HomeMy WebLinkAboutRES 10-209 RESOLUTION NO. 10-209
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to enter into a calculation agency
agreement with the Bank of New York Mellon Trust Company, N.A., substantially in the
form attached hereto as Exhibit "A," related to the issuance of $19,040,000 Waterworks
and Sewer System Revenue Bonds, Taxable Series 2010B (Build America Bonds)on July
13, 2010.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 10th day of
August, 2010. .�.a�►+�����
00.1
- Mayor Becky Ames -
~
DRAFT
CALCULATION AGENCY AGREEMENT
This Calculation Agency Agreement (the "Agreement''), entered into as of the _day
of , 2010 by and between the City of Beaumont, Texas (the "Issuer") and The Bank of
New York Mellon Trust Company, N.A., a national banking association , as paying agent
(the"Calculation Agent") pursuant to that certain Bond Order dated T, 2010 (the
"Authorization"),
WITNESSETH:
WHEREAS, the Issuer authorized the issuance of its Bonds described in Exhibit A
attached hereto (the "Bonds")pursuant to the Authorization; and
WHEREAS, the Issuer is authorized to enter into this Agreement with the Calculation
Agent for the preparation and submittal of Internal Revenue Service Forms 8038-CP in
connection with credit payments with respect to such Bonds payable pursuant to the American
Recovery and Reinvestment Act of 2009; and
WHEREAS, the Issuer has determined That it is desirable and in the best interests of
the Issuer to provide for the deposit with the Calculation Agent of payments received from the
federal government resulting from the filing of Form 8038-CP in connection with the Bonds,
to be held on behalf of the Issuer and to be invested solely in investments authorized under
applicable law,as determined by the Issuer.
NOW, THEREFORE, intending to be'�egally bound, the Issuer and the Calculation
Agent agree as follows:
Section 1. Appointment and Acceptance. The Issuer hereby appoints The Bank of
New York Mellon Trust Company, N.A. as calculation agent for the Bonds, and the
Calculation Agent accepts such appointment, acknowledging the duties, obligations and
responsibilities of the Calculation Agent as set forth herein.
Section 2. Documents to be Filed with the Calculation Agent. The Issuer shall
provide to the Calculation Agent in connection with its appointment hereunder, (i) a copy of
the executed Form 8038-B filed in connection with the issuance of the Bonds, (ii) an
incumbency certificate listing the officers of the Issuer authorized to act on behalf of the
Issuer under this Agreement and (iii) such other instruments, opinions and certificates as the
Calculation Agent may reasonably request. ; . .
Section 3. Duties of the Calculation Agent. The Calculation Agent shall act as
calculation agent for the Bonds and in such capacity it shall:
(1) not less than 45 and not more than 90 days prior to each interest payment date
for the Bonds, perform the calculations necessary to complete Form 8038-CP
requesting payment of a credit equal to 35% of the interest payable on the
Bonds for the period ending on each such interest payment date;
EXHIBIT "A"
(ii) secure the signature of an authorized officer of the Issuer on such Form 8038-
CP;
(iii) file each Form 8038-CP with the Department of the Treasury at the Internal
Revenue Service Center, Ogden, Utah 84201-0020 (unless notified by the
Issuer or the Internal Revenue Service in writing of a change of address
therefor) not less than 45 and not more than 90 days prior to each interest
payment date for the Bonds; and
Section 4. Establishment of Account. The initial authorized officer of the Issuer for
all purposes of this Agreement shall be the officer of the Issuer identified in Section 8 hereof.
The Calculation Agent shall, on each 8038CP, request that all amounts requested pursuant to
each such 8083CP be directed to the Prior Lien Interest& Sinking account within the Issuer's
water fund(the"Account").
Section 5. Compensation; Indemnification. The Issuer agrees to pay the
Calculation Agent fees as set forth in Exhibit C attached hereto and made a part hereof. If
the Calculation Agent is made a party to or intervenes in any litigation pertaining to this
Agreement, the Calculation Agent shall be compensated reasonably by the Issuer and
reimbursed for any and all claims, liabilities, losses, damages, fines, penalties, and expenses,
including out-of-pocket and incidental expenses and legal fees occasioned thereby, unless
such litigation is attributed to the Calculation Agent's own negligence or willffiul misconduct.
