HomeMy WebLinkAboutPACKET DEC 07 2010 RICH WITH OPPORTUNITY
11EA.,UM0N*
T * E * % * A * S
REGULAR MEETING OF THE CITY COUNCIL
COUNCIL CHAMBERS DECEMBER 7,2010 1:30 P.M.
CONSENT AGENDA
* Approval of minutes -November 16, 2010
* Confirmation of committee appointments
A) Approve an agreement with Motiva Enterprises,LLC for the installation and rental of a
traffic signal
B) Authorize the acceptance of a Water Line Easement to provide water and fire protection
services for Caldwood Elementary School
C) Authorize the acceptance of a six foot wide Sidewalk Easement located at 4550 Major
Drive
D) Approve Change Order Number One and the final payment related to the Florida Avenue
Improvement Project
A
RICH WITH OPPORTUNITY
BEAUMON*
T • E ,, X • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager p
PREPARED BY: Patrick Donart,Director of Engineering/City Engineer r0
MEETING DATE: December 7,2010
REQUESTED ACTION: Council to consider entering into an agreement with Motiva
Enterprises, LLC for the installation and rental of a traffic
signal.
RECOMMENDATION
The Administration recommends approval of an agreement between Motiva Enterprises,LLC and
the City of Beaumont for the installation and rental of a traffic signal.
BACKGROUND
Motiva Enterprises, LLC is seeking to install a traffic signal at their jobsite, located at 9404 West
Port Arthur Road. This section of road is located on a state maintained non-controlled access
highway.The City of Beaumont and Texas Department of Transportation entered into a Municipal
Maintenance Agreement on March 25,2008,which includes the City's responsibilities to install,
maintain,and operate all traffic signals in cities equal to or greater than 50,000 populations on a
non-controlled access highway. A traffic study was conducted by city staff with the determination
that a traffic signal is warranted at this proposed location.
This agreement is recommended for approval by the City Manager, Director of Engineering/City
Engineer, and Transportation Manager.
BUDGETARY IMPACT
Motiva Enterprises, LLC will pay the City of Beaumont$52,641.00 for materials and labor to
install a traffic signal and will pay$14,310 for the 18-month rental and maintenance of the
equipment. A total of$66,951 will be paid by Motiva Enterprises, LLC within five days of the
execution of the agreement. The terms of the agreement will expire in May of 2012. Motiva
Enterprises, LLC will have the right to extend the agreement on a month to month basis at the
conclusion of the term.
RESOLUTION NO.
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute an agreement
with Motiva Enterprises, LLC, for the installation and rental of a traffic signal at 9404 West
Port Arthur Road.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
December, 2010.
- Mayor Becky Ames. -
B
RICH WITH OPPORTUNITY
11EA,UM01179(
T • E • x • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager p
PREPARED BY: Patrick Donart, Director of Engineering/City Engineer f
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider authorizing the acceptance of a Water
Line Easement.
RECOMMENDATION
The Administration recommends acceptance of a Water Line Easement to provide water and fire
protection services for Caldwood Elementary School (102 Berkshire).
BACKGROUND
Beaumont Independent School District has agreed to convey a ten(10) foot wide water line
easement to the City of Beaumont. The Water Line Easement will provide mandatory access to
the water lines and fire hydrants for the school property and would also allow for the
construction, alteration, operation and maintenance of the said water lines and appurtenances.
This Waterline Easement is recommended for approval by the City Manager, Director of
Engineering/City Engineering and Water Utilities Director.
BUDGETARY IMPACT
None.
I
STATE OF TEXAS X
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF JEFFERSON X
WATER LINE EASEMENT
THAT, BEAUMONT INDEPENDENT SCHOOL DISTRICT,of the County of Jefferson,
State of Texas, hereinafter called "GRANTOR", whether one or more,for and in consideration of
the sum of ONE AND NO/100 DOLLAR($1.00), and other good and valuable consideration to it
in hand paid by the CITY OF BEAUMONT,a municipal corporation domiciled in Jefferson County,
Texas,hereinafter called"GRANTEE",the receipt and sufficiency of which consideration is hereby
acknowledged, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT,
SELL and CONVEY unto the CITY OF BEAUMONT, P. O.Box 3827,Beaumont,Texas 77704,
Jefferson County, Texas, its successors and assigns, an easement to use, repair, alter, and maintain
a single underground water line and appurtenances on the hereinafter described lands which said
easement is under, over, in and across that certain tract or parcel of land owned by GRANTOR
situated in the County of Jefferson, State of Texas,and being more particularly described in Exhibit
"A",attached hereto and made a part hereof for all purposes.Grantor will have the right to relocate
the water line as needed for Grantor's use of the property provided the relocation is at Grantor's
expense and approved by the City of Beaumont's Water Utilities Director or similarly-titled
representative.
The easement herein granted shall be used for the purpose of operating,repairing,rebuilding,
replacing, relocating, and removing a water line as needed for operation of Grantor's facilities on
the property. The easement shall be exclusive insofar as use of the easement land for underground
utilities is concerned, but Grantor reserves the right to use the surface of the easement land for
vehicular parking,driveways,landscaping,fencing,and other surface uses that will not interfere with
or damage the water line. Grantor shall have the right to pave all or any portion of the surface of the
easement land, but no permanent structures or buildings will be constructed on the easement land.
Grantor will install the water line at a depth that will not be damaged by the contemplated
use of the surface by Grantor.
It is expressly understood and agreed that the City of Beaumont shall have the right of access
to the water line and appurtenances at all reasonable times to improve,maintain and operate the same
as permitted by law,and will attempt to use existing driveways and that portion of Grantor's property
that is immediately adjacent to the water line.Non-emergency maintenance and repairs will be with
48 hours prior notice to Grantor.
Grantor will be responsible for the initial installation or construction of the water line on
Grantor's property in accordance with the plans and specifications included in the utility plan at
Grantor's expense.After initial construction of the water line and acceptance by Grantee,Grantee
will be responsible for maintenance and repair of the water line and appurtenances at Grantee's
expense. Grantor agrees not to place any structures or appurtenances on or over the water line that
will interfere with the use of the Easement for water line purposes.
Grantee shall not be responsible for the repair and replacement of any paving or other
structures that may be damaged by Grantee's non-negligent maintenance or repair of the water line
and appurtenances.
TO HAVE AND TO HOLD the above described easement and right-of-way unto the said
CITY OF BEAUMONT, its successors and assigns forever.
EXECUTED this day of ,2010.
BEAUMONT INDEPENDENT SCHOOL DISTRICT
By
Dr. Carrol Thomas,Superintendent
ACKNOWLEDGMENT
STATE OF TEXAS X
COUNTY OF JEFFERSON X
BEFORE ME,the undersigned authority,on this day personally appeared Dr.Carrol Thomas,
Superintendent of BEAUMONT INDEPENDENT SCHOOL DISTRICT known to me to be the
person and officer whose name is subscribed to the foregoing instrument,and acknowledged to me
that the same was the act of the said BEAUMONT INDEPENDENT SCHOOL DISTRICT,and that
he executed the same for the purposes and consideration expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
32010.
Notary Public,State of Texas
RETURN TO:
City of Beaumont
Antoinette Hardy-Engineering
P. O. Box 3827
Beaumont, TX 77704
I
RESOLUTION NO.
WHEREAS, Beaumont Independent School District has offered to convey a ten foot
(10') wide water line easement, said easement being out of the H. Williams Survey,
Abstract No. 56, as described in Exhibit "A" and shown on Exhibit"B" attached hereto, to
the City of Beaumont for the purpose of providing water and fire protection services for
Caldwood Elementary School located at 102 Berkshire; and,
WHEREAS, the City Council has considered the purpose of said conveyance and
is of the opinion that the acceptance of said conveyance is necessary and desirable and
that same should be accepted;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are
hereby, in all things, approved and adopted; and
THAT the easement conveyed by Beaumont Independent School District, as
described in Exhibit"A"and shown on Exhibit"B," be and the same is hereby, in all things,
accepted.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
December, 2010.
- Mayor Becky Ames -
INC.
Consulting Eno iieers mid Land SL17veyors
EXHIBIT "A", PAGE 1 OF 3 Ronald D.Fittz,P.E.,R.P.L.S.(1948-1987)
CENTERLINE DESCRIPTION Terry G.Shipman,Chairman of Board
• � Billy J.Smith,Jr.,President
_�'- OF A Donald R. King,P.E.
10' WIDE EXCLUSIVE WATER LINE EASEMENT Michelle Falgout,P.E.
Walter J. Ksiazek, R.P.L.S.
OUT OF THE
H.WILLIAMS SURVEY, ABSTRACT 56
JEFFERSON COUNTY, TEXAS
AUGUST 17,2010
REVISED: SEPTEMBER 15,2010
That certain centerline description for a 10'wide exclusive water line easement, 5.0' on each
side of centerline, out of the H. Williams Survey, Abstract 56, and being out of a 8.091 acre tract
conveyed to Beaumont ISD (aka South Park ISD) as recorded in Volume 1113, Page 272 of the
Deed Records of Jefferson County, Texas, said centerline being more particularly described by
the following courses and distances:
Note: Bearings are referenced to the NAD83 Texas State Plane Coordinate System, South
Central Zone#4204.
COMMENCING at a concrete monument (no disc) found in the south right-of-way line of North
Caldwood Drive for northwest corner of the said 8.091 acre tract from which a concrete
monument(no disc) found for the southwest corner of the said 8.091 acre tract bears South
03°03'50" East 818.84 feet;
THENCE North 87°19'05" East along the said south right-of-way line of North Caldwood Drive
and the north line of the said 8.091 acre tract a distance of 15.00 feet(called North 89 020'05"
East)to a point for the POINT OF BEGINNING of the said centerline of the 10'wide exclusive
water line easement from which a '/z" iron rod found at the intersection of the said south right-of-
way line of North Caldwood Drive and the west right-of-way line of Berkshire Lane for the
northeast corner of the said 8.091 acre tract bears North 87 019'05" East 404.42 feet;
THENCE along the said centerline with the following courses and distances:
South 03 003'51" East a distance of 654.79 feet to an angle point;
North 86°56'10" East a distance of 357.18 feet to an angle point;
North 41056'09" East a distance of 23.32 feet to an angle point;
North 03 003'50"West, at a distance of 184.51 feet pass a point for the POINT OF
BEGINNING of TAP A from which the POINT OF TERMINATION of said TAP A bears South
86 056'10"West 88.90 feet, and continuing a total distance of 255.64 feet to an angle point;
North 46°56'10" East a distance of 113.04 feet to a point in the said west right-of-way
line of Berkshire Lane and a south line of the said 8.091 acre tract for the POINT OF
TERMINATION of the said centerline from which a point for the most easterly corner of the
FITTZ&SHIPMAN,INC.
Project No.09048Task 13
Plat&Description
1405 Cornerstone Court• Beaumont,Texas 77706• (409)832-7238 - fax(409) 832-7303
Tx Board of Prof Engineers Firm No. 1160-Tx Board of Prof Land Surveyors Firm No. 100186
EXHIBIT "A"
EXHIBIT "A", PAGE 2 OF 3
said 8.091 acre tract bears a chord bearing of South 46 009'54" East and a chord distance of
14.53 feet.
This description is based on a survey and plat made by Fittz & Shipman, Inc. on August 13,
2010.
Walter J. Ksiazek
Registered Professional Land Surve or No. 5321 OF T,-
;S, ►
0
�j.
FITTZ&SHIPMAN,INC.
Project No. 09048Task 13
Plat&Description
EXHIBIT W, PAGE 3 OF 3 FOUND VOL 5LDGO 4, M.R.J.C. ® COMMENCING POINT
CONCRETE CONCRETE
MONUMENT LOT 45 LOT 46 LOT 47 LOT 48 LOT 49 LOT 50 MONUMENT
NO DISC (CA LED N 01'00'55" W 818.9 ) NO DISC
N 03'03'51" W 818.84 LOT 51
f�i-____=====_===S=O ________=____
SURVEYOR'S CERTIFICATION: I I I 30351" E 654.79 15 OD
i DO HEREBY CERTIFY, TO THE BEST OF MY KNOWLEDGE AND BELIEF,
THAT THIS IS AN ACCURATE PLAT OF A SURVEY do DESCRIPTION MADE I I 1
ON THE GROUND UNDER MY SUPERVISION ON AUGUST 13, 2010. 1 I I CENTERLINE OF A POINT OF
10' WIDE EXCLUSIVE BEGINNING
WATER LINE EASEMENT, CENTERLINE
f I I I 5' EACH SIDE
WALTER J. KSIAZEK I
REGISTERED PROFESSIONAL L SURVEYO N0. 5321
F z ° � I d
.7. a N M I Oi a A
31� WI I d'w Q
E°o F�l �� •0 1BEAUMONT ISD N w o• Q O a S or � �I (AKA SOUTH PARK ISD)yy I�Zj•• �, I� VOL. 1113, PG. 272, D.R.J.0 p*
(CALLED 8.091 ACRES)001 1 WAS►AZi. o 00
T I� z Ey
a .�0.•_:" '1- I 1
pp I �1 1 Q Z
I 11 �C6Ila
i 1 � III
�`�---184.51-- N J L71.13 ti
N 41'56'09" E ——_
I 23.32 N 03'03'50" W 255.64
J -----
F FOUND
r CALDWOOD, UNIT I \ \\\ IRON ROD
FOUND Yz�r I I VOL. 10, PG. 51, M.R.J.C. \
L IRON ROD CALDWOOD, UNIT II S 46'09'54" E \ BERKSHIRE LANE
VOL 10, PG. ss, M.R.J.c. 14 53 POINT OF
E
(CHORD BEARING TERMINATION
�+ AND DISTANCE) CENTERLINE
0
0
3
a
U
m
FittZShipman 10' WIDE EXCLUSIVE WATER LINE EASEMENT SHEET N0.
INC. PROJECT NAME: BISD 3
w 0 50 100 Co ndhngEng&xmandLandsun)*vTs CALDWOOD ELEMENTARY
'o NOTE: BEARINGS ARE REFERENCED TO THE NAD83, PROJECT NO.
i ® TEXAS STATE PLANE COODINATE SYSTEM, 1405 CORNERSTONE COURT, BEAUMONT,TEXAS BEAUMONT, TEXAS
a S C A L E SOUTH CENTRAL ZONE x/4204. (409) 832-7238 FAX (409) 832-7303 DWG. No. oeoaBi5K73wt.esml DATE:a-t7-10 09048—T13
c
RICH WITH OPPORTUNITY
11EA,[114011*T • E • X • A • S
City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Patrick Donart, Director of Engineering/City Engineering PO
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider authorizing the acceptance of a six foot (6') wide
Sidewalk Easement.
RECOMMENDATION
The Administration recommends acceptance of a Sidewalk Easement located at 4550 Major Drive.
BACKGROUND
Stoneleigh Homsar Apts. Ltd has agreed to convey a six foot(6')wide Sidewalk Easement to the
City of Beaumont. The property is described as out of Lot IA of the replat of Stoneleigh, located
at 4550 Major Drive.
This Sidewalk Easement is recommended for approval by the City Manager, Director of
Engineering/City Engineering and Water Utilities Director.
BUDGETARYIMPACT
None.
STATE OF TEXAS X
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF JEFFERSON X
SIDEWALK EASEMENT
THAT, STONELEIGH HOMSAR APARTMENTS, LTD, of the County of Dallas, State of Texas,
hereinafter called"GRANTOR",for and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00),
and other good and valuable consideration to us in hand paid by the CITY OF BEAUMONT, a municipal
corporation domiciled in Jefferson County,Texas,hereinafter called "GRANTEE",the receipt and sufficiency
of which consideration is hereby acknowledged,has GRANTED and CONVEYED,and by these presents does
GRANT and CONVEY unto the said CITY OF BEAUMONT, its successors and assigns a right,privilege,and
easement for sidewalk purposes in,over and across that certain tract of land owned by GRANTOR in the CITY
OF BEAUMONT,Jefferson County,Texas,said easement described in Exhibit "A" attached hereto and made
a part hereof for all purposes.
The easement herein granted shall be used for the purpose of constructing, reconstructing, and
maintaining sidewalks and the following rights are also hereby conveyed:
It is expressly understood and agreed that the City shall have the right of ingress to and egress from the
above described tract of land of the GRANTOR as well as beneath and below the surface of the above described
easement for the aforesaid purposes of this easement.
TO HAVE AND TO HOLD the above described easement unto the said CITY OF BEAUMONT,
Jefferson County,Texas, its successors and assigns forever.
EXECUTED this day of ,2010.
GRANTOR:
Stoneleigh Homsar Apartments, Ltd
By:
Title: President
r
ACKNOWLEDGMENT
STATE OF TEXAS X
COUNTY OF JEFFERSON X
BEFORE ME, the undersigned authority, personally appeared Warner E. Stone , President of
Stonelefizh Homsar Apartments,Ltd ,whose name is subscribed to the foregoing instrument and who
is personally known to me, and acknowledged to me that the same was the act of the said Stoneleigh Homsar
Apartments, Ltd ,and that he executed the same for the purposes and consideration therein expressed and in
the capacity stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of ,
A. D. 2010.
Notary Public,State of Texas
RETURN TO:
City of Beaumont
Antoinette Hardy-Engineering
P. O.Box 3827
Beaumont, TX 77704
RESOLUTION NO.
WHEREAS, Stoneleigh Homsar Apartments, Ltd. has offered to convey a six foot
(6')wide sidewalk easement, said easement being out of Lot 1A of the replat of Stoneleigh,
as described in Exhibit "A" and shown on Exhibit "B" attached hereto, to the City of
Beaumont; and,
WHEREAS, the City Council has considered the purpose of said conveyance and
is of the opinion that the acceptance of said conveyance is necessary and desirable and
that same should be accepted;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are
hereby, in all things, approved and adopted; and
THAT the easement conveyed by Stoneleigh Homsar Apartments, Lt., as described
in Exhibit"A"and shown on Exhibit"B," be and the same is hereby, in all things, accepted.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
December, 2010.
- Mayor Becky Ames -
Fittz&Shipman
INC.
EXHIBIT "A", PAGE 1 OF 3 Consulting En,-baeeis and La7id Surveyors
Nium FIELD NOTE DESCRIPTION
Ronald D. Fittz,P.E., R.P.L.S.(1948-1987)
OF A Terry G.Shipman,Chairman of Board
0.1318 ACRE TRACT Billy J. Smith,Jr.,President
FOR A 6' WIDE SIDEWALK EASEMENT Donald R. King,P.E.
Michelle Falgout,P.E.
OUT OF LOT 1A OF THE REPLAT OF Walter]. Ksiazek,R.P.L.S.
STONELEIGH
JEFFERSON COUNTY, TEXAS
AUGUST 2, 2010
REVISED: SEPTEMBER 2,2010
That certain 0.1318 acre tract for a 6' wide sidewalk easement, out of Lot 1A of the Replat of
Stoneleigh, a plat recorded in Clerks File No. 2010014601 of the Official Public Records of
Jefferson County, Texas, said 0.1318 acre being more particularly described by metes and
bounds as follows:
Note: The Basis of Bearings is a west line of said Lot 1A having been called North 03°08'36"
West 644.47 feet.
BEGINNING at a concrete monument found at the intersection of the east right-of-way line of
North Major Drive and the north right-of-way line of Homsar Pointe Boulevard for the southwest
corner of said Lot 1A and the said 0.1318 acre tract;
THENCE North 03°08'36" West along the said east right-of-way line of North Major Drive and a
west fine of said Lot 1A and the said 0.1318 acre tract a distance of 644.47 feet (called North
o
03 08 36„West 644.47 feet) to a TxDot monument found for an angle point;
THENCE North 06 029'05” West continuing along the said east right-of-way line of North Major
Drive and a west line of said Lot 1A and the said 0.1318 acre tract a distance of 306.95 feet
(called North 06 029'05" West 306.95 feet) to a TxDot monument found at the intersection of the
said west right-of-way line of North Major Drive and the northeasterly right-of-way line of Old
Major Drive for the PC of a curve and the northwest corner of the said 0.1318 acre tract;
THENCE along the northeasterly right-of-way line of said Old Major Drive, the northerly line of
the said 0.1318 acre tract and the southwesterly line of said Lot 1A and the said 0.1318 acre
tract with a curve to the right having a chord bearing of North 23 043'46" East, a chord distance
of 11.92 feet and a radius of 515.91 feet, a distance along the curve of 11.92 feet to a point for
the northeast corner of the said 0.1318 acre tract;
THENCE South 06 029'05" East along the east line of the said 0.1318 acre tract a distance of
317.43 feet to an angle point;
THENCE South 03 008'36" East continuing along the said east line of the 0.1318 acre tract a
distance of 644.68 feet to a point in the said north right-of-way line of Homsar Pointe Boulevard
and the south line of said Lot 1A for the southeast corner of the said 0.1318 acre tract from
Fittz&Skipnzan,Inc.
Project No. 07156.00OOT6
Plat&Description
1405 Cornerstone Court• Beaumont, Texas 77706 - (409) 832-7238 • fax (409) 832-7303
Tx Board of Prof En^'^^^•, G;.^, N1^ 11 tin. Tv Rnord of Prof Land Surveyors Firm No. 100186
EXHIBIT "A"
EXHIBIT"A", PAGE 2 OF 3
which a capped iron rod found for the southeast corner of said Lot 1A bears North 87 009'40"
East 329.00 feet (called North 87 009'40" East);
THENCE South 87°09'40"West along the said north right-of-way line of Homsar Pointe
Boulevard and the south line of said Lot 1A and the said 0.1318 acre tract a distance of 6.00
feet (called South 87°09'40"West) to the POINT OF BEGINNING and containing 0.1318 acre of
land, more or less.
This Field Note Description and plat is based on a survey performed by Fittz & Shipman, Inc.
during March 2010.
Walter J. Ksiazek F
Registered Professionar o. 321 o�EG� r ` .� j''
WALTER J. i ,IAZi
o.o Cwti21
'�.A`'i'f °°• ► ►ark
Fittz&Shipman,Inc.
Project No. 07156.00OOT6
Plat&Description
EXHIBIT °A", PAGE 3 OF 3
NUMBER DELTA RADIUS ARC CHORD CHORD BEARING
Cl 16'54'36" 515.91 152.26 151.71 N 31'31'20" E
CALLED 16'54'36" 515.91 152.26 151.71 N 31'31'2D"E
0 100 200 C2 01'19'27" 515.91 11.92 11.92 N 23'43'46" E
® C3 1535'09" 515.91 140.34 139.91 N 32'11'04" E FOUND
S C A L E CAPPED REMAINDER OF
IRON RD LAKE BEAU, L.L.P.
CLERKS FILE NO. 2005038617 O.P.R.J.C.
LOT 2 (CALLED 28.787 ACRES)
m 5.167 ACRES
X
2 OAP' OQ
FOUND
od 4�yO�p1 FOUND CAPPED
CAPPED IRON ROD
FE4' ?�O IRON ROD
�yQ`GP
FOUND G�
CAPPED PRIVATE STREET
IRON ROD 0°o w
0 ci �—
Lein Z0
LOT 1 A to
o Wa °->
FOUND �4' N 0 o La
Ol/� IRON ROD 6' WIDE M m Q
SURVEYOR'S CERTIFICATION: tJ " SIDEWALK EASEMENT P z (n
I DO HEREBY CERTIFY, TO THE BEST OF MY KNOWLEDGE AND BELIEF, AG•v/ 0.1318 ACRE m
THAT THIS IS AN ACCURATE PLAT OF A SURVEY & DESCRIPTION MADE 9S,o 9"YY✓Q C C2 0
ON THE GROUND UNDER MY SUPERVISION DURING MARCH 2010. l/L ti�% 3 6.OD Z a
9�T,�,oTRFev/� C� S_06'29'05" E 317.43 _ __ S 03'08'3_6" E 644.68
'� LF N 06'29 05 W 306.95 N ED 03*08'36" 6" 6444.7 POINT OF
O F T4 T?` ��/ (CALLED N 06'29'05" W 306.95) (CALLED N 03F BEARINGS)W 644.47)
(BASIS OF BEARINGS) BEGINNING
WALTER J. KSIAZEK -tt'a�'° I �RS t ql TxDOOT TODOT 4550 NORTH MAJOR DRIVE CONCRETE
REGISTERED PROFESSIONAL D SURVEYOR . 5321 A.:IyO��('J,S�`�F& • � MONUMENT MONUMENT MONUMENT
WALTER J. KSIAZ,\
1 REVISED: SEPTEMBER 2, 2010
Fittz�Shipman 6' WIDE SIDEWALK EASEMENT
SHEET NO.
INC. PROJECT NAME: LOT 1A OF REPLAT OF STONELEIGH
CO-UUME,% —andLondSu-*ors CLERKS FILE NO. 2010014601, OPRJ
1405 CORNERSTONE COURT, BEAUMONT, TEXAS BEAUMONT, TEXAS PROJECT N0.
0:\PROJECTS\07156\07156-0D04\7156SWesmt.dwg Sep 02, 2010 01:18pm (409) 832-7238 FAX (409) 832-7303 DATE:6-2-10 07156TO6
D
RICH WITH OPPORTUNITY
I
T • E • X • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Patrick Donart,Director of Engineering/City Engineer
MEETING DATE: December 7,2010
REQUESTED ACTION: Council to consider a resolution approving Change Order
Number One and Final and the acceptance of the Florida
Avenue Improvement Project.
RECOMMENDATION
The Administration recommends approval of Change Order Number One and Final in the amount
of$15,554.20 and the acceptance of the Florida Avenue Improvement Project with final payment
in the amount of$21,402.25 to Norman Highway Constructors, Inc.
BACKGROUND
The Florida Avenue Improvement Project is the installation of concrete pavement on Florida
Avenue between Cardinal Drive and Avenue A.
This project has been inspected and completed in accordance with the Terms and Conditions set
out in the contract documents. Change Order Number One and Final in the amount of$15,554.20
is required to adjust quantities actually used during the performance of the project. The additional
quantities represent an increase of 4.33%to the original contract and the final contract amount is
$374,845.03. The change order adds twelve(12)days to the contract,thus increasing the contract
time to 192 calendar days. The project was completed within the allowable contract time.
The MBE goal was completed with MBE firms of Crabtree Barricade Systems,Labellco,Inc.,and
American Remediation in the amount of$72,807.53 representing 19.42%of the final contract
amount.
Previous actions include:
Resolution 10-029 in the amount of$359,290.83 was passed by City Council on February 9,2010.
The approval of Change Order Number One and Final and the acceptance of the Project is
recommended by the City Manager and Director of Engineering/City Engineer.
BUDGETARY IMPACT
Funds are available through the Capital Program.
CITY OF BEAUMONT
DATE: November 17,2010
PROJECT: FLORIDA AVENUE PAVEMENT IMPROVEMENT PROJECT
OWNER: City of Beaumont
CONTRACTOR: NORMAN HIGHWAY CONSTRUCTION
CHANGE ORDER NO.: I&FINAL
Adjusting the estimated quantities to match final quantities used during the performance of the project
Item No. Item Code Description Unit Original New Unit Priteli'otal
Quantity Quantity
104 001 REMOVE CONC.(DRIVEWAY) SY 150 278.3 520.00 I S2,566.00
247 001 FLEX BASE(GR 1)(TY AXDENSITY CONTROLLED) CY 400 405.7 525.00 514230
251 001 REWORK FLEX BASE MATERIAL(6-) CY 1050 1100 S23.00 S1,150.00
354 1 001 PLANE ASPH.CONC.PAVEMENT(67 SY 6700 6941.7 $0.80 $193.36
360 001 CONCRETE PAVEMENT(6-) SY 6020 6494.68 S31.00 514,715.08
360 002 CONCRETE PAVEMENT BRIDGE OVERLAY(6"-10') SY 153 160.52 538.00 I 5285.76
479 001 ADJUST SAN.SEWER MANHOLE(COMPLETE) EA 6 7 $550.00 $550.00
479 002 ADJUST WATER METER(COMPLETE) EA 8 1 5550.00 -53,850.00
479 003 ADJUST WATER VALVE(COMPLETE) EA 4 5 $160.00 $160.00
506 001 REMOVE,INSTALL&MA1NTAIN SED.CONTROL FENCE IF 200 0 54.00 -5800.00
506 002 REMOVE,MSTALL&MAINTAM ROCK FILTER DAM TYI EA 30 0 530.00 4900.00
530 001 CONCRETE DRIVEWAY(4-) SY 415.9 575.9 $60.00 59.600.00
530 002 CONCRETE DRIVEWAY(6-) SY 150 0 $65.00 -59,750.00
531 001 CONCRETE SIDEWALK(4-) SY 24.9 15.2 $65.00 1 -5630.50
760 001 CLEAN AND RESHAPE DITCHES LF 4000 3774 53.00 -$678.00
9000 001 REMOVE&RELOCATE EXISTING MAILBOXES EA 0 14 5200.00 $2,800.00
TOTAL: $15,554.20
ORIGINAL CONTRACT AMOUNT: $359,290.83
NET FROM PREVIOUS CHANGE ORDER: $359,290.83
TOTAL AMOUNT OF THIS CHANGE ORDER: $15,554.20
PERCENT OF THIS CHANGE ORDER- 4.30%
TOTAL PERCENT CHANGE ORDER TO DATE: 4.30%
NEW CONTRACT AMOUNT: $374,845.03
ACCEPTED BY:
CONTRACTOR
ENDED BYE
PATRICK DONART,P.E.DIRECTOR/CITY ENGINEER DAMOK JONES,E.I.T.
APPROVED BY: ATTESTED BY:
KYLE HAYES,CITY MANAGER TINA BROUSSARD,CITY CLERK
RESOLUTION NO.
WHEREAS, on February 9, 2010, the City Council of the City of Beaumont, Texas,
passed Resolution No. 10-029 awarding a contract in the amount of $359,290.83 to
Norman Highway Constructors, Inc., of Orange Texas, for the Florida Avenue Pavement
Improvement Project; and,
WHEREAS, Change Order No. 1 in the amount of$15,554.20 is required to adjust
estimated construction quantities to match quantities actually used,thereby increasing the
contract amount to $374,845.03; and
WHEREAS, the project has been inspected and completed in accordance with the
terms and conditions of the contract and should be accepted;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are hereby, in
all things, approved and adopted; and
That the City Manager be and he is hereby authorized to execute Change Order No.
1 in the amount of$15,554.20, thereby increasing the contract amount to $374,845.03.
BE IT FURTHER RESOLVED THAT the Florida Avenue Improvement Project be
and the same is hereby accepted.
BE IT ALSO RESOLVED THAT the City Manager is hereby authorized to make final
payment in the amount of$21,402.25 to Norman Highway Constructors, Inc.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
December, 2010.
- Mayor Becky Ames -
RICH WITH OPPORTUNITY
r
T - E - X - A - S
REGULAR MEETING OF THE CITY COUNCIL
COUNCIL CHAMBERS DECEMBER 7,2010 1:30 P.M.
AGENDA
CALL TO ORDER
* Invocation Pledge Roll Call
* Presentations and Recognition
* Public Comment: Persons may speak on scheduled agenda items 1-7/Consent
Agenda
* Consent Agenda
GENERAL BUSINESS
1. Consider authorizing the issuance and sale of$35 Million City of Beaumont,
Texas, Certificates of Obligation, Series 2011;levying taxes to provide for
payment thereof; and containing other matters related thereto
2. Consider authorizing the issuance and sale of up $17,700,000 General Obligation
Refunding Bonds, Series 2011; levying taxes to provide for payment thereof; and
containing other matters related thereto
3. Consider approving a resolution to provide for the reimbursement of costs
incurred prior to issuance of Certificates of Obligation or other tax exempt
obligations
4. Consider amending the FY 2011 Budget to appropriate$625,000 in the Water
Fund to be transferred to the Capital Program-Water and Sewer Projects
5. Consider approving a contract with Legacy Community Development Corporation
for acquisition and rehabilitation of nine properties and for related operating
expenses
6. Consider adopting an ordinance establishing a Community Advisory Committee
for the Police Department
7. Consider a one-year renewal contract with Carolyn C. Chaney&Associates, Inc.
to act as the City of Beaumont's Washington Assistant
8. Consider a request for a zone change from RCR(Residential Conservation and
Revitalization) District to LI (Light Industrial) District on the south side of
Hollywood and approximately 890' east of Canal Street
9. Consider a request for a zone change from GC-MD/HC (General Commercial-
Multiple Family Dwelling/Historic -Cultural Landmark Preservation Overlay)
District to GC-MD (General Commercial-Multiple Family Dwelling) District for
property at 2678 Liberty and the lot immediately west of 2678 Liberty
10. Consider a request for a zone change from RCR-H/HC (Residential Conservation
and Revitalization-H/Historic-Cultural Landmark Preservation Overlay) District
to GC-MD/HC (General Commercial-Multiple Family Dwelling/Historic-Cultural
Landmark Preservation Overlay)District for the property at 2611 Laurel
11. Consider a request for a specific use permit to allow a law office in an RCR-H/HC
(Residential Conservation and Revitalization-H/Historic-Cultural Landmark
Preservation Overlay) District at 1792 Broadway
12. Consider a request for a specific use permit to allow a self-storage warehouse
facility in a GC-MD (General Commercial-Multiple Family Dwelling) District at
75 N. Major
13. Consider a request for an amended specific use permit to allow a fluid power
distributor in a GC-MD-2 (General Commercial-Multiple Family Dwelling-2)
District at 2220 Calder
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:
The City of Beaumont, Texas v. Beaumont Professional Firefighters Local
399 and James Landrum
Robert F. Ramsey, Sr. v. City of Beaumont
Erik Kvarme, et al vs. The City of Beaumont, et al
Vacation Carryover Grievance of James Williams
Claim of Tommy Nelson
Claim of Tyesha Hope
* Consider matters related to employment, evaluation and duties of a public officer
or employee in accordance with Section 551.074 of the Government Code:
Chief Magistrate - Craig Lively
City Clerk- Tina Broussard
Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or
services are requested to contact Mitchell Normand at 880-3777 three days prior to the meeting.
