%SOUCITATtONRevised102604.wpd APPROVED INTERSECTIONS FOR SOLICITATION IN AND ALONGSIDE STREETS October 2004 College Street&IH-10 Frontage Roads Lucas Street&Eastex Freeway Frontage Roads Dowlen Road&Eastex Freeway Frontage Roads Dowlen Road&Phelan Boulevard Fannett Road&Cardinal Freeway Frontage Roads 5 November 2,2004 Consider amending Ordinance No. 04-041 relating to the structure located at 3491 W. Euclid Cit y of Beaumont �• Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Pam Loiacano, Field Supervisor MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 26, 2004 REQUESTED ACTION: Consider an ordinance amending Ordinance No. 04-041 relating to the structure located at 3491 W. Euclid. RECOMMENDATION The Administration recommends denial of the request for amendment of the condemnation order. BACKGROUND Councilmember Patterson requests that the condemnation order for the structure located at 3491 W. Euclid be reconsidered by Council to allow the property owner, Morris Jones, Jr., to rehabilitate it. This structure was brought before City Council on May 4, 2004 with staff's recommendation of a raze order. No work had been attempted on structure since 2000. On May 19, 2004, Staff spoke with Adona Jones, daughter of property owner. She asked for some time to remove furniture and personal belongings from the structure. On May 24, 2004, Morris Jones and Adona Jones each called and said that they now wanted to rehabilitate the structure. The structure was brought back before City Council on June 8, 2004 for reconsideration and was given a raze or repair order of 120 days, October 8, 2004, to complete rehabilitation of the structure. On October 7, 2004, substantial work had not been accomplished and the structure became condemned for the second time. BUDGETARY EVIPACT City may incur the cost of demolition if the structure is not rehabilitated. PREVIOUS ACTION The Administration recommended and Council approved a raze order for this structure on May 4, 2004. A raze or repair order was issued by Council on June 8, 2004 for 120 days. SUBSEQUENT ACTION If Council grants a time period for rehabilitation, staff will enroll the owner in a work program and monitor the progress of work. If the structure is not brought up to code or substantial progress is not made within the specified time period, the structure will be demolished without any further notification to property owner or Council action. RECOMMENDED BY City Manager, Public Works Director and Building Official. SUBSTANDARD BUILDING INSPECTION REPORT CLEAN COMMUNITY CITY OF BEAUMONT DATE REQUESTED November , 2004 WARD 4 ADDRESS OF INSPECTION 3491 W. Euclid ACCOUNT NO. - 11550-10800-2 CENSUS TRACT 22 OWNER - Morris Jones, Jr. c/o Adona Jones ADDRESS 320 Charlotte CITY/STATE (05) LEGAL DESCRIPTION APPRAISAL VALUE Lot or Plat Lot 12 Land Value 1370 Block or Tract Block 8 Improvement Value 3660 Addition/Survey Carver Terrace Total Value 5030 A. Fifty (50) percent deterioration of non-supporting members? YES X NO B. Thirty-three (33) percent deterioration of supporting members? YES X NO C. Fire damaged? YES NO X NO JR.W.,00. 31M....-WO&R- k wr,:Pr 0j 0 �:- .. .......... 0--3.0 .. E. Initial Inspection Date January 11,2000 ......................... MAJOR CODE VIOLATIONS: This structure is an extreme danger because of a massive bee infestation, Attempts have been made to get rid of the bees but as of the last inspeWon on October 252004, they were still there, There is extensive deterioration to the foundation, The structure is listing to the left, The interior flooring,ceilings and walls are damaged and will need to be repaired, Bees are in the wall on the lefirside of the-structure, AR damaged electrical-wiring and electrical fW* ures will need to be replaced, Outside service needed, Also all damaged plumbing and plumbing fixtures wiH need to be replaced, This structure appeared before City Council on May., 2004 and was given raze order per staff's recommendation, On May 24, 2004, Morris Jones and Adona on called saying that they wanted to make repairs to the structure, The structure was brought back before Council on June 8, 2004 for reconsideration