' 44-i*_ Calc+4a.1+c+i+-At -ag it;rf�irieer-Pr, dir-eetors agent ar�nt )�31f-yees, afiA :+
ethef i;ic and f, and against awy`• "'irr�azzli I-),)se,, li,ibilities st.s and , (ineludifig
by
itf�ri�e.}cr _....i{?4iti ..i�H(l—L Xti' E'ry--itx si�} %••-� �f�- }i—lti?- '�?�} t1AF }}} 4ccrizcL�
g'i inc"rr�- --Stit�� I(?� fa Ai-abil-flies--t -• -ftHd e?ipe s -been iaalll'
The Provision-, of this seetion-7 Shall sufvi ._ the or femeval,
er the teffAina4ien of
Section 6. Instructions From the Issuer; Advice of Counsel. At any time the
Calculation Agent may apply to any duly authorized representative of the Issuer for
instructions, and shall have the right, but not the obligation, to consult with counsel of its
choice at the reasonable expense of the Issuer and shall not be liable for action taken or
omitted to be taken either in accordance with such instruction or such advice of counsel,or in
accordance with any opinion of counsel to the Issuer addressed to the Calculation Agent.
Section 7. Concerning the Calculation Agent. The Calculation Agent shall have
only those duties as are specifically provided herein, which shall be deemed purely ministerial
in nature, and shall have the right to perform any of its duties hereunder through agents,
2
attorneys, custodians or nominees. The Calculation Agent shall neither be responsible for,
nor chargeable with, knowledge of the terms and conditions of any other agreement,
instrument or document in connection herewith, including without limitation the Indenture.
The Calculation Agent shall not be answerable for other than its gross negligence or willful
misconduct. The Calculation Agent shall have no responsibility for (i) the payment of debt
service with respect to the Bonds or (ii) any diminution in value of any assets held hereunder
which may result from any investments or reinvestment made in accordance with any
provision which may be contained herein. The Calculation Agent shall be protected in acting
upon any paper or document believed by it to be genuine and to have been signed by the
proper person or persons and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Issuer. The Calculation Agent
shall not be under any obligation to prosecute any action or suit in respect of the agency
relationship which, in its sole judgment, may involve it in expense or liability. In any action
or suit the Issuer shall, as often as requested, reimburse the Calculation Agent for any expense
or liability growing out of such action or suit by or against the Calculation Agent in its agency
capacity; provided, however, that no such reimbursement shall be made for any expense or
liability arising as a result of Calculation Agent's gross negligence or willful misconduct. The
Calculation Agent's liability with respeci to matters relating to its performance as Calculation
Agent shall be limited to an amount equal to the amount of its annual administration fee.
The Calculation Agent shall not be responsible or liable for any failure or delay in the
performance of its obligation under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without limitation, acts
of God; earthquakes; fire; flood; wars; terrorism; military disturbances; sabotage; epidemic;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communications services; accidents; labor disputes; acts of civil or military authority or
governmental action; it being understood that Calculation Agent shall use commercially
reasonable efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as reasonably practicable under the circumstances.
Anything in this Agreement to the 'Contrary notwithstanding, in no event shall the
Calculation Agent be liable for special, punitive, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the Calculation Agent
has been advised of the likelihood of such loss or damage and regardless of the form of
action.