1
December 7,2010
Consider authorizing the issuance and sale of$35 Million City of Beaumont, Texas, Certificates
of Obligation, Series 2011; levying taxes to provide for payment thereof; and containing other
matters related thereto
RICH WITH OPPORTUNITY
r
T • E • x • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Laura Clark, Chief Financial Officer
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider an ordinance authorizing the issuance and
sale of$35 Million City of Beaumont, Texas, Certificates
of Obligation, Series 2011; levying taxes to provide for
payment thereof; and containing other matters related
thereto.
RECOMMENDATION
The administration requests approval.
BACKGROUND
Results of the sale will be presented by the City's Financial Advisor, Ryan O'Hara of RBC
Capital Markets. A recommendation will be made to award the bonds to the underwriters.
The certificates will mature March 1, 2015 through March 1, 2040. Interest is payable
semiannually in March and September beginning September 1, 2011. The Bank of New York
Trust Company,N.A., Dallas, Texas, will serve as paying agent/registrar.
Delivery and receipt of proceeds by the City are scheduled for January 11, 2011. Proceeds will
be used to provide funds for various street, drainage and general improvement projects.
BUDGETARYIMPACT
All debt shall be incurred in the Debt Service Fund which is supported by property taxes. The
current debt service property tax rate is $.200615/$100 assessed valuation. It is anticipated that
the debt service property tax rate will remain the same for Fiscal Year 2012.
A.8.a
ORDINANCE NO.
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF$35,000,000
THE CITY OF BEAUMONT,TEXAS,CERTIFICATES OF OBLIGATION,SERIES 2011;
LEVYING TAXES TO PROVIDE FOR PAYMENT THEREOF;
AND CONTAINING OTHER MATTERS RELATED THERETO
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
THE CITY OF BEAUMONT §
WHEREAS, the City of Beaumont, Texas (the "City") is authorized to issue certificates of
obligation under Subchapter C of Chapter 271 of the Texas Local Government Code, as amended,
and under Sections 1 and 2 of Article II of the Charter of the City of Beaumont,Texas,most recently
amended on September 16,2003;and
WHEREAS, the City Council of the City, has heretofore authorized the publication of a
notice of intention to issue certificates of obligation to the effect that the City Council would meet on
December 7, 2010, the date tentatively set for passage of an ordinance and such other action as may
be deemed necessary to authorize the issuance of certificates of obligation payable from City ad
valorem taxes and a pledge of certain revenues of the City's waterworks and sewer system, or as
soon thereafter as may be practicable, for the purpose of evidencing the indebtedness of the City for
the cost of (1) City street improvements, including street construction, extension, reconstruction,
widening, replacement, resurfacing, and rehabilitation, and the construction of related sidewalks,
curbs, gutters, drainage improvements, lighting, and landscape improvements; (2)the installation of
underground storm damage system between Main Street and Phelan Boulevard; (3) installation of
detention ponds and underground storm drainage system in the Cartwright/Corley Street area
between Fourth Street and IH 10; (4) rehabilitation or replacement of storm sewer outfall and
reconstruction of roadway of Wall Street from College Street to M.L.King Parkway with pavers and
street lights; (5) construction of drainage structure on Gill Street; (6) installation of sidewalks on
City property or City right-of-way for access to schools under Sidewalk Safety Program; (7)
construction of laterals, improvements to inlets, manholes, and pipe on Campus Avenue, Zavalla
Drive, East Woodrow Street, Kenneth Avenue, Saxe Street, and Florida Avenue; (8) upgrading of
traffic signal equipment, repairs and replacement of vehicle detection equipment and installation of
communications to maintain signal timing; (9) construction of improvements to Caldwood Addition
Outfall Project, installation or replacement of inlets and laterals on Bristol, Sunbury, Medford,
Canterbury, Cross, North Caldwood, Central Caldwood, South Caldwood and West Caldwood
Streets; (10)construction on City property or City right-of-way of two remaining phases of the High
School Ditch Project including drainage improvements in area bounded by IH-10 on the north,
South Street on the south, First Street on the east and Eleventh Street on the west; (11) construction
on City property or City right-of-way of improvements to Moore Street Ditch Project including
storm sewers, removal of concrete restrictions, realignment of channel, installation of box culvert at
Highland Avenue, and replacement or modification of existing inlets; (12) purchase of site and
construction of police substation adjacent to the Amtrak Station; (13) improvements to City Athletic
A.8.a
Complex open for public use, including tennis courts, jogging trail, clubhouse, lighting, parking,
landscaping, and other improvements; (14) improvements to City Civic Center owned by the City
for public use, including kitchen, warehouse, dock, and ticket booth; (15) improvements to and
expansion of City Communications Building, including addition, electrical equipment and standby
generator; (16)construction of Downtown Event Center and Park open for public use with a lake on
City property, bounded by M.L. King Parkway on the west, Crockett Street on the south, Neches
Street on the east, and an abandoned railroad track on the north, and acquisition of property and
demolition of substandard structures on such site; (17) construction of Fire Station No. 2 on Helbig
Street near East Lucas Street relocating it from existing location at 4495 Ironton Street; (18)
construction of mechanic shop facility at the Lafin Road Fleet Service Center owned by the City;
(19) construction of hike and bike trails on easement owned by City between Delaware Street and
Folsom Road; (20) improvements to municipal airport, including runways, taxiways, aprons,
drainage, observation system, beacon, and light system; (21) renovation of police department
property building; (22) river bank stabilization at City's Riverfront Park open for public use; (23)
construction of Transportation Operations Shop on City's Fair Park site; (24) construction of
community center, shelters, playground, trails, and restrooms for public use at City's Tyrrell Park
and refurbishment of existing building; (25) repair and maintenance of walking trail for public use
at City's Babe Zaharias Park; (26) construction on City property of downtown library for public use
on Crockett Street near new park and event center(see item 16); (27) reconstruction or relocation of
two City neighborhood fire stations pursuant to Fire Station Replacement Project and designing of
Central Fire Administration Station in vicinity of Gulf and Caldwell Streets; (28) reconstruction of
parking lot at City's Fleet Service Center; (29) designing and construction of new Public Health
Complex(on a City owned site not yet identified), and furnishings and equipment; (30)construction
of new Senior Center to be owned by the City for public use to replace existing Best Years Center;
(31) purchase of office/warehouse building to store City emergency management supplies, City
Clerk records, and surplus City property; (32) the cost of professional services incurred in
connection with the respective projects;and(33)costs of issuance of debt and related fees;and
WHEREAS, such notice was published at the times and in the manner required by the
Constitution and the laws of the State of Texas and the United States of America, respectively,
particularly Chapter 271,Texas Local Government Code,as amended;and
WHEREAS, no petition signed by at least five percent (5%) of the qualified voters of the
City has been received by the City Clerk prior to the date of this Ordinance protesting the issuance
of the certificates of obligation; and
WHEREAS, the City Council of the City has determined to authorize such certificates of
obligation for the purposes set out in this Ordinance;and
WHEREAS, the City is authorized, pursuant to Chapter 1502, Texas Government Code, as
amended, to make a limited, junior and subordinate pledge of not more than $10,000 of the net
revenues of the City's waterworks and sewer system as security for the certificates of obligation
authorized herein;
WHEREAS, the Certificates hereinafter authorized shall be issued as current interest
certificates of$35,000,000 as hereinafter provided;
-2 -
A.8.a
NOW,THEREFORE,BE IT ORDAINED BY THE CITY OF BEAUMONT,TEXAS:
1. Preamble. The matters and facts contained in the preamble to this Ordinance are
hereby found to be true and correct.
2. Definitions. Throughout this Ordinance,the following terms and expressions as used
herein shall have the meanings set forth below:
The term 'Business Day" shall mean any day which is not a Saturday, Sunday, a legal
holiday,or a day on which the Registrar is authorized by law or executive order to close.
The term "Certificates" or "Series 2011 Certificates" shall mean the Certificates of
Obligation, Series 2011, authorized in this Ordinance,unless the context clearly indicates otherwise,
and which shall include $35,000,000 of Current Interest Certificates, as hereinafter authorized and
provided.
The term "Certificates Insurance Policy" shall mean, if a policy is acquired pursuant to the
authorization herein,the municipal bond guaranty insurance policy issued by the Insurer insuring the
payment when due of the principal of and interest on the Certificates as provided therein.
The term "City"shall mean The City of Beaumont,Texas.
The term "Code" shall mean the Internal Revenue Code of 1986,as amended.
The term "Comptroller" shall mean the Comptroller of Public Accounts of the State of
Texas.
The term "Construction Fund" shall mean the construction fund established by the City
pursuant to Section 19 of this Ordinance.
The term "DTC" shall mean The Depository Trust Company of New York, New York, or
any successor securities depository.
The term 'DTC Participant" shall mean brokers and dealers,banks,trust companies,clearing
corporations, and certain other organizations on whose behalf DTC was created to hold securities to
facilitate the clearance and settlement of securities transactions among the DTC Participants.
The term "Insurer" shall mean the issuer of the Certificates Insurance Policy.
The term "Interest and Sinking Fund" shall mean the interest and sinking fund established by
the City pursuant to Section 19 of this Ordinance.
The term "Interest Payment Date",when used in connection with any Certificate, shall mean
September 1, 2011 and each March I and September I thereafter until maturity or earlier
redemption.
- 3 -
A.8.a
The term"Issuer"shall mean the City.
The term "Net Revenues" shall mean the revenues of the System remaining after deduction
of the reasonable and necessary expenses of operation and maintenance of the System.
The term"Obligations"shall mean the Certificates.
The term "Ordinance" as used herein and in the Certificates shall mean this Ordinance
authorizing the Certificates.
The term "Owner" or "Registered Owner", when used with respect to any Certificate, shall
mean the person or entity in whose name such Certificate is registered in the Register.
The term "Paying Agent" shall mean the Registrar.
The term "Record Date" shall mean, for any Interest Payment Date, the 15th day of the
month next preceding such Interest Payment Date.
The term "Register" shall mean the books of registration kept by the Registrar in which are
maintained the names and addresses of and the principal amounts registered to each Owner.
The term "Registrar" shall mean THE BANK OF NEW YORK NMLLON TRUST
COMPANY,N.A.,Dallas,Texas,and its successors in that capacity.
The term "SEC" shall mean the United States Securities and Exchange Commission and its
successors.
The term"System" shall mean the City's waterworks and sewer system.
The term "Underwriter" shall mean, collectively, Bank of America Merrill Lynch (Senior
Manager), Citigroup, Wells Fargo Securities, Estrada Hinojosa& Company, Inc., and Raymond
James.
3. Authorization. The Certificates shall be issued in fully registered form,without coupons,
in the total authorized aggregate amount of THIRTY-FIVE MILLION AND NO/100 DOLLARS
($35,000,000), for the purpose of evidencing the indebtedness of the City for the cost of(1) City
street improvements, including street construction,extension,reconstruction,widening,replacement,
resurfacing, and rehabilitation, and the construction of related sidewalks, curbs, gutters, drainage
improvements, lighting, and landscape improvements; (2) the installation of underground storm
damage system between Main Street and Phelan Boulevard; (3) installation of detention ponds and
underground storm drainage system in the Cartwright/Corley Street area between Fourth Street and
IH 10; (4) rehabilitation or replacement of storm sewer outfall and reconstruction of roadway of
Wall Street from College Street to M.L.King Parkway with pavers and street lights; (5)construction
of drainage structure on Gill Street; (6) installation of sidewalks on City property or City right-of-
way for access to schools under Sidewalk Safety Program; (7) construction of laterals,
-4 -
A.8.a
improvements to inlets, manholes, and pipe on Campus Avenue, Zavalla Drive, East Woodrow
Street,Kenneth Avenue, Saxe Street,and Florida Avenue; (8)upgrading of traffic signal equipment,
repairs and replacement of vehicle detection equipment and installation of communications to
maintain signal timing; (9) construction of improvements to Caldwood Addition Outfall Project,
installation or replacement of inlets and laterals on Bristol, Sunbury, Medford, Canterbury, Cross,
North Caldwood, Central Caldwood, South Caldwood and West Caldwood Streets; (10)
construction on City property or City right-of-way of two remaining phases of the High School
Ditch Project including drainage improvements in area bounded by IH-10 on the north, South Street
on the south, First Street on the east and Eleventh Street on the west; (11) construction on City
property or City right-of-way of improvements to Moore Street Ditch Project including storm
sewers, removal of concrete restrictions, realignment of channel, installation of box culvert at
Highland Avenue, and replacement or modification of existing inlets; (12) purchase of site and
construction of police substation adjacent to the Amtrak Station; (13) improvements to City Athletic
Complex open for public use, including tennis courts, jogging trail, clubhouse, lighting, parking,
landscaping, and other improvements; (14) improvements to City Civic Center owned by the City
for public use, including kitchen, warehouse, dock, and ticket booth; (15) improvements to and
expansion of City Communications Building, including addition, electrical equipment and standby
generator; (16)construction of Downtown Event Center and Park open for public use with a lake on
City property, bounded by M.L. King Parkway on the west, Crockett Street on the south, Neches
Street on the east, and an abandoned railroad track on the north, and acquisition of property and
demolition of substandard structures on such site; (17) construction of Fire Station No. 2 on Helbig
Street near East Lucas Street relocating it from existing location at 4495 Ironton Street; (18)
construction of mechanic shop facility at the Lafm Road Fleet Service Center owned by the City;
(19) construction of hike and bike trails on easement owned by City between Delaware Street and
Folsom Road; (20) improvements to municipal airport, including runways, taxiways, aprons,
drainage, observation system, beacon, and light system; (21) renovation of police department
property building; (22) river bank stabilization at City's Riverfront Park open for public use; (23)
construction of Transportation Operations Shop on City's Fair Park site; (24) construction of
community center, shelters, playground, trails, and restrooms for public use at City's Tyrrell Park
and refurbishment of existing building; (25) repair and maintenance of walking trail for public use
at City's Babe Zaharias Park; (26)construction on City property of downtown library for public use
on Crockett Street near new park and event center(see item 16); (27)reconstruction or relocation of
two City neighborhood fire stations pursuant to Fire Station Replacement Project and designing of
Central Fire Administration Station in vicinity of Gulf and Caldwell Streets; (28) reconstruction of
parking lot at City's Fleet Service Center; (29) designing and construction of new Public Health
Complex(on a City owned site not yet identified), and furnishings and equipment; (30)construction
of new Senior Center to be owned by the City for public use to replace existing Best Years Center;
(31) purchase of office/warehouse building to store City emergency management supplies, City
Clerk records, and surplus City property; (32) the cost of professional services incurred in
connection with the respective projects; and (33) costs of issuance of debt and related fees, which
projects shall be financed with the proceeds of the Certificates in such order of priority as
determined by the City Council of the City.
4. Designation, Date, and Interest Payment Dates. The Certificates shall be designated
as the "THE CITY OF BEAUMONT, TEXAS, CERTIFICATES OF OBLIGATION, SERIES
2011,"and shall be dated January 1, 2011. The Certificates shall bear interest at the rates set forth in
- 5 -
A.8.a
the schedule in Section 5 below, from the later of January 1, 2011, or the most recent Interest
Payment Date to which interest has been paid or duly provided for, calculated on the basis of a 360-
day year of twelve 30-day months, which interest shall be payable on September 1, 2011, and
semiannually thereafter on March 1 and September 1 of each year until maturity or earlier
redemption.
5. Certificates.Numbers and Denominations.
The Certificates shall be in the total aggregate principal amount of$35,000,000 and shall be
issued in the principal amounts, and bearing interest at the rates set forth in the following schedule,
shall be numbered from CR-1 and upward, and may be transferred and exchanged as set out in this
Order. The Certificates shall mature on March 1 in each of the years and in the amounts set out in
such schedule. Certificates delivered in transfer of or in exchange for other Certificates shall be
numbered in order of their authentication by the Registrar, shall be in the denomination of$5,000 or
integral multiples thereof, and shall mature on the same date and bear interest at the same rate as the
Certificate or Certificates in lieu of which they are delivered.
Certificate Year Principal Interest
Number of Maturity Amount Rate
CR-1 20
CR-2 20
CR-3 20
CR-4 20 SEE EXHIBITA
CR-5 20
CR-6 20
CR-7 20
CR-8 20
CR-9 20
CR-10 20
CR-11 20
CR-12 20
CR-13 20
CR-14 20
CR-15 20
CR-16 20
CR-17 20
CR-18 20
CR-19 20
CR-20 20
6. Execution of Certificates, Seal. The Certificates shall be signed by the Mayor or
Mayor Pro Tem of the City and countersigned by the City Clerk or Deputy City Clerk of the City,by
their manual, lithographed, or facsimile signatures, and the official seal of the City shall be
impressed or placed in facsimile thereon. Such facsimile signatures on the Certificates shall have the
same effect as if each of the Certificates had been signed manually and in person by each of said
-6 -
A.8.a
officers,and such facsimile seal on the Certificates shall have the same effect as if the official seal of
the City had been manually impressed upon each of the Certificates. If any officer of the City whose
manual or facsimile signature shall appear on the Certificates shall cease to be such officer before
the authentication of such Certificates or before the delivery of such Certificates, such manual or
facsimile signature shall nevertheless be valid and sufficient for all purposes as if such officer had
remained in such office.
7. Approval by Attorney General; Registration by Comptroller. The Certificates to be
initially issued shall be issued in the name of the Underwriter or Cede & Co., as instructed by the
Underwriter and delivered to the Attorney General of the State of Texas for approval and shall be
registered by the Comptroller of Public Accounts of the State of Texas. The manually executed
registration certificate of the Comptroller of Public Accounts substantially in the form provided in
Section 17 of this Ordinance shall be attached or affixed to the initial Certificates.
8. Authentication. Except for the Certificates to be initially issued, which need not be
authenticated by the Registrar, only Certificates which bear thereon a certificate of authentication,
substantially in the form provided in Section 17 of this Ordinance, manually executed by an
authorized representative of the Registrar, shall be entitled to the benefits of this Ordinance or shall
be valid or obligatory for any purpose. Such duly executed certificate of authentication shall be
conclusive evidence that the Certificates so authenticated were delivered by the Registrar hereunder.
9. Payment of Principal and Interest. The Registrar is hereby appointed as the paying
agent for the Certificates. The principal of the Certificates shall be payable, without exchange or
collection charges, in any coin or currency of the United States of America which, on the date of
payment, is legal tender for the payment of debts due the United States of America, upon their
presentation and surrender as they become due and payable, at the designated corporate trust office
of the Registrar. The interest on each Certificate shall be payable by check payable on the Interest
Payment Date, mailed by the Registrar on or before each Interest Payment Date to the Owner of
record as of the Record Date,to the address of such Owner as shown on the Register.
If the date for payment of the principal of or interest on any Certificate is not a Business Day,
then the date for such payment shall be the next succeeding Business Day,and payment on such date
shall have the same force and effect as if made on the original date payment was due.
10. Successor Registrars. The City covenants that at all times while any Certificates are
outstanding it will provide a bank, trust company, financial institution or other entity duly qualified
and duly authorized to act as Registrar for the Certificates. The City reserves the right to change the
Registrar on not less than sixty (60) days'written notice to the Registrar, so long as any such notice
is effective not less than sixty (60) days prior to the next succeeding principal or interest payment
date on the Certificates. Promptly upon the appointment of any successor Registrar, the previous
Registrar shall deliver the Register or copies thereof to the new Registrar, and the new Registrar
shall notify each Owner, by United States mail, first class postage prepaid,of such change and of the
address of the new Registrar. Each Registrar hereunder, by acting in that capacity, shall be deemed
to have agreed to the provisions of this Section.
11. Special Record Date. If interest on any Certificate is not paid on any Interest
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A.8.a
Payment Date and continues unpaid for thirty(30)days thereafter,the Registrar shall establish a new
record date for the payment of such interest, to be known as a Special Record Date. The Registrar
shall establish a Special Record Date when funds to make such interest payment are received from
or on behalf of the City. Such Special Record Date shall be fifteen(15) days prior to the date fixed
for payment of such past due interest, and notice of the date of payment and the Special Record Date
shall be sent by United States mail, first class, postage prepaid, not later than five(5)business days
prior to the Special Record Date,to each affected Owner of record as of the close of business on the
day prior to the mailing of such notice.
12. Ownership; Unclaimed Principal and Interest. The City,the Registrar and any other
person may treat the person in whose name any Certificate is registered as the absolute Owner of
such Certificate for the purpose of making payment of principal or interest on such Certificate, and
for all other purposes, whether or not such Certificate is overdue, and neither the City nor the
Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the
person deemed to be the Owner of any Certificate in accordance with this Section 12 shall be valid
and effectual and shall discharge the liability of the City and the Registrar upon such Certificate to
the extent of the sums paid.
Amounts held by the Registrar which represent principal of and interest on the Certificates
remaining unclaimed by the Owner after the expiration of three(3)years from the date such amounts
have become due and payable shall be reported and disposed of by the Registrar in accordance with
the provisions of Texas law, including to the extent applicable, Title 6 of the Texas Property Code,
as amended.
13. Registration, Transfer, and Exchange, Special Election for Uncertificated
Certificates. So long as any Certificates remain outstanding,the Registrar shall keep the Register at
its principal corporate trust office and, subject to such reasonable regulations as it may prescribe,the
Registrar shall provide for the registration and transfer of Certificates in accordance with the terms
of this Ordinance.
Each Certificate shall be transferable only upon the presentation and surrender thereof at the
principal corporate trust office of the Registrar, duly endorsed for transfer, or accompanied by an
assignment duly executed by the registered Owner or his authorized representative in form
satisfactory to the Registrar. Upon due presentation of any Certificate for transfer, the Registrar
shall authenticate and deliver in exchange therefor, within three (3) Business Days after such
presentation, a new Certificate or Certificates, registered in the name of the transferee or transferees,
in authorized denominations and of the same maturity and aggregate principal amount and bearing
interest at the same rate as the Certificate or Certificates so presented.
All Certificates shall be exchangeable upon presentation and surrender thereof at the
principal corporate trust office of the Registrar for a Certificate or Certificates of the same maturity
and interest rate in any authorized denomination, in an aggregate principal amount equal to the
unpaid principal amount of the Certificate or Certificates presented for exchange. The Registrar
shall be and is hereby authorized to authenticate and deliver exchange Certificates in accordance
with the provisions of this Section 13. Each Certificate delivered in accordance with this Section 13
shall be entitled to the benefits and security of this Ordinance to the same extent as the Certificate or
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Certificates in lieu of which such Certificate is delivered.
The City or the Registrar may require the Owner of any Certificate to pay a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with the transfer or
exchange of such Certificate. Any fee or charge of the Registrar for such transfer or exchange shall
be paid by the City.
Neither the City nor the Registrar shall be required to transfer or exchange any Certificate
called for redemption, in whole or in part, within forty-five (45) days of the date fixed for
redemption;provided,however, such limitation on transfer shall not be applicable to an exchange by
the Owner of the unredeemed balance of a Certificate called for redemption in part.
Notwithstanding any other provision hereof, upon initial issuance of the Certificates, the
ownership of the Certificates shall be registered in the name of Cede & Co., as nominee of DTC.
The definitive Certificates shall be initially issued in the form of a single separate certificate for each
of the maturities thereof.
With respect to Certificates registered in the name of Cede & Co., as nominee of DTC, the
City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any
person on behalf of whom such a DTC Participant holds an interest in the Certificates. Without
limiting the immediately preceding sentence, the City and the Registrar shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC
Participant with respect to any ownership interest in the Certificates, (ii) the delivery to any DTC
Participant or any other person, other than an Owner of a Certificate, as shown on the Register, of
any notice with respect to the Certificates, including any notice of redemption,or(iii)the payment to
any DTC Participant or any other person, other than an Owner of a Certificate, as shown in the
Register, of any amount with respect to principal of, premium, if any, or interest on the Certificates.
Notwithstanding any other provision of this Ordinance to the contrary, the City and the Registrar
shall be entitled to treat and consider the person in whose name each Certificate is registered in the
Register as the absolute Owner of such Certificate for the purpose of payment of principal of,
premium, if any, and interest on the Certificates, for the purpose of all matters with respect to such
Certificates, for the purpose of registering transfers with respect to such Certificates,and for all other
purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest on the
Certificates only to or upon the order of the respective Owners,as shown in the Register as provided
in this Ordinance, or their respective attorneys duly authorized in writing, and all such payments
shall be valid and effective to fully satisfy and discharge the City's obligations with respect to
payment of principal of, premium, if any, and interest on the Certificates to the extent of the sum or
sums so paid. No person other than an Owner as shown in the Register, shall receive a certificate for
a Certificate evidencing the obligation of the City to make payments of amounts due pursuant to this
Ordinance. Upon delivery by DTC to the Registrar of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede & Co., the word "Cede & Co." in this
Ordinance shall refer to such new nominee of DTC.
In the event that the City or the Registrar determines that DTC is incapable of discharging its
responsibilities described herein and in the letter of representation of the City to DTC and that it is in
the best interest of the beneficial Owners of the Certificates that they be able to obtain certificated
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Certificates, or if DTC Participants owning at least 50% of the Certificates outstanding based on
current records of the DTC determine that continuation of the system of book-entry transfers through
the DTC (or a successor securities depository)is not in the best interest of such beneficial Owners of
the Certificates, or in the event DTC discontinues the services described herein, the City or the
Registrar shall (i) appoint a successor securities depository, qualified to act as such under Section
17(a) of the Securities and Exchange Act of 1934, as amended, and notify DTC of the appointment
of such successor securities depository and transfer one or more separate Certificates to such
successor securities depository or(ii)notify DTC of the availability through DTC of Certificates and
transfer one or more separate Certificates to DTC Participants having Certificates credited to their
DTC accounts. In such event,the Certificates shall no longer be restricted to being registered in the
Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the
successor securities depository, or its nominee, or in whatever name or names Owners transferring
or exchanging Certificates shall designate, in accordance with the provisions of this Ordinance.
Notwithstanding any other provision of this Ordinance to the contrary, so long as any
Certificates are registered in the name of Cede&Co., as nominee of DTC, all payments with respect
to principal of, premium, if any, and interest on the Certificates, and all notices with respect thereto,
shall be made and given in the manner provided in the Letter of Representation.
14. Mutilated, Lost, or Stolen Certificates. Upon the presentation and surrender to the
Registrar of a mutilated Certificate, the Registrar shall authenticate and deliver in exchange therefor
a replacement Certificate of like maturity, interest rate and principal amount, bearing a number not
contemporaneously outstanding. If any Certificate is lost, apparently destroyed, or wrongfully
taken,the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or
knowledge that such Certificate has been acquired by a bona fide purchaser, shall execute and the
Registrar shall authenticate and deliver a replacement Certificate of like amount, bearing a number
not contemporaneously outstanding.
The City or the Registrar may require the Owner of a mutilated Certificate to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection
therewith and any other associated expenses, including the fees and expenses of the Registrar.
The City or the Registrar may require the Owner of a lost, apparently destroyed or
wrongfully taken Certificate,before any replacement Certificate is issued,to:
(1) furnish to the City and the Registrar satisfactory evidence of the ownership of
and the circumstances of the loss, destruction or theft of such Certificate;
(2) furnish such security or indemnity as may be required by the Registrar and
the City to save them harmless;
(3) pay all expenses and charges in connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Registrar and any tax or other governmental
charge that may be imposed;and
(4) meet any other reasonable requirements of the City and the Registrar.
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If, after the delivery of such replacement Certificate, a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued presents for payment such
original Certificate, the City and the Registrar shall be entitled to recover such replacement
Certificate from the person to whom it was delivered or any person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the City or the Registrar in connection
therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Certificate has become
or is about to become due and payable, the City in its discretion may, instead of issuing a
replacement Certificate,authorize the Registrar to pay such Certificate.
Each replacement Certificate delivered in accordance with this Section 14 shall be entitled to
the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in lieu
of which such replacement Certificate is delivered.
15. Cancellation of Certificates. All Certificates paid in accordance with this Ordinance,
and all Certificates in lieu of which exchange Certificates or replacement Certificates are
authenticated and delivered in accordance herewith, shall be cancelled and destroyed upon the
making of proper records regarding such payment. The Registrar shall furnish the City with
appropriate certificates of destruction of such Certificates.
16. Optional and Mandatory Redemption;Defeasance.
(a) The City reserves the right, at its option, to redeem Certificates having stated
maturities on and after March 1, 2021, in whole or in part, on March 1, 2020, or any date thereafter,
at a price of par plus accrued interest to the date fixed for redemption. If less than all of the
Certificates are to be redeemed, the City shall determine the Certificates, or portions thereof, to be
redeemed.
The Certificates maturing in the year (the "Term Certificates") are also subject to
mandatory redemption prior to scheduled maturity, in the amount, on the date, and on the terms
set out in the form of Certificates in this Ordinance, at a price of par plus accrued interest to the
date fixed for redemption.
Certificates may be redeemed only in integral multiples of$5,000. If a Certificate subject to
redemption is in a denomination larger that $5,000, a portion of such Certificate may be redeemed,
but only in integral multiples of$5,000. Upon surrender of any Certificate for redemption in part,
the Registrar, in accordance with Section 13 hereof, shall authenticate and deliver in exchange
therefor a Certificate or Certificates of like maturity and interest rate in an aggregate principal
amount equal to the unredeemed portion of the Certificate so surrendered.
Not less than thirty (30) days prior to a redemption date for the Certificates, the City shall
cause a notice of redemption to be sent by United States mail, first class, postage prepaid, to each
Owner of each Certificate to be redeemed in whole or in part, at the address of the Owner appearing
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on the Register at the close of business on the Business Day next preceding the date of the mailing of
such notice. Such notice shall state the redemption date, the redemption price, the place at which
Certificates are to be surrendered for payment and, if less than all the Certificates are to be
redeemed, the numbers of the Certificates or portions thereof to be redeemed. Any notice of
redemption so mailed shall be conclusively presumed to have been duly given whether or not the
Owner receives such notice. By the date fixed for redemption, due provision shall be made with the
Registrar for payment of the redemption price of the Certificates or portions thereof to be redeemed.
When Certificates have been called for redemption in whole or in part and due provision made to
redeem the same as herein provided,the Certificates or portions thereof so redeemed shall no longer
be regarded as outstanding except for the purpose of being paid solely from the funds so provided
for redemption, and the rights of the Owners to collect interest which would otherwise accrue after
the redemption date on any Certificate or portion thereof called for redemption shall terminate on the
date fixed for redemption.
(b) The City may defease the provisions of this Ordinance and discharge its obligation to
the Owners of any or all of the Certificates to pay principal, interest and redemption premium,if any,
thereon in any manner permitted by law, including by depositing with the Paying Agent/Registrar,or
if authorized by Texas law, with any national or state bank having trust powers and having
combined capital and surplus of at least$50 million,or with the State Treasurer of the State of Texas
either: (a)cash in an amount equal to the principal amount and redemption premium, if any,of such
Series 2011 Certificates plus interest thereon to the date of maturity or redemption;or(b)pursuant to
an escrow or trust agreement, cash and/or direct obligations of, or obligations the principal of and
interest on which are guaranteed by or secured by the pledge of direct obligations of the United
States of America, in principal amounts and maturities and bearing interest at rates sufficient to
provide for the timely payment of the principal amount and redemption premium, if any, of such
Certificates plus interest thereon to the date of maturity or redemption; provided, however, that if
any of such Series 2011 Certificates are to be redeemed prior to their respective dates of maturity,
provision shall have been made for giving notice of redemption as provided in this Ordinance. Upon
such deposit, such Certificates shall no longer be regarded to be Outstanding or unpaid. Any surplus
amounts not required to accomplish such defeasance shall be returned to the City. Notwithstanding
anything herein to the contrary, in the event that the principal and/or interest due on the Certificates
shall be paid by Insurer pursuant to the Insurance Policy, the Certificates shall remain outstanding
for all purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and
the assignment and limited pledge of the Net Revenues and all covenants, agreements and
obligations of the City to the registered owners shall continue to exist and shall run to the benefit of
Insurer,and Insurer shall be subrogated to the rights of such registered owners.
17. Forms.
The form of the Certificates, including the form of the Registrar's Authentication Certificate,
the form of Assignment, and the form of Registration Certificate of the Comptroller of Public
Accounts of the State of Texas which shall be attached or affixed to the Certificates initially issued
shall be, respectively, substantially as follows, with such additions, deletions and variations as may
be necessary or desirable and not prohibited by this Ordinance:
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FORM OF CERTIFICATE
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTY OF JEFFERSON
NUMBER DENOMINATION
CR- $
REGISTERED REGISTERED
THE CITY OF BEAUMONT,TEXAS
CERTIFICATE OF OBLIGATION
SERIES 2011
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP:
January 1, 2011
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
THE CITY OF BEAUMONT, TEXAS (the "City"), promises to pay to the registered owner
identified above, or registered assigns, on the date specified above, upon presentation and surrender
of this certificate at the designated corporate trust office of THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas (the "Registrar"), or at its principal payment office in
Dallas, Texas, the principal amount identified above, payable in any coin or currency of the United
States of America which on the date of payment of such principal is legal tender for the payment of
debts due the United States of America, and to pay interest thereon at the rate shown above,
calculated on the basis of a 360-day year of twelve 30-day months, from the later of the Dated Date
specified above, or the most recent interest payment date to which interest has been paid or duly
provided for. Interest on this Certificate is payable by check on September 1, 2011, and
semiannually thereafter on each March 1 and September 1, mailed to the registered owner as shown
on the books of registration kept by the Registrar as of the 15th day of the month next preceding
each interest payment date.
THIS CERTIFICATE is one of a duly authorized issue of Certificates of Obligation, that
includes Certificates, aggregating $35,000,000 (the "Certificates"), issued in accordance with the
Constitution and the laws of the State of Texas, particularly Chapter 271, Texas Local Government
Code, as amended, and Sections 1 and 2 of Article II of the Charter of the City, most recently
amended September 16, 2003, for the cost of construction of authorized street, drainage, building,
park and other capital improvements, the purchase of equipment and the cost of issuance of the
Certificates, pursuant to an ordinance duly adopted by the City Council of the City on December 7,
2010 (the "Ordinance"), which Ordinance is of record in the official minutes of the City Council.