and w -. an additional 120 days to complete repairs, Because adequate or substantial work had not been done the structure was again condemned Staff recommends a raze order for this structure, SEE ATTACHED PHOTOS INTER-OFFICE MEMORANDUM CITY OF BEAUMONT, TEXAS DATE: October 22, 2004 TO: Councilperson Bobbie Patterson FROM: Pamela Loiacano, Demolition Field Supervisor SUBJECT: 3491 W. Euclid COMMENT: ♦ The structure at 3491 W. Euclid was tagged on 1/11/00 as a dangerous structure. The property owner was listed on the Jefferson County tax roll as Morris Jones, Jr. with a mailing address to the vacant structure. ♦ A certified notice was issued to the property owner on 1/13/00. ♦ The certified notice was returned unclaimed. ♦ On 01/20/00, Adona Jones, daughter to Morris Jones, Jr., called and said that her father was very ill and gave me her mailing address of 4150 Brandon. I re-mailed the letter to her notifying them that the structure was tagged as substandard. ♦ The property owner signed a Work Program Agreement on 6/13/00 that went through 10/13/00. A building permit was bought on 6/15/00. ♦ A certified notice was issued to the property owner 4/13/04 indicating that the structure would be presented before City Council on 5/04/04. ♦ Certified notice was returned as being attempted - unknown. ♦ Published in Beaumont Enterprise on 4/21/04 and 4/28/04. ♦ Structure appeared before City Council on 5/4/04. Staff recommended a raze order for this structure because of the extensive deterioration. It was noted during the inspection that a massive bee infestation was in the wall on the left side of the structure. Certified notice was issued to Morris Jones, Jr. c/o Adona Jones stating that City Council had condemned the structure. Certified letter was returned as moved, left no address. Staff issued certified final notice to property owner on 5/14/04 indicating that the structure would be demolished by city forces. Certified notice was returned as attempted - unknown. On 05/19/04, Adona Jones called inquiring about red spray painted numbers being put on house. Council order was explained to her and she asked that they be given time to remove furniture and personal belongings from the house. She was told to keep in touch with our office to get status of demo date and that there would be no charge. On 5/24/04, Morris Jones and Adona Jones called saying that they wanted to now make repairs to the structure. It was during this conversation with Mr. Jones that a new mailing address was given at 320 Charlotte. • Structure at 3491 W. Euclid appeared for the second time before City Council on 6/8/04 for reconsideration and ordinance amendment to allow the property owner to rehabilitate the structure. City Council allowed an additional 120 days with the abatement date of 10/8/04 to complete repairs on the structure. A building repair permit was purchased 6/10/04. On 10/7/04, an inspection was made at 3491 W. Euclid because abatement time was the following day. It was noted that work was being done by the employee of Mr. Charlie Mays, the contractor. There was sheetrock being hung and staff had some concerns because it appeared that the rotten material had not been replaced. The foundation also had not been repaired. A couple of days later staff met with Mr. Mays and Adona Jones at the structure. Staff tried to explain what was being done wrong but could not make Mr. Mays understand that because of the poor craftsmanship, the little work that had been done was not adequate or substantial. The structure became condemned by order of City Council for the second time. A telephone conversation with Mr. Morris Jones also explained the condemnation order procedure. On 10/15/04, the Manager's office received a telephone call from Mr. Charlie Mays saying that he was assisting Mr. Jones in repairing his house and that he was told by the city to stop work because the work order had expired. Staff attempted to call Mr. Mays twice on 10/15/04 but received no answer each time. F. A. r x .Ya s9^ 1' x �t n' t ,F f �t k t 3491 EUCLID W. 3 Y � 5 . 