The Calculation Agent agrees to accept and act upon instructions or directions pursuant
to this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the Issuer shall provide to the Calculation Agent
an incumbency certificate listing designated persons authorized to provide such instructions,
which incumbency certificate shall be amended whenever a person is to be added or deleted
from the listing. If the Issuer elects to give the Calculation Agent e-mail or facsimile
instructions (or instructions by a similar electronic method) and the Calculation Agent in its
discretion elects to act upon such instructions, the Calculation Agent's understanding of such
instructions shall be deemed controlling. The Calculation Agent shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Calculation Agent's reliance
upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the
Calculation Agent, including without limitation the risk of the Calculation Agent acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
Any banking association or corporation into which the Calculation Agent may be
merged, converted or with which the Calculation Agent may be consolidated, or any banking
association or corporation resulting from any merger, conversion or consolidation to which
the Calculation Agent shall be a party, or any banking association or corporation to which all
or substantially all of the corporate trust business of the Calculation Agent shall be
transferred, shall succeed to all the Calculation Agent's rights, obligations and immunities
hereunder without the execution or filing of any paper or any further act on the part of the
parties hereto, anything herein to the contrary notwithstanding.
Section 10. Notices. Until changed by notice in writing, communications between
the parties shall be delivered to:
If to Issuer:
Attn: Ms. Laura Clark
Chief Financial Officer
City of Beaumont, Texas
P O Box 3827
Beaumont, Texas 77704
If to the Calculation Agent:
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, Floor 16
Houston, TX 77002
Attn: Public Finance
Telephone No.: (713) 483-6529
Facsimile N.: (713)483-6979
Section 11. Destruction of Records, Instruments and Papers. The Calculation
Agent may retain in its files records, instruments, and papers maintained by it in relation to its
agency as long as the Calculation Agent shall consider that such retention is necessary.
Section 12. Resignation or Removal of Calculation Agent. Any time, other than on
a day during the sixty (60) day period preceding any periodic payment date for Issuer's
Bonds, the Calculation Agent may resign by giving at least forty-five (45) days' prior written
notice to Issuer; and the Calculation Agent's agency shall be terminated and its duties shall
cease upon expiration of such forty-five (45) days or such lesser period of time as shall be
4
mutually agreeable to Calculation Agent and Issuer. At any time, following at least sixty(60)
days' prior notice (or such lesser period of time as shall be mutually agreeable to the
Calculation Agent and the Issuer) the Calculation Agent may be removed from its agency by
the Issuer. Such removal shall become effective upon the expiration of the sixty (60) day or
agreed lesser time period, and upon payment to the Calculation Agent of all amounts payable
to it i ti^� its age = for worked accomplished at the time of removal. In such
event, the Calculation Agent shall deliver to the Issuer copies of pertinent records then in the
Calculation Agent's possession which_are reasonably requested by the Issuer.
Section 13. Effectiveness and Term. This Agreement shall remain in effect and the
agency established by the Agreement shall continue until (i) terminated by mutual agreement
of Issuer and Calculation Agent, (ii) the resignation or removal of Calculation Agent pursuant
to Section 12 hereof, or(iii) after all Bonds have been retired or defeased.
Seetion 1.4. Jan, Trial Waiver. haeh par-ty her-eie her-eby agrees 4 to elee4 ., trial
-an v...-i-s -t jti.Fy, and waives any r-i ght t,+ 4h is trial 4--j �,n<, +e
Avf-e.,f tl,<f Z 1' ° ° i4 a?ds3 - Y�ilh-1-�.�7...4hi J"l1
"�i�"[l "���<v Vi."[ 1 < of
trial by juFy is given kfio tingly and . ..l<Z.<ril<, by e eh ....rt<. .<.l ,' - ntax,<,-1ed to o.< pass
b fla ,j�ufy d
Section 4-5;--14. Conflict with [Indenture% Authorization]. In the event of a conflict
between the provisions of this Agreement.and�those of the Authorization, the terms of the
Authorization shall govern.
Section 1-6� 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
5
IN WITNESS WHEREOF,the parties hereto have caused these presents to be signed
by their duly authorized officers as of the date first above written.
[Issuer]
By
Name:
Title:
The Bank of New York Mellon Trust
Company, N.A., as [trustee /paying
agent]
By_
Name:
Title:
6
EXHIBIT A
DESCRIPTION OF BONDS
The City of Beaumont, Texas, Waterworks and Sewer System Revenue Bonds, Taxable
Series 2010B (Build America Bonds --Direct Payment to Issuer)
7
EXHIBIT B
FEESCHEDULE
Calculation Agent
For Preparation of Form 8038-CP
(See Attached)
tt ..