This Certificate is part of the Certificates authorized by the City.
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THE CITY RESERVES THE RIGHT, at its option,to redeem the Certificates having stated
maturities on or after March 1, 2021, in whole or in part,on March 1,2020,or any date thereafter, in
integral multiples of$5,000, at a price of par plus accrued interest to the date fixed for redemption.
Reference is made to the Ordinance for complete details concerning the manner of redeeming the
Certificates.
THE CERTIFICATES maturing in the year (the"Tenn Certificates") are also subject
to mandatory redemption prior to maturity in the amounts and on the dates set out below, at a price
equal to the principal amount to be redeemed plus accrued interest to the redemption date:
TERM CERTIFICATES DUE
Date Amount
The Paying Agent shall select for redemption by lot, or by any other customary method that
results in random selection, a principal amount of Tenn Certificates equal to the aggregate principal
amount of such Term Certificates to be redeemed, shall call such Tenn Certificates for redemption
on the scheduled mandatory redemption date, and shall give notice of such redemption in
accordance with the Ordinance authorizing the Certificates. The principal amount of Tenn
Certificates required to be mandatorily redeemed shall be reduced by the principal amount of Term
Certificates which, at least 45 days prior to the mandatory redemption date, shall have been
delivered to the Registrar for cancellation or shall have been optionally redeemed and not previously
credited against a mandatory redemption requirement.
NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior the date
fixed for redemption by first class mail, addressed to the registered owner of each Certificate to be
redeemed in whole or in part at the address shown on the books of registration kept by the Registrar.
When Certificates or portions thereof have been called for redemption and due provision has been
made to redeem the same,the principal amounts so redeemed shall be payable solely from the funds
provided for redemption and interest which would otherwise accrue on the amounts called for
redemption shall terminate on the date fixed for redemption.
The Certificates may be defeased as provided in the Ordinance authorizing the Certificates.
THIS CERTIFICATE is transferable only upon presentation and surrender at the principal
corporate trust office of the Registrar, duly endorsed for transfer or accompanied by an assignment
duly executed by the registered owner or his authorized representative, subject to the terns and
conditions of the Ordinance.
THE CERTIFICATES are exchangeable at the principal corporate trust office of the
Registrar for Certificates in the principal amount of$5,000 or any integral multiple thereof, subject
to the terms and conditions of this Ordinance.
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NEITHER THE CITY NOR THE REGISTRAR shall be required to transfer or exchange
any Certificate called for redemption, in whole or in part, within forty-five (45) days of the date
fixed for redemption; provided, however, such limitation on transfer shall not be applicable to an
exchange by the Owner of the unredeemed balance of a Certificate called for redemption in part.
THIS CERTIFICATE shall not be valid or obligatory for any purpose or be entitled to any
benefit under the Ordinance unless this Certificate either (i) is registered by the Comptroller of
Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii)
authenticated by the Registrar by due execution of the authentication certificate endorsed hereon.
THE REGISTERED OWNER of this Certificate, by acceptance hereof, acknowledges and
agrees to be bound by all the terms and conditions of the Ordinance.
THE CITY has covenanted in the Ordinance that it will at all times provide a legally
qualified registrar for the Certificates and will cause notice of any change of registrar to be mailed to
each registered owner.
IT IS HEREBY certified, recited and covenanted that this Certificate has been duly and
validly issued and delivered; that all acts, conditions and things required or proper to be performed,
to exist and to be done precedent to or in the issuance and delivery of this Certificate have been
performed, exist and have been done in accordance with law; and that annual ad valorem taxes
sufficient to provide for the payment of the interest on and principal of this Certificate, as such
interest comes due and such principal matures,have been levied,within the limits prescribed by law,
against all taxable property in the City,and have been pledged irrevocably for such payment.
IT IS FURTHER certified, recited and represented that the net revenues (the "Net
Revenues") to be derived from the operation of the City's waterworks and sewer system (the
"System"), but only to the extent of and in an amount not to exceed Ten Thousand Dollars
($10,000.00) in the aggregate, are also pledged to the payment of the principal of and interest on this
Certificate and the series of Certificates of which it is a part to the extent that taxes may ever be
insufficient or unavailable for said purpose, all as set forth in the Ordinance to which reference is
made for all particulars; provided, however,that such pledge of Net Revenues is and shall be junior
and subordinate in all respects to the pledge of such Net Revenues to the payment of any obligation
of the City,whether authorized heretofore or hereafter,which the City designates as having a pledge
senior to the pledge of such Net Revenues to the payment of this Certificate and that series of
Certificates of which it is a part, and the City also reserves the right to issue, for any lawful purpose
at any time, in one or more installments, bonds, certificates of obligation and other obligations of
any kind payable in whole or in part from the Net Revenues of the System, secured by a pledge of
the Net Revenues of the System that may be prior and superior in right to, on a parity with,or junior
and subordinate to the pledge of Net Revenues securing this Certificate and the series of Certificates
of which it is a part.
IN WITNESS WHEREOF, this Certificate has been signed with the manual or facsimile
signature of the Mayor of the City and countersigned with the manual or facsimile signature of the
City Clerk of the City and the official seal of the City has been duly impressed, or placed in
facsimile,on this Certificate.
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THE CITY OF BEAUMONT,TEXAS
Mayor
(SEAL)
City Clerk
FORM OF REGISTRATION CERTIFICATE
OF COMPTROLLER OF PUBLIC ACCOUNTS
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this certificate has been examined, certified as to validity, and approved
by the Attorney General of the State of Texas, and that this certificate has been registered by the
Comptroller of Public Accounts of the State of Texas.
WITNESS MY SIGNATURE AND SEAL this day of ,2011.
xxxxxxxx
Comptroller of Public Accounts
(Seal) of the State of Texas
FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE
AUTHENTICATION CERTIFICATE
It is hereby certified that this Certificate has been delivered pursuant to the Ordinance
described in the text of this Certificate.
The Bank of New York Mellon Trust Company,N.A.
Dallas,Texas
By:
Authorized Signature
Date of Authentication:
FORM OF ASSIGNMENT
ASSIGNMENT
For value received,the undersigned hereby sells,assigns,and transfers unto
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(Please print or type name,address,and zip code of Transferee)
(Please insert Social Security or Taxpayer Identification Number of Transferee)
the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said certificate on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: The signature
above must correspond to
the name of the registered
NOTICE: Signature must be owner as shown on the face
guaranteed b member g Y a m
e be firm of this Certificate in
of the New York Stock Exchange every particular,without
or a commercial bank or trust any alteration,enlargement
company. or change whatsoever.
FORM OF STATEMENT OF INSURANCE
STATEMENT OF INSURANCE
(the"Insurer"), has delivered its municipal
bond insurance policy (the "Policy") with respect to the scheduled payments of principal of and
interest on this Certificate to The Bank of New York Mellon Trust Company, N.A., as paying
agent on behalf of the holders of the Certificates (the "Paying Agent"). Such Policy is on file
and available for inspection at the principal office of the Paying Agent and a copy thereof may
be obtained from the Insurer or the Paying Agent. All payments required to be made under the
Policy shall be made in accordance with the provisions thereof. The owner of this Certificate
acknowledges and consents to the subrogation rights of the Insurer as more fully set forth in the
Policy.
END OF FORM OF CERTIFICATE
18. Legal Opinion; Cusip Numbers. The approving opinion of Orgain Bell &Tucker,LLP,
Beaumont,Texas,Bond Counsel,and CUSIP Numbers may be printed on the Certificates,but errors
or omissions in the printing of such opinion or such numbers shall have no effect on the validity of
the Certificates.
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19. Interest and Sinkine Fund; Tax Levy; Pledge of Revenues; Construction Fund. The
proceeds from all taxes levied, assessed and collected for and on account of the Certificates
authorized by this Ordinance are hereby irrevocably pledged and shall be deposited, as collected, in
a special fund to be designated "City of Beaumont, Texas, Certificates of Obligation, Series 2011,
Interest and Sinking Fund". While the Certificates or any part of the principal thereof or interest
thereon remain outstanding and unpaid, there is hereby levied and there shall be annually levied,
assessed and collected in due time, form and manner within the limits prescribed by law, and at the
same time other City taxes are levied, assessed and collected, in each year, beginning with the
current year, a continuing direct annual ad valorem tax upon all taxable property in the City
sufficient to pay the interest on the Certificates as the same becomes due, and to provide and
maintain a sinking fund adequate to pay each installment of the principal or maturity amount of the
Certificates as the same matures but in each year never less than 2% of the original principal of the
Certificates, full allowance being made for delinquencies and costs of collection, and said taxes
when collected shall be applied to the payment of the interest on and principal of the Certificates and
to no other purpose. 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 debt service coming due on
the Certificates on September 1, 2011, and such amount shall not be used for any other purpose. A
tax rate has not been determined for 2012,but the City certifies that such rate,when determined,will
take into account the Certificates being issued.
The Net Revenues of the System, but only to the extent of and in an amount not to exceed
$10,000 in the aggregate, are hereby irrevocably pledged to the payment of the principal of and
interest on the Certificates as the same come due; provided, however, that such pledge of Net
Revenues is and shall be junior and subordinate in all respects to the pledge of the Net Revenues to
the payment of any obligation of the City,whether authorized heretofore or hereafter,which the City
designates as having a pledge senior to the pledge of such Net Revenues to the payment of the
Certificates; and the City also reserves the right to issue, for any lawful purpose at any time, in one
or more installments, bonds, certificates of obligation and other obligations of any kind payable in
whole or in part from the Net Revenues of the System that may be prior and superior in right to,on a
parity with, or junior and subordinate to the pledge of Net Revenues securing this series of
Certificates.
There is hereby created and there shall be established on the books of the City a separate
account to be entitled the "City of Beaumont, Texas, Certificates of Obligation, Series 2011,
Construction Fund". Immediately after the sale and delivery of the Certificates, that portion of the
proceeds of the Certificates to be used for the cost of construction of authorized projects and the cost
of issuance of the Certificates shall be deposited into the Construction Fund and disbursed for such
purposes.Pending completion of construction of such projects, interest earned on such proceeds may
be used, at the City's discretion, for such projects and shall be accounted for, maintained, deposited
and expended as permitted by the provisions of Section 1201.043, Texas Government Code
Annotated, as from time to time in effect, or as otherwise required by applicable law. Thereafter,
such interest shall be deposited in the Interest and Sinking Fund. Upon completion of such projects,
the monies, if any,remaining in the Construction Fund shall be transferred and deposited by the City
into the Interest and Sinking Fund.
IT IS ORDERED AND DIRECTED that this Ordinance pledging ad valorem tax revenue of
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the City and limited net revenues of the System for the payment of the Certificates to the extent
provided herein be filed and recorded in the records of the City as necessary to cause the pledge to
be valid under Section 1201.44 of the Government Code of Texas. At any time while any of the
Certificates are outstanding, it is determined by the City or demanded by the holder of any
Certificates that further action by the City is required to make the pledge valid or maintain the
validity of the pledge, the City covenants and hereby directs the officers of the City to make such
filings, including but not limited to appropriate filings under Chapter 9 of the Business and
Commerce Code of Texas as are necessary to make the pledge valid or continue its validity.
20. Further Proceedings. After the Certificates shall have been executed, it shall be the
duty of the Mayor of the City to deliver the Certificates to be initially issued and all pertinent records
and proceedings to the Attorney General of the State of Texas for examination and approval. After
the Certificates to be initially issued shall have been approved by the Attorney General of the State
of Texas, the Certificates shall be delivered to the Comptroller of Public Accounts of the State of
Texas for registration. Upon registration of the Certificates to be initially issued, the Comptroller of
Public Accounts (or a deputy lawfully designated in writing to act for the Comptroller) shall
manually sign the Comptroller's Registration Certificate prescribed herein to be affixed or attached
to the Certificates to be initially issued,and the seal of the Comptroller shall be impressed,or placed
in facsimile, thereon. In addition,the Mayor, the Mayor Pro Tem,the City Clerk,the City Manager
and other appropriate officials of the City are hereby authorized and directed to do any and all things
necessary or convenient to carry out the purposes of this Ordinance, and each of such persons are
authorized, acting alone and without the joinder of the others, to execute any and all closing
certificates, instruments and such other documents as may be necessary or appropriate to carry out
the purposes of this Ordinance.
21. Sale of Certificates. The Certificates are hereby sold and shall be delivered to the
Underwriter at a price of$ , which represents the par amount of the Certificates
of$ , less a net original issue discount on certain Current Interest Certificates of
$ , plus a premium on certain Current Interest Certificates of$ , and less
an underwriting discount of$ , plus any accrued interest thereon from the dated date
of the Certificates to the date of issuance, all in accordance with the terms of a certificate of
obligation purchase agreement of even date herewith, presented to and hereby approved by the
City Council, which price and terms are hereby found and determined to be the most
advantageous reasonably obtainable by the City. Each of the Mayor and the Mayor Pro Tern and
other appropriate officials of the City are hereby authorized and directed to execute such
certificates of obligation purchase agreement on behalf of the City, and each of the Mayor and
Mayor Pro Tern and all other officers, agents and representatives of the City are hereby
authorized to do any and all things necessary or desirable to satisfy the conditions set out therein
and to provide for the issuance and delivery of the Certificates, and, if deemed by the acting
officer to be in the best interests of the City,to terminate the agreement as permitted by the terms
thereof. The purchase of and payment of the premium for the Certificates Insurance Policy by
the City, in accordance with the terms of a commitment for such insurance presented to and
hereby approved by the City Council is hereby authorized. All officials and representatives of
the City are authorized and directed to execute such documents and to do any and all things
necessary or desirable to obtain such insurance, and the printing on the Certificates of an
appropriate legend regarding such insurance is hereby approved.
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The City finds that the net effective interest of the Certificates is %
22. Tax Exemption. (a) The City intends that the interest on the Certificates shall be
excludable from gross income for purposes of federal income taxation pursuant to Sections 103 and
141 through 150 of the Code, and applicable regulations. The City covenants and agrees not to take
any action, or knowingly omit to take any action within its control, that if taken or omitted,
respectively,would cause the interest on the Certificates to be includable in gross income,as defined
in Section 61 of the Code, of the holders thereof for purposes of federal income taxation. In
particular, the City covenants and agrees to comply with each requirement of this Section 22;
provided, however, that the City shall not be required to comply with any particular requirement of
this Section 22 if the City has received an opinion of nationally recognized bond counsel (a
"Counsel's Opinion") that such noncompliance will not adversely affect the exclusion from gross
income for federal income tax purposes of interest on the Certificates or if the City has received a
Counsel's Opinion to the effect that compliance with some other requirement set forth in this Section
22 will satisfy the applicable requirements of the Code, in which case compliance with such other
requirement specified in such Counsel's Opinion shall constitute compliance with the corresponding
requirement specified in this Section 22.
(b) The City covenants and agrees that its use of Net Proceeds(as defined below) of the
Certificates will at all times satisfy the following requirements:
(i) The City will use all of the Net Proceeds of the Certificates for the cost of
construction of authorized street, drainage, building, park, and other capital improvements,
equipment purchases and the cost of issuance of the Certificates. The City has limited and
will limit with respect to the Certificates the amount of original or investment proceeds
thereof to be used(other than use as a member of the general public) in the trade or business
of any person other than a governmental unit to an amount aggregating no more than 10%of
the Net Proceeds of the Certificates ("private-use proceeds"). For purposes of this Section,
the term "person" includes any individual, corporation, partnership, unincorporated
association,or any other entity capable of carrying on a trade or business;and the term "trade
or business" means, with respect to any natural person, any activity regularly carried on for
profit and, with respect to persons other than natural persons, any activity other than an
activity carried on by a governmental unit. Any use of proceeds of the Certificates in any
manner contrary to the guidelines set forth in Revenue Procedure 93-19, including any
revisions or amendments thereto, shall constitute the use of such proceeds in the trade or
business of one who is not a governmental unit;
(ii) The City has not permitted and will not permit more than 5% of the Net
Proceeds of the Certificates to be used in the trade or business of any person other than a
governmental unit if such use is unrelated to the governmental purpose of the Certificates.
Further, the amount of private-use proceeds of the Certificates in excess of 5% of the Net
Proceeds thereof("excess private-use proceeds")did not and will not exceed the proceeds of
the Certificates expended for the governmental purpose of the Certificates to which such
excess private-use proceeds relate;
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(iii) Principal of and interest on the Certificates shall be paid solely from ad
valorem tax receipts collected by the City and from the Net Revenues of the System to the
extent pledged hereunder. Further, no person using more than 10% of the Net Proceeds of
the Certificates in a trade or business, other than a governmental unit, has made or shall
make payments (other than as a member of the general public), directly or indirectly,
accounting for more than 10%of such receipts;
(iv) The City has not permitted and will not permit with respect to the Certificates an
amount of proceeds thereof exceeding the lesser of(a) $5,000,000 or (b) 5% of the Net
Proceeds of the Certificates to be used, directly or indirectly, to finance loans to persons
other than a governmental unit;and
(v) The City will use $ of the Net Proceeds of the Certificates
to pay the costs of issuance of the Certificates, including the cost of the Certificates
Insurance Policy in the amount of$
When used in this Section,the term "Net Proceeds"of the Certificates shall mean the proceeds from
the sale thereof to the Underwriter, including investment earnings on such proceeds, less accrued
interest with respect to such issue.
(c) The City covenants and agrees not to take any action, or knowingly omit to take any
action within its control, that, if taken or omitted, respectively, would cause the Certificates to be
"federally guaranteed" within the meaning of Section 149(b)of the Code and applicable regulations
thereunder, except as permitted by Section 149(b)(3) of the Code and such regulations or as
permitted by laws hereinafter enacted.
(d) The City shall certify, through an authorized officer, employee or agent, that based
upon all facts and estimates known or reasonably expected to be in existence on the date the
Certificates are delivered, the City will reasonably expect that the proceeds of the Certificates will
not be used in a manner that would cause the Certificates to be "arbitrage bonds"within the meaning
of Section 148(a) of the Code and applicable regulations thereunder. Moreover, the City covenants
and agrees that it will make such use of the proceeds of the Certificates, including interest or other
investment income derived from the proceeds of the Certificates, regulate investments of such
proceeds and amounts, and take such other and further action as may be required so that the
Certificates will not be "arbitrage bonds" within the meaning of Section 148(a) of the Code and
applicable regulations thereunder.
(e) The City will take all necessary steps to comply with the requirement that certain
amounts earned by the City on the investment of the "gross proceeds" of the Certificates(within the
meaning of Section 148(f)(6)(B) of the Code), be rebated to the federal government. Specifically,
the City will (i) maintain records regarding the investment of the gross proceeds of the Certificates
as may be required to calculate the amount earned on the investment of the gross proceeds of the
Certificates separately from records of amounts on deposit in the funds and accounts of the City
allocable to other bond issues of the City or moneys which do not represent gross proceeds of any
bonds of the City, (ii) calculate at such times as are required by applicable regulations, the amount
earned from the investment of the gross proceeds of the Certificates which is required to be rebated
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to the federal government, and(iii)pay,not less often than every 5th anniversary date of the delivery
of the Certificates, and within sixty (60) days after retirement of the Certificates, all amounts
required to be rebated to the federal government. Further, the City will not indirectly pay any
amount otherwise payable to the federal government pursuant to the foregoing requirements to any
person other than the federal government by entering into any investment arrangement with respect
to the gross proceeds of the Certificates that might result in a reduction in the amount required to be
paid to the federal government because such arrangement results in a smaller profit or larger loss
than would have resulted if the arrangement had been at arm's length and had the yield on the issue
not been relevant to either party.
(f) The City covenants and agrees to file or cause to be filed with the Secretary of the
Treasury of the United States, not later than the 15th day of the second calendar month after the
close of the calendar quarter in which the Certificates are issued, an information statement
concerning the Certificates, all under and in accordance with Section 149(e) of the Code and
applicable regulations thereunder.
(g) The City covenants that any dispositions of personal property components of the
Project funded by the Certificates will occur in the ordinary course of an established governmental
program and will satisfy the following requirements:
i. The weighted average maturity of the portion of the Certificates financing
personal property is not greater than 120 percent of the reasonably expected actual use of
such personal property for governmental purposes;
ii. The reasonably expected fair market value of such personal property on
the date of disposition will be not greater than 25 percent of its cost;
iii. Such personal property will no longer be suitable for its governmental
purposes on the date of disposition; and
iv. The City is required to deposit amounts received from such disposition in
a commingled fund with substantial tax or other governmental revenues and the Issuer
reasonably expect to spend such amounts on governmental programs within 6 months
from the date of commingling.
(h) 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.
0) 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
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A.8.a
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.
23. Application of Proceeds. Proceeds from the sale of the Certificates shall, promptly
upon receipt by the City, be applied as follows:
(a) Accrued interest received from the sale of the Certificates shall be deposited into the
Series 2011 Certificates of Obligation Interest and Sinking Fund;
(b) The sum of $ will be used to pay the premium for the Certificates
Insurance Policy;
(c) The sum of$ shall be used to pay costs of issuance of the Certificates,
with any amount left over to be transferred to the 2011 Certificates of Obligation
Construction Fund;and
(d) The remaining proceeds from the sale of the Certificates, together with investment
earnings thereof, shall be deposited into the Series 2011 Certificates of Obligation
Construction Fund and shall be used for the purposes set out in Section 3 of this
Ordinance, with any remainder to be deposited into the Series 2011 Certificates of
Obligation Interest and Sinking Fund.
24. Open Meeting. The meeting at which this Ordinance was adopted was open to the
public, and public notice of the time, place and purpose of said meeting, was given, all as required
by Chapter 551 of the Texas Government Code Annotated, Vernon's 1994, as amended, and such
notice as given is hereby authorized,approved,adopted and ratified.
25. Re ice. The form of agreement setting forth the duties of the Registrar is hereby
approved, and the appropriate officials of the City are hereby authorized to execute such agreement
for and on behalf of the City.
26. Official Statement. The Preliminary Official Statement and the Official Statement
prepared in the initial offering and sale of the Certificates have been and are hereby authorized,
approved and ratified as to form and content. The use of the Preliminary Official Statement and the
Official Statement in the reoffering of the Certificates by the Underwriter is hereby approved,
authorized and ratified. The proper officials of the City are hereby authorized to execute and deliver
a certificate pertaining to the Preliminary Official Statement and the Official Statement as prescribed
therein,dated as of the date of payment for and delivery of the Certificates.
27. Partial Invalidity. If any Section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable,the invalidity or unenforceability of such
Section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Ordinance.
28. Related Matters. To satisfy in a timely manner all of the City's obligations under this
Ordinance, the Mayor, the City Clerk, the City Treasurer, and all other appropriate officers and
agents of the City are hereby authorized and directed to take all other actions that are reasonably
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necessary to provide for issuance of the Certificates, including, without limitation, executing and
delivering on behalf of the City all certificates, consents, receipts, requests and other documents as
may be reasonably necessary to satisfy the City's obligations under this Ordinance and to direct the
application of funds of the City consistent with the provisions hereof.
29. No Personal Liability. No recourse shall be had for payment of the principal of or
premium, if any, or interest on Certificate, or for any claim based thereon, or under this Ordinance,
against any official or employee of the City or any person executing any Certificate.
30. Additional Obligations. The City undertakes and agrees for the benefit of the
holders of the Certificates to provide the following to the Municipal Securities Rulemaking Board
("MSRB"), in electronic format as prescribed by the MSRB, directly or through a designated agent,
on or before six months after the end of the City's fiscal year, which fiscal year presently ends on
September 30,
a. annual financial information (which may be unaudited) and operating data regarding
the City for fiscal years ending on or after January 1, 2011 which annual financial
information and operating data shall be of the type included in the following listed
sections contained in the Final Official Statement:
DEBT STATEMENT
TAX DATA
SELECTED FINANCIAL DATA
ADMINISTRATION OF THE CITY
Appendix`B"
b. audited financial statements for the City for fiscal years ending on or after January 1,
2011, 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,not in excess of ten(10)business days after the occurrence of the
event,notice of any of the following events with respect to the Certificates:
i. Principal and interest payment delinquencies;
ii. Non-payment related defaults,if material;
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;
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A.8.a
vi. Adverse tax opinions, the issuance by the Internal Revenue Service of
proposed or final determinations of taxability, Notices of Proposed Issue
(IRS Form 5701-TEB) or other material notices or determinations with
respect to the tax status of the Certificates, or other material events affecting
the tax status of the Certificates ;
vii. Modifications to rights of Certificate holders, if material;
viii. Certificate calls,if material,and tender offers;
ix. Defeasances;
X. Release, substitution or sale of property securing repayment of the
Certificates, if material;
xi. Rating changes;
xii. Bankruptcy, insolvency, receivership, or similar event of the obligated
person;
xiii. The consummation of a merger, consolidation, or acquisition involving an
obligated person or the sale of all or substantially all of the assets of the
obligated person, other than in the ordinary course of business,the entry into
a definitive agreement to undertake such an action, or the termination of a
definitive agreement relating to any such actions, other than pursuant to its
terms, if material;and
xiv. Appointment of a successor or additional trustee or the change of name of a
trustee, if material.
d. in a timely manner,notice of a failure of the City to provide required annual financial
information and operating data, on or before six months after the end of the City's
fiscal year.
e. all documents provided to the MSRB shall be accompanied by identifying
information as prescribed by the MSRB.
These undertakings and agreements are subject to appropriation of necessary funds and to
applicable legal restrictions, if any.
The accounting principles pursuant to which the City's financial statements are currently
prepared are generally accepted accounting principles set out by the Government Accounting
Standards Board, and, subject to changes in applicable law or regulations, such principles will be
applied in the future.
If the City changes its fiscal year, it will notify the MSRB of the change (and of the new
fiscal year end) prior to the next date by which the City otherwise would be required to provide
annual financial information.
The City's obligation to update information and to provide notices of material events shall be
limited to the agreements herein. The City shall not be obligated to provide other information that
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A.8.a
may be relevant or material to a complete presentation of its financial results of operations,
condition, or prospects and shall not be obligated to update any information that is provided, except
as described herein. The City makes no representation or warranty concerning such information or
concerning its usefulness to a decision to invest in or sell Certificates at any future date. THE CITY
DISCLAIMS ANY CONTRACTUAL OR TORT LIABILITY FOR DAMAGES RESULTING IN
WHOLE OR IN PART FROM ANY BREACH, WHETHER NEGLIGENT OR WITHOUT
FAULT ON ITS PART, OF ITS CONTINUING DISCLOSURE AGREEMENT OR FROM ANY
STATEMENT MADE PURSUANT TO ITS AGREEMENT. HOLDERS OR BENEFICIAL
OWNERS OF CERTIFICATES MAY SEEK AS THEIR SOLE REMEDY A WRIT OF
MANDAMUS TO COMPEL THE CITY TO COMPLY WITH THIS AGREEMENT. No default
by the City with respect to its continuing disclosure agreement shall constitute a breach of or default
under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this
paragraph is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under
federal and state securities laws.
The City may amend its continuing disclosure obligations and agreement in this Section 30
to adapt to changed circumstances that arise from a change in legal requirements, a change in law,or
a change in the identity, nature, status or type of operations of the City, if the agreement, as
amended, would have permitted the Underwriter to purchase or sell the Certificates in compliance
with SEC Rule 15c2-12, taking into account any amendments or interpretations of such Rule to the
date of such amendment,as well as such changed circumstances, and either the holders of a majority
in aggregate principal amount of the outstanding Certificates consent or any person unaffiliated with
the City(such as nationally recognized bond counsel) determines the amendment will not materially
impair the interests of the holders and beneficial owners of the Certificates. The City may also
amend or repeal the obligations and agreement in this Section 30 if the SEC amends or repeals the
applicable provisions of Rule 15c2-12 or a court of final jurisdiction determines that such provisions
are invalid, and the City may amend the agreement in its discretion in any other circumstance or
manner, but in either case only to the extent that its right to do so would not prevent the Underwriter
from lawfully purchasing or reselling the Certificates in the primary offering of the Certificates in
compliance with Rule 15c2-12. If the City amends its agreement, it must include with the next
financial information and operating data provided in accordance with its agreement an explanation,
in narrative form, of the reasons for the amendment and of the impact of any change in the type of
information and operating data so provided.
The City's continuing obligation to provide annual financial information and operating data
and notices of events will terminate if and when the City no longer remains an "obligated person"(as
such term is defined in SEC Rule 15C2-12)with respect to the Certificates.
31. Repealer. All orders, resolutions, and ordinances, and parts thereof inconsistent
herewith are hereby repealed to the extent of such inconsistency.
32. Effective Date. This Ordinance shall be in force and effect from and after its final
passage, and it is so ordered.
33. Amendment of Ordinance.
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A.8.a
(a) If and to the extent permitted by this Ordinance, the owners of the Series
2011 Certificates aggregating in the principal amount of 51% of the aggregate principal
amount of the outstanding Series 2011 Certificates shall have the right from time to time
to approve any amendment to this Ordinance which may be deemed necessary or
desirable by the City provided, however, that without the consent of the owners of all of
the Series 2011 Certificates at the time outstanding, nothing herein contained shall permit
or be construed to permit the amendment of the terms and conditions in this Ordinance or
in the Certificates so as to:
(1) Make any change in the maturity of the outstanding Series 2011
Certificates;
(2) Reduce the rate of interest borne by any of the outstanding Series
2011 Certificates;
(3) Reduce the amount of the principal payable on the outstanding
Series 2011 Certificates;
(4) Modify the terms of payment of principal of or interest on the
outstanding Series 2011 Certificates, or impose any conditions with respect to
such payment;
(5) Affect the owners of less than all of the outstanding Series 2011
Certificates then outstanding;
(6) Change the percentage of the principal amount of outstanding
Series 2011 Certificates, necessary for consent to such amendment.
(b) If at any time the City shall desire to amend this Ordinance under this
Section, the City shall cause notice of the proposed amendment to be published in a
financial newspaper or journal published in The City of New York, New York, once
during each calendar week for at least two successive calendar weeks. Such notice shall
briefly set forth the nature of the proposed amendment and shall state that a copy thereof
is on file at the principal office of the Paying Agent for inspection by all owners of Series
2011 Certificates. Such publication is not required, however, if notice in writing is given
to each owner of the outstanding Series 2011 Certificates. Not less than thirty (3 0) days'
notice of the proposed amendment shall also be given by the City to the Underwriter.
(c) Whenever at any time not less than thirty (30) days, and within one (1)
year, from the date of the publication of said notice or other service of written notice the
City shall receive an instrument or instruments executed by the owners of at least 51% in
aggregate principal amount of Series 2011 Certificates then outstanding, which
instrument or instruments shall refer to the proposed amendment described in said notice
and which specifically consent to and approve such amendment in substantially the form
of the copy thereof on file with the Paying Agent, the City Council may adopt the
amendatory resolution in substantially the same form.
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A.8.a
(d) Upon adoption of any amendatory resolution pursuant to the provision of
this Section, this Ordinance shall be deemed to be amended in accordance with such
amendatory resolution, and the respective rights, duties and obligations under this
Ordinance of the City and all the owners of then outstanding Series 2011 Certificates
shall thereafter be determined, exercised and enforced hereunder, subject in all respect to
such amendments.
(e) Any consent given by the owner of outstanding Series 2011 Certificates,
pursuant to the provisions of this Section shall be irrevocable for a period of six months
from the date of the first publication of the notice provided for in this Section, and shall
be conclusive and binding upon all future owners of the same Series 2011 Certificates
during such period. Such consent may be revoked at any time after six months from the
date of the first publication of such notice by the owner who gave such consent, or by a
successor in title, by filing notice thereof with the Paying Agent and the City, but such
revocation shall not be effective if the owners of 51% in aggregate principal amount of
the then outstanding Series 2011 Certificates as in this Section defined have, prior to the
attempted revocation, consented to and approved the amendment.
(f) For the purpose of this Section, the fact of the owning of Series 2011
Certificates by any owner of Series 2011 Certificates and the amount and number of such
Series 2011 Certificates and the date of their owning same shall be determined by the
Registration Books of the Paying Agent/Registrar.
(g) The foregoing provisions of this Section notwithstanding, the City by
action of the City Council (or as to item (2) by the City Council or by the Mayor or
Mayor Pro-Tem and the City Clerk as to changes prior to issuance to comply with
requirements by the Attorney General of Texas) may amend this Ordinance for any one
or more of the following purposes:
(1) To add to the covenants and agreements of the City in this
Ordinance contained, other covenants and agreements thereafter to be observed,
grant additional rights or remedies to the owners of bonds or to surrender, restrict
or limit any right or power herein reserved to or conferred upon the City.
(2) To make such provisions for the purpose of clarifying matters or
questions arising under this Ordinance as are required by the Attorney General of
Texas to obtain the Attorney General's approval of the issuance of the Series
2011 Certificates before their issuance, or at any time before or after issuance for
the purpose of curing any ambiguity, or curing, correcting or supplementing any
defective provision contained in this Ordinance, as are necessary or desirable and
not contrary to or inconsistent with this Ordinance, and in all events which shall
not adversely affect the interests of the owners of the Series 2011 Certificates.
(3) To modify any of the provisions of this Ordinance in any other
respect whatever, provided that: (i) such modification shall be, and be expressed
to be, effective only after all Series 2011 Certificates outstanding at the date of
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A.8.a
the adoption of such modification shall cease to be outstanding, and (ii) such
modification shall be specifically referred to in the text of all Series 2011
Certificates issued after the date of the adoption of such modification.