40 01,. x 5 z § ^ t n._ a All .,... �� �u 3 6 November 2,2004 Consider Consider amending Ordinance No. 04-041 relating to the structure located at 2925 Harriot ...... City of Beaumont �• Council Agenda Item � c TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Pam Loiacano, Field Supervisor MEETING DATE: November 2, 2004 AGENDA MEMO DATE: October 26, 2004 REQUESTED ACTION: Consider an ordinance amending Ordinance No. 04-041 relating to the structure located at 2925 Harriot. RECOMNIENDATION The Administration recommends denial of the request for amendment of the condemnation order. BACKGROUND Councilmember Patterson requests that the condemnation order for the structure located at 2925 Harriot be reconsidered by Council to allow Winfred Mays, son of deceased property owner and Genevieve Mays Comeaux, daughter of deceased property owner, to rehabilitate it. This structure was brought before City Council on May 4, 2004 with staff's recommendation of a raze order. Executor of Will, Winfred Mays, had previously enrolled in a work repair program in September of 2003. No permit was ever bought. On inspection made March 26, 2004, it was noted that there was extensive structural and foundation problems with this structure. Mr. Winfred Mays still wanted to rehabilitate the structure. The structure was brought back before City Council on June 8, 2004 for reconsideration and was given a raze or repair order of 120 days, October 8, 2004, to complete rehabilitation of the structure. An inspection made October 8, 2004, indicated substantial work had not been made and the structure became condemned for the second time. Mr. Mays had enrolled in a work repair program but still never purchased a repair permit. BUDGETARYIMPACT City may incur the cost of demolition if the structure is not rehabilitated. PREVIOUS ACTION The Administration recommended and Council approved a raze order for this structure on May 4, 2004. A raze or repair order was issued by Council on June 8, 2004 for 120 days. SUBSEQUENT ACTION If Council grants a time period for rehabilitation, staff will enroll Mr. Mays in a work program and monitor the progress of work. If the structure is not brought up to code or substantial progress is not made within the specified time period, the structure will be demolished without any further notification to property owner or Council action. RECOMMENDED BY City Manager, Public Works Director and Building Official. SUBSTANDARD BUILDING INSPECTION REPORT CLEAN COMMUNITY CITY OF BEAUMONT DATE REQUESTED November , 2004 WARD 4 ADDRESS OF INSPECTION 2925 Harriot ACCOUNT NO. 6450-273004 CENSUS TRACT 22 OWNER Gladys W Mays do Winfred Mays (Also Genevieve Mays Comeaux) ADDRESS _4215 Simon CITY/STATE (05) LEGAL DESCRIPTION APPRAISAL VALUE Lot or Plat Lots 2-4 Land Value 3530 Block or Tract Block 15 Improvement Value 4990 Addition/Survey Booker Heights Total Value 8520 A. Fifty (50) percent deterioration of non-supporting members? YES X NO B. Thirty-three (33) percent deterioration of supporting members? YES X NO C. Fire damaged? YES NO X D Enrolled m dirk Rep2ur P Ogram YES NO ( W0.3 thru.01- 9-04 E. Initial Inspection Date uA ust 18. 2003 OG(}8-fl4:tluru Itl ?$-04 F. TAXES:'ARE L?UE IN.1' AIfJU11T73 82 MAJOR CODE VIOLATIONS: This structure's roof is deteriorated and new shingles will be needed The rafters and fascia boards are rotted and will need to be replaced There is water damage to the interior fue to the condition of the roof, There is a leak in the kitchen All damaged or rotten windows and window As will need to be repaired The exterior doors are damaged and will need to be replaced There is extensive termite damage to the structure Some exterior siding is rotten and missing= The back porch flooring has been removed Attempts have been made to repair the foundation but work was done incorrectly and no permits were bought The interior flooring, ceilings and walls are damaged and wil l need to be repaired The back exterior wall shows extensive rot and deterioration All damaged electrical rte' .g and electrical rudures will need to be replaced New outside electrical service will be needed Also all damaged plumbing and plumbing ffixtures will need to be replaced The structure is open and cessible