8
BNY MELLON
CORPORATE TRUST
Fee Schedule
The City of Beaumont,Texas Waterworks and Sewer System Revenue Refunding
Bonds, Taxable Series 20108 (Build America Bonds -Direct Payment to Issuer)
e:Fije
4.
A one-time charge covering the Bank Officer's review of governing documents, communication with members
of the closing party,including representatives of the issuer,investment banker(s)and attorney(s),establishment
of procedures and controls, set-up of trust accounts and tickler suspense items and the receipt and
disbursement/investment of bond proceeds. This fee is payable on the closing date,
-ev
A
.4-i
-S_
2S
An annual charge covering the normal paying ageirt duties related to account won and bondholder
services. Our pricing is based on the assumption that the bonds are DTC-eligiblehook-entry only. If the bonds
are certificated or physical,then we will have to oha&e.an additional$1000 per year as a paying agent. This
fee is payable annually,in advance.
"7 t;
�v V
10 1.
ua S, 1,
.4
OR
This annual fee includes Calculation Agent Services for the preparation and submittal of btemal Revenue
Service Forms 8038-CP in connection with credit payments with respect to such fonds payable pursuant to the
American Recovery and Reinvestment Act of 2009. This annual fee is payable at the time of closing and
yearly thereafter.
4
t4
Wij,"
-At A
C It
The charges for performing extraordinary or other services not contemplated at the time of the execution of the
transaction or not specifically covered elsewhere in this schedule will be commensurate with the service to be
provided and may be charged in BNY Mellon's sole discretion. If it is contemplated that the Trustee hold
and/or value collateral or enter into any investment &A,6ct, forward purchase or similar or other Agreement,
additional acceptance, administration and counsel..review iew fees will be applicable to the agreement,governing
such services. If the-bonds are converted to certificated form, additional annual fees will be charged for any
applicable tender agent and/or registrar/paying agent services.Additional information will be provided at such
time. Should this transketiol3 terminate prior to closing, all out-of-pocket expenses incurred, including legal
fees, will be billed at cost. If all outstanding bonds of a series are defeased or called in full prior to their
maturity,a termination fee may be assessed at that time.
These extraordinary services may include,but are not limited to,supplemental agreements,consent operations,
unusual releases,tender processing, sinking fund redemptions, failed remarketing processing, the preparation
of special or interim reports, custody of collateral, a one-time fee to be'charged upon termination of an
engagement. Counsel,accountants, special agents and others will be charged at the actual amount of fees and
expenses billed, UCC filing fees, money market sweep fees, auditor confirmation fees, win transfer fees,
transaction fees to settle third-party trades and reconcilement fees to balance trust account balances to third-
party investment provider statements
2001 Bryan—I]'Floor Dallas,TX 75201
BNY MELLON
CORPORATE TRUST
Annual fees include one standard audit confirmation per year witbout charge. Standard audit confirmations
include the final maturity date,principal paid,principal outstanding,interest cycle,.interest paid,cash and asset
information, interest rate, and asset statement information. Non-standard audit confirmation requests may"be
assessed an additional fee. Periodic tenders, sinking`fund, optional or extraordinary call redemptions will be
assessed at$3 00 per event.FDIC or other governmental charges will be passed along to you as incurred.
Terms and Disclosures
Terms of Proposal
Final acceptance of the appointment under the indenture is subject to approval of authorized officers of BNYM
and full review and execution of all documentation related hereto. Please note that if this transaction does not
close,you will be responsible for paying any expenses incurred,including Counsel Fees. We reserve the right
to terminate this offer if we do not enter into final written documents within three months from the date this
document is first transmitted to you. Fees may be subject to adjustment during the life of the engagement.
Customer Notice Required by the USA Patriot Act
To help the US government fight the funding of terrorism and money laundering activities, US Federal law
requires all financial institutions to obtain, verify,'and record information that identifies each person(whether
an individual or organization)for which a relationship is established.