34. [omitted]
35. Provisions Relating to Bond Insurance. The purchase of bond insurance from
Insurer in accordance with the terms of a commitment for such insurance presented to and
hereby approved by the City is hereby authorized. All officials and representatives of the City
are authorized and directed to execute such documents and to do any and all things necessary or
desirable to obtain such insurance, and the printing on or attachments to the Certificates of an
appropriate legend regarding such insurance is hereby approved. Notwithstanding any provision
in this Ordinance to the contrary, as long as the Certificates Insurance Policy shall be in full
force and effect,the following provisions and terms shall be in effect and applicable:
A. Notices and Other Information.
1. Any notice that is required to be given to holders of the Obligations (the
"Certificateholders"), nationally recognized municipal securities information repositories
or state information depositories pursuant to Rule 15c2-12(b) (5) adopted by the
Securities and Exchange Commission or to the Registrar pursuant to this Certificate
Ordinance or any of the financing documents executed by the Issuer in connection with
the Obligations (hereinafter sometimes referred to as the "Financing Documents") shall
also be provided to (the"Insurer"), simultaneously with the sending
of such notices. In addition, to the extent that the Issuer has entered into a continuing
disclosure agreement with respect to the Obligations, all information furnished pursuant
to such agreement shall also be provided to the Insurer, simultaneously with the
furnishing of such information. All notices required to be given to the Insurer shall be in
writing and shall be sent by registered or certified mail addressed to it at
' with a copy to it, Attention: Risk
Management Department—Public Finance Surveillance.
2. The Insurer shall have the right to receive such additional information as it
may reasonably request.
3. The Issuer will permit the Insurer to discuss the affairs, finances and
accounts of the Issuer or any information the Insurer may reasonably request regarding
the security for the Obligations with appropriate officers of the Issuer, and will use best
efforts to enable the Insurer to have access to the facilities, books and records of the
Issuer on any business day upon reasonable prior notice.
4. The Registrar shall notify the Insurer of any failure of the Issuer to
provide notices, certificates and other information under the Documentation.
B. Defeasance. In the event that the principal and/or interest due on the Obligations
shall be paid by the Insurer pursuant to the Policy, the Obligations shall remain outstanding for
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all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and
the assignment and pledge of the trust estate and all covenants, agreements and other obligations
of the Issuer to the registered owners shall continue to exist and shall run to the benefit of the
Insurer, and the Insurer shall be subrogated to the rights of such registered owners including,
without limitation, any rights that such owners may have in respect of securities law violations
arising from the offer and sale of the Obligations.
In addition to any other applicable requirements under this Ordinance or applicable law,
if the Issuer intends to defease the Obligations, and the Insurer will require the following items:
1. An opinion of counsel that the defeasance will not adversely impact the
exclusion from gross income for federal income tax purposes of interest
on the Obligations or refunded bonds.
2. An escrow agreement and an opinion of counsel regarding the validity and
enforceability of the escrow agreement.
3. The escrow agreement shall provide that:
a. Any substitution of securities shall require verification by an
independent certified public accountant and the prior written
consent of the Insurer.
b. The Issuer will not exercise any optional redemption of
Obligations secured by the escrow agreement or any other
redemption other than mandatory sinking fund redemptions unless
(i) the right to make any such redemption has been expressly
reserved in the escrow agreement and such reservation has been
disclosed in detail in the official statement for the refunding bonds,
and (ii) as a condition of any such redemption there shall be
provided to the Insurer a verification of an independent certified
public accountant as to the sufficiency of escrow receipts without
reinvestment to meet the escrow requirements remaining following
such redemption.
C. The Issuer shall not amend the escrow agreement or enter into a
forward purchase agreement or other agreement with respect to
rights in the escrow without the prior written consent of the
Insurer.
C. Registrar.
1. The Insurer shall receive prior written notice of any name change of the
Registrar or the removal, resignation or termination of the Registrar.
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A.8.a
2. No removal, resignation or termination of the Registrar shall take effect
until a successor, acceptable to the Insurer, shall be appointed.
3. The Registrar may be removed at any time, at the request of the Insurer,
for any breach of its obligations under the financing documents.
D. Amendments and Supplements. With respect to amendments or supplements to
this Ordinance or any of the Financing Documents, which do not require the consent of the
Certificateholders, the Insurer must be given notice of any such amendments or supplements.
With respect to amendments or supplements to this Ordinance or any of the Financing
Documents, which require the consent of the Certificateholders, the Insurer's prior written
consent is required. Copies of any amendments or supplements to this Ordinance or any
Financing Document which are consented to by the Insurer shall be sent to the rating agencies
that have assigned a rating to the Obligations. Notwithstanding any other provision of this
Ordinance, in determining whether the rights of Certificateholders will be adversely affected by
any action taken pursuant to the terms and provisions thereof, the Registrar shall consider the
effect on the Certificateholders as if there were no Policy.
E. The Insurer as Third Party Beneficiary. To the extent this Ordinance or any
financing document executed by the Issuer in connection herewith confers upon or give or grant
to the Insurer any right, remedy or claim under or by reason of this Ordinance or any financing
document executed by the Issuer in connection herewith, the Insurer is explicitly recognized as
being a third party beneficiary hereunder and thereunder and may enforce any such right, remedy
or claim conferred, given or granted hereunder or thereunder.
F. Control Rights. The Insurer shall be deemed to be the holder of all of the
Obligations for purposes of(a) exercising all remedies and directing the Registrar to take actions
or for any other purposes following an Event of Default (as defined in this Ordinance), and (b)
granting any consent, direction or approval or taking any action permitted by or required under
this Ordinance to be granted or taken by the holders of such Obligations.
Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and
continuance of an event of default as defined herein, the Insurer shall be entitled to control and
direct the enforcement of all rights and remedies granted to the Certificateholders or the
Registrar for the benefit of the Certificateholders under this Ordinance.
G. Consent Rights of the Insurer.
1. Consent of the Insurer. Any provision of this Ordinance expressly
recognizing or granting rights in or to the Insurer may not be amended in
any manner that affects the rights of the Insurer hereunder without the
prior written consent of the Insurer.
2. Consent of the Insurer in Addition to Certificateholder Consent.
Wherever this Ordinance requires the consent of Certificateholders, the
Insurer's consent shall also be required.
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A.8.a
3. Consent of the Insurer in the Event of Insolvency. Any reorganization or
liquidation plan with respect to the Issuer must be acceptable to the
Insurer. In the event of any reorganization or liquidation, the Insurer shall
have the right to vote on behalf of all Certificateholders who hold
Obligations guaranteed by the Insurer, absent a default by the Insurer
under the Policy.
4. Consent of the Insurer Upon Default. Upon the occurrence of an event of
default as defined herein, the Registrar may, with the consent of the
Insurer, and shall at the direction of the Insurer or the Certificateholders
with the consent of the Insurer, by written notice to the Issuer and the
Insurer, declare the principal of the Obligations to be immediately due and
payable, whereupon that portion of the principal of the Obligations
thereby coming due and the interest thereon accrued to the date of
payment shall, without further action, become and be immediately due and
payable, anything in this Ordinance or the Obligations to the contrary
notwithstanding.
H. Payment Procedure Under the Policy.
1. At least two (2) Business Days prior to each payment date on the
Obligations, the Registrar, will determine whether there will be sufficient
funds to pay all principal of and interest on the Obligations due on the
related payment date and shall immediately notify the Insurer or its
designee on the same Business Day by telephone or electronic mail,
confirmed in writing by registered or certified mail, of the amount of any
deficiency. Such notice shall specify the amount of the anticipated
deficiency, the Obligations to which such deficiency is applicable and
whether such Obligations will be deficient as to principal or interest or
both. If the deficiency is made up in whole or in part prior to or on the
payment date,the Registrar shall so notify the Insurer or its designee.
2. The Registrar, shall after giving notice to the Insurer as provided above,
make available to the Insurer and, at the Insurer's direction, to any Fiscal
Agent, the registration books of the Issuer maintained by the Registrar and
all records relating to the funds maintained under this Ordinance or any
financing document executed by the Issuer in connection herewith.
3. The Registrar shall provide the Insurer and any Fiscal Agent with a list of
registered owners of Obligations entitled to receive principal or interest
payments from the Insurer under the terms of the Policy, and shall make
arrangements with the Insurer, the Fiscal Agent or another designee of the
Insurer to (i) mail checks or drafts to the registered owners of Obligations
entitled to receive full or partial interest payments from the Insurer and(ii)
pay principal upon Obligations surrendered to the Insurer, the Fiscal
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A.8.a
Agent or another designee of the Insurer by the registered owners of
Obligations entitled to receive full or partial principal payments from the
Insurer.
4. The Registrar, shall, at the time it provides notice to the Insurer of any
deficiency pursuant to clause 1. above, notify registered owners of
Obligations entitled to receive the payment of principal or interest thereon
from the Insurer (i) as to such deficiency and its entitlement to receive
principal or interest, as applicable, (ii) that the Insurer will remit to them
all or a part of the interest payments due on the related payment date upon
proof of its entitlement thereto and delivery to the Insurer or any Fiscal
Agent, in form satisfactory to the Insurer, of an appropriate assignment of
the registered owner's right to payment, (iii)that, if they are entitled to
receive partial payment of principal from the Insurer, they must surrender
the related Obligations for payment first to the Registrar, which will note
on such Obligations the portion of the principal paid by the Registrar and
second to the Insurer or its designee, together with the an appropriate
assignment, in form satisfactory to the Insurer, to permit ownership of
such Obligations to be registered in the name of the Insurer, which will
then pay the unpaid portion of principal, and (iv) that, if they are entitled
to receive full payment of principal from the Insurer, they must surrender
the related Obligations for payment to the Insurer or its designee, rather
than the Registrar, together with the an appropriate assignment, in form
satisfactory to the Insurer, to permit ownership of such Obligations to be
registered in the name of the Insurer.
5. In addition, if the Registrar has notice that any holder of the Obligations
has been required to disgorge payments of principal or interest on the
Obligations previously Due for Payment pursuant to a final non-
appealable order by a court of competent jurisdiction that such payment
constitutes an avoidable preference to such holder within the meaning of
any applicable bankruptcy laws, then the Registrar shall notify the Insurer
or its designee of such fact by telephone or electronic notice, confirmed in
writing by registered or certified mail.
6. The Registrar will be hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for holders of the Obligations as
follows:
a. If and to the extent there is a deficiency in amounts required to pay
interest on the Obligations, the Registrar shall (a) execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holders in any legal
proceeding related to the payment of such interest and an assignment
to the Insurer of the claims for interest to which such deficiency relates
and which are paid by the Insurer, (b) receive as designee of the
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A.8.a
respective holders (and not as Registrar) in accordance with the tenor
of the Policy payment from the Insurer with respect to the claims for
interest so assigned, and (c) disburse the same to such respective
holders;and
b. If and to the extent of a deficiency in amounts required to pay
principal of the Obligations,the Registrar shall(a)execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holder in any legal proceeding
related to the payment of such principal and an assignment to the
Insurer of the Obligation surrendered to the Insurer in an amount equal
to the principal amount thereof as has not previously been paid or for
which moneys are not held by the Registrar and available for such
payment(but such assignment shall be delivered only if payment from
the Insurer is received), (b) receive as designee of the respective
holders (and not as Registrar) in accordance with the tenor of the
Policy payment therefore from the Insurer, and (c) disburse the same
to such holders.
7. Payments with respect to claims for interest on and principal of
Obligations disbursed by the Registrar from proceeds of the Policy shall
not be considered to discharge the obligation of the Issuer with respect to
such Obligations, and such Obligations shall remain outstanding for all
purposes, shall not be defeased or otherwise satisfied and shall not be
considered paid by the Issuer, and the Insurer shall become the owner of
such unpaid Obligation and claims for the interest in accordance with the
tenor of the assignment made to it under the provisions of this subsection
or otherwise; and the assignment and pledge of the trust estate and all
covenants, agreements and other obligations of the Issuer to the registered
owners shall continue to exist and shall run to the benefit of the Insurer,
and the Insurer shall be subrogated to the rights of such registered owners
including, without limitation, any rights that such owners may have in
respect of securities law violations arising from the offer and sale of the
Obligations.
8. Irrespective of whether any such assignment is executed and delivered, the
Issuer and the Registrar hereby agree for the benefit of the Insurer that:
a. they recognize that to the extent the Insurer makes payments directly
or indirectly (e.g., by paying through the Registrar), on account of
principal of or interest on the Obligations, the Insurer will be
subrogated to the rights of such holders to receive the amount of such
principal and interest from the Issuer,with interest thereon as provided
and solely from the sources stated in the financing documents and the
Obligations;and
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A.8.a
b. they will accordingly pay to the Insurer the amount of such principal
and interest, with interest thereon as provided in the financing
documents and the Obligations, but only from the sources and in the
manner provided herein for the payment of principal of and interest on
the Obligations to holders, and will otherwise treat the Insurer as the
owner of such rights to the amount of such principal and interest.
9. The Insurer shall be entitled to pay principal or interest on the Obligations
that shall become Due for Payment but shall be unpaid by reason of
Nonpayment by the Issuer(as such terms are defined in the Policy) and any
amounts due on the Obligations as a result of acceleration of the maturity
thereof in accordance with this agreement, whether or not the Insurer has
received a Notice (as defined in the Policy) of Nonpayment or a claim upon
the Policy.
10. In addition, the Insurer shall to the extent it makes any payment of
principal or interest on the Obligations become subrogated to the rights of
the recipients of such payments in accordance with the terms of the Policy,
and to evidence such subrogation (i) in the case of claims for interest, the
Registrar shall note the Insurer's rights as subrogee on the registration
books of the Issuer maintained by the Registrar, upon receipt of proof of
payment of interest thereon to the registered holders of the Obligations, and
(ii) in the case of claims for principal, the Registrar, if any, shall not the
Insurer's rights as subrogee on the registration books of the Issuer
maintained by the Registrar, upon surrender of the Obligations together
with receipt of proof of payment of principal thereof.
11. The Issuer hereby agrees to pay or reimburse the Insurer, to the extent
permitted by law and subject to annual appropriation by the Issuer, (A) for
all amounts paid by the Insurer under the terms of the Policy, and (B) any
and all charges, fees, costs and expenses which the Insurer may reasonably
pay or incur, including, but not limited to, fees and expenses of attorneys,
accountants, consultants and auditors and reasonable costs of
investigations, in connection with (i) any accounts established to facilitate
payments under the Policy, (ii) the administration, enforcement, defense or
preservation of any rights in respect of the trust agreement or any other
financing document including defending, monitoring or participating in any
litigation or proceeding (including any bankruptcy proceeding in respect of
the Issuer or any affiliate thereof) relating to this agreement or any other
Financing Document, any party to this agreement or any other Financing
Document or the transaction contemplated by the Financing Documents,
(iii) the foreclosure against, sale or other disposition of any collateral
securing any obligations under this agreement or any other Financing
Document, or the pursuit of any remedies under this agreement or any
other Financing Document, to the extent such costs and expenses are not
recovered from such foreclosure, sale or other disposition, or (iv) any
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A.8.a
amendment, waiver or other action with respect to, or related to, this
agreement or any other Financing Document whether or not executed or
completed; costs and expenses shall include a reasonable allocation of
compensation and overhead attributable to time of employees of the Insurer
spent in connection with the actions described in clauses (ii) - (iv) above.
In addition, the Insurer reserves the right to charge a reasonable fee as a
condition to executing any amendment, waiver or consent proposed in
respect of this agreement or any other Financing Document.
12. In addition to any and all rights of reimbursement, subrogation and any
other rights pursuant hereto or under law or in equity, the Issuer agrees, to
the extent permitted by law, to pay or reimburse the Insurer any and all
charges, fees, costs, claims, losses, liabilities (including penalties),
judgments, demands, damages, and expenses which the Insurer or its
officers, directors, shareholders, employees, agents and each Person, if any,
who controls the Insurer within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, may reasonably pay or incur,
including, but not limited to, fees and expenses of attorneys, accountants,
consultants and auditors and reasonable costs of investigations, of any
nature in connection with, in respect of or relating to the transactions
contemplated by this agreement or any other financing document by reason
of-
a. any omission or action (other than of or by the Insurer) in
connection with the offering, issuance, sale, remarketing or
delivery of the Obligations;
b. the negligence, bad faith, willful misconduct, misfeasance,
malfeasance or theft committed by any director, officer, employee
or agent of the Issuer in connection with any transaction arising
from or relating to this agreement or any other financing
document;
C. the violation by the Issuer of any law, rule or regulation, or any
judgment, order or decree applicable to it;
d. the breach by the Issuer of any representation, warranty or
covenant under this agreement or any other financing document or
the occurrence, in respect of the Issuer, under this agreement or
any other financing document of any "event of default" or any
event which, with the giving of notice or lapse of time or both,
would constitute any "event of default"; or
e. any untrue statement or alleged untrue statement of a material fact
contained in any official statement, if any, or any omission or
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A.8.a
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such claims arise out of or are based
upon any untrue statement or omission in information included in
an official statement, if any, and furnished by the Insurer in writing
expressly for use therein.
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A.8.a
PASSED AND APPROVED this 7t'day of December, 2010.
MAYOR
THE CITY OF BEAUMONT,TEXAS
ATTEST:
CITY CLERK
THE CITY OF BEAUMONT,TEXAS
(SEAL)
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A.8.a
EXHIBIT A
The City of Beaumont,Texas
Certificates of Obligation, Series 2011
$35,000,000
Interest Accrues From: January 1, 2011
MATURITY SCHEDULE
Maturity Principal
March 1 Amount Interest Rate Yield
$ %Term Certificates due Yield %
The Certificates maturing on or after March 1, 2021, are subject to optional redemption, in whole
or in part, on March 1, 2020 , or any date thereafter, at a price equal to the principal amount
thereof, plus accrued interest to the date of redemption.
The Term Certificates are subject to mandatory sinking fund redemption as described in the
Ordinance.
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EXHIBIT "A"
2
December 7,2010
Consider authorizing the issuance and sale of up $17,700,000 General Obligation Refunding
Bonds, Series 2011; levying taxes to provide for payment thereof; and containing other matters
related thereto
RICH WITH OPPORTUNITY
IIEA,[11�10111)(
T • E • x • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Laura Clark, Chief Financial Officer
Yt-
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider an ordinance authorizing the issuance
and sale of up $17,700,000 General Obligation Refunding
Bonds, Series 2011; levying taxes to provide for payment
thereof; and containing other matters related thereto.
RECOMMENDATION
The administration requests approval.
BACKGROUND
Results of the sale will be presented by the City's Financial Advisor, Ryan O'Hara of RBC
Capital Markets. A recommendation will be made to award the bonds to the underwriters.
The refunding bonds will mature March 1, 2019 through March 1, 2025. Interest is payable
semiannually in March and September beginning September 1, 2011. The Bank of New York
Trust Company, N.A., Dallas, Texas, will serve as paying agent/registrar.
Delivery and receipt of proceeds by the City are scheduled for January 11, 2011. Proceeds
will be used to refund Series 2001, 2003, and 2006 Certificates of Obligations.
BUDGETARYIMPACT
All debt shall be incurred in the Debt Service Fund which is supported by property taxes. The
current debt service property tax rate is $.200615/$100 of assessed valuation. The refunding
bonds will allow the debt service property tax rate to remain constant in Fiscal Year 2012.
A.8.b
ORDINANCE NO.
ORDINANCE AUTHORIZING THE ISSUANCE OF THE CITY OF BEAUMONT,TEXAS,
GENERAL OBLIGATION REFUNDING BONDS,SERIES 2011;LEVYING TAXES TO
PROVIDE FOR PAYMENT THEREOF;AUTHORIZING THE CALL AND REFUNDING
OF CERTAIN BONDS AND OBLIGATIONS AND THE EXECUTION AND DELIVERY
OF AN ESCROW AGREEMENT AND THE SUBSCRIPTION FOR AND PURCHASE OF
CERTAIN ESCROWED SECURI TES;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, Certificates of Obligation, Series 2001, its City of Beaumont, Texas, Certificates
of Obligation, Series 2003, and its City of Beaumont,Texas, Certificates of Obligation, Series 2006
(collectively the 'Refunded Obligations"), and now desires to refund certain maturities of the
Refunded Obligations in advance of their maturities in order restructure the City's future debt
service, whether or not there is an overall savings in debt service, as permitted by Section 1207.008
of the Government Code of Texas;and
WHEREAS, Chapter 1207, Texas Government Code,as amended(formerly Article 717k of
Vernon's Annotated Texas Civil Statutes, as amended), and Sections 1 and 2 of Article II of the
Charter of the City, most recently amended on September 16, 2003, authorize 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 any of
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 Callable Refunded Obligations for
redemption prior to their maturities and desires to deposit sufficient funds to pay in full at maturity
the respective Non-Callable Bonds;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 Non-Callable Bonds and to
redeem the Callable Refunded Obligations;and
WHEREAS, upon issuance of the refunding bonds herein authorized and the deposit of
funds referred to above, the Non-Callable Refunded Obligations shall be considered discharged and
A.8.b
the Callable 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
Callable Refunded Obligations shall be discharged,terminated and defeased;
NOW,THEREFORE,BE IT ORDAINED BY THE CITY OF BEAUMONT:
1. Consideration and Findings. The matters and facts contained in the preamble to this
Ordinance are hereby found to be true and correct. Pursuant to Section 1207.008 of the Government
Code of Texas, the City Council as the governing body of the City of Beaumont, Texas, in these
proceedings authorizing the issuance of the Bonds, hereby finds that the issuance of the Bonds is in
the best interest of the City by helping the City manage its tax rates to pay future debt service. The
City Council specifies and authorizes that the maximum amount by which the aggregate amount of
payments to be made under the refunding bonds exceeds the aggregate amount of payments that
would have been made under the terms of the obligations being refunded is $ . The
City Council finds that the restructuring of the City's future debt service is in the best interests of the
City even though the aggregate amount of payment to be made under the refunding bonds exceeds
the aggregate amount of payments that would have been made under the terms of the obligations
being refunded. The benefit so found 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 2011 Bonds"shall mean The City of Beaumont,Texas, General
Obligation Refunding Bonds, Series 2011 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 18 of this Ordinance.
The term "Interest Payment Date", when used in connection with any Bond, shall mean
September 1,2011, and each March 1 and September 1 thereafter until maturity of such Bond.
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A.8.b
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"Obligation"as used herein shall mean the"Bonds".
The term "Ordinance" as used herein and in the Bonds shall mean this ordinance 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 "Paying Agent of the Refunded Obligations" shall mean the Bank of New York
Mellon Trust Company, N.A., Dallas, Texas, successor to the Bank of New York Trust Company,
N.A. as to the City's Certificates of Obligation, Series 2006, and Wells Fargo Bank, N.A.,
Minneapolis, MN, successor to Wells Fargo Bank Texas, National Association, as to the City's
Certificates of Obligation, Series 2001 and Series 2003.
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) the City's outstanding Certificates of
Obligation, Series 2001, maturing on March 1 in the years 2012 through 2018 in the principal
amounts of $750,000, $750,000, $750,000, $750,000, $750,000, $750,000 and $750,000
respectively; (b)the City's outstanding Certificates of Obligation, Series 2003, maturing on March 1
in the years 2011 through 2018 in the principal amounts of $655,000, $685,000, $715,000,
$745,000, $780,000, $815,000, $855,000, and $895,000, respectively; and(c)the City's outstanding
Certificates of Obligation, Series 2006, maturing on March 1, 2011 through 2014, in the principal
amounts of $1,515,000, $1,610,000, $1,690,000, and $1,745,000, respectively. The Series 2001
Bonds (all maturities) and the Series 2003 Bonds (maturing on March 1, 2014 through 2018)which
constitute a portion of the Refunded Obligations may be referred to as the "Callable Refunded
Obligations" and the Series 2003 Bonds (maturing prior to March 1, 2014) and the Series 2006
Bonds (maturing on March 1 of 2011 through 2014) which constitute a portion of the Refunded
Obligations may be referred to as the"Non-Callable Refunded Obligations."
The term "Register" shall mean the books of registration kept by the Registrar in which are
maintained the names and addresses of and the principal amounts registered to each Owner.
The term "Registrar" shall mean The Bank of New York Mellon Trust Company, N.A.,
Dallas,Texas,and its successors in that capacity.
The term "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 Capital
Markets for the City with respect to the defeasance of the Refunded Obligations.
-3-
A.8.b
The term "SEC" shall mean the United States Securities and Exchange Commission, and its
successors.
The term "Underwriters" shall meanBank of America Merrill Lynch (Senior Manager),
Citigroup, Wells Fargo Securities, Estrada Hinojosa&Company, Inc., and Raymond James.
3. Authorization and Findings. The Bonds shall be issued in fully registered form,
without coupons, in the total authorized aggregate amount of SEVENTEEN MILLION FIVE
HUNDRED THOUSAND and NO/100 Dollars ($17,500,000.00) for the purpose of(i) refunding
certain of the outstanding Refunded Obligations,and(ii)paying all costs of issuance of the Bonds.
4. Designation, Date and Interest Payment Date. The Bonds shall be designated as the
"THE CITY OF BEAUMONT, TEXAS, GENERAL OBLIGATION REFUNDING BONDS,
SERIES 2011", and shall be dated January 1, 2011. The Bonds shall bear interest from the later of
January 1, 2011, or the most recent Interest Payment Date to which interest has been paid or duly
provided for, calculated on the basis of a 360 day year of twelve 30 day months, with interest
payable on September 1, 2011, and semiannually thereafter on March 1 and September 1 of each
year until maturity or earlier redemption.
5. Initial Bonds, 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 Maturt Amount Rate
R-1
R-2
R-3
R-4
R-5 [SEE EXHIBIT A]
R-6
R-7
R-8
R-9
R-10
R-11
6. Optional and Mandatory Redemption,Defeasance. The City reserves the right, at its
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A.8.b
option,to redeem Bonds having stated maturities on and after March 1, 2021, in whole or in part, on
March 1, 2020, or any date thereafter, at a price of par plus accrued interest to the date fixed for
redemption. If less than all of the Bonds are to be redeemed,the City shall determine the Bonds, or
portions thereof,to be redeemed.
The Bonds maturing in the year (the "Term Bonds") are also subject to mandatory
redemption prior to scheduled maturity, in the amount, on the date, and on the terms set out in the
form of Bonds in this Ordinance, at a price of par plus accrued interest to the date fixed for
redemption.
Bonds may be redeemed only in integral multiples of $5,000. If a Bond subject to
redemption is in a denomination larger that $5,000, a portion of such Bond may be redeemed, but
only in integral multiples of $5,000. Upon surrender of any Bond for redemption in part, the
Registrar, in accordance with Section 12 hereof, shall authenticate and deliver in exchange therefor a
Bond or Bonds of like maturity and interest rate in an aggregate principal amount equal to the
unredeemed portion of the Bond so surrendered.
Not less than thirty (30) days prior to a redemption date for the Bonds,the City shall cause a
notice of redemption to be sent by United States mail, first class, postage prepaid,to each Owner of
each Bond to be redeemed in whole or in part, at the address of the Owner appearing on the Register
at the close of business on the Business Day next preceding the date of the mailing of such notice.
Such notice shall state the redemption date,the redemption price,the place at which Bonds are to be
surrendered for payment and, if less than all the Bonds are to be redeemed, the numbers of the
Bonds or portions thereof to be redeemed. Any notice of redemption so mailed shall be conclusively
presumed to have been duly given whether or not the Owner receives such notice. By the date fixed
for redemption, due provision shall be made with the Registrar for payment of the redemption price
of the Bonds or portions thereof to be redeemed. When Bonds have been called for redemption in
whole or in part and due provision made to redeem the same as herein provided, the Bonds or
portions thereof so redeemed shall no longer be regarded as outstanding except for the purpose of
being paid solely from the funds so provided for redemption, and the rights of the Owners to collect
interest which would otherwise accrue after the redemption date on any Bond or portion thereof
called for redemption shall terminate on the date fixed for redemption.
The City may defease the provisions of this Ordinance and discharge its obligation to the
Owners of any or all of the Bonds to pay principal, interest and redemption premium, if any,thereon
in any manner permitted by law, including by depositing with the Paying Agent/Registrar, or if
authorized by Texas law, with any national or state bank having trust powers and having combined
capital and surplus of at least$50 million,or with the State Treasurer of the State of Texas either: (a)
cash in an amount equal to the principal amount and redemption premium, if any, of such Series
2011 Bonds plus interest thereon to the date of maturity or redemption; or(b) pursuant to an escrow
or trust agreement, cash and/or direct obligations of, or obligations the principal of and interest on
which are guaranteed by or secured by the pledge of direct obligations of the United States of
America, in principal amounts and maturities and bearing interest at rates sufficient to provide for
the timely payment of the principal amount and redemption premium, if any, of such Bonds plus
interest thereon to the date of maturity or redemption; provided, however, that if any of such Series
2011 Bonds are to be redeemed prior to their respective dates of maturity, provision shall have been
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A.8.b
made for giving notice of redemption as provided in this Ordinance. Upon such deposit, such Bonds
shall no longer be regarded to be Outstanding or unpaid. Any surplus amounts not required to
accomplish such defeasance shall be returned to the City. Notwithstanding anything herein to the
contrary, in the event that the principal and/or interest due on the Bonds shall be paid by Insurer
pursuant to the Insurance Policy, the Bonds shall remain outstanding for all purposes, not be
defeased or otherwise satisfied and not be considered paid by the City, and all covenants,agreements
and obligations of the City to the registered owners shall continue to exist and shall run to the benefit
of Insurer,and Insurer shall be subrogated to the rights of such registered owners.
7. Execution of Bonds; Seal. The Bonds shall be signed by the Mayor or Mayor Pro
Tern of the City and countersigned by the City Clerk or Deputy City Clerk of the City, by their
manual, lithographed, or facsimile signatures, and the official seal of the City shall be impressed or
placed in facsimile thereon. Such facsimile signatures on the 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.
8. Approval by Attorney General; Registration by CoWtroller. The Bonds to be
initially issued shall be delivered to the Attorney General of Texas for approval and shall be
registered by the Comptroller of Public Accounts of the State of Texas. The manually executed
registration certificate of the Comptroller of Public Accounts substantially in the form provided in
Section 16 of this Ordinance shall be attached or affixed to the Bonds to be initially issued.
9. 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 16 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.
10. 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.
If interest on any Bond is not paid on any Interest Payment Date and continues unpaid for
thirty (30) days thereafter, the Registrar shall establish a new record date for the payment of such
interest, to be known as a Special Record Date. The Registrar shall establish a Special Record Date
when funds to make such interest payment are received from or on behalf of the City. Such Special
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Record Date shall be fifteen (15) days prior to the date fixed for payment of such past due interest,
and notice of the date of payment and the Special Record Date shall be sent by United States mail,
first class, postage prepaid, not later than five (5)business days prior to the Special Record Date,to
each affected Owner of record as of the close of business on the day prior to the mailing of such
notice.
If the date for payment of the principal of or interest on any Bond is not a Business Day,then
the date for such payment shall be the next succeeding Business Day, and payment on such date
shall have the same force and effect as if made on the original date payment was due.
11. Ownership; Unclaimed Principal and Interest. The City,the Registrar and any other
person may treat the person in whose name any Bond is registered as the absolute owner of such
Bond for the purpose of making and receiving payment of 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 11 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.
12. 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
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 12. Each Bond delivered in accordance with this Section 12 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
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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.
13. 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.
14. Mutilated, Lost or Stolen Bonds. Upon the presentation and surrender to the
Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a
replacement Bond of like maturity, interest rate and principal amount, bearing a number not
contemporaneously outstanding. 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 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.
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A.8.b
If any such mutilated, lost, apparently destroyed or wrongfully taken Bond has become or is
about to become due and payable, the City in its discretion may, instead of issuing a replacement
Bond,authorize the Registrar to pay such Bond.
Each replacement Bond delivered in accordance with this Section 14 shall be entitled to the
benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such
replacement Bond is delivered.
15. Special Election for Uncertificated Bonds. Notwithstanding any other provision
hereof, upon initial issuance of the Bonds, 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.
With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the City
and the Registrar shall have no responsibility or obligation to any DTC Participant or to any person
on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting the
immediately preceding sentence,the City and the Registrar shall have no responsibility or obligation
with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with
respect to any ownership interest in the Bonds, (ii)the delivery to any DTC Participant or any other
person, other than an Owner of a Bond, as shown on the Register, of any notice with respect to the
Bonds, including any notice of redemption, or(iii)the payment to any DTC Participant or any other
person, other than an Owner of a Bond, as shown in the Register, of any amount with respect to
principal of, premium, if any, or interest on the Bonds. Notwithstanding any other provision of this
Ordinance to the contrary,the City and the Registrar shall be entitled to treat and consider the person
in whose name each Bond is registered in the Register as the absolute Owner of such Bond for the
purpose of payment of principal of,premium, if any, and interest on the Bonds, for the purpose of all
matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond,
and for all other purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and
interest on the Bonds only to or upon the order of the respective Owners, as shown in the Register as
provided in this 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
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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.
16. Form. 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 such
additions, deletions and variations as may be necessary or desirable and not prohibited by this
Ordinance:
FORM OF CERTIFICATE
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 2011
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP:
January 1,2011
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
The City of Beaumont, in the County of Jefferson, State of Texas (the "City"), promises to
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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 The Bank of
New York Mellon Trust Company, N.A., Dallas, Texas (the "Registrar"), the principal amount
identified above, payable in any coin or currency of the United States of America which on the date
of payment of such principal is legal tender for the payment of debts due the United States of
America, and to pay 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 January 1,2011, 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, 2011, 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.
THIS BOND is one of a duly authorized o ed i ssue of Bonds, aggregating $17,500,000 (the
"Bonds"), issued pursuant to an ordinance adopted by the City Council on December 7, 2010 (the
"Ordinance")for the purpose of refunding the following:
(a) the City's outstanding Certificates of Obligation, Series 2001 maturing on March 1
in each of the years 2012 through 2018, in the principal amounts of $750,000,
$750,000, $750,000,$750,000, $750,000,$750,000 and$750,000,respectively;
(b) the City's outstanding Certificates of Obligation, Series 2003, maturing on March 1
in each of the years 2011 through 2018, in the principal amount of $655,000,
$685,000, $715,000, $745,000, $780,000, $815,000, $855,000, and $895,000,
respectively;and
(c) the City's outstanding Certificates of Obligation, Series 2006, maturing on March 1,
2011 through 2014, in the principal amounts of$1,515,000, $1,610,000, $1,690,000,
and$1,745,000,respectively.