This structure appeared before City Council_ on May 4, 2004 and a raze order was given Ms Genevieve Mays Comeaux and Winfred Mays requested that they be given additional time to repair the structure The structure was presented before City Council on June 8, 2004 for reconsideration Council allowed another 120 days to rehabilitate the Structure Winfred Mays enrolled in a work repair program on_June 14 2004 that ended on October 8, 2004 No repair permit was ever purchased Staff's recommendation is for a raze order for this structure, SEE ATTACHED PHOTOS INTER-OFFICE MEMORANDUM CITY OF BEAUMONT, TEXAS DATE: October 22, 2004 TO: Councilmember Bobbie Patterson FROM: Pamela Loiacano, Demolition Field Supervisor SUBJECT: 2925 Harriot COMMENT: ♦ The structure at 2925 Harriot was tagged on 8/18/03 as a dangerous structure. The property owner was listed on the Jefferson County tax roll as Gladys W. Mays who is deceased. The notification was mailed in care of her daughter, Genevieve Mays Comeaux in Baytown, Texas. ♦ The certified notice was received by Genevieve Mays Comeaux. ♦ On 09/9/03 Winfred Mays, son of Gladys Mays, brought in a Last Will and Testament declaring him as Independent Executor. Substandard notification letter was then sent to Mr. Mays at 4215 Simon in Beaumont. ♦ Winfred Mays received and signed certified letter on 10/3/03. ♦ Mr. Mays signed a work program agreement on 9/9/03 that went through ♦ 1/9/04. No permit was bought. ♦ On 2/10/04 Genevieve Mays brought in a notarized demo consent form along with a Power of Attorney signed by her mother in May of 1998 giving her Power of Attorney over property. The Power of Attorney was invalid since Gladys Mays was deceased. ♦ A certified notice was issued to Winfred Mays 4/13/04 indicating that the structure would be presented before City Council on 5/04/04. ♦ Certified notice was received by Mr. Mays. ♦ Published in Beaumont Enterprise on 4/21/04 and 4/28/04. Structure appeared before City Council on 5/4/04. Staff recommended a raze order for this structure because of the extensive deterioration. It was noted during the inspection that there was extensive foundation problems, termite damage and water damage to the interior of the structure. Certified notice was issued to Winfred Mays stating that City Council had condemned the structure. Certified letter was signed for by C. S. Pumphrey. Staff issued certified final notice to property owner on 5/14/04 indicating that the structure would be demolished by city forces. Certified notice was received and signed for by Mr. Mays. Mr. Mays came by office to inquire how he could save house and be allowed more time for repair. He contacted Ms. Patterson to set another date for reconsideration. Structure at 2925 Harriot appeared for the second time before City Council on 6/8/04 for reconsideration and ordinance amendment to allow the property owner to rehabilitate the structure. City Council allowed a new time frame of 10/8/04 to complete repairs on the structure. Mr. Mays signed a new work repair program on 6/14/04. No permit was ever purchased. On 10/7/04, an inspection was made at 2925 Harriot because abatement time was the following day. Some foundation work had been done but it was noted that it was not done correctly and no permits were bought. Staff spoke with the gentleman that was at the house on the day of the inspection and he said he was a brother of Mr. Winfred Mays. I explained that the foundation work was done incorrectly and that no permit was bought and that this could not be considered substantial work. I told him to have Winfred Mays call me. I spoke with Mr. Mays and told him the work was not correct and no permits had been bought. He told me that he would take care of that because he had paid the contractor his money already. I did not hear from anyone again until the letter of condemnation had been received by Mr. Mays on 10/18/04. Final certified letter was sent to Winfred Mays and to Genevieve Mays Comeaux stating that the structure was condemned again and would be demolished. v� x � a w ' .Hy. 'u iu Y r fi3 Mill. won S AKI- . 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