What this means to you: When you establish a relationship with BNYM, we will ask you to provide certain
information (and documents) that will help us to identify you. We will ask for your organization's name,
physical address, tax identification or other gover=ent registration number and other information that will
help as to identify you. We may also ask for a C4,0cate of Incorporation or similar document or other
pertinent identifying documentation for your type of organization.
We thank you for your assistance.
2001 Bryan—11 t°Floor Dallas,TX 75201
CALCULATION AGENCY AGREEV XNT
This Calculation Agency Agreement(the"Agreement!1,entered into as of the I day
of August, 2010,by and between the City of Beaumont,Texas(the"Issuer") and The Bank
of New York Mellon Tmst Company,N.A.,a national banking association,as paying agent
(tire "Calculation Agent") pursuant to that certain Bond Order August 12, 2010 (the
"Authorization"),
WTTNESSETH:
WHEREAS, the Issuer authorized the issuance of its Bonds described in Exhibit A
attached hereto(the`Bonds")pursuant to the Authorization; and
WHEREAS,the Issuer is authorized to enter into tins Agreement with the Calculation
Agent for the preparation and submittal of Internal Revenue Service Forms 8038-CP in
connection with credit payments with respect to such Bonds payable pursuant to the American
Recovery and Reinvestment Act of 2009;and
WHEREAS,the Issuer has determined that it is desirable and in the best interests of
the Issuer to provide for the deposit with the Calculation Agent of payments received from the
federal government regulting from the filing of Form 8038-CP in connection with the Bonds,
to be held on behalf of the Issuer and to be invested solely in investments authorized under
applicable lave,as determined by the Issuer.
NOW, T$EREFORE, intending to be legally bound,the Issuer and the Calculation
Agent agree as follows:
Section 1. Appointment and Acceptance. The Issuer hereby appoints The Batik of
New York Mellon Trust Company, N.A. as calculation agent for the Bonds, and the
Calculation Agent accepts such appointment, acknowledging the duties, obligations and
responsibilities of the Calculation Agent as set forth herein.
Section 2. Documents to be Filled with the Calculation Agent, The Issuer shall
provide to the Calculation Agent in connection with its appointment hereunder, (i) a copy of
the executed Forma 8038-B filed in connection with the issuance of the Bonds, (ii) an
incumbency certificate listing the officers of the Issuer authorized to act on behalf of the
Issuer under this Agreement and (iii) such other instruments, opinions and certificates as the
Calculation Agent may reasonably request.
Section 3. Duties of the Calculation Agent. The Calculation Agent shall act as
calculation,agent for the Bonds and in such capacity it shall:
(i) not less than 45 and.not more than 90 days prior to each interest payment date
for the Bonds, perform the calculations necessary to complete Form 8038-CP
requesting payment of a credit equal to 35% of the interest payable on the
Bonds for the period ending on each such interest payment date;
(ii) secure the signature of an authorized officer of the Issuer on such Form 8038-
CP;
(iii) file each Form 8038-CP with the Deportment of the Treasury at the Internal
Revenue Service Center, Ogden, Utah 84201x0020 (unless notified by the
Issuer or the Internal Revenue Service in writing of a change of address
therefor) not less than 45 and not more than 90 days prior to each interest
payment date for the Bonds;and
Section 4. Establishment of Account. The initial authorized officer of the Issuer
(the"Authorized Of cer')for all purposes of this Agreroaent shall be the officer of the Issuer
identified in Section 8 hereof. .Unless notified in writing by the Authorized Officer of a
change in accounts,the Calculation Agent shall,on each 8038CP,request that all amounts
requested pursuant to each such 8083CP be,directed to the account of the Issuer identified as
follows: ►ttr�nft of Capital Q4c ABA# 1112224.A.cc*uxd#.500701930@.in the
name of City of Beaumont:Tears sj Prior Lien 1"Mt&Sh-ddna Ac couht.
Section 5. Compensation; Indemnification, The Issuer agrees to pay the
Calculation Agent fees as set forth in Ealilblt B attached hereto and made a part heroof.