THE CITY RESERVES THE RIGHT, at its option, to redeem the Bonds having stated
maturities on or after March 1, 2021, in whole or in part,on March 1,2020,or any date thereafter, in
integral multiples of$5,000, at a price of par plus accrued interest to the date fixed for redemption.
Reference is made to the Ordinance for complete details concerning the manner of redeeming the
Bonds.
THE BONDS maturing in the year (the"Term Bonds") are also subject to mandatory
redemption prior to maturity in the amounts and on the dates set out below, at a price equal to the
principal amount to be redeemed plus accrued interest to the redemption date:
TERM BONDS DUE
Date Amount
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A.8.b
The Paying Agent shall select for redemption by lot, or by any other customary method that
results in random selection, a principal amount of Term Bonds equal to the aggregate principal
amount of such Term Bonds to be redeemed, shall call such Term Bonds for redemption on the
scheduled mandatory redemption date, and shall give notice of such redemption in accordance with
the Ordinance authorizing the Bonds. The principal amount of Term Bonds required to be
mandatorily redeemed shall be reduced by the principal amount of Term Bonds which, at least 45
days prior to the mandatory redemption date, shall have been delivered to the Registrar for
cancellation or shall have been optionally redeemed and not previously credited against a mandatory
redemption requirement.
NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior the date
fixed for redemption by first class mail, addressed to the registered owner of each Bond to be
redeemed in whole or in part at the address shown on the books of registration kept by the Registrar.
When Bonds or portions thereof have been called for redemption and due provision has been made
to redeem the same, the principal amounts so redeemed shall be payable solely from the funds
provided for redemption and interest which would otherwise accrue on the amounts called for
redemption shall terminate on the date fixed for redemption.
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.
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.
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.
THE CITY OF BEAUMONT,TEXAS
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A.8.b
Mayor
(SEAL)
City Clerk
FORM OF 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 ,20.
XXXX INXxxxx
Comptroller of Public Accounts
(SEAL) of the State of Texas
FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds described in and delivered pursuant to the within-mentioned
Ordinance.
The Bank of New York Mellon Trust Company,N.A.,
Registrar
By:
Authorized Signature
Date of Authentication:
FORM OF 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:
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A.8.b
Signature Guaranteed:
Registered Owner
NOTICE: The signature above
must correspond to the name
of the registered owner as shown
NOTICE: Signature must be on the face of this Bond in every
guaranteed by a member firm particular,without any
of the New York Stock Exchange alteration,enlargement or change
or a commercial bank or trust whatsoever.
company.
(e) The following statement of insurance shall be printed on each of the Bonds:
FORM OF STATEMENT OF INSURANCE
(the "Insurer"), has delivered
its municipal bond insurance policy with respect to the scheduled payments due of principal of
and interest on this Bond to The Bank of New York Mellon Trust Company, N.A., Dallas,
Texas, or its successor, as paying agent for the Bonds (the 'Paying Agent"). Said Policy is on
file and available for inspection at the principal office of the Paying Agent and a copy thereof
may be obtained from the Insurer or the Paying Agent. All payments required to be made under
the Policy shall be made in accordance with the provisions thereof. The owner of this Certificate
acknowledges and consents to the subrogation rights of the Insurer as more fully set forth in the
Policy.
END OF FORM OF CERTIFICATE
17. Legal Opinions; CUSIP. The approving opinion of Orgain, Bell & Tucker, L.L.P.,
Beaumont, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Bonds, but errors or
omissions in the printing of such opinions or such numbers shall have no effect on the validity of the
Bonds.
18. Interest and Sinking Fund; Levy, Assessment and Collection of Taxes. There is
hereby established a separate fund of the City to be known as the "Series 2011 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
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
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A.8.b
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 is to be deposited in such fund. 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 debt service coming due on the Bonds on September 1, 2011,
and such amount shall not be used for any other purpose. A tax rate has not been determined for
2012, but the City certifies that such rate, when determined, will take into account the Bonds being
issued
IT IS ORDERED AND DIRECTED that this Ordinance pledging ad valorem tax revenue
of the City and limited net revenues of the System for the payment of the Bonds to the extent
provided herein be filed and recorded in the records of the City as necessary to cause the pledge
to be valid under Section 1201.44 of the Government Code of Texas. At any time while any of
the Bonds are outstanding, it is determined by the City or demanded by the holder of any Bonds
that further action by the City is required to make the pledge valid or maintain the validity of the
pledge, the City covenants and hereby directs the officers of the City to make such filings,
including but not limited to appropriate filings under Chapter 9 of the Business and Commerce
Code of Texas as are necessary to make the pledge valid or continue its validity.
19. 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. In addition, the Mayor, the Mayor Pro Tem, the City Clerk, the City Manager
and other appropriate officials of the City are hereby authorized and directed to do any and all things
necessary or convenient to carry out the purposes of this Ordinance, and each of such persons are
authorized, acting alone and without the joinder of the others, to execute any and all closing
certificates, instruments and such other documents as may be necessary or appropriate to carry out
the purposes of this Ordinance.
20. 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 net premium of$ , and less an underwriter's discount
of$ , plus any accrued interest on the Bonds from their dated date to the date of
closing, all 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. Each of the Mayor and the Mayor Pro Tern and
other appropriate officials of the City are hereby authorized and directed to execute such Purchase
Contract on behalf of the City, and the Mayor and the Mayor Pro Tern and other appropriate officials
of the City are hereby authorized and directed to do any and all things necessary or desirable to
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satisfy the conditions set out herein and to provide for the issuance and delivery of the Bonds,and, if
deemed by the acting officer to be in the best interests of the City, to terminate the Contract as
permitted by the terms thereof. 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.
The City funds that the net effective interest of the Bonds is %.
21. 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. In particular,the City
covenants and agrees to comply with each requirement of this Section 21; provided, however, that
the City shall not be required to comply with any particular requirement of this Section 21 if the City
has received an opinion of nationally recognized bond counsel (a "Counsel's Opinion") that such
noncompliance will not adversely affect the exclusion from gross income for federal income tax
purposes of interest on the Bonds or if the City has received a Counsel's Opinion to the effect that
compliance with some other requirement set forth in this Section 21 will satisfy the applicable
requirements of the Code, in which case compliance with such other requirement specified in such
Counsel's Opinion shall constitute compliance with the corresponding requirement specified in this
Section 21.
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") or to deposit
cash 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.
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A.8.b
(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.
(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
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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.
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
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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.
(p) The City covenants that dispositions of personal property components of the
Project funded by the Refunded Bonds will occur in the ordinary course of an established
governmental program and will satisfy the following requirements:
i. The weighted average maturity of the portion of the Certificates financing
personal property is not greater than 120 percent of the reasonably expected
actual use of such personal property for governmental purposes;
ii. The reasonably expected fair market value of such personal property on
the date of disposition will be not greater than 25 percent of its cost;
iii. Such personal property will no longer be suitable for its governmental
purposes on the date of disposition; and
iv. The City is required to deposit amounts received from such disposition in
a commingled fund with substantial tax or other governmental revenues and the
Issuer reasonably expect to spend such amounts on governmental programs
within 6 months from the date of commingling.
22. 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 and pay the Refunded Obligations,
$ from the sale of the Bonds shall be deposited with the Escrow Agent pursuant to
and in compliance with Sections 24 and 25 below.
(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.
23. Transfer of Money in Interest and Sinking Funds Maintained for the Refunded
Obligations. On the date of delivery of the Bonds,the sum of$ contained in the Interest and
Sinking Funds for the Refunded Obligations shall be transferred to the Escrow Agent and shall be
applied as herein provided.
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24. Redemption of Callable Refunded Obligations. The City hereby irrevocably calls
the following bonds of the City (the Callable Refunded Obligations) for redemption on the dates set
forth below, and authorizes and directs notice of such redemption to be given in substantially the
form of Exhibits B-1 and B-2 hereto or in such form and in such manner as the Mayor, Mayor Pro
Tem,City Manager,City Clerk or any other official of the City may approve:
Obligations To Be Redeemed Redemption Date
The City of Beaumont,Texas, March 1,2011
Certificates of Obligation, Series 2001,
maturing on March 1 in the years 2012
through 2018 in the principal amounts of
$750,000, $750,000,$750,000,
$750,000, $750,000,$750,000 and
$750,000 respectively
The City of Beaumont,Texas, March 1,2013
Certificates of Obligation, Series 2003,
maturing on March 1 in the years 2014
through 2018 in the principal amounts of
$745,000, $780,000, $815,000,
$855,000,and$895,000,respectively
Pursuant to the provisions of Sections 1207.061 and 1207.062 of the Government Code of
Texas, the City hereby orders the irrevocable deposit out of the proceeds of the issuance and sale of
the Series 2011 Bonds with the Escrow Agent (being a paying agent for some of the obligations)
pursuant to the Escrow Agreement authorized by this Ordinance of an amount of money sufficient to
provide for the redemption of the Callable Refunded Obligations on the dates indicated above and
the payment in full of the Non-Callable Refunded Obligations at maturity and including all principal,
redemption price, and interest as and when due prior to and at the respective redemption maturity,
and due dates,as applicable.
The Bonds are not subordinated to the Refunded Obligations.
25. Escrow Agreement. The discharge and final payment or redemption, as applicable,
of the Refunded Obligations shall be effectuated by firm banking and financial arrangements
pursuant to the terms and provisions of an Escrow Agreement to be entered into by and between the
City and The Bank of New York Mellon Trust Company, N.A., Dallas, Texas, as Escrow Agent,
which shall be substantially in the form presented to the City Council, 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 redemption and payment which has been designed for the City by RBC
Capital Markets, and which shall be certified as to mathematical accuracy by Grant Thornton,
L.L.P., in the Report, (b) to restructure the City's future debt service, (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 or Mayor Pro Tem is
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A.8.b
hereby authorized to execute and deliver the Escrow Agreement on behalf of the City in such final
form as approved by the signing official in multiple counterparts and the City Clerk or an Assistant
City Clerk is hereby authorized to attest thereto and affix the City's seal.
The deposit of$ of the proceeds of the Series 2011 Bonds with the Escrow
Agent, which is hereby authorized and directed, and transfer of all funds held by the Escrow Agent
to the Paying Agents of the Refunded Obligations pursuant to the Escrow Agreement, plus the funds
authorized and directed to be used in Section 26 of this Ordinance, shall effect the discharge and
final payment,as applicable,of the Refunded Obligations.
26. Source of Funds Used in Ref indiniz. No money of the City other than proceeds of
the Bonds and funds on hand in the Interest and Sinking Funds for the Refunded Obligations (the
transfer and use of which is hereby authorized and directed) shall be used to refund the Refunded
Obligations.
27. Purchase of Escrowed Securities. To assure the purchase of the Escrowed Securities
as described in the Report and in the Escrow Agreement, the Mayor, Mayor Pro Tem, 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, if any, 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.
28. 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.
29. 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.
30. Re ig str . 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
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A.8.b
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.
31. Related Matters. To satisfy in a timely manner all of the City's obligations under this
Ordinance, the Mayor, the Mayor Pro Tern, 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.
32. 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.
33. Severability. 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.
34. Repealer. All orders, resolutions, and ordinances, and parts thereof inconsistent
herewith are hereby repealed to the extent of such inconsistency.
35. The City undertakes and agrees for the benefit of the holders of the Bonds to provide
the following to the Municipal Securities Rulemaking Board ("MSRB"), in electronic format as
prescribed by the MSRB, directly or through a designated agent, on or before six months after the
end of the City's fiscal year,which fiscal year presently ends on September 30,
a. annual financial information (which may be unaudited)and operating data regarding
the City for fiscal years ending on or after January 1, 2011 which annual financial
information and operating data shall be of the type included in the following listed
sections contained in the Final Official Statement:
DEBT STATEMENT
TAX DATA
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A.8.b
SELECTED FINANCIAL DATA
ADMINISTRATION OF THE CITY
Appendix`B"
b. audited financial statements for the City for fiscal years ending on or after
January 1, 2011, 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,not in excess of ten(10)business days after the occurrence of the
event,notice of any of the following events with respect to the Bonds:
i. Principal and interest payment delinquencies;
ii. Non-payment related defaults, if material;
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 the issuance by the Internal Revenue Service of
proposed or final determinations of taxability, Notices of Proposed Issue
(IRS Form 5701-TEB) or other material notices or determinations with
respect to the tax status of the Bonds, or other material events affecting the
tax status of the Bonds;
vii. Modifications to rights of Bond holders, if material;
viii. Bond calls, if material,and tender offers;
ix. Defeasances;
X. Release, substitution or sale of property securing repayment of the Bonds, if
material; and
xi. Rating changes.
xii. Bankruptcy, insolvency, receivership, or similar event of the obligated
person;
xiii. The consummation of a merger, consolidation, or acquisition involving an
obligated person or the sale of all or substantially all of the assets of the
obligated person, other than in the ordinary course of business, the entry into
a definitive agreement to undertake such an action, or the termination of a
definitive agreement relating to any such actions, other than pursuant to its
terms, if material;and
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A.8.b
xiv. Appointment of a successor or additional trustee or the change of name of a
trustee, if material
d. in a timely manner,notice of a failure of the City to provide required annual financial
information and operating data, on or before six months after the end of the City's
fiscal year.
e. all documents provided to the MSRB shall be accompanied by identifying
information as prescribed by the MSRB.
These undertakings and agreements are subject to appropriation of necessary funds and to
applicable legal restrictions, if any.
The accounting principles pursuant to which the City's financial statements are currently
prepared are generally accepted accounting principles set out by the Government Accounting
Standards Board, and, subject to changes in applicable law or regulations, such principles will be
applied in the future.
If the City changes its fiscal year, it will notify the MSRB of the change (and of the new
fiscal year end) prior to the next date by which the City otherwise would be required to provide
annual financial information.
The City's obligation to update information and to provide notices of material events shall be
limited to the agreements herein. The City shall not be obligated to provide other information that
may be relevant or material to a complete presentation of its financial results of operations,
condition, or prospects and shall not be obligated to update any information that is provided, except
as described herein. The City makes no representation or warranty concerning such information or
concerning its usefulness to a decision to invest in or sell 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 THIS 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 35
to adapt to changed circumstances that arise from a change in legal requirements, a change in law,or
a change in the identity, nature, status or type of operations of the City, if the agreement, as
amended, would have permitted the Underwriter to purchase or sell the 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
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A.8.b
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 35 if the SEC amends or repeals the applicable
provisions of Rule 15c2-12 or a court of final jurisdiction determines that such provisions are
invalid, and the City may amend the agreement in its discretion in any other circumstance or
manner,but in either case only to the extent that its right to do so would not prevent the Underwriter
from lawfully purchasing or reselling the 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.
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.36.
36. Amendment of Ordinance.
(a) If and to the extent permitted by this Ordinance, the owners of the Series
2011 Bonds aggregating in the principal amount of 51% of the aggregate principal
amount of the outstanding Series 2011 Bonds shall have the right from time to time to
approve any amendment to this Ordinance which may be deemed necessary or desirable
by the City provided, however, that without the consent of the owners of all of the Series
2011 Bonds at the time outstanding, nothing herein contained shall permit or be
construed to permit the amendment of the terms and conditions in this Ordinance or in
the Bonds so as to:
(1) Make any change in the maturity of the outstanding Series 2011
Bonds;
(2) Reduce the rate of interest borne by any of the outstanding Series
2011 Bonds;
(3) Reduce the amount of the principal payable on the outstanding
Series 2011 Bonds;
(4) Modify the terms of payment of principal of or interest on the
outstanding Series 2011 Bonds, or impose any conditions with respect to such
payment;
(5) Affect the owners of less than all of the outstanding Series 2011
Bonds then outstanding;
(6) Change the percentage of the principal amount of outstanding
Series 2011 Bonds, necessary for consent to such amendment.
(b) If at any time the City shall desire to amend this Ordinance under this
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Section, the City shall cause notice of the proposed amendment to be published in a
financial newspaper or journal published in the City of New York, New York, once
during each calendar week for at least two successive calendar weeks. Such notice shall
briefly set forth the nature of the proposed amendment and shall state that a copy thereof
is on file at the principal office of the Paying Agent for inspection by all owners of Series
2011 Bonds. Such publication is not required, however, if notice in writing is given to
each owner of the outstanding Series 2011 Bonds. Not less than thirty (30) days' notice
of the proposed amendment shall also be given by the City to the Underwriter.
(c) Whenever at any time not less than thirty (30) days, and within one (1)
year, from the date of the publication of said notice or other service of written notice the
City shall receive an instrument or instruments executed by the owners of at least 51% in
aggregate principal amount of Series 2011 Bonds then outstanding, which instrument or
instruments shall refer to the proposed amendment described in said notice and which
specifically consent to and approve such amendment in substantially the form of the copy
thereof on file with the Paying Agent, the City Council may adopt the amendatory
resolution in substantially the same form.
(d) Upon adoption of any amendatory resolution pursuant to the provision of
this Section, this Ordinance shall be deemed to be amended in accordance with such
amendatory resolution, and the respective rights, duties and obligations under this
Ordinance of the City and all the owners of then outstanding Series 2011 Bonds shall
thereafter be determined, exercised and enforced hereunder, subject in all respect to such
amendments.
(e) Any consent given by the owner of outstanding Series 2011 Bonds,
pursuant to the provisions of this Section shall be irrevocable for a period of six months
from the date of the first publication of the notice provided for in this Section, and shall
be conclusive and binding upon all future owners of the same Series 2011 Bonds during
such period. Such consent may be revoked at any time after six months from the date of
the first publication of such notice by the owner who gave such consent, or by a
successor in title, by filing notice thereof with the Paying Agent and the City, but such
revocation shall not be effective if the owners of 51% in aggregate principal amount of
the then outstanding Series 2011 Bonds as in this Section defined have, prior to the
attempted revocation, consented to and approved the amendment.
(f) For the purpose of this Section, the fact of the owning of Series 2011
Bonds by any owner of Series 2011 Bonds and the amount and number of such Series
2011 Bonds and the date of their owning same shall be determined by the Registration
Books of the Paying Agent/Registrar.
(g) The foregoing provisions of this Section notwithstanding, the City by
action of the City Council (or as item (2) by the City Council or by the Mayor or Mayor
Pro-Tem and the City Clerk as to changes prior to issuance to comply with requirements
by the Attorney General of Texas) may amend this Ordinance for any one or more of the
following purposes:
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A.8.b
(1) To add to the covenants and agreements of the City in this
Ordinance contained, other covenants and agreements thereafter to be observed,
grant additional rights or remedies to the owners of bonds or to surrender, restrict
or limit any right or power herein reserved to or conferred upon the City.
(2) To make such provisions for the purpose of clarifying matters or
questions arising under this Ordinance, as are required by the Attorney General of
Texas to obtain the Attorney General's approval of the issuance of the Series
2011 Bonds before their issuance or for the purpose of curing any ambiguity, or
curing, correcting or supplementing any defective provision contained in this
Ordinance, or at any time before or after issuance as are necessary or desirable
and not contrary to or inconsistent with this Ordinance, and in all events which
shall not adversely affect the interests of the owners of the Series 2011 Bonds.
(3) To modify any of the provisions of this Ordinance in any other
respect whatever, provided that: (i) such modification shall be, and be expressed
to be, effective only after all Series 2011 Bonds outstanding at the date of the
adoption of such modification shall cease to be outstanding, and (ii) such
modification shall be specifically referred to in the text of all Series 2011 Bonds
issued after the date of the adoption of such modification.
37. Provisions Relating to Bond Insurance. The purchase of bond insurance from
Insurer in accordance with the terms of a commitment for such insurance presented to and
hereby approved by the City is hereby authorized. All officials and representatives of the City
are authorized and directed to execute such documents and to do any and all things necessary or
desirable to obtain such insurance, and the printing on or attachments to the Bonds of an
appropriate legend regarding such insurance is hereby approved. Notwithstanding any provision
in this Ordinance to the contrary, as long as the Bonds Insurance Policy shall be in full force and
effect,the following provisions and terms shall be in effect and applicable:
A. Notices and Other Information.
1. Any notice that is required to be given to holders of the Obligations (the
"Certificateholders"), nationally recognized municipal securities information repositories
or state information depositories pursuant to Rule 15c2-12(b) (5) adopted by the
Securities and Exchange Commission or to the Registrar pursuant to this Certificate
Ordinance or any of the financing documents executed by the Issuer in connection with
the Obligations (hereinafter sometimes referred to as the "Financing Documents") shall
also be provided to (the "Insurer"),
simultaneously with the sending of such notices. In addition, to the extent that the Issuer
has entered into a continuing disclosure agreement with respect to the Obligations, all
information furnished pursuant to such agreement shall also be provided to the Insurer,
simultaneously with the furnishing of such information. All notices required to be given
to the Insurer shall be in writing and shall be sent by registered or certified mail
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addressed to it at , Attention: General Counsel, with
a copy to it, Attention: Risk Management Department—Public Finance Surveillance.
2. The Insurer shall have the right to receive such additional information as it
may reasonably request.
3. The Issuer will permit the Insurer to discuss the affairs, finances and
accounts of the Issuer or any information the Insurer may reasonably request regarding
the security for the Obligations with appropriate officers of the Issuer, and will use best
efforts to enable the Insurer to have access to the facilities, books and records of the
Issuer on any business day upon reasonable prior notice.
4. The Registrar shall notify the Insurer of any failure of the Issuer to
provide notices, Bonds and other information under the Documentation.
B. Defeasance. In the event that the principal and/or interest due on the Obligations
shall be paid by the Insurer pursuant to the Policy, the Obligations shall remain outstanding for
all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and
the assignment and pledge of the trust estate and all covenants, agreements and other obligations
of the Issuer to the registered owners shall continue to exist and shall run to the benefit of the
Insurer, and the Insurer shall be subrogated to the rights of such registered owners including,
without limitation, any rights that such owners may have in respect of securities law violations
arising from the offer and sale of the Obligations.
In addition to any other applicable requirements under this Ordinance or applicable law,
if the Issuer intends to defease the Obligations, and the Insurer will require the following items:
1. An opinion of counsel that the defeasance will not adversely impact the
exclusion from gross income for federal income tax purposes of interest
on the Obligations or refunded bonds.
2. An escrow agreement and an opinion of counsel regarding the validity and
enforceability of the escrow agreement.
3. The escrow agreement shall provide that:
a. Any substitution of securities shall require verification by an
independent certified public accountant and the prior written
consent of the Insurer.
b. The Issuer will not exercise any optional redemption of
Obligations secured by the escrow agreement or any other
redemption other than mandatory sinking fund redemptions unless
(i) the right to make any such redemption has been expressly
reserved in the escrow agreement and such reservation has been
disclosed in detail in the official statement for the refunding bonds,
-28-
A.8.b
and (ii) as a condition of any such redemption there shall be
provided to the Insurer a verification of an independent certified
public accountant as to the sufficiency of escrow receipts without
reinvestment to meet the escrow requirements remaining following
such redemption.
C. The Issuer shall not amend the escrow agreement or enter into a
forward purchase agreement or other agreement with respect to
rights in the escrow without the prior written consent of the
Insurer.
C. Registrar.
I. The Insurer shall receive prior written notice of any name change of the
Registrar or the removal, resignation or termination of the Registrar.
2. No removal, resignation or termination of the Registrar shall take effect
until a successor, acceptable to the Insurer, shall be appointed.
3. The Registrar may be removed at any time, at the request of the Insurer,
for any breach of its obligations under the financing documents.
D. Amendments and Supplements. With respect to amendments or supplements to
this Ordinance or any of the Financing Documents, which do not require the consent of the
Certificateholders, the Insurer must be given notice of any such amendments or supplements.
With respect to amendments or supplements to this Ordinance or any of the Financing
Documents, which require the consent of the Certificateholders, the Insurer's prior written
consent is required. Copies of any amendments or supplements to this Ordinance or any
Financing Document which are consented to by the Insurer shall be sent to the rating agencies
that have assigned a rating to the Obligations. Notwithstanding any other provision of this
Ordinance, in determining whether the rights of Certificateholders will be adversely affected by
any action taken pursuant to the terms and provisions thereof, the Registrar shall consider the
effect on the Certificateholders as if there were no Policy.
E. The Insurer as Third Party Beneficiary. To the extent this Ordinance or any
financing document executed by the Issuer in connection herewith confers upon or give or grant
to the Insurer any right, remedy or claim under or by reason of this Ordinance or any financing
document executed by the Issuer in connection herewith, the Insurer is explicitly recognized as
being a third party beneficiary hereunder and thereunder and may enforce any such right, remedy
or claim conferred, given or granted hereunder or thereunder.
F. Control Rights. The Insurer shall be deemed to be the holder of all of the
Obligations for purposes of(a) exercising all remedies and directing the Registrar to take actions
or for any other purposes following an Event of Default (as defined in this Ordinance), and (b)
granting any consent, direction or approval or taking any action permitted by or required under
this Ordinance to be granted or taken by the holders of such Obligations.
-29-
A.8.b
Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and
continuance of an event of default as defined herein, the Insurer shall be entitled to control and
direct the enforcement of all rights and remedies granted to the Certificateholders or the
Registrar for the benefit of the Certificateholders under this Ordinance.
G. Consent Rijzhts of the Insurer.
1. Consent of the Insurer. Any provision of this Ordinance expressly
recognizing or granting rights in or to the Insurer may not be amended in
any manner that affects the rights of the Insurer hereunder without the
prior written consent of the Insurer.
2. Consent of the Insurer in Addition to Certificateholder Consent.
Wherever this Ordinance requires the consent of Certificateholders, the
Insurer's consent shall also be required.
3. Consent of the Insurer in the Event of Insolvency. Any reorganization or
liquidation plan with respect to the Issuer must be acceptable to the
Insurer. In the event of any reorganization or liquidation, the Insurer shall
have the right to vote on behalf of all Certificateholders who hold
Obligations guaranteed by the Insurer, absent a default by the Insurer
under the Policy.
4. Consent of the Insurer Upon Default. Upon the occurrence of an event of
default as defined herein, the Registrar may, with the consent of the
Insurer, and shall at the direction of the Insurer or the Certificateholders
with the consent of the Insurer, by written notice to the Issuer and the
Insurer, declare the principal of the Obligations to be immediately due and
payable, whereupon that portion of the principal of the Obligations
thereby coming due and the interest thereon accrued to the date of
payment shall, without further action, become and be immediately due and
payable, anything in this Ordinance or the Obligations to the contrary
notwithstanding.
H. Payment Procedure Under the Policy.
1. At least two (2) Business Days prior to each payment date on the
Obligations, the Registrar, will determine whether there will be sufficient
funds to pay all principal of and interest on the Obligations due on the
related payment date and shall immediately notify the Insurer or its
designee on the same Business Day by telephone or electronic mail,
confirmed in writing by registered or certified mail, of the amount of any
deficiency. Such notice shall specify the amount of the anticipated
deficiency, the Obligations to which such deficiency is applicable and
whether such Obligations will be deficient as to principal or interest or
-30-
A.8.b
both. If the deficiency is made up in whole or in part prior to or on the
payment date, the Registrar shall so notify the Insurer or its designee.
2. The Registrar, shall after giving notice to the Insurer as provided above,
make available to the Insurer and, at the Insurer's direction, to any Fiscal
Agent, the registration books of the Issuer maintained by the Registrar and
all records relating to the funds maintained under this Ordinance or any
financing document executed by the Issuer in connection herewith.
3. The Registrar shall provide the Insurer and any Fiscal Agent with a list of
registered owners of Obligations entitled to receive principal or interest
payments from the Insurer under the terms of the Policy, and shall make
arrangements with the Insurer, the Fiscal Agent or another designee of the
Insurer to (i) mail checks or drafts to the registered owners of Obligations
entitled to receive full or partial interest payments from the Insurer and (ii)
pay principal upon Obligations surrendered to the Insurer, the Fiscal
Agent or another designee of the Insurer by the registered owners of
Obligations entitled to receive full or partial principal payments from the
Insurer.
4. The Registrar, shall, at the time it provides notice to the Insurer of any
deficiency pursuant to clause 1. above, notify registered owners of
4� Obligations entitled to receive the payment of principal or interest thereon
from the Insurer (i) as to such deficiency and its entitlement to receive
principal or interest, as applicable, (ii) that the Insurer will remit to them
all or a part of the interest payments due on the related payment date upon
proof of its entitlement thereto and delivery to the Insurer or any Fiscal
Agent, in form satisfactory to the Insurer, of an appropriate assignment of
the registered owner's right to payment, (iii)that, if they are entitled to
receive partial payment of principal from the Insurer, they must surrender
the related Obligations for payment first to the Registrar, which will note
on such Obligations the portion of the principal paid by the Registrar and
second to the Insurer or its designee, together with the an appropriate
assignment, in form satisfactory to the Insurer, to permit ownership of
such Obligations to be registered in the name of the Insurer, which will
then pay the unpaid portion of principal, and (iv) that, if they are entitled
to receive full payment of principal from the Insurer, they must surrender
the related Obligations for payment to the Insurer or its designee, rather
than the Registrar, together with the an appropriate assignment, in form
satisfactory to the Insurer, to permit ownership of such Obligations to be
registered in the name of the Insurer.
5. In addition, if the Registrar has notice that any holder of the Obligations
has been required to disgorge payments of principal or interest on the
Obligations previously Due for Payment pursuant to a final non-
appealable order by a court of competent jurisdiction that such payment
-31-
A.8.b
constitutes an avoidable preference to such holder within the meaning of
any applicable bankruptcy laws, then the Registrar shall notify the Insurer
or its designee of such fact by telephone or electronic notice, confirmed in
writing by registered or certified mail.
6. The Registrar will be hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for holders of the Obligations as
follows:
a. If and to the extent there is a deficiency in amounts required to pay
interest on the Obligations, the Registrar shall (a) execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holders in any legal
proceeding related to the payment of such interest and an assignment
to the Insurer of the claims for interest to which such deficiency relates
and which are paid by the Insurer, (b) receive as designee of the
respective holders (and not as Registrar) in accordance with the tenor
of the Policy payment from the Insurer with respect to the claims for
interest so assigned, and (c) disburse the same to such respective
holders;and
b. If and to the extent of a deficiency in amounts required to pay
principal of the Obligations,the Registrar shall(a)execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holder in any legal proceeding
related to the payment of such principal and an assignment to the
Insurer of the Obligation surrendered to the Insurer in an amount equal
to the principal amount thereof as has not previously been paid or for
which moneys are not held by the Registrar and available for such
payment(but such assignment shall be delivered only if payment from
the Insurer is received), (b) receive as designee of the respective
holders (and not as Registrar) in accordance with the tenor of the
Policy payment therefore from the Insurer, and (c) disburse the same
to such holders.
7. Payments with respect to claims for interest on and principal of
Obligations disbursed by the Registrar from proceeds of the Policy shall
not be considered to discharge the obligation of the Issuer with respect to
such Obligations, and such Obligations shall remain outstanding for all
purposes, shall not be defeased or otherwise satisfied and shall not be
considered paid by the Issuer, and the Insurer shall become the owner of
such unpaid Obligation and claims for the interest in accordance with the
tenor of the assignment made to it under the provisions of this subsection
or otherwise; and the assignment and pledge of the trust estate and all
covenants, agreements and other obligations of the Issuer to the registered
owners shall continue to exist and shall run to the benefit of the Insurer,
-32-
A.8.b
and the Insurer shall be subrogated to the rights of such registered owners
including, without limitation, any rights that such owners may have in
respect of securities law violations arising from the offer and sale of the
Obligations.
8. Irrespective of whether any such assignment is executed and delivered, the
Issuer and the Registrar hereby agree for the benefit of the Insurer that:
a. they recognize that to the extent the Insurer makes payments directly
or indirectly (e.g., by paying through the Registrar), on account of
principal of or interest on the Obligations, the Insurer will be
subrogated to the rights of such holders to receive the amount of such
principal and interest from the Issuer,with interest thereon as provided
and solely from the sources stated in the financing documents and the
Obligations;and
b. they will accordingly pay to the Insurer the amount of such principal
and interest, with interest thereon as provided in the financing
documents and the Obligations, but only from the sources and in the
manner provided herein for the payment of principal of and interest on
the Obligations to holders, and will otherwise treat the Insurer as the
owner of such rights to the amount of such principal and interest.
9. The Insurer shall be entitled to pay principal or interest on the Obligations
that shall become Due for Payment but shall be unpaid by reason of
Nonpayment by the Issuer(as such terms are defined in the Policy) and any
amounts due on the Obligations as a result of acceleration of the maturity
thereof in accordance with this agreement, whether or not the Insurer has
received a Notice (as defined in the Policy) of Nonpayment or a claim upon
the Policy.
10. In addition, the Insurer shall to the extent it makes any payment of
principal or interest on the Obligations become subrogated to the rights of
the recipients of such payments in accordance with the terms of the Policy,
and to evidence such subrogation (i) in the case of claims for interest, the
Registrar shall note the Insurer's rights as subrogee on the registration
books of the Issuer maintained by the Registrar, upon receipt of proof of
payment of interest thereon to the registered holders of the Obligations, and
(ii) in the case of claims for principal, the Registrar, if any, shall not the
Insurer's rights as subrogee on the registration books of the Issuer
maintained by the Registrar, upon surrender of the Obligations together
with receipt of proof of payment of principal thereof.
11. The Issuer hereby agrees to pay or reimburse the Insurer, to the extent
permitted by law and subject to annual appropriation by the Issuer, (A) for
all amounts paid by the Insurer under the terms of the Policy, and (B) any
-33-
A.8.b
and all charges, fees, costs and expenses which the Insurer may reasonably
pay or incur, including, but not limited to, fees and expenses of attorneys,
accountants, consultants and auditors and reasonable costs of
investigations, in connection with (i) any accounts established to facilitate
payments under the Policy, (ii) the administration, enforcement, defense or
preservation of any rights in respect of the trust agreement or any other
financing document including defending, monitoring or participating in any
litigation or proceeding (including any bankruptcy proceeding in respect of
the Issuer or any affiliate thereof) relating to this agreement or any other
Financing Document, any party to this agreement or any other Financing
Document or the transaction contemplated by the Financing Documents,
(iii) the foreclosure against, sale or other disposition of any collateral
securing any obligations under this agreement or any other Financing
Document, or the pursuit of any remedies under this agreement or any
other Financing Document, to the extent such costs and expenses are not
recovered from such foreclosure, sale or other disposition, or (iv) any
amendment, waiver or other action with respect to, or related to, this
agreement or any other Financing Document whether or not executed or
completed; costs and expenses shall include a reasonable allocation of
compensation and overhead attributable to time of employees of the Insurer
spent in connection with the actions described in clauses (ii) - (iv) above.
In addition, the Insurer reserves the right to charge a reasonable fee as a
condition to executing any amendment, waiver or consent proposed in
respect of this agreement or any other Financing Document.
12. In addition to any and all rights of reimbursement, subrogation and any
other rights pursuant hereto or under law or in equity, the Issuer agrees, to
the extent permitted by law, to pay or reimburse the Insurer any and all
charges, fees, costs, claims, losses, liabilities (including penalties),
judgments, demands, damages, and expenses which the Insurer or its
officers, directors, shareholders, employees, agents and each Person, if any,
who controls the Insurer within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, may reasonably pay or incur,
including, but not limited to, fees and expenses of attorneys, accountants,
consultants and auditors and reasonable costs of investigations, of any
nature in connection with, in respect of or relating to the transactions
contemplated by this agreement or any other financing document by reason
of:
a. any omission or action (other than of or by the Insurer) in
connection with the offering, issuance, sale, remarketing or
delivery of the Obligations;
b. the negligence, bad faith, willful misconduct, misfeasance,
malfeasance or theft committed by any director, officer, employee
-34-
A.8.b
or agent of the Issuer in connection with any transaction arising
from or relating to this agreement or any other financing
document;
C. the violation by the Issuer of any law, rule or regulation, or any
judgment, order or decree applicable to it;
d. the breach by the Issuer of any representation, warranty or
covenant under this agreement or any other financing document or
the occurrence, in respect of the Issuer, under this agreement or
any other financing document of any "event of default" or any
event which, with the giving of notice or lapse of time or both,
would constitute any "event of default"; or
e. any untrue statement or alleged untrue statement of a material fact
contained in any official statement, if any, or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such claims arise out of or are based
upon any untrue statement or omission in information included in
an official statement, if any, and furnished by the Insurer in writing
expressly for use therein.
[The remainder of this page has intentionally been left blank. Signature page follows.]
-35-
A.8.b
PASSED AND APPROVED this 7th day of December,2010.
MAYOR
THE CITY OF BEAUMONT,TEXAS
ATTEST:
CITY CLERK
THE CITY OF BEAUMONT,TEXAS
(SEAL)
-36-
A.8.b
EXHIBIT A
The City of Beaumont, Texas
General Obligations Refunding Bonds, Series 2011
$17,500,000
Interest Accrues from: January 1, 2011
MATURITY SCHEDULE
Maturity Principal
March 1 Amount Interest Rate Yield
$ %Term Bonds due Yield %
The Bonds maturing on or after March 1, 2021 are subject to optional redemption, in whole or in
part, on March 1, 2020, or any date thereafter, at a price equal to the principal amount thereof,
plus accrued interest to the date of redemption.
The Term Bonds are subject to mandatory sinking fund redemption as described in the
Ordinance.
-37-
EXHIBIT "A"
A.8.b
EXHIBIT B.1
NOTICE OF REDEMPTION
THE CITY OF BEAUMONT,TEXAS
CERTIFICATES OF OBLIGATION,
SERIES 2001
Dated: August 1,2001
Redemption Date: March 1,2011
Redemption Reason/Source of Funds: Optional Redemption
Total Redemption Amount: $5,250,000
Maturity Rate Amount Price
03/01/2012 4.50% $750,000 100.00%
03/01/2013 4.50% $750,000 100.00%
03/01/2014 4.60% $750,000 100.00%
03/01/2015 4.70% $750,000 100.00%
03/01/2016 4.25% $750,000 100.00%
03/01/2017 4.00% $750,000 100.00%
03/01/2018 4.00% $750,000 100.00%
NOTICE IS HEREBY GIVEN that the securities described herein have been called for
redemption at the applicable redemption price plus accrued interest, if any, to the redemption date. On
the redemption date, each security shall become due and payable, and interest shall cease to accrue. In
the event less than the entire principal amount of a security is to be redeemed, a new security for the
unredeemed portion will be issued in your name without charge. Payment of the redemption proceeds
will be made on or after the redemption date upon presentation and surrender of the securities to:
Rezistered/Certi ted Mail: Aar Courier: In person:
Wells Fargo Bank,N.A. Wells Fargo Bank,N.A. Wells Fargo Bank,N.A.
Corporate Trust Operations Corporate Trust Operations Northstar East Building
P. O.Box 1517 N9303-121 6082 nd Avenue So., 12`h Floor
Minneapolis,MN 55480-1517 6th& Marquette Avenue Minneapolis,MN
Minneapolis,MN 55479
Wells Fargo Bank, N.A. policy does not allow the safekeeping of securities within Corporate
Trust Operations for a period of longer than 30 days. Please DO NOT submit your securities for payment
more than 30 days in advance of the redemption date. A $25.00 wire transfer fee will be deducted from
each payment requested to be made by wire. When inquiring about this redemption, please have the
Bond number available. Please inform the customer service representative of the CUSIP number(s)of the
affected Bond. Customer Service can be reached at 612-667-9764 or Toll Free at 1-800-344-5128.
IMPORTANT NOTICE
-38-
EXHIBIT "13.1"
A.8.b
Under section 3406(a)(1) of the Internal Revenue Code, the Paying Agent making payment of
interest or principal on securities may be obligated to withhold a percentage of the payment to a holder
who has failed to furnish the Registrar with a valid taxpayer identification number, certification that the
number supplied is correct, and that the holder is not subject to backup withholding. Holders of the
bonds who wish to avoid the application of these provisions should submit either a completed IRS
(Internal Revenue Service) Form W-9 (use only if the holder is a U.S.person, including a resident alien),
or the appropriate form W-8 (use only if you are neither a U.S. person or a resident alien), when
presenting the bonds for payment. See IRS Publication 515, Withholding of Tax on Nonresident Aliens
and Foreign Entities. Publication 515 and W-8 forms and instructions are available through the IRS via
their web site at tiwivwj s
THE CITY OF BEAUMONT, TEXAS
By: Wells Fargo Bank,N.A.as Agent
Publication Date: ,2011
-39-
A.8.b
EXHIBIT B.2
Notice of Redemption
THE CITY OF BEAUMONT, TEXAS
CERTIFICATES OF OBLIGATION,
SERIES 2003
Dated: March 1,2003
Redemption Date: March 1,2013
Redemption Reason/Source of Funds: Optional Redemption
Total Redemption Amount: $4,090,000
Maturity Rate Amount Price
03/01/2014 3.40% $745,000 100.00%
03/01/2015 3.40% $780,000 100.00%
03/01/2016 3.50% $815,000 100.00%
03/01/2017 3.60% $855,000 100.00%
03/01/2018 3.70% $895,000 100.00%
NOTICE IS HEREBY GIVEN that the securities described herein have been called for
redemption at the applicable redemption price plus accrued interest, if any, to the redemption date. On
the redemption date, each security shall become due and payable, and interest shall cease to accrue. In
the event less than the entire principal amount of a security is to be redeemed, a new security for the
unredeemed portion will be issued in your name without charge. Payment of the redemption proceeds
will be made on or after the redemption date upon presentation and surrender of the securities to:
Revistered/Certifled Mail: Air Courier: In person:
Wells Fargo Bank,N.A. Wells Fargo Bank,N.A. Wells Fargo Bank,N.A.
Corporate Trust Operations Corporate Trust Operations Northstar East Building
P. O.Box 1517 N9303-121 6082 nd Avenue So., 12th Floor
Minneapolis,MN 55480-1517 6th&Marquette Avenue Minneapolis,MN
Minneapolis,MN 55479
Wells Fargo Bank, N.A. policy does not allow the safekeeping of securities within Corporate
Trust Operations for a period of longer than 30 days. Please DO NOT submit your securities for payment
more than 30 days in advance of the redemption date. A $25.00 wire transfer fee will be deducted from
each payment requested to be made by wire. When inquiring about this redemption, please have the
Bond number available. Please inform the customer service representative of the CUSIP number(s)of the
affected Bond. Customer Service can be reached at 612-667-9764 or Toll Free at 1-800-344-5128.
-40-
EXHIBIT "B.2"
A.8.b
IMPORTANT NOTICE
Under section 3406(a)(1) of the Internal Revenue Code, the Paying Agent making payment of
interest or principal on securities may be obligated to withhold a percentage of the payment to a holder
who has failed to furnish the Registrar with a valid taxpayer identification number, certification that the
number supplied is correct, and that the holder is not subject to backup withholding. Holders of the
bonds who wish to avoid the application of these provisions should submit either a completed IRS
(Internal Revenue Service) Form W-9 (use only if the holder is a U.S.person, including a resident alien),
or the appropriate form W-8 (use only if you are neither a U.S. person or a resident alien), when
presenting the bonds for payment. See IRS Publication 515, Withholding of Tax on Nonresident Aliens
and Foreign Entities. Publication 515 and W-8 forms and instructions are available through the IRS via
their web site at ivy t,wjrs.gov.
THE CITY OF BEAUMONT, TEXAS
By: Wells Fargo Bank,N.A.as Agent
Publication Date: 92013
-41-
3
December 7,2010
Consider approving a resolution to provide for the reimbursement of costs incurred prior to
issuance of Certificates of Obligation or other tax exempt obligations
RICH WITH OPPORTUNITY
IIEA,[11�1011T
T • E • X • A • S City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
dn
PREPARED BY: Laura Clark, Chief Financial Officer
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider a resolution to provide for the
reimbursement of costs incurred prior to issuance of
Certificates of Obligation or other tax exempt obligations.
RECOMMENDATION
Administration recommends approval.
BACKGROUND
A maximum of$36 Million in Certificates of Obligation will be issued in December 2010 to
fund public works and general improvement projects that have been previously approved by
Council and are listed in the 2011 Capital Program. It is necessary to incur some of the costs
associated with these projects prior to the issuance of the obligations. A resolution allowing for
the reimbursement of costs is routine and will allow the City to continue projects that are
currently underway. It is the intent of the City to reimburse itself out of proceeds of the
obligations for all such costs which are paid prior to issuance. These costs shall include fees paid
for engineering and other professional services, expenditures for materials, and construction
costs.
BUDGETARY IMPACT
All debt and related expenses shall be incurred by the Debt Service Fund which is supported by
property taxes.
A.10
RESOLUTION CONCERNING CERTIFICATES OF OBLIGATION, SERIES
2011, AND OFFICIAL INTENT TO USE PROCEEDS THEREFROM TO
REIMBURSE THE CITY FOR ORIGINAL EXPENDITURES PAID PRIOR
TO THE ISSUE DATE OF SUCH CERTIFICATES ON PROJECTS TO BE
FINANCED THEREBY
WHEREAS, the City of Beaumont, Texas (the "City") desires and intends to construct,
and make improvements within the City and to expand and improve City streets, drainage,
buildings, parks and other capital improvements located within the City described in Exhibit A
attached hereto (collectively, the "Project"); and
WHEREAS, in order to finance and pay the costs of the Project, the City intends to issue
Certificates of Obligation, Series 2011 in the maximum aggregate principal amount of up to
$36,000,000 (the "Obligations"), payable from ad valorem taxes and any other sources pledged to
the payment thereof; and
WHEREAS, the City reasonably expects to pay a portion of the capital expenditures for
the Project prior to the issue date of the Obligations from other available sources ("Original
Expenditures")
WHEREAS, the City finds, intends and declares that this resolution and order shall
constitute its official binding commitment and official declaration of intent made pursuant to the
Internal Revenue Code of 1986, as amended (the "Code") and the regulations pertaining thereto,
including but not limited to Treasury Regulation Section 1.150-2, whereas, subject to the terms
hereof, the City declares that it intends to reimburse itself out of the proceeds of the Obligations
for some of the Original Expenditures in connection with the Project paid prior to the issuance of
the Obligations; and
WHEREAS, the City Council, on behalf of the City, finds, considers and declares that
the issuance and sale of the Obligations in the amount and for the purposes set forth will be
appropriate and consistent with the objectives of the City and the laws authorizing the issuance of
the Obligations, and that the adoption of this resolution and order is and constitutes and is
intended as (1) an inducement to proceed with providing for the acquisition, expansion,
renovation, construction, reconstruction, repairs, equipping, furnishing and improvement of the
Project, and (2)the taking of affirmative official action by the City, acting by and through the
City Council, toward the issuance of the Obligations and the reimbursement to the City out of the
proceeds of the Obligations for Original Expenditures paid in connection with the Project prior to
the issuance of the Obligations, all within the meaning of federal income tax laws and regulations
with respect to issuance of tax-exempt obligations; and
WHEREAS, the City has given notice of the meeting at which this Resolution is to be
adopted as required by the Texas Open Meetings Law, Chapter 551 of the Texas Government
Code Annotated Vernon's 1994, as amended.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
BEAUMONT, TEXAS, THAT:
Section 1. Subject to the terms hereof, the City Council adopts this resolution on behalf
of the City of its official intent to
a. Issue the Obligations after the date hereof to provide for the financing of
the Project, in the maximum aggregate principal amount up to $36,000,000, if the City
Council determines that the terms of such financing are in the City's best interest;
b. Take such action and authorize the execution of such documents as may be
necessary in connection with the issuance of the Obligations, providing, among other
things, for payment of the principal of, interest on, paying agents' charges and other fees,
if any, on the Obligations, and the acquisition, expansion, renovation, construction,
reconstruction, repairs, equipping, furnishing, improvement, use and operation of the
Project, all as shall be authorized, required or permitted by law and shall be satisfactory to
the City;
C. Pay such Original Expenditures on the Projects as are necessary to be
incurred and paid prior to the issue date of the Obligations;
d. Pay such Original Expenditures out of one or more of the following funds
or accounts:
Streets and Drainage Improvement Fund
e. Reimburse the City out of proceeds of the Obligations, when issued, for
Original Expenditures paid not more than sixty (60) days prior to the date of adoption of
this resolution of official intent;
f. Take or cause to be taken such other actions as may be required to
implement the aforesaid undertakings or as the City may deem appropriate in pursuance
thereof.
Section 2. The City Manager and Chief Financial Officer are authorized to make
reimbursement allocations from the proceeds of the Obligations in writing that evidences the use
of such proceeds to reimburse the Original Expenditures paid not more than sixty (60) days prior
to the date of adoption of this resolution of Official Intent and to do so in compliance with the
requirements of Treasury Regulation Section 1.150-2.
Section 3. This resolution shall constitute the official declaration of Official Intent by the
City pursuant to which the City declares that it intends to reimburse itself out of the proceeds of
the Obligations for Original Expenditures as provided herein, and is made pursuant to Treasury
Regulation Section 1.150-2 and generally with the laws and regulations of the federal income tax
laws governing the issuance of tax-exempt obligations.
-2-
Section 4. This resolution and order and the declaration of official intent herein shall be
available for public inspection at all times at the City's business office and shall remain available
for public inspection until the Obligations are issued and thereafter this resolution shall be
maintained as part of the permanent records of the City Council of the City.
[The remainder of this page is intentionally left blank]
-3-
PASSED AND APPROVED this 7th day of December, 2010.
THE CITY OF BEAUMONT, TEXAS
By:
MAYOR
ATTEST:
CITY CLERK
THE CITY OF BEAUMONT, TEXAS
(SEAL)
-4-
4
December 7,2010
Consider amending the FY 2011 Budget to appropriate $625,000 in the Water Fund to be
transferred to the Capital Program- Water and Sewer Projects
RICH WITH OPPORTUNITY
BEA,U140N*
T • E • x • A • S City Council Agenda Item
TO: City Council
FROM: Kyle Hayes,City Manager
PREPARED BY: Laura Clark, Chief Financial Officer
MEETING DATE: December 7,2010
REQUESTED ACTION: Council consider amending the FY 2011 Budget.
RECOMMENDATION
Administration recommends that Council amend the FY 2011 Budget to appropriate$625,000 in
the Water Fund to be transferred to the Capital Program-Water and Sewer Projects.
BACKGROUND
The Water Fund ended FY 2010 with excess revenues over expenditures of$1,900,000 resulting
in an estimated ending fund balance of just short of$10 Million or 28%of total expenditures,
which amounts to a very healthy fund balance.
The Water Utilities Department would like to utilize some of the excess cash for the 60" Trunk
Line Rehabilitation project in the 2011 Capital Program. The 60" trunk line that extends 9,000
linear feet from the Wastewater Treatment Plant to Washington Boulevard is over fifty(50)years
old and has exceeded its life expectancy. The trunk line passes under Interstate 10 and several
waterways. In the last year several cavities have occurred at different locations along the span of
the line. The rehabilitation of this line will reduce infiltration of storm water into the sewer
system, and decrease the number of sanitary sewer overflows. The estimated cost of the total
project is $3,200,000. Phase 1 or 1,100 linear feet of the project from the Wastewater Treatment
Plant to the drainage ditch has been completed. The requested appropriation is to complete an
estimated 1,600 linear feet of the project.
BUDGETARY IMPACT
The Water Fund had excess revenues over expenditures in FY 2010 of$1,900,000,resulting in a
very healthy fund balance. Sufficient reserves will remain for unforeseen emergencies that may
arise.
ORDINANCE NO.
ENTITLED AN ORDINANCE AMENDING THE FISCAL
BUDGET OF THE CITY OF BEAUMONT FOR THE FISCAL
YEAR 2011 TO APPROPRIATE$625,000.00 IN THE WATER
FUND TO BE TRANSFERRED TO THE WATER
IMPROVEMENT FUND FOR THE 60" TRUNK LINE
REHABILITATION PROJECT IN THE 2011 CAPITAL
PROGRAM; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR REPEAL.
BE IT ORDAINED BY THE CITY OF BEAUMONT:
Section 1.
THAT the Fiscal Budget of the City of Beaumont for the period commencing October 1,
2010 through September 30, 2011 be and the same is hereby amended to appropriate
$625,000.00 in the Water Fund to be transferred to the Water Improvement Fund for the
60" Trunk Line Rehabilitation Project in the 2011 Capital Program.
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.
Section 3.
That all ordinances or parts of ordinances in conflict herewith are repealed to the
extent of the conflict only.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
December, 2010.
- Mayor Becky Ames -
5
December 7,2010
Consider approving a contract with Legacy Community Development Corporation for acquisition
and rehabilitation of nine properties and for related operating expenses
RICH WITH OPPORTUNITY
,
T E . 8 . A . S Ci ty Council Agenda Item
b
TO: City Council
FROM: Kyle Hayes, City Manager
N
PREPARED BY: Chris Boone, Community Development Director
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider approving a contract in the amount of
$424,000 with Legacy Community Development Corporation
(CDC)for acquisition and rehabilitation of nine(9)properties
and for related operating expenses.
RECOMMENDATION
The Administration recommends approval.
BACKGROUND
The City of Beaumont receives an annual allocation of HOME Investments Partnerships funds
from the U. S. Department of Housing and Urban Development(HUD) and has previously
awarded contracts for acquisition or construction of housing to be leased and sold to eligible
low/moderate income families.
Upon execution of a contract, Legacy CDC will identify six(6)properties currently on the market
and submit them for the Administration's review process which includes satisfying the program's
lot specifications, environmental review, and code compliance. One(1) of these six(6) homes
will be a lease/purchase property, leased to an eligible low-to-moderate income family for a period
not to exceed thirty-six(36)months and then sold to the lessee. The remaining five(5)properties
will be acquired, rehabilitated and then sold. Proceeds from the sale of these five(5)properties
will then be used to purchase an additional three(3)homes for rehabilitation and sale. Any and all
income received by Legacy for leased and sold properties must be used toward the organization's
affordable housing activities. In order to carry out these activities, operating funds in the amount
of$40,000 will be utilized for administrative expenses. Housing Division staff will be responsible
for monitoring Legacy for HOME Program compliance.
BUDGETARY IMPACT
Funding is available form the 2009 and 2010 HOME Program.
LEGACY COMMUNITY
DEVELOPMENT CORPORATION
September 22, 2010
City of Beaumont
Attention: Johnny Beatty
801 Main Street
Beaumont, Texas 77701
Mr. Beatty:
Legacy Community Development Corporation proposes a neighborhood
redevelopment activity for the Magnolia Park area (North Beaumont).
Legacy CDC upon acquisition of the property would like to partner with the City's
Housing program to provide a comprehensive neighborhood revitalization
program. Legacy would like to would like to request HOME funds in the amount
$424,000 to undertake a combination of activities that will result in the
development of nine (9) affordable housing opportunities. The total average
HOME investment of$47,000 per unit.
Activity 1: Acquisition of one (1) lease/purchase unit.
Activity Funds Requested
Acquisition $55,000
Rehab $10,000
Closing costs $4,000
Total 69 000
87 I 10 North PHONE (409p§5-9850
SutE 2135 z T" r '
FO-
B2aUE2lOftf t � � 2Q3GtlD� x rs
��� ^y �.k�,a " "`^¢ �b„y rw a_ s ¢ ' M
°�.,m.,_ .... _�Yk, u.r. .. ,r. ,`k ;
Activity 2: Acquisition / Rehabilitation of initial 5 homes: CHDO proceeds will
be revolved to acquire/rehab 3 additional units; resulting in the development of 8
units.
Example of homes currently for sale in North Beaumont (see attached flyers):
Address List Price Offer Est. Rehab Total
(based upon
photos only)
425 E. Lucas $30,000 $25,000 $30,000 $55,000
3250 $32,900 $27,000 $26,000 $53,000
Christopher
5395 Bettes $59,900 $53,000 $23,000 $76,000
4530 Harding $45,000 $40,000 $15,000 $55,000
3895 Harding $50,900 47 000 $12,000 $59,000
Totals: $218,700.00 $192,000.00 $106,000.00 $298,000.00
Activity Funds Requested
Acquisition $192,000.00
Rehabilitation $106,000.00
Closing costs $17,000.00
Total $315f000.00
In order to carry out the above activities, Legacy requests administrative funding
in the amount of $40,000 for one year.
Activity Funds Requested
Operating (rent, utilities, $10,000
supplies)
Salaries and training (ED $30,000
and Secretary)
Total: $40,000
If you have any questions, please feel free to contact me at 409-365-9850.
Sincerely,
Vivian L. Ballou
Vivian L. Ballou, Executive Director
RESOLUTION NO.
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute an contract with
Legacy Community Development Corporation (CDC), for acquisition and rehabilitation of
nine (9) properties and for related operating expenses.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
December, 2010.
- Mayor Becky Ames. -
6
December 7, 2010
Consider adopting an ordinance establishing a Community Advisory Committee for the Police
Department
RICH WITH OPPORTUNITY
r
T • E • X • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Frank C. Coffin, Jr., Chief of Police
MEETING DATE: December 7, 2010
adopting REQUESTED ACTION: Consider i
Q p g an ordinance nance Community
g a h'
Advisory Committee for the Police Department.
RECOMMENDATION
Administration recommends approval.
BACKGROUND
Community Advisory Committees are used in many cities across the country, and are represented
by a broad cross-section of the population. They are usually advisory in nature and are comprised
of volunteers appointed by the governing body.
The Police Department has proposed the creation of a committee of 15 citizens, who would assist
the Department with enhancing citizen understanding,communication,and cooperation between the
Department and the community. The Mayor would appoint three members and each Councilperson
would appoint two members. The committee would assist the Department in understanding complex
police/community issues;help develop an active crime prevention partnership;promote cooperative
programs to resolve both crime problems and community issues; receive information concerning
Department operations; act as a liaison with the community on police matters; and participate in
meaningful dialogue with the Department. This committee would be advisory in nature,and would
meet monthly at the direction of the Chief of Police.
The Police Department believes that the creation of this committee will greatly enhance the
relationship between the Department and the community through mutual understanding.
BUDGETARY IMPACT
None,
ORDINANCE NO.
ENTITLED AN ORDINANCE AMENDING CHAPTER 2 OF
THE CODE OF ORDINANCES OF THE CITY OF
BEAUMONT BY ADDING A NEW SECTION 2-55
PROVIDING FOR A POLICE DEPARTMENT COMMUNITY
ADVISORY COMMITTEE; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR REPEAL.
BE IT ORDAINED BY THE CITY OF BEAUMONT:
Section 1.
THAT Chapter 2 of the Code of Ordinances of the City of Beaumont be and the same is
hereby amended by adding the following Section 2-55 to read as follows:
Sec. 2-55 Police Department Community Advisory Committee.
(a) Established. There is hereby established a police community advisory
committee to be composed of fifteen (15) members. The members shall be appointed
by the city council for two year terms. The mayor shall appoint three (3) members, and
each council member shall appoint two (2) members. The Mayor shall name one of the
members as chairperson and one person as vice-chairperson. Vacancies on the
committee shall be filled by city council for unexpired terms. All members of the
committee shall serve without compensation. Due to the nature of the committee, each
nominee will be subject to a background inquiry.
(b) Mission statement; requirements; attendance. The mission of the committee shall
be to enhance citizen understanding, communication, and cooperation between the
Beaumont Police Department and the community. The committee shall act in an
advisory capacity to the Chief of Police. Nominees will be required to attend the
Citizens Police Academy, participate in a ride-along with a patrol officer, and attend
monthly committee meetings. Committee members must attend a minimum of seventy-
five (75) percent of the monthly meetings during a calendar year, and may not miss
more than two consecutive monthly meetings. Violations of the attendance requirement
may be grounds for removal from the committee.
(c) Duties and responsibilities. The duties and responsibilities of the police
community advisory committee shall be as follows:
(1) To assist the police department in achieving a greater understanding of
complex police/community issues.
(2) To study, examine, and recommend methods and approaches to develop an
active citizen-police partnership in the prevention of crime.
(3) To promote cooperative citizen-police programs and approaches in order to
resolve community crime problems and police/community issues.
(4) To recommend policies, programs, and/or legislation that will enhance
cooperation among citizens and the police department.
(5) To receive information concerning police department programs, services, and
operations.
(6) To act as liaison between the community and the police department on
matters addressed by the committee.
(7) To participate in meaningful dialogue and provide meaningful input related to
the objectives of the committee.
(8) At the direction of the chief of police, assume other tasks or duties to facilitate
the accomplishment of committee objectives.
(d) Organization, meetings. The police department shall designate times and places
for monthly meetings. Since the committee is advisory in nature, a quorum of members
is not required to conduct business.
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.
Section 3.
That all ordinances or parts of ordinances in conflict herewith are repealed to the
extent of the conflict only.
PASSED BY THE CITY COUNCIL of the City of Beaumont on this the 7th day of
December, 2010.
- Mayor Becky Ames -
7
December 7,2010
Consider a one-year renewal contract with Carolyn C. Chaney&Associates, Inc. to act as the
City of Beaumont's Washington Assistant
RICH WITH OPPORTUNITY
11EA,[1M011*
T • E X • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
MEETING DATE: December 7, 2010
REQUESTED ACTION: Consider a one-year renewal contract with Carolyn C. Chaney&
Associates, Inc. to act as the City of Beaumont's Washington
Assistant.
RECOMMENDATION
The Administration recommends approval of a one-year renewal contract with Carolyn C.
Chaney&Associates, Inc. in the amount of$61,488.00. The contract will also include a
maximum of$4,000 for reimbursable expenses.
BACKGROUND:
On a yearly basis since 1980,the City has contracted with an organization to provide legislative
services on the federal level. Ms. Chaney, as the City Washington Assistant, is responsible for
reviewing federal executive proposals,legislation under consideration and proposed and adopted
administrative rules and regulations which could impact the City of Beaumont's policies or
programs. A letter from Mrs. Chaney and the proposed contract are attached for your review.
BUDGETARY IMPACT
Funds are budgeted for this expenditure in the FY2011 Budget.
A.8.a
The term"Issuer"shall mean the City.
The term "Net Revenues" shall mean the revenues of the System remaining after deduction
of the reasonable and necessary expenses of operation and maintenance of the System.
The term"Obligations"shall mean the Certificates.
The term "Ordinance" as used herein and in the Certificates shall mean this Ordinance
authorizing the Certificates.
The term "Owner" or "Registered Owner", when used with respect to any Certificate, shall
mean the person or entity in whose name such Certificate is registered in the Register.
The term "Paying Agent" shall mean the Registrar.
The term "Record Date" shall mean, for any Interest Payment Date, the 15th day of the
month next preceding such Interest Payment Date.
The term "Register" shall mean the books of registration kept by the Registrar in which are
maintained the names and addresses of and the principal amounts registered to each Owner.
The term "Registrar" shall mean THE BANK OF NEW YORK NMLLON TRUST
COMPANY,N.A.,Dallas,Texas,and its successors in that capacity.
The term "SEC" shall mean the United States Securities and Exchange Commission and its
successors.
The term"System" shall mean the City's waterworks and sewer system.
The term "Underwriter" shall mean, collectively, Bank of America Merrill Lynch (Senior
Manager), Citigroup, Wells Fargo Securities, Estrada Hinojosa& Company, Inc., and Raymond
James.
3. Authorization. The Certificates shall be issued in fully registered form,without coupons,
in the total authorized aggregate amount of THIRTY-FIVE MILLION AND NO/100 DOLLARS
($35,000,000), for the purpose of evidencing the indebtedness of the City for the cost of(1) City
street improvements, including street construction,extension,reconstruction,widening,replacement,
resurfacing, and rehabilitation, and the construction of related sidewalks, curbs, gutters, drainage
improvements, lighting, and landscape improvements; (2) the installation of underground storm
damage system between Main Street and Phelan Boulevard; (3) installation of detention ponds and
underground storm drainage system in the Cartwright/Corley Street area between Fourth Street and
IH 10; (4) rehabilitation or replacement of storm sewer outfall and reconstruction of roadway of
Wall Street from College Street to M.L.King Parkway with pavers and street lights; (5)construction
of drainage structure on Gill Street; (6) installation of sidewalks on City property or City right-of-
way for access to schools under Sidewalk Safety Program; (7) construction of laterals,
-4 -
A.8.a
improvements to inlets, manholes, and pipe on Campus Avenue, Zavalla Drive, East Woodrow
Street,Kenneth Avenue, Saxe Street,and Florida Avenue; (8)upgrading of traffic signal equipment,
repairs and replacement of vehicle detection equipment and installation of communications to
maintain signal timing; (9) construction of improvements to Caldwood Addition Outfall Project,
installation or replacement of inlets and laterals on Bristol, Sunbury, Medford, Canterbury, Cross,
North Caldwood, Central Caldwood, South Caldwood and West Caldwood Streets; (10)
construction on City property or City right-of-way of two remaining phases of the High School
Ditch Project including drainage improvements in area bounded by IH-10 on the north, South Street
on the south, First Street on the east and Eleventh Street on the west; (11) construction on City
property or City right-of-way of improvements to Moore Street Ditch Project including storm
sewers, removal of concrete restrictions, realignment of channel, installation of box culvert at
Highland Avenue, and replacement or modification of existing inlets; (12) purchase of site and
construction of police substation adjacent to the Amtrak Station; (13) improvements to City Athletic
Complex open for public use, including tennis courts, jogging trail, clubhouse, lighting, parking,
landscaping, and other improvements; (14) improvements to City Civic Center owned by the City
for public use, including kitchen, warehouse, dock, and ticket booth; (15) improvements to and
expansion of City Communications Building, including addition, electrical equipment and standby
generator; (16)construction of Downtown Event Center and Park open for public use with a lake on
City property, bounded by M.L. King Parkway on the west, Crockett Street on the south, Neches
Street on the east, and an abandoned railroad track on the north, and acquisition of property and
demolition of substandard structures on such site; (17) construction of Fire Station No. 2 on Helbig
Street near East Lucas Street relocating it from existing location at 4495 Ironton Street; (18)
construction of mechanic shop facility at the Lafm Road Fleet Service Center owned by the City;
(19) construction of hike and bike trails on easement owned by City between Delaware Street and
Folsom Road; (20) improvements to municipal airport, including runways, taxiways, aprons,
drainage, observation system, beacon, and light system; (21) renovation of police department
property building; (22) river bank stabilization at City's Riverfront Park open for public use; (23)
construction of Transportation Operations Shop on City's Fair Park site; (24) construction of
community center, shelters, playground, trails, and restrooms for public use at City's Tyrrell Park
and refurbishment of existing building; (25) repair and maintenance of walking trail for public use
at City's Babe Zaharias Park; (26)construction on City property of downtown library for public use
on Crockett Street near new park and event center(see item 16); (27)reconstruction or relocation of
two City neighborhood fire stations pursuant to Fire Station Replacement Project and designing of
Central Fire Administration Station in vicinity of Gulf and Caldwell Streets; (28) reconstruction of
parking lot at City's Fleet Service Center; (29) designing and construction of new Public Health
Complex(on a City owned site not yet identified), and furnishings and equipment; (30)construction
of new Senior Center to be owned by the City for public use to replace existing Best Years Center;
(31) purchase of office/warehouse building to store City emergency management supplies, City
Clerk records, and surplus City property; (32) the cost of professional services incurred in
connection with the respective projects; and (33) costs of issuance of debt and related fees, which
projects shall be financed with the proceeds of the Certificates in such order of priority as
determined by the City Council of the City.