Only to the extent that the requiremetits of the laws and Constilation of the State of Texas
have been previously satisfied to allow for indemnification, the issuer will indemnify the
calculation agent for any claims, liabilities, losses,.damages, fines, penalties and expenses,
including out of pocket and incidental expenses and legal fees occasioned thereby, unless
such litigation is attributed to the calculation agent's own negligence or willful misconduct,in.
which case the issuer will not be responsible to the calculation agent for any resulting fees or
expenses.
Section 6. Instructions From the Issuer; Advice of Counsel. Many time the
Calculation Agent may apply tp any duly authorized representative of the Issuer for
instructions, and shall have the right, but not the obligation, to consult with counsel of its
choice at the reasonable expense of the Issuer and shall not be liable for action taken or
omitted to be taken either in accordance with such instruction or such advice of counsel,or in
accordance with any opinion of counsel to the Issuer addressed to the Calculation Agent.
Section 7. Concerning the Calculation Agent. The Calculation Agent shall have
only those duties as are specifically provided herein,which shall be deemed purely ministerial
in nature, and shall have the right to perform any of its duties hereunder through agemts,
attorneys, custodians or nominees. The Calculation Agent shall neither be responsible for,
nor chargeable with, knowledge of the terms and conditions of any other agreement,
instrument or document in connection herewith, including without limitation the Bond Order.
The Calculation Agent shall not be,answerable for other than its gross negligence or wMU
misconduct. The Calculation Agent shall have no responsibility for (i) the payment of debt
2
service with respect to the Bonds or(ii)any diminution in value of any assets held hereunder
which may result from any investments or reinvestment made in accordance with any
provision which may be contained herein. The Calculation Agent shall be protected in acting
upon any paper or document believed by it to be genuine and to have been signed by the
proper person or persons and shall not be held tQ have notice of any change of authority of
any person, until receipt of written notice thereof from the Issuer. The Calculation Agent
shall not be under any obligation to prosecute any action or suit in respect of the agency
relationship which, in its sole judgment,may involve it in expense or liability. In any action
or suit the Issuer shall, as often as requested,reimburse the Calculation Agent for any expense
or liability growing out of such action or suit by or against the,Calculation Agent in its agency
capacity; provided, however, that no such reimbursement shall be made for any expense or
liability arising as a repult of Calculation Agent's gross negligence or willful misconduct. The
Calculation Agent's liability with respect to matters relating to its performance as Calculation
Agent shall be limited to an amount equal to the amount of its annual administration fee.
The Calculation Agent shall not be responsible or liable for any failure or delay in the
performance of its obligation under this Agreement arising out of or caused, directly or
indirectly, by eincworstances beyond its reasonable control,including,without limitation, acts
of God; earthquakes; fns; flood; wars; terrorism; military disturbances; sabotage; epidemic;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communications services; accidents•, labor disputes; acts of civil or military authority or
governmental action; it being understood that Calculation Agent shall use commercially
reasonable efforts which are consistent with accepted practices in the banking industry to
resunle performance as soon as reasonably practicable under the ciresuunstanees,
Anything in this Agreement to the contrary notwithstanding, in no event shall the
Calculation Agent be liable for special, punitive, indirect or consequential loss or damage of
any land whatsoever(including but not limited to lost profits), even if the Calculation Agent
has been advised of the likelihood of such loss or damage and regardless of the form of
action.
The Calculation Agent agrees to accept and act upon instructions or directions pursuant
to this Agreement sent by unsecured a-mail, facsimile transmission or other similar unsecured
electronic methods,provided,however,that the Issuer shall provide to the Calculation Agent
an incumbency certificate listing designated persons authorized to provide such instructions,
which incumbency certificate shall be amended whenever a person is to be added or deleted
from the listing. If the Issuer elects to give the Calculation Agent email or facsimile
instructions (or instructions by a similar electronic method) and the Calculation Agent in its
discretion elects to act upon such instructions,the Calculation Agent's understanding of such
instructions shall be deemed controlling. The Calculation Agent shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Calculation Agent's reliance
upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with-a subsequent written instruction. The Issuer agrees to assume all risks
arising out of the use of such electronic methods to srabmit instructions and directions to the
Calculation Agent, including without limitation the risk of the Calculation Agent acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
3
Any banking association or corporation into which the Calculation Agent may be
merged, converted or with which the Calculation Agent may be consolidated, or any banking
association or corporation resulting from any merger, conversion or consolidation to which
the Calculation Agent shall be a party, or any banking association or corporation to which all
or substantially all of the corporate trust business of the Calculation Agent shall be
transferred, shall succeed to all the Calculation Agents rights, obligations and immunities
hereunder without the execution or filing of any paper or any further act on the part of the
parties hereto,anything herein to the contrary notwithstanding.