4. Designation, Date, and Interest Payment Dates. The Certificates shall be designated
as the "THE CITY OF BEAUMONT, TEXAS, CERTIFICATES OF OBLIGATION, SERIES
2011,"and shall be dated January 1, 2011. The Certificates shall bear interest at the rates set forth in
- 5 -
A.8.a
the schedule in Section 5 below, from the later of January 1, 2011, or the most recent Interest
Payment Date to which interest has been paid or duly provided for, calculated on the basis of a 360-
day year of twelve 30-day months, which interest shall be payable on September 1, 2011, and
semiannually thereafter on March 1 and September 1 of each year until maturity or earlier
redemption.
5. Certificates.Numbers and Denominations.
The Certificates shall be in the total aggregate principal amount of$35,000,000 and shall be
issued in the principal amounts, and bearing interest at the rates set forth in the following schedule,
shall be numbered from CR-1 and upward, and may be transferred and exchanged as set out in this
Order. The Certificates shall mature on March 1 in each of the years and in the amounts set out in
such schedule. Certificates delivered in transfer of or in exchange for other Certificates shall be
numbered in order of their authentication by the Registrar, shall be in the denomination of$5,000 or
integral multiples thereof, and shall mature on the same date and bear interest at the same rate as the
Certificate or Certificates in lieu of which they are delivered.
Certificate Year Principal Interest
Number of Maturity Amount Rate
CR-1 20
CR-2 20
CR-3 20
CR-4 20 SEE EXHIBITA
CR-5 20
CR-6 20
CR-7 20
CR-8 20
CR-9 20
CR-10 20
CR-11 20
CR-12 20
CR-13 20
CR-14 20
CR-15 20
CR-16 20
CR-17 20
CR-18 20
CR-19 20
CR-20 20
6. Execution of Certificates, Seal. The Certificates shall be signed by the Mayor or
Mayor Pro Tem of the City and countersigned by the City Clerk or Deputy City Clerk of the City,by
their manual, lithographed, or facsimile signatures, and the official seal of the City shall be
impressed or placed in facsimile thereon. Such facsimile signatures on the Certificates shall have the
same effect as if each of the Certificates had been signed manually and in person by each of said
-6 -
A.8.a
officers,and such facsimile seal on the Certificates shall have the same effect as if the official seal of
the City had been manually impressed upon each of the Certificates. If any officer of the City whose
manual or facsimile signature shall appear on the Certificates shall cease to be such officer before
the authentication of such Certificates or before the delivery of such Certificates, such manual or
facsimile signature shall nevertheless be valid and sufficient for all purposes as if such officer had
remained in such office.
7. Approval by Attorney General; Registration by Comptroller. The Certificates to be
initially issued shall be issued in the name of the Underwriter or Cede & Co., as instructed by the
Underwriter and delivered to the Attorney General of the State of Texas for approval and shall be
registered by the Comptroller of Public Accounts of the State of Texas. The manually executed
registration certificate of the Comptroller of Public Accounts substantially in the form provided in
Section 17 of this Ordinance shall be attached or affixed to the initial Certificates.
8. Authentication. Except for the Certificates to be initially issued, which need not be
authenticated by the Registrar, only Certificates which bear thereon a certificate of authentication,
substantially in the form provided in Section 17 of this Ordinance, manually executed by an
authorized representative of the Registrar, shall be entitled to the benefits of this Ordinance or shall
be valid or obligatory for any purpose. Such duly executed certificate of authentication shall be
conclusive evidence that the Certificates so authenticated were delivered by the Registrar hereunder.
9. Payment of Principal and Interest. The Registrar is hereby appointed as the paying
agent for the Certificates. The principal of the Certificates shall be payable, without exchange or
collection charges, in any coin or currency of the United States of America which, on the date of
payment, is legal tender for the payment of debts due the United States of America, upon their
presentation and surrender as they become due and payable, at the designated corporate trust office
of the Registrar. The interest on each Certificate shall be payable by check payable on the Interest
Payment Date, mailed by the Registrar on or before each Interest Payment Date to the Owner of
record as of the Record Date,to the address of such Owner as shown on the Register.
If the date for payment of the principal of or interest on any Certificate is not a Business Day,
then the date for such payment shall be the next succeeding Business Day,and payment on such date
shall have the same force and effect as if made on the original date payment was due.
10. Successor Registrars. The City covenants that at all times while any Certificates are
outstanding it will provide a bank, trust company, financial institution or other entity duly qualified
and duly authorized to act as Registrar for the Certificates. The City reserves the right to change the
Registrar on not less than sixty (60) days'written notice to the Registrar, so long as any such notice
is effective not less than sixty (60) days prior to the next succeeding principal or interest payment
date on the Certificates. Promptly upon the appointment of any successor Registrar, the previous
Registrar shall deliver the Register or copies thereof to the new Registrar, and the new Registrar
shall notify each Owner, by United States mail, first class postage prepaid,of such change and of the
address of the new Registrar. Each Registrar hereunder, by acting in that capacity, shall be deemed
to have agreed to the provisions of this Section.
11. Special Record Date. If interest on any Certificate is not paid on any Interest
- 7 -
A.8.a
Payment Date and continues unpaid for thirty(30)days thereafter,the Registrar shall establish a new
record date for the payment of such interest, to be known as a Special Record Date. The Registrar
shall establish a Special Record Date when funds to make such interest payment are received from
or on behalf of the City. Such Special Record Date shall be fifteen(15) days prior to the date fixed
for payment of such past due interest, and notice of the date of payment and the Special Record Date
shall be sent by United States mail, first class, postage prepaid, not later than five(5)business days
prior to the Special Record Date,to each affected Owner of record as of the close of business on the
day prior to the mailing of such notice.
12. Ownership; Unclaimed Principal and Interest. The City,the Registrar and any other
person may treat the person in whose name any Certificate is registered as the absolute Owner of
such Certificate for the purpose of making payment of principal or interest on such Certificate, and
for all other purposes, whether or not such Certificate is overdue, and neither the City nor the
Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the
person deemed to be the Owner of any Certificate in accordance with this Section 12 shall be valid
and effectual and shall discharge the liability of the City and the Registrar upon such Certificate to
the extent of the sums paid.
Amounts held by the Registrar which represent principal of and interest on the Certificates
remaining unclaimed by the Owner after the expiration of three(3)years from the date such amounts
have become due and payable shall be reported and disposed of by the Registrar in accordance with
the provisions of Texas law, including to the extent applicable, Title 6 of the Texas Property Code,
as amended.
13. Registration, Transfer, and Exchange, Special Election for Uncertificated
Certificates. So long as any Certificates remain outstanding,the Registrar shall keep the Register at
its principal corporate trust office and, subject to such reasonable regulations as it may prescribe,the
Registrar shall provide for the registration and transfer of Certificates in accordance with the terms
of this Ordinance.
Each Certificate shall be transferable only upon the presentation and surrender thereof at the
principal corporate trust office of the Registrar, duly endorsed for transfer, or accompanied by an
assignment duly executed by the registered Owner or his authorized representative in form
satisfactory to the Registrar. Upon due presentation of any Certificate for transfer, the Registrar
shall authenticate and deliver in exchange therefor, within three (3) Business Days after such
presentation, a new Certificate or Certificates, registered in the name of the transferee or transferees,
in authorized denominations and of the same maturity and aggregate principal amount and bearing
interest at the same rate as the Certificate or Certificates so presented.
All Certificates shall be exchangeable upon presentation and surrender thereof at the
principal corporate trust office of the Registrar for a Certificate or Certificates of the same maturity
and interest rate in any authorized denomination, in an aggregate principal amount equal to the
unpaid principal amount of the Certificate or Certificates presented for exchange. The Registrar
shall be and is hereby authorized to authenticate and deliver exchange Certificates in accordance
with the provisions of this Section 13. Each Certificate delivered in accordance with this Section 13
shall be entitled to the benefits and security of this Ordinance to the same extent as the Certificate or
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Certificates in lieu of which such Certificate is delivered.
The City or the Registrar may require the Owner of any Certificate to pay a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with the transfer or
exchange of such Certificate. Any fee or charge of the Registrar for such transfer or exchange shall
be paid by the City.
Neither the City nor the Registrar shall be required to transfer or exchange any Certificate
called for redemption, in whole or in part, within forty-five (45) days of the date fixed for
redemption;provided,however, such limitation on transfer shall not be applicable to an exchange by
the Owner of the unredeemed balance of a Certificate called for redemption in part.
Notwithstanding any other provision hereof, upon initial issuance of the Certificates, the
ownership of the Certificates shall be registered in the name of Cede & Co., as nominee of DTC.
The definitive Certificates shall be initially issued in the form of a single separate certificate for each
of the maturities thereof.
With respect to Certificates registered in the name of Cede & Co., as nominee of DTC, the
City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any
person on behalf of whom such a DTC Participant holds an interest in the Certificates. Without
limiting the immediately preceding sentence, the City and the Registrar shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC
Participant with respect to any ownership interest in the Certificates, (ii) the delivery to any DTC
Participant or any other person, other than an Owner of a Certificate, as shown on the Register, of
any notice with respect to the Certificates, including any notice of redemption,or(iii)the payment to
any DTC Participant or any other person, other than an Owner of a Certificate, as shown in the
Register, of any amount with respect to principal of, premium, if any, or interest on the Certificates.
Notwithstanding any other provision of this Ordinance to the contrary, the City and the Registrar
shall be entitled to treat and consider the person in whose name each Certificate is registered in the
Register as the absolute Owner of such Certificate for the purpose of payment of principal of,
premium, if any, and interest on the Certificates, for the purpose of all matters with respect to such
Certificates, for the purpose of registering transfers with respect to such Certificates,and for all other
purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest on the
Certificates only to or upon the order of the respective Owners,as shown in the Register as provided
in this Ordinance, or their respective attorneys duly authorized in writing, and all such payments
shall be valid and effective to fully satisfy and discharge the City's obligations with respect to
payment of principal of, premium, if any, and interest on the Certificates to the extent of the sum or
sums so paid. No person other than an Owner as shown in the Register, shall receive a certificate for
a Certificate evidencing the obligation of the City to make payments of amounts due pursuant to this
Ordinance. Upon delivery by DTC to the Registrar of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede & Co., the word "Cede & Co." in this
Ordinance shall refer to such new nominee of DTC.
In the event that the City or the Registrar determines that DTC is incapable of discharging its
responsibilities described herein and in the letter of representation of the City to DTC and that it is in
the best interest of the beneficial Owners of the Certificates that they be able to obtain certificated
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Certificates, or if DTC Participants owning at least 50% of the Certificates outstanding based on
current records of the DTC determine that continuation of the system of book-entry transfers through
the DTC (or a successor securities depository)is not in the best interest of such beneficial Owners of
the Certificates, or in the event DTC discontinues the services described herein, the City or the
Registrar shall (i) appoint a successor securities depository, qualified to act as such under Section
17(a) of the Securities and Exchange Act of 1934, as amended, and notify DTC of the appointment
of such successor securities depository and transfer one or more separate Certificates to such
successor securities depository or(ii)notify DTC of the availability through DTC of Certificates and
transfer one or more separate Certificates to DTC Participants having Certificates credited to their
DTC accounts. In such event,the Certificates shall no longer be restricted to being registered in the
Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the
successor securities depository, or its nominee, or in whatever name or names Owners transferring
or exchanging Certificates shall designate, in accordance with the provisions of this Ordinance.
Notwithstanding any other provision of this Ordinance to the contrary, so long as any
Certificates are registered in the name of Cede&Co., as nominee of DTC, all payments with respect
to principal of, premium, if any, and interest on the Certificates, and all notices with respect thereto,
shall be made and given in the manner provided in the Letter of Representation.
14. Mutilated, Lost, or Stolen Certificates. Upon the presentation and surrender to the
Registrar of a mutilated Certificate, the Registrar shall authenticate and deliver in exchange therefor
a replacement Certificate of like maturity, interest rate and principal amount, bearing a number not
contemporaneously outstanding. If any Certificate is lost, apparently destroyed, or wrongfully
taken,the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or
knowledge that such Certificate has been acquired by a bona fide purchaser, shall execute and the
Registrar shall authenticate and deliver a replacement Certificate of like amount, bearing a number
not contemporaneously outstanding.
The City or the Registrar may require the Owner of a mutilated Certificate to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection
therewith and any other associated expenses, including the fees and expenses of the Registrar.
The City or the Registrar may require the Owner of a lost, apparently destroyed or
wrongfully taken Certificate,before any replacement Certificate is issued,to:
(1) furnish to the City and the Registrar satisfactory evidence of the ownership of
and the circumstances of the loss, destruction or theft of such Certificate;
(2) furnish such security or indemnity as may be required by the Registrar and
the City to save them harmless;
(3) pay all expenses and charges in connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Registrar and any tax or other governmental
charge that may be imposed;and
(4) meet any other reasonable requirements of the City and the Registrar.
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If, after the delivery of such replacement Certificate, a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued presents for payment such
original Certificate, the City and the Registrar shall be entitled to recover such replacement
Certificate from the person to whom it was delivered or any person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the City or the Registrar in connection
therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Certificate has become
or is about to become due and payable, the City in its discretion may, instead of issuing a
replacement Certificate,authorize the Registrar to pay such Certificate.
Each replacement Certificate delivered in accordance with this Section 14 shall be entitled to
the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in lieu
of which such replacement Certificate is delivered.
15. Cancellation of Certificates. All Certificates paid in accordance with this Ordinance,
and all Certificates in lieu of which exchange Certificates or replacement Certificates are
authenticated and delivered in accordance herewith, shall be cancelled and destroyed upon the
making of proper records regarding such payment. The Registrar shall furnish the City with
appropriate certificates of destruction of such Certificates.
16. Optional and Mandatory Redemption;Defeasance.
(a) The City reserves the right, at its option, to redeem Certificates having stated
maturities on and after March 1, 2021, in whole or in part, on March 1, 2020, or any date thereafter,
at a price of par plus accrued interest to the date fixed for redemption. If less than all of the
Certificates are to be redeemed, the City shall determine the Certificates, or portions thereof, to be
redeemed.
The Certificates maturing in the year (the "Term Certificates") are also subject to
mandatory redemption prior to scheduled maturity, in the amount, on the date, and on the terms
set out in the form of Certificates in this Ordinance, at a price of par plus accrued interest to the
date fixed for redemption.
Certificates may be redeemed only in integral multiples of$5,000. If a Certificate subject to
redemption is in a denomination larger that $5,000, a portion of such Certificate may be redeemed,
but only in integral multiples of$5,000. Upon surrender of any Certificate for redemption in part,
the Registrar, in accordance with Section 13 hereof, shall authenticate and deliver in exchange
therefor a Certificate or Certificates of like maturity and interest rate in an aggregate principal
amount equal to the unredeemed portion of the Certificate so surrendered.
Not less than thirty (30) days prior to a redemption date for the Certificates, the City shall
cause a notice of redemption to be sent by United States mail, first class, postage prepaid, to each
Owner of each Certificate to be redeemed in whole or in part, at the address of the Owner appearing
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on the Register at the close of business on the Business Day next preceding the date of the mailing of
such notice. Such notice shall state the redemption date, the redemption price, the place at which
Certificates are to be surrendered for payment and, if less than all the Certificates are to be
redeemed, the numbers of the Certificates or portions thereof to be redeemed. Any notice of
redemption so mailed shall be conclusively presumed to have been duly given whether or not the
Owner receives such notice. By the date fixed for redemption, due provision shall be made with the
Registrar for payment of the redemption price of the Certificates or portions thereof to be redeemed.
When Certificates have been called for redemption in whole or in part and due provision made to
redeem the same as herein provided,the Certificates or portions thereof so redeemed shall no longer
be regarded as outstanding except for the purpose of being paid solely from the funds so provided
for redemption, and the rights of the Owners to collect interest which would otherwise accrue after
the redemption date on any Certificate or portion thereof called for redemption shall terminate on the
date fixed for redemption.
(b) The City may defease the provisions of this Ordinance and discharge its obligation to
the Owners of any or all of the Certificates to pay principal, interest and redemption premium,if any,
thereon in any manner permitted by law, including by depositing with the Paying Agent/Registrar,or
if authorized by Texas law, with any national or state bank having trust powers and having
combined capital and surplus of at least$50 million,or with the State Treasurer of the State of Texas
either: (a)cash in an amount equal to the principal amount and redemption premium, if any,of such
Series 2011 Certificates plus interest thereon to the date of maturity or redemption;or(b)pursuant to
an escrow or trust agreement, cash and/or direct obligations of, or obligations the principal of and
interest on which are guaranteed by or secured by the pledge of direct obligations of the United
States of America, in principal amounts and maturities and bearing interest at rates sufficient to
provide for the timely payment of the principal amount and redemption premium, if any, of such
Certificates plus interest thereon to the date of maturity or redemption; provided, however, that if
any of such Series 2011 Certificates are to be redeemed prior to their respective dates of maturity,
provision shall have been made for giving notice of redemption as provided in this Ordinance. Upon
such deposit, such Certificates shall no longer be regarded to be Outstanding or unpaid. Any surplus
amounts not required to accomplish such defeasance shall be returned to the City. Notwithstanding
anything herein to the contrary, in the event that the principal and/or interest due on the Certificates
shall be paid by Insurer pursuant to the Insurance Policy, the Certificates shall remain outstanding
for all purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and
the assignment and limited pledge of the Net Revenues and all covenants, agreements and
obligations of the City to the registered owners shall continue to exist and shall run to the benefit of
Insurer,and Insurer shall be subrogated to the rights of such registered owners.
17. Forms.
The form of the Certificates, including the form of the Registrar's Authentication Certificate,
the form of Assignment, and the form of Registration Certificate of the Comptroller of Public
Accounts of the State of Texas which shall be attached or affixed to the Certificates initially issued
shall be, respectively, substantially as follows, with such additions, deletions and variations as may
be necessary or desirable and not prohibited by this Ordinance:
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FORM OF CERTIFICATE
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTY OF JEFFERSON
NUMBER DENOMINATION
CR- $
REGISTERED REGISTERED
THE CITY OF BEAUMONT,TEXAS
CERTIFICATE OF OBLIGATION
SERIES 2011
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP:
January 1, 2011
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
THE CITY OF BEAUMONT, TEXAS (the "City"), promises to pay to the registered owner
identified above, or registered assigns, on the date specified above, upon presentation and surrender
of this certificate at the designated corporate trust office of THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas (the "Registrar"), or at its principal payment office in
Dallas, Texas, the principal amount identified above, payable in any coin or currency of the United
States of America which on the date of payment of such principal is legal tender for the payment of
debts due the United States of America, and to pay interest thereon at the rate shown above,
calculated on the basis of a 360-day year of twelve 30-day months, from the later of the Dated Date
specified above, or the most recent interest payment date to which interest has been paid or duly
provided for. Interest on this Certificate is payable by check on September 1, 2011, and
semiannually thereafter on each March 1 and September 1, mailed to the registered owner as shown
on the books of registration kept by the Registrar as of the 15th day of the month next preceding
each interest payment date.
THIS CERTIFICATE is one of a duly authorized issue of Certificates of Obligation, that
includes Certificates, aggregating $35,000,000 (the "Certificates"), issued in accordance with the
Constitution and the laws of the State of Texas, particularly Chapter 271, Texas Local Government
Code, as amended, and Sections 1 and 2 of Article II of the Charter of the City, most recently
amended September 16, 2003, for the cost of construction of authorized street, drainage, building,
park and other capital improvements, the purchase of equipment and the cost of issuance of the
Certificates, pursuant to an ordinance duly adopted by the City Council of the City on December 7,
2010 (the "Ordinance"), which Ordinance is of record in the official minutes of the City Council.
This Certificate is part of the Certificates authorized by the City.
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THE CITY RESERVES THE RIGHT, at its option,to redeem the Certificates having stated
maturities on or after March 1, 2021, in whole or in part,on March 1,2020,or any date thereafter, in
integral multiples of$5,000, at a price of par plus accrued interest to the date fixed for redemption.
Reference is made to the Ordinance for complete details concerning the manner of redeeming the
Certificates.
THE CERTIFICATES maturing in the year (the"Tenn Certificates") are also subject
to mandatory redemption prior to maturity in the amounts and on the dates set out below, at a price
equal to the principal amount to be redeemed plus accrued interest to the redemption date:
TERM CERTIFICATES DUE
Date Amount
The Paying Agent shall select for redemption by lot, or by any other customary method that
results in random selection, a principal amount of Tenn Certificates equal to the aggregate principal
amount of such Term Certificates to be redeemed, shall call such Tenn Certificates for redemption
on the scheduled mandatory redemption date, and shall give notice of such redemption in
accordance with the Ordinance authorizing the Certificates. The principal amount of Tenn
Certificates required to be mandatorily redeemed shall be reduced by the principal amount of Term
Certificates which, at least 45 days prior to the mandatory redemption date, shall have been
delivered to the Registrar for cancellation or shall have been optionally redeemed and not previously
credited against a mandatory redemption requirement.
NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior the date
fixed for redemption by first class mail, addressed to the registered owner of each Certificate to be
redeemed in whole or in part at the address shown on the books of registration kept by the Registrar.
When Certificates or portions thereof have been called for redemption and due provision has been
made to redeem the same,the principal amounts so redeemed shall be payable solely from the funds
provided for redemption and interest which would otherwise accrue on the amounts called for
redemption shall terminate on the date fixed for redemption.
The Certificates may be defeased as provided in the Ordinance authorizing the Certificates.
THIS CERTIFICATE is transferable only upon presentation and surrender at the principal
corporate trust office of the Registrar, duly endorsed for transfer or accompanied by an assignment
duly executed by the registered owner or his authorized representative, subject to the terns and
conditions of the Ordinance.
THE CERTIFICATES are exchangeable at the principal corporate trust office of the
Registrar for Certificates in the principal amount of$5,000 or any integral multiple thereof, subject
to the terms and conditions of this Ordinance.
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NEITHER THE CITY NOR THE REGISTRAR shall be required to transfer or exchange
any Certificate called for redemption, in whole or in part, within forty-five (45) days of the date
fixed for redemption; provided, however, such limitation on transfer shall not be applicable to an
exchange by the Owner of the unredeemed balance of a Certificate called for redemption in part.
THIS CERTIFICATE shall not be valid or obligatory for any purpose or be entitled to any
benefit under the Ordinance unless this Certificate either (i) is registered by the Comptroller of
Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii)
authenticated by the Registrar by due execution of the authentication certificate endorsed hereon.
THE REGISTERED OWNER of this Certificate, by acceptance hereof, acknowledges and
agrees to be bound by all the terms and conditions of the Ordinance.
THE CITY has covenanted in the Ordinance that it will at all times provide a legally
qualified registrar for the Certificates and will cause notice of any change of registrar to be mailed to
each registered owner.
IT IS HEREBY certified, recited and covenanted that this Certificate has been duly and
validly issued and delivered; that all acts, conditions and things required or proper to be performed,
to exist and to be done precedent to or in the issuance and delivery of this Certificate have been
performed, exist and have been done in accordance with law; and that annual ad valorem taxes
sufficient to provide for the payment of the interest on and principal of this Certificate, as such
interest comes due and such principal matures,have been levied,within the limits prescribed by law,
against all taxable property in the City,and have been pledged irrevocably for such payment.
IT IS FURTHER certified, recited and represented that the net revenues (the "Net
Revenues") to be derived from the operation of the City's waterworks and sewer system (the
"System"), but only to the extent of and in an amount not to exceed Ten Thousand Dollars
($10,000.00) in the aggregate, are also pledged to the payment of the principal of and interest on this
Certificate and the series of Certificates of which it is a part to the extent that taxes may ever be
insufficient or unavailable for said purpose, all as set forth in the Ordinance to which reference is
made for all particulars; provided, however,that such pledge of Net Revenues is and shall be junior
and subordinate in all respects to the pledge of such Net Revenues to the payment of any obligation
of the City,whether authorized heretofore or hereafter,which the City designates as having a pledge
senior to the pledge of such Net Revenues to the payment of this Certificate and that series of
Certificates of which it is a part, and the City also reserves the right to issue, for any lawful purpose
at any time, in one or more installments, bonds, certificates of obligation and other obligations of
any kind payable in whole or in part from the Net Revenues of the System, secured by a pledge of
the Net Revenues of the System that may be prior and superior in right to, on a parity with,or junior
and subordinate to the pledge of Net Revenues securing this Certificate and the series of Certificates
of which it is a part.
IN WITNESS WHEREOF, this Certificate has been signed with the manual or facsimile
signature of the Mayor of the City and countersigned with the manual or facsimile signature of the
City Clerk of the City and the official seal of the City has been duly impressed, or placed in
facsimile,on this Certificate.
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THE CITY OF BEAUMONT,TEXAS
Mayor
(SEAL)
City Clerk
FORM OF REGISTRATION CERTIFICATE
OF COMPTROLLER OF PUBLIC ACCOUNTS
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this certificate has been examined, certified as to validity, and approved
by the Attorney General of the State of Texas, and that this certificate has been registered by the
Comptroller of Public Accounts of the State of Texas.
WITNESS MY SIGNATURE AND SEAL this day of ,2011.
xxxxxxxx
Comptroller of Public Accounts
(Seal) of the State of Texas
FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE
AUTHENTICATION CERTIFICATE
It is hereby certified that this Certificate has been delivered pursuant to the Ordinance
described in the text of this Certificate.
The Bank of New York Mellon Trust Company,N.A.
Dallas,Texas
By:
Authorized Signature
Date of Authentication:
FORM OF ASSIGNMENT
ASSIGNMENT
For value received,the undersigned hereby sells,assigns,and transfers unto
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(Please print or type name,address,and zip code of Transferee)
(Please insert Social Security or Taxpayer Identification Number of Transferee)
the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said certificate on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: The signature
above must correspond to
the name of the registered
NOTICE: Signature must be owner as shown on the face
guaranteed b member g Y a m
e be firm of this Certificate in
of the New York Stock Exchange every particular,without
or a commercial bank or trust any alteration,enlargement
company. or change whatsoever.
FORM OF STATEMENT OF INSURANCE
STATEMENT OF INSURANCE
(the"Insurer"), has delivered its municipal
bond insurance policy (the "Policy") with respect to the scheduled payments of principal of and
interest on this Certificate to The Bank of New York Mellon Trust Company, N.A., as paying
agent on behalf of the holders of the Certificates (the "Paying Agent"). Such Policy is on file
and available for inspection at the principal office of the Paying Agent and a copy thereof may
be obtained from the Insurer or the Paying Agent. All payments required to be made under the
Policy shall be made in accordance with the provisions thereof. The owner of this Certificate
acknowledges and consents to the subrogation rights of the Insurer as more fully set forth in the
Policy.
END OF FORM OF CERTIFICATE
18. Legal Opinion; Cusip Numbers. The approving opinion of Orgain Bell &Tucker,LLP,
Beaumont,Texas,Bond Counsel,and CUSIP Numbers may be printed on the Certificates,but errors
or omissions in the printing of such opinion or such numbers shall have no effect on the validity of
the Certificates.
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19. Interest and Sinkine Fund; Tax Levy; Pledge of Revenues; Construction Fund. The
proceeds from all taxes levied, assessed and collected for and on account of the Certificates
authorized by this Ordinance are hereby irrevocably pledged and shall be deposited, as collected, in
a special fund to be designated "City of Beaumont, Texas, Certificates of Obligation, Series 2011,
Interest and Sinking Fund". While the Certificates or any part of the principal thereof or interest
thereon remain outstanding and unpaid, there is hereby levied and there shall be annually levied,
assessed and collected in due time, form and manner within the limits prescribed by law, and at the
same time other City taxes are levied, assessed and collected, in each year, beginning with the
current year, a continuing direct annual ad valorem tax upon all taxable property in the City
sufficient to pay the interest on the Certificates as the same becomes due, and to provide and
maintain a sinking fund adequate to pay each installment of the principal or maturity amount of the
Certificates as the same matures but in each year never less than 2% of the original principal of the
Certificates, full allowance being made for delinquencies and costs of collection, and said taxes
when collected shall be applied to the payment of the interest on and principal of the Certificates and
to no other purpose. 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 debt service coming due on
the Certificates on September 1, 2011, and such amount shall not be used for any other purpose. A
tax rate has not been determined for 2012,but the City certifies that such rate,when determined,will
take into account the Certificates being issued.
The Net Revenues of the System, but only to the extent of and in an amount not to exceed
$10,000 in the aggregate, are hereby irrevocably pledged to the payment of the principal of and
interest on the Certificates as the same come due; provided, however, that such pledge of Net
Revenues is and shall be junior and subordinate in all respects to the pledge of the Net Revenues to
the payment of any obligation of the City,whether authorized heretofore or hereafter,which the City
designates as having a pledge senior to the pledge of such Net Revenues to the payment of the
Certificates; and the City also reserves the right to issue, for any lawful purpose at any time, in one
or more installments, bonds, certificates of obligation and other obligations of any kind payable in
whole or in part from the Net Revenues of the System that may be prior and superior in right to,on a
parity with, or junior and subordinate to the pledge of Net Revenues securing this series of
Certificates.
There is hereby created and there shall be established on the books of the City a separate
account to be entitled the "City of Beaumont, Texas, Certificates of Obligation, Series 2011,
Construction Fund". Immediately after the sale and delivery of the Certificates, that portion of the
proceeds of the Certificates to be used for the cost of construction of authorized projects and the cost
of issuance of the Certificates shall be deposited into the Construction Fund and disbursed for such
purposes.Pending completion of construction of such projects, interest earned on such proceeds may
be used, at the City's discretion, for such projects and shall be accounted for, maintained, deposited
and expended as permitted by the provisions of Section 1201.043, Texas Government Code
Annotated, as from time to time in effect, or as otherwise required by applicable law. Thereafter,
such interest shall be deposited in the Interest and Sinking Fund. Upon completion of such projects,
the monies, if any,remaining in the Construction Fund shall be transferred and deposited by the City
into the Interest and Sinking Fund.
IT IS ORDERED AND DIRECTED that this Ordinance pledging ad valorem tax revenue of
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the City and limited net revenues of the System for the payment of the Certificates to the extent
provided herein be filed and recorded in the records of the City as necessary to cause the pledge to
be valid under Section 1201.44 of the Government Code of Texas. At any time while any of the
Certificates are outstanding, it is determined by the City or demanded by the holder of any
Certificates that further action by the City is required to make the pledge valid or maintain the
validity of the pledge, the City covenants and hereby directs the officers of the City to make such
filings, including but not limited to appropriate filings under Chapter 9 of the Business and
Commerce Code of Texas as are necessary to make the pledge valid or continue its validity.
20. Further Proceedings. After the Certificates shall have been executed, it shall be the
duty of the Mayor of the City to deliver the Certificates to be initially issued and all pertinent records
and proceedings to the Attorney General of the State of Texas for examination and approval. After
the Certificates to be initially issued shall have been approved by the Attorney General of the State
of Texas, the Certificates shall be delivered to the Comptroller of Public Accounts of the State of
Texas for registration. Upon registration of the Certificates to be initially issued, the Comptroller of
Public Accounts (or a deputy lawfully designated in writing to act for the Comptroller) shall
manually sign the Comptroller's Registration Certificate prescribed herein to be affixed or attached
to the Certificates to be initially issued,and the seal of the Comptroller shall be impressed,or placed
in facsimile, thereon. In addition,the Mayor, the Mayor Pro Tem,the City Clerk,the City Manager
and other appropriate officials of the City are hereby authorized and directed to do any and all things
necessary or convenient to carry out the purposes of this Ordinance, and each of such persons are
authorized, acting alone and without the joinder of the others, to execute any and all closing
certificates, instruments and such other documents as may be necessary or appropriate to carry out
the purposes of this Ordinance.
21. Sale of Certificates. The Certificates are hereby sold and shall be delivered to the
Underwriter at a price of$ , which represents the par amount of the Certificates
of$ , less a net original issue discount on certain Current Interest Certificates of
$ , plus a premium on certain Current Interest Certificates of$ , and less
an underwriting discount of$ , plus any accrued interest thereon from the dated date
of the Certificates to the date of issuance, all in accordance with the terms of a certificate of
obligation purchase agreement of even date herewith, presented to and hereby approved by the
City Council, which price and terms are hereby found and determined to be the most
advantageous reasonably obtainable by the City. Each of the Mayor and the Mayor Pro Tern and
other appropriate officials of the City are hereby authorized and directed to execute such
certificates of obligation purchase agreement on behalf of the City, and each of the Mayor and
Mayor Pro Tern and all other officers, agents and representatives of the City are hereby
authorized to do any and all things necessary or desirable to satisfy the conditions set out therein
and to provide for the issuance and delivery of the Certificates, and, if deemed by the acting
officer to be in the best interests of the City,to terminate the agreement as permitted by the terms
thereof. The purchase of and payment of the premium for the Certificates Insurance Policy by
the City, in accordance with the terms of a commitment for such insurance presented to and
hereby approved by the City Council is hereby authorized. All officials and representatives of
the City are authorized and directed to execute such documents and to do any and all things
necessary or desirable to obtain such insurance, and the printing on the Certificates of an
appropriate legend regarding such insurance is hereby approved.
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The City finds that the net effective interest of the Certificates is %
22. Tax Exemption. (a) The City intends that the interest on the Certificates shall be
excludable from gross income for purposes of federal income taxation pursuant to Sections 103 and
141 through 150 of the Code, and applicable regulations. The City covenants and agrees not to take
any action, or knowingly omit to take any action within its control, that if taken or omitted,
respectively,would cause the interest on the Certificates to be includable in gross income,as defined
in Section 61 of the Code, of the holders thereof for purposes of federal income taxation. In
particular, the City covenants and agrees to comply with each requirement of this Section 22;
provided, however, that the City shall not be required to comply with any particular requirement of
this Section 22 if the City has received an opinion of nationally recognized bond counsel (a
"Counsel's Opinion") that such noncompliance will not adversely affect the exclusion from gross
income for federal income tax purposes of interest on the Certificates or if the City has received a
Counsel's Opinion to the effect that compliance with some other requirement set forth in this Section
22 will satisfy the applicable requirements of the Code, in which case compliance with such other
requirement specified in such Counsel's Opinion shall constitute compliance with the corresponding
requirement specified in this Section 22.