Section 10. Notices. Until changed by notice in writing, communications between
the parties shall be delivered to:
If to Issuer:
Attn:Ms. Laura Clark
Chief Financial Officer
City of Beaumont,Texas
P O Box 3827
Beaumont,Texas 77774
If to the Caluation Agent:
IU Bank of New York Mellon Trust Company,N.A.
601 Travis Street,Floor 16
Houston,TX 77002
Attn: Public Finance
Telephone No.: (113)483-6529
Facsimile N.: (713)483-6979
Section 11. Destruction of Records, Instruments and Papers. The Calculation
Agent may retain in its files records,instruments,and papers maintained by it in relation to its
agency as long as the Calculation Agent shall consider that such retention is necessary.
Section 12. Resignation or Removal of Calculation Agent. Any tune, other than on
a day during the sixty (60) day period preceding any periodic payment date for Issuer's
Bonds,the Calculation Agent may resign by giving at least forty-five (45)days' prior written
notice to Issuer, and the Calculation Agent's agency shall be terminated and its duties shall
cease upon expiration of such forty-five (45) days or such lesm period of time as shall be
mutually agreeable to Calculation Agent and Issuer. At any time, following at least sixty(60)
days' prior notice (or such lesser period of time as shall be mutually agreeable to the
Calculation Agent and the Issuer)the Calculation Agent may be reanoved from its agency by
the Issues. Such removal shall become effective upon the expiration of the sixty(60) day or
agreed lesser time period, and upon payment to the Calculation Agent of all amounts payable
4
to it for worked accomplished of the time of removal. In such event, the Calculation Agent
shall deliver to the Issuer copies of pertinent records then in the Calculation Agent's
possession which are reasonably requested by the Issuer.
Section 13. Effectiveness and Term. This Agreement shall remain in effect and the
agency established by the Agreement shall continue until(1) terminated by mutual agreement
of Issuer and Calculation Agent, (ii)the resignation or removal of Calculation Agent pursuant
to Section 12 hereof,or(iii)after all Bonds have been retired or defer a
Section Conflict with Bond Order . In the event of a conflict between the
provisions of this Agreement and those of the Authorization, the tmm of the Bond Order
shall govern.
Section Governing Law. Ilia Agreement shall be govemed by and oonstniued m
accordance with the laws of the State of Texas.
5
IN WrrNESS WHEREOF,the parties hereto have caused these presents to be signed
by their duly authorized officers as of the date first above written.
City of Beaumont,Texas,as Issuer
B y C I V
Name: Kyle Hayes
Title: City Manager
The Bank of New York Mellon Trust
Company,N.A.,as trustee/paying agent
By6W&jj_(J�
eW
Name:Debora K. Van Etten
Title: Vice President
s
EXHII3IT A
DESCRIPTION OF BONDS
The City of Beaumont,Texas,Waterworks and Sewer System Revenue Bonds,Taxable
Series 20108(Build America Bonds—Direct Payment to Issuer)
7
E7IIMIT B
FEE SCHEDULE
Calculation Agent
For Preparation of Form 8038-CP
(See Attached)
s
Fee Schedule
The City of Beaumont,Texas Waterworks and Sewer System Revenue Refunding
Bonds,Taxable Series 2O10B(Build America Bonds -Direct Payment to Issuer)
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A onexime charge covering the Bank Officer's review of govedrning documents,communication with members
of the closing party,including representatives of the issuer,inveftent wker(s)and attorney(s),establishment
bf procedures and controls, set-up of trust mounts and tickler suspense items and the receipt and
disbumunentliinvestment of bored proceeds. This fee is payable on the closing date.
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Ain annual Charge covering the neitiial paying agent d;aties related to aecoulut administration and bondholder
services.Our pricing is based on the asstit>iption trier the ban3ds are 13TC-eligiblObook-entry only. If flue bonds
are certificated or physical,then we will have to charge an additional$1000 per year as a paying agent. This
fee is payable a b nua3lly,in advance.
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This annual fee includes Calculrltion Agent Services for the preparation and submittal of Iirtanal Revewx
Service Fonns 8038-C1'in connw ion:with credit psym"with respect to such fonds payable pursuaM to the
American Recovery and Reinvestment Act of 2009. This annual fee is payable at the time of closing and
yearly thereafter.
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The charges far peifortning extraaa denary or other services nat law at the time of ft exeeutiear of the
transaction or not specifically covered elsewhere in tl»s schedule will be cowneasurate with the service to be
provided and nosy be charged in l3Ni' Mell�'s sole discretion. N it is contemplated that the Trustee hold
aridlor value collateral or enter intb any investinent contract,forward purchase or similar or other agreanerrt,
additional acceptance, administration and counsel review fees will be applicable to the agmenaent govern mg
such services. If the bonds are converted to certificated farts,additional annual fees will be cad for any
applicable tender agent and/or rceuttar4wfing agent services.Additionnal information will be provided at such
time. Should this transaction terminate prior to closing, all out-of-pocket expenses inciu'red, including legal
fees, will be blued at cost If all oc>tstariding bonds of a series are defeased or called in full prior to their
maturity,a termination fee may be assessed at that time.
These extraordinary services may include,but are not limited to,supplemental agreements,consent operations,
unusual releases,tender processW&sinking fund rede rIptiions,failed remarketing processing,the preparation
of special or interim reports, custody of collateral, a one-time fee to be charged upon termination of an
engagement Counsel,accouatar►ts,special agents and others will be dbarged at the actual amount of fees and
expenses billed, UCC filing fees, money market sweep fees, auditor confinmaaiari fees, wire transfer fees,
transaction fees to settle third-party trades and reconcilement fees to balance trust account balances to turd-
party investment provider statements
2001]Bryan—11m Fluor DWI&%TX 75201
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Annual fees include one standard audit confirmation per year without charge. Standard audit confiMatioos
include the Seal maturity date,principal paid,principal outstanding,interest cycle,interest paid,cash and asset
infonmaation,interest rate,and asset statement information. Nary-standard audit confirmation requests may be
assessed an additional fee periodic tenders, sinking fund, optional or w&aordwaiy call redemptions will be
assessed at$300 per event.FDIC or other governmental charges will be passed along to you as incurred.
Terms and Disclosures
Terms of Proposal
Final acceptanoe of the appointment under the Indenture is subject to approval of suthorhd officers of BNYM
and full review and Gxccution of all documentation related hereto. Please note that if this transaction does not
close,you will be responsible for payirig arty expenses mcinted,including Counsel Fees. We reserve the right
to tcami»ate this offer if we do not etiter into find written doc meats wid&three month from the date this
docent is first transmitted to you. Fees may be subject to adjustment during the life of the engagement
Customer Notk*Req tiftd by the USA Patriot Act
To help the US govam omt fi& the funding of terrorised and money laurddering activities, US Federal law .
requires all financial institutions to obtain,verify,and record information that idatifies each person(whether
an individual or organization)for vvhicb a relationship is established.
What this means to you. When you establish a relationship with BNYK we will ask you to provide certain
inforrmadon (and documents)that will help us to identify you. We will ask for your organization's name,
physical address,tax identification or other government registration number and other information that will
hells us to identify you. We day also ask for a Certificate of Incorporation or sizi&w document or other
pbAnatt identifying documentation for your type of organization.
We thank you for your assistance.
2001 Bryan-1I FIw D&llu,rx 75M1