(b) The City covenants and agrees that its use of Net Proceeds(as defined below) of the
Certificates will at all times satisfy the following requirements:
(i) The City will use all of the Net Proceeds of the Certificates for the cost of
construction of authorized street, drainage, building, park, and other capital improvements,
equipment purchases and the cost of issuance of the Certificates. The City has limited and
will limit with respect to the Certificates the amount of original or investment proceeds
thereof to be used(other than use as a member of the general public) in the trade or business
of any person other than a governmental unit to an amount aggregating no more than 10%of
the Net Proceeds of the Certificates ("private-use proceeds"). For purposes of this Section,
the term "person" includes any individual, corporation, partnership, unincorporated
association,or any other entity capable of carrying on a trade or business;and the term "trade
or business" means, with respect to any natural person, any activity regularly carried on for
profit and, with respect to persons other than natural persons, any activity other than an
activity carried on by a governmental unit. Any use of proceeds of the Certificates in any
manner contrary to the guidelines set forth in Revenue Procedure 93-19, including any
revisions or amendments thereto, shall constitute the use of such proceeds in the trade or
business of one who is not a governmental unit;
(ii) The City has not permitted and will not permit more than 5% of the Net
Proceeds of the Certificates to be used in the trade or business of any person other than a
governmental unit if such use is unrelated to the governmental purpose of the Certificates.
Further, the amount of private-use proceeds of the Certificates in excess of 5% of the Net
Proceeds thereof("excess private-use proceeds")did not and will not exceed the proceeds of
the Certificates expended for the governmental purpose of the Certificates to which such
excess private-use proceeds relate;
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(iii) Principal of and interest on the Certificates shall be paid solely from ad
valorem tax receipts collected by the City and from the Net Revenues of the System to the
extent pledged hereunder. Further, no person using more than 10% of the Net Proceeds of
the Certificates in a trade or business, other than a governmental unit, has made or shall
make payments (other than as a member of the general public), directly or indirectly,
accounting for more than 10%of such receipts;
(iv) The City has not permitted and will not permit with respect to the Certificates an
amount of proceeds thereof exceeding the lesser of(a) $5,000,000 or (b) 5% of the Net
Proceeds of the Certificates to be used, directly or indirectly, to finance loans to persons
other than a governmental unit;and
(v) The City will use $ of the Net Proceeds of the Certificates
to pay the costs of issuance of the Certificates, including the cost of the Certificates
Insurance Policy in the amount of$
When used in this Section,the term "Net Proceeds"of the Certificates shall mean the proceeds from
the sale thereof to the Underwriter, including investment earnings on such proceeds, less accrued
interest with respect to such issue.
(c) The City covenants and agrees not to take any action, or knowingly omit to take any
action within its control, that, if taken or omitted, respectively, would cause the Certificates to be
"federally guaranteed" within the meaning of Section 149(b)of the Code and applicable regulations
thereunder, except as permitted by Section 149(b)(3) of the Code and such regulations or as
permitted by laws hereinafter enacted.
(d) The City shall certify, through an authorized officer, employee or agent, that based
upon all facts and estimates known or reasonably expected to be in existence on the date the
Certificates are delivered, the City will reasonably expect that the proceeds of the Certificates will
not be used in a manner that would cause the Certificates to be "arbitrage bonds"within the meaning
of Section 148(a) of the Code and applicable regulations thereunder. Moreover, the City covenants
and agrees that it will make such use of the proceeds of the Certificates, including interest or other
investment income derived from the proceeds of the Certificates, regulate investments of such
proceeds and amounts, and take such other and further action as may be required so that the
Certificates will not be "arbitrage bonds" within the meaning of Section 148(a) of the Code and
applicable regulations thereunder.
(e) The City will take all necessary steps to comply with the requirement that certain
amounts earned by the City on the investment of the "gross proceeds" of the Certificates(within the
meaning of Section 148(f)(6)(B) of the Code), be rebated to the federal government. Specifically,
the City will (i) maintain records regarding the investment of the gross proceeds of the Certificates
as may be required to calculate the amount earned on the investment of the gross proceeds of the
Certificates separately from records of amounts on deposit in the funds and accounts of the City
allocable to other bond issues of the City or moneys which do not represent gross proceeds of any
bonds of the City, (ii) calculate at such times as are required by applicable regulations, the amount
earned from the investment of the gross proceeds of the Certificates which is required to be rebated
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to the federal government, and(iii)pay,not less often than every 5th anniversary date of the delivery
of the Certificates, and within sixty (60) days after retirement of the Certificates, all amounts
required to be rebated to the federal government. Further, the City will not indirectly pay any
amount otherwise payable to the federal government pursuant to the foregoing requirements to any
person other than the federal government by entering into any investment arrangement with respect
to the gross proceeds of the Certificates that might result in a reduction in the amount required to be
paid to the federal government because such arrangement results in a smaller profit or larger loss
than would have resulted if the arrangement had been at arm's length and had the yield on the issue
not been relevant to either party.
(f) The City covenants and agrees to file or cause to be filed with the Secretary of the
Treasury of the United States, not later than the 15th day of the second calendar month after the
close of the calendar quarter in which the Certificates are issued, an information statement
concerning the Certificates, all under and in accordance with Section 149(e) of the Code and
applicable regulations thereunder.
(g) The City covenants that any dispositions of personal property components of the
Project funded by the Certificates will occur in the ordinary course of an established governmental
program and will satisfy the following requirements:
i. The weighted average maturity of the portion of the Certificates financing
personal property is not greater than 120 percent of the reasonably expected actual use of
such personal property for governmental purposes;
ii. The reasonably expected fair market value of such personal property on
the date of disposition will be not greater than 25 percent of its cost;
iii. Such personal property will no longer be suitable for its governmental
purposes on the date of disposition; and
iv. The City is required to deposit amounts received from such disposition in
a commingled fund with substantial tax or other governmental revenues and the Issuer
reasonably expect to spend such amounts on governmental programs within 6 months
from the date of commingling.
(h) 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.
0) 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
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A.8.a
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.
23. Application of Proceeds. Proceeds from the sale of the Certificates shall, promptly
upon receipt by the City, be applied as follows:
(a) Accrued interest received from the sale of the Certificates shall be deposited into the
Series 2011 Certificates of Obligation Interest and Sinking Fund;
(b) The sum of $ will be used to pay the premium for the Certificates
Insurance Policy;
(c) The sum of$ shall be used to pay costs of issuance of the Certificates,
with any amount left over to be transferred to the 2011 Certificates of Obligation
Construction Fund;and
(d) The remaining proceeds from the sale of the Certificates, together with investment
earnings thereof, shall be deposited into the Series 2011 Certificates of Obligation
Construction Fund and shall be used for the purposes set out in Section 3 of this
Ordinance, with any remainder to be deposited into the Series 2011 Certificates of
Obligation Interest and Sinking Fund.
24. Open Meeting. The meeting at which this Ordinance was adopted was open to the
public, and public notice of the time, place and purpose of said meeting, was given, all as required
by Chapter 551 of the Texas Government Code Annotated, Vernon's 1994, as amended, and such
notice as given is hereby authorized,approved,adopted and ratified.
25. Re ice. The form of agreement setting forth the duties of the Registrar is hereby
approved, and the appropriate officials of the City are hereby authorized to execute such agreement
for and on behalf of the City.
26. Official Statement. The Preliminary Official Statement and the Official Statement
prepared in the initial offering and sale of the Certificates have been and are hereby authorized,
approved and ratified as to form and content. The use of the Preliminary Official Statement and the
Official Statement in the reoffering of the Certificates by the Underwriter is hereby approved,
authorized and ratified. The proper officials of the City are hereby authorized to execute and deliver
a certificate pertaining to the Preliminary Official Statement and the Official Statement as prescribed
therein,dated as of the date of payment for and delivery of the Certificates.
27. Partial Invalidity. If any Section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable,the invalidity or unenforceability of such
Section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Ordinance.
28. Related Matters. To satisfy in a timely manner all of the City's obligations under this
Ordinance, the Mayor, the City Clerk, the City Treasurer, and all other appropriate officers and
agents of the City are hereby authorized and directed to take all other actions that are reasonably
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necessary to provide for issuance of the Certificates, including, without limitation, executing and
delivering on behalf of the City all certificates, consents, receipts, requests and other documents as
may be reasonably necessary to satisfy the City's obligations under this Ordinance and to direct the
application of funds of the City consistent with the provisions hereof.
29. No Personal Liability. No recourse shall be had for payment of the principal of or
premium, if any, or interest on Certificate, or for any claim based thereon, or under this Ordinance,
against any official or employee of the City or any person executing any Certificate.
30. Additional Obligations. The City undertakes and agrees for the benefit of the
holders of the Certificates to provide the following to the Municipal Securities Rulemaking Board
("MSRB"), in electronic format as prescribed by the MSRB, directly or through a designated agent,
on or before six months after the end of the City's fiscal year, which fiscal year presently ends on
September 30,
a. annual financial information (which may be unaudited) and operating data regarding
the City for fiscal years ending on or after January 1, 2011 which annual financial
information and operating data shall be of the type included in the following listed
sections contained in the Final Official Statement:
DEBT STATEMENT
TAX DATA
SELECTED FINANCIAL DATA
ADMINISTRATION OF THE CITY
Appendix`B"
b. audited financial statements for the City for fiscal years ending on or after January 1,
2011, 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,not in excess of ten(10)business days after the occurrence of the
event,notice of any of the following events with respect to the Certificates:
i. Principal and interest payment delinquencies;
ii. Non-payment related defaults,if material;
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;
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A.8.a
vi. Adverse tax opinions, the issuance by the Internal Revenue Service of
proposed or final determinations of taxability, Notices of Proposed Issue
(IRS Form 5701-TEB) or other material notices or determinations with
respect to the tax status of the Certificates, or other material events affecting
the tax status of the Certificates ;
vii. Modifications to rights of Certificate holders, if material;
viii. Certificate calls,if material,and tender offers;
ix. Defeasances;
X. Release, substitution or sale of property securing repayment of the
Certificates, if material;
xi. Rating changes;
xii. Bankruptcy, insolvency, receivership, or similar event of the obligated
person;
xiii. The consummation of a merger, consolidation, or acquisition involving an
obligated person or the sale of all or substantially all of the assets of the
obligated person, other than in the ordinary course of business,the entry into
a definitive agreement to undertake such an action, or the termination of a
definitive agreement relating to any such actions, other than pursuant to its
terms, if material;and
xiv. Appointment of a successor or additional trustee or the change of name of a
trustee, if material.
d. in a timely manner,notice of a failure of the City to provide required annual financial
information and operating data, on or before six months after the end of the City's
fiscal year.
e. all documents provided to the MSRB shall be accompanied by identifying
information as prescribed by the MSRB.
These undertakings and agreements are subject to appropriation of necessary funds and to
applicable legal restrictions, if any.
The accounting principles pursuant to which the City's financial statements are currently
prepared are generally accepted accounting principles set out by the Government Accounting
Standards Board, and, subject to changes in applicable law or regulations, such principles will be
applied in the future.
If the City changes its fiscal year, it will notify the MSRB of the change (and of the new
fiscal year end) prior to the next date by which the City otherwise would be required to provide
annual financial information.
The City's obligation to update information and to provide notices of material events shall be
limited to the agreements herein. The City shall not be obligated to provide other information that
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A.8.a
may be relevant or material to a complete presentation of its financial results of operations,
condition, or prospects and shall not be obligated to update any information that is provided, except
as described herein. The City makes no representation or warranty concerning such information or
concerning its usefulness to a decision to invest in or sell Certificates at any future date. THE CITY
DISCLAIMS ANY CONTRACTUAL OR TORT LIABILITY FOR DAMAGES RESULTING IN
WHOLE OR IN PART FROM ANY BREACH, WHETHER NEGLIGENT OR WITHOUT
FAULT ON ITS PART, OF ITS CONTINUING DISCLOSURE AGREEMENT OR FROM ANY
STATEMENT MADE PURSUANT TO ITS AGREEMENT. HOLDERS OR BENEFICIAL
OWNERS OF CERTIFICATES MAY SEEK AS THEIR SOLE REMEDY A WRIT OF
MANDAMUS TO COMPEL THE CITY TO COMPLY WITH THIS AGREEMENT. No default
by the City with respect to its continuing disclosure agreement shall constitute a breach of or default
under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this
paragraph is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under
federal and state securities laws.
The City may amend its continuing disclosure obligations and agreement in this Section 30
to adapt to changed circumstances that arise from a change in legal requirements, a change in law,or
a change in the identity, nature, status or type of operations of the City, if the agreement, as
amended, would have permitted the Underwriter to purchase or sell the Certificates in compliance
with SEC Rule 15c2-12, taking into account any amendments or interpretations of such Rule to the
date of such amendment,as well as such changed circumstances, and either the holders of a majority
in aggregate principal amount of the outstanding Certificates consent or any person unaffiliated with
the City(such as nationally recognized bond counsel) determines the amendment will not materially
impair the interests of the holders and beneficial owners of the Certificates. The City may also
amend or repeal the obligations and agreement in this Section 30 if the SEC amends or repeals the
applicable provisions of Rule 15c2-12 or a court of final jurisdiction determines that such provisions
are invalid, and the City may amend the agreement in its discretion in any other circumstance or
manner, but in either case only to the extent that its right to do so would not prevent the Underwriter
from lawfully purchasing or reselling the Certificates in the primary offering of the Certificates in
compliance with Rule 15c2-12. If the City amends its agreement, it must include with the next
financial information and operating data provided in accordance with its agreement an explanation,
in narrative form, of the reasons for the amendment and of the impact of any change in the type of
information and operating data so provided.
The City's continuing obligation to provide annual financial information and operating data
and notices of events will terminate if and when the City no longer remains an "obligated person"(as
such term is defined in SEC Rule 15C2-12)with respect to the Certificates.
31. Repealer. All orders, resolutions, and ordinances, and parts thereof inconsistent
herewith are hereby repealed to the extent of such inconsistency.
32. Effective Date. This Ordinance shall be in force and effect from and after its final
passage, and it is so ordered.
33. Amendment of Ordinance.
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A.8.a
(a) If and to the extent permitted by this Ordinance, the owners of the Series
2011 Certificates aggregating in the principal amount of 51% of the aggregate principal
amount of the outstanding Series 2011 Certificates shall have the right from time to time
to approve any amendment to this Ordinance which may be deemed necessary or
desirable by the City provided, however, that without the consent of the owners of all of
the Series 2011 Certificates at the time outstanding, nothing herein contained shall permit
or be construed to permit the amendment of the terms and conditions in this Ordinance or
in the Certificates so as to:
(1) Make any change in the maturity of the outstanding Series 2011
Certificates;
(2) Reduce the rate of interest borne by any of the outstanding Series
2011 Certificates;
(3) Reduce the amount of the principal payable on the outstanding
Series 2011 Certificates;
(4) Modify the terms of payment of principal of or interest on the
outstanding Series 2011 Certificates, or impose any conditions with respect to
such payment;
(5) Affect the owners of less than all of the outstanding Series 2011
Certificates then outstanding;
(6) Change the percentage of the principal amount of outstanding
Series 2011 Certificates, necessary for consent to such amendment.
(b) If at any time the City shall desire to amend this Ordinance under this
Section, the City shall cause notice of the proposed amendment to be published in a
financial newspaper or journal published in The City of New York, New York, once
during each calendar week for at least two successive calendar weeks. Such notice shall
briefly set forth the nature of the proposed amendment and shall state that a copy thereof
is on file at the principal office of the Paying Agent for inspection by all owners of Series
2011 Certificates. Such publication is not required, however, if notice in writing is given
to each owner of the outstanding Series 2011 Certificates. Not less than thirty (3 0) days'
notice of the proposed amendment shall also be given by the City to the Underwriter.
(c) Whenever at any time not less than thirty (30) days, and within one (1)
year, from the date of the publication of said notice or other service of written notice the
City shall receive an instrument or instruments executed by the owners of at least 51% in
aggregate principal amount of Series 2011 Certificates then outstanding, which
instrument or instruments shall refer to the proposed amendment described in said notice
and which specifically consent to and approve such amendment in substantially the form
of the copy thereof on file with the Paying Agent, the City Council may adopt the
amendatory resolution in substantially the same form.
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A.8.a
(d) Upon adoption of any amendatory resolution pursuant to the provision of
this Section, this Ordinance shall be deemed to be amended in accordance with such
amendatory resolution, and the respective rights, duties and obligations under this
Ordinance of the City and all the owners of then outstanding Series 2011 Certificates
shall thereafter be determined, exercised and enforced hereunder, subject in all respect to
such amendments.
(e) Any consent given by the owner of outstanding Series 2011 Certificates,
pursuant to the provisions of this Section shall be irrevocable for a period of six months
from the date of the first publication of the notice provided for in this Section, and shall
be conclusive and binding upon all future owners of the same Series 2011 Certificates
during such period. Such consent may be revoked at any time after six months from the
date of the first publication of such notice by the owner who gave such consent, or by a
successor in title, by filing notice thereof with the Paying Agent and the City, but such
revocation shall not be effective if the owners of 51% in aggregate principal amount of
the then outstanding Series 2011 Certificates as in this Section defined have, prior to the
attempted revocation, consented to and approved the amendment.
(f) For the purpose of this Section, the fact of the owning of Series 2011
Certificates by any owner of Series 2011 Certificates and the amount and number of such
Series 2011 Certificates and the date of their owning same shall be determined by the
Registration Books of the Paying Agent/Registrar.
(g) The foregoing provisions of this Section notwithstanding, the City by
action of the City Council (or as to item (2) by the City Council or by the Mayor or
Mayor Pro-Tem and the City Clerk as to changes prior to issuance to comply with
requirements by the Attorney General of Texas) may amend this Ordinance for any one
or more of the following purposes:
(1) To add to the covenants and agreements of the City in this
Ordinance contained, other covenants and agreements thereafter to be observed,
grant additional rights or remedies to the owners of bonds or to surrender, restrict
or limit any right or power herein reserved to or conferred upon the City.
(2) To make such provisions for the purpose of clarifying matters or
questions arising under this Ordinance as are required by the Attorney General of
Texas to obtain the Attorney General's approval of the issuance of the Series
2011 Certificates before their issuance, or at any time before or after issuance for
the purpose of curing any ambiguity, or curing, correcting or supplementing any
defective provision contained in this Ordinance, as are necessary or desirable and
not contrary to or inconsistent with this Ordinance, and in all events which shall
not adversely affect the interests of the owners of the Series 2011 Certificates.
(3) To modify any of the provisions of this Ordinance in any other
respect whatever, provided that: (i) such modification shall be, and be expressed
to be, effective only after all Series 2011 Certificates outstanding at the date of
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A.8.a
the adoption of such modification shall cease to be outstanding, and (ii) such
modification shall be specifically referred to in the text of all Series 2011
Certificates issued after the date of the adoption of such modification.
34. [omitted]
35. Provisions Relating to Bond Insurance. The purchase of bond insurance from
Insurer in accordance with the terms of a commitment for such insurance presented to and
hereby approved by the City is hereby authorized. All officials and representatives of the City
are authorized and directed to execute such documents and to do any and all things necessary or
desirable to obtain such insurance, and the printing on or attachments to the Certificates of an
appropriate legend regarding such insurance is hereby approved. Notwithstanding any provision
in this Ordinance to the contrary, as long as the Certificates Insurance Policy shall be in full
force and effect,the following provisions and terms shall be in effect and applicable:
A. Notices and Other Information.
1. Any notice that is required to be given to holders of the Obligations (the
"Certificateholders"), nationally recognized municipal securities information repositories
or state information depositories pursuant to Rule 15c2-12(b) (5) adopted by the
Securities and Exchange Commission or to the Registrar pursuant to this Certificate
Ordinance or any of the financing documents executed by the Issuer in connection with
the Obligations (hereinafter sometimes referred to as the "Financing Documents") shall
also be provided to (the"Insurer"), simultaneously with the sending
of such notices. In addition, to the extent that the Issuer has entered into a continuing
disclosure agreement with respect to the Obligations, all information furnished pursuant
to such agreement shall also be provided to the Insurer, simultaneously with the
furnishing of such information. All notices required to be given to the Insurer shall be in
writing and shall be sent by registered or certified mail addressed to it at
' with a copy to it, Attention: Risk
Management Department—Public Finance Surveillance.
2. The Insurer shall have the right to receive such additional information as it
may reasonably request.
3. The Issuer will permit the Insurer to discuss the affairs, finances and
accounts of the Issuer or any information the Insurer may reasonably request regarding
the security for the Obligations with appropriate officers of the Issuer, and will use best
efforts to enable the Insurer to have access to the facilities, books and records of the
Issuer on any business day upon reasonable prior notice.
4. The Registrar shall notify the Insurer of any failure of the Issuer to
provide notices, certificates and other information under the Documentation.
B. Defeasance. In the event that the principal and/or interest due on the Obligations
shall be paid by the Insurer pursuant to the Policy, the Obligations shall remain outstanding for
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all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and
the assignment and pledge of the trust estate and all covenants, agreements and other obligations
of the Issuer to the registered owners shall continue to exist and shall run to the benefit of the
Insurer, and the Insurer shall be subrogated to the rights of such registered owners including,
without limitation, any rights that such owners may have in respect of securities law violations
arising from the offer and sale of the Obligations.
In addition to any other applicable requirements under this Ordinance or applicable law,
if the Issuer intends to defease the Obligations, and the Insurer will require the following items:
1. An opinion of counsel that the defeasance will not adversely impact the
exclusion from gross income for federal income tax purposes of interest
on the Obligations or refunded bonds.
2. An escrow agreement and an opinion of counsel regarding the validity and
enforceability of the escrow agreement.
3. The escrow agreement shall provide that:
a. Any substitution of securities shall require verification by an
independent certified public accountant and the prior written
consent of the Insurer.
b. The Issuer will not exercise any optional redemption of
Obligations secured by the escrow agreement or any other
redemption other than mandatory sinking fund redemptions unless
(i) the right to make any such redemption has been expressly
reserved in the escrow agreement and such reservation has been
disclosed in detail in the official statement for the refunding bonds,
and (ii) as a condition of any such redemption there shall be
provided to the Insurer a verification of an independent certified
public accountant as to the sufficiency of escrow receipts without
reinvestment to meet the escrow requirements remaining following
such redemption.
C. The Issuer shall not amend the escrow agreement or enter into a
forward purchase agreement or other agreement with respect to
rights in the escrow without the prior written consent of the
Insurer.
C. Registrar.
1. The Insurer shall receive prior written notice of any name change of the
Registrar or the removal, resignation or termination of the Registrar.
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A.8.a
2. No removal, resignation or termination of the Registrar shall take effect
until a successor, acceptable to the Insurer, shall be appointed.
3. The Registrar may be removed at any time, at the request of the Insurer,
for any breach of its obligations under the financing documents.
D. Amendments and Supplements. With respect to amendments or supplements to
this Ordinance or any of the Financing Documents, which do not require the consent of the
Certificateholders, the Insurer must be given notice of any such amendments or supplements.
With respect to amendments or supplements to this Ordinance or any of the Financing
Documents, which require the consent of the Certificateholders, the Insurer's prior written
consent is required. Copies of any amendments or supplements to this Ordinance or any
Financing Document which are consented to by the Insurer shall be sent to the rating agencies
that have assigned a rating to the Obligations. Notwithstanding any other provision of this
Ordinance, in determining whether the rights of Certificateholders will be adversely affected by
any action taken pursuant to the terms and provisions thereof, the Registrar shall consider the
effect on the Certificateholders as if there were no Policy.
E. The Insurer as Third Party Beneficiary. To the extent this Ordinance or any
financing document executed by the Issuer in connection herewith confers upon or give or grant
to the Insurer any right, remedy or claim under or by reason of this Ordinance or any financing
document executed by the Issuer in connection herewith, the Insurer is explicitly recognized as
being a third party beneficiary hereunder and thereunder and may enforce any such right, remedy
or claim conferred, given or granted hereunder or thereunder.
F. Control Rights. The Insurer shall be deemed to be the holder of all of the
Obligations for purposes of(a) exercising all remedies and directing the Registrar to take actions
or for any other purposes following an Event of Default (as defined in this Ordinance), and (b)
granting any consent, direction or approval or taking any action permitted by or required under
this Ordinance to be granted or taken by the holders of such Obligations.
Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and
continuance of an event of default as defined herein, the Insurer shall be entitled to control and
direct the enforcement of all rights and remedies granted to the Certificateholders or the
Registrar for the benefit of the Certificateholders under this Ordinance.
G. Consent Rights of the Insurer.
1. Consent of the Insurer. Any provision of this Ordinance expressly
recognizing or granting rights in or to the Insurer may not be amended in
any manner that affects the rights of the Insurer hereunder without the
prior written consent of the Insurer.
2. Consent of the Insurer in Addition to Certificateholder Consent.
Wherever this Ordinance requires the consent of Certificateholders, the
Insurer's consent shall also be required.
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A.8.a
3. Consent of the Insurer in the Event of Insolvency. Any reorganization or
liquidation plan with respect to the Issuer must be acceptable to the
Insurer. In the event of any reorganization or liquidation, the Insurer shall
have the right to vote on behalf of all Certificateholders who hold
Obligations guaranteed by the Insurer, absent a default by the Insurer
under the Policy.
4. Consent of the Insurer Upon Default. Upon the occurrence of an event of
default as defined herein, the Registrar may, with the consent of the
Insurer, and shall at the direction of the Insurer or the Certificateholders
with the consent of the Insurer, by written notice to the Issuer and the
Insurer, declare the principal of the Obligations to be immediately due and
payable, whereupon that portion of the principal of the Obligations
thereby coming due and the interest thereon accrued to the date of
payment shall, without further action, become and be immediately due and
payable, anything in this Ordinance or the Obligations to the contrary
notwithstanding.
H. Payment Procedure Under the Policy.
1. At least two (2) Business Days prior to each payment date on the
Obligations, the Registrar, will determine whether there will be sufficient
funds to pay all principal of and interest on the Obligations due on the
related payment date and shall immediately notify the Insurer or its
designee on the same Business Day by telephone or electronic mail,
confirmed in writing by registered or certified mail, of the amount of any
deficiency. Such notice shall specify the amount of the anticipated
deficiency, the Obligations to which such deficiency is applicable and
whether such Obligations will be deficient as to principal or interest or
both. If the deficiency is made up in whole or in part prior to or on the
payment date,the Registrar shall so notify the Insurer or its designee.
2. The Registrar, shall after giving notice to the Insurer as provided above,
make available to the Insurer and, at the Insurer's direction, to any Fiscal
Agent, the registration books of the Issuer maintained by the Registrar and
all records relating to the funds maintained under this Ordinance or any
financing document executed by the Issuer in connection herewith.
3. The Registrar shall provide the Insurer and any Fiscal Agent with a list of
registered owners of Obligations entitled to receive principal or interest
payments from the Insurer under the terms of the Policy, and shall make
arrangements with the Insurer, the Fiscal Agent or another designee of the
Insurer to (i) mail checks or drafts to the registered owners of Obligations
entitled to receive full or partial interest payments from the Insurer and(ii)
pay principal upon Obligations surrendered to the Insurer, the Fiscal
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A.8.a
Agent or another designee of the Insurer by the registered owners of
Obligations entitled to receive full or partial principal payments from the
Insurer.
4. The Registrar, shall, at the time it provides notice to the Insurer of any
deficiency pursuant to clause 1. above, notify registered owners of
Obligations entitled to receive the payment of principal or interest thereon
from the Insurer (i) as to such deficiency and its entitlement to receive
principal or interest, as applicable, (ii) that the Insurer will remit to them
all or a part of the interest payments due on the related payment date upon
proof of its entitlement thereto and delivery to the Insurer or any Fiscal
Agent, in form satisfactory to the Insurer, of an appropriate assignment of
the registered owner's right to payment, (iii)that, if they are entitled to
receive partial payment of principal from the Insurer, they must surrender
the related Obligations for payment first to the Registrar, which will note
on such Obligations the portion of the principal paid by the Registrar and
second to the Insurer or its designee, together with the an appropriate
assignment, in form satisfactory to the Insurer, to permit ownership of
such Obligations to be registered in the name of the Insurer, which will
then pay the unpaid portion of principal, and (iv) that, if they are entitled
to receive full payment of principal from the Insurer, they must surrender
the related Obligations for payment to the Insurer or its designee, rather
than the Registrar, together with the an appropriate assignment, in form
satisfactory to the Insurer, to permit ownership of such Obligations to be
registered in the name of the Insurer.
5. In addition, if the Registrar has notice that any holder of the Obligations
has been required to disgorge payments of principal or interest on the
Obligations previously Due for Payment pursuant to a final non-
appealable order by a court of competent jurisdiction that such payment
constitutes an avoidable preference to such holder within the meaning of
any applicable bankruptcy laws, then the Registrar shall notify the Insurer
or its designee of such fact by telephone or electronic notice, confirmed in
writing by registered or certified mail.
6. The Registrar will be hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for holders of the Obligations as
follows:
a. If and to the extent there is a deficiency in amounts required to pay
interest on the Obligations, the Registrar shall (a) execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holders in any legal
proceeding related to the payment of such interest and an assignment
to the Insurer of the claims for interest to which such deficiency relates
and which are paid by the Insurer, (b) receive as designee of the
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A.8.a
respective holders (and not as Registrar) in accordance with the tenor
of the Policy payment from the Insurer with respect to the claims for
interest so assigned, and (c) disburse the same to such respective
holders;and
b. If and to the extent of a deficiency in amounts required to pay
principal of the Obligations,the Registrar shall(a)execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holder in any legal proceeding
related to the payment of such principal and an assignment to the
Insurer of the Obligation surrendered to the Insurer in an amount equal
to the principal amount thereof as has not previously been paid or for
which moneys are not held by the Registrar and available for such
payment(but such assignment shall be delivered only if payment from
the Insurer is received), (b) receive as designee of the respective
holders (and not as Registrar) in accordance with the tenor of the
Policy payment therefore from the Insurer, and (c) disburse the same
to such holders.
7. Payments with respect to claims for interest on and principal of
Obligations disbursed by the Registrar from proceeds of the Policy shall
not be considered to discharge the obligation of the Issuer with respect to
such Obligations, and such Obligations shall remain outstanding for all
purposes, shall not be defeased or otherwise satisfied and shall not be
considered paid by the Issuer, and the Insurer shall become the owner of
such unpaid Obligation and claims for the interest in accordance with the
tenor of the assignment made to it under the provisions of this subsection
or otherwise; and the assignment and pledge of the trust estate and all
covenants, agreements and other obligations of the Issuer to the registered
owners shall continue to exist and shall run to the benefit of the Insurer,
and the Insurer shall be subrogated to the rights of such registered owners
including, without limitation, any rights that such owners may have in
respect of securities law violations arising from the offer and sale of the
Obligations.
8. Irrespective of whether any such assignment is executed and delivered, the
Issuer and the Registrar hereby agree for the benefit of the Insurer that:
a. they recognize that to the extent the Insurer makes payments directly
or indirectly (e.g., by paying through the Registrar), on account of
principal of or interest on the Obligations, the Insurer will be
subrogated to the rights of such holders to receive the amount of such
principal and interest from the Issuer,with interest thereon as provided
and solely from the sources stated in the financing documents and the
Obligations;and
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A.8.a
b. they will accordingly pay to the Insurer the amount of such principal
and interest, with interest thereon as provided in the financing
documents and the Obligations, but only from the sources and in the
manner provided herein for the payment of principal of and interest on
the Obligations to holders, and will otherwise treat the Insurer as the
owner of such rights to the amount of such principal and interest.
9. The Insurer shall be entitled to pay principal or interest on the Obligations
that shall become Due for Payment but shall be unpaid by reason of
Nonpayment by the Issuer(as such terms are defined in the Policy) and any
amounts due on the Obligations as a result of acceleration of the maturity
thereof in accordance with this agreement, whether or not the Insurer has
received a Notice (as defined in the Policy) of Nonpayment or a claim upon
the Policy.
10. In addition, the Insurer shall to the extent it makes any payment of
principal or interest on the Obligations become subrogated to the rights of
the recipients of such payments in accordance with the terms of the Policy,
and to evidence such subrogation (i) in the case of claims for interest, the
Registrar shall note the Insurer's rights as subrogee on the registration
books of the Issuer maintained by the Registrar, upon receipt of proof of
payment of interest thereon to the registered holders of the Obligations, and
(ii) in the case of claims for principal, the Registrar, if any, shall not the
Insurer's rights as subrogee on the registration books of the Issuer
maintained by the Registrar, upon surrender of the Obligations together
with receipt of proof of payment of principal thereof.
11. The Issuer hereby agrees to pay or reimburse the Insurer, to the extent
permitted by law and subject to annual appropriation by the Issuer, (A) for
all amounts paid by the Insurer under the terms of the Policy, and (B) any
and all charges, fees, costs and expenses which the Insurer may reasonably
pay or incur, including, but not limited to, fees and expenses of attorneys,
accountants, consultants and auditors and reasonable costs of
investigations, in connection with (i) any accounts established to facilitate
payments under the Policy, (ii) the administration, enforcement, defense or
preservation of any rights in respect of the trust agreement or any other
financing document including defending, monitoring or participating in any
litigation or proceeding (including any bankruptcy proceeding in respect of
the Issuer or any affiliate thereof) relating to this agreement or any other
Financing Document, any party to this agreement or any other Financing
Document or the transaction contemplated by the Financing Documents,
(iii) the foreclosure against, sale or other disposition of any collateral
securing any obligations under this agreement or any other Financing
Document, or the pursuit of any remedies under this agreement or any
other Financing Document, to the extent such costs and expenses are not
recovered from such foreclosure, sale or other disposition, or (iv) any
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A.8.a
amendment, waiver or other action with respect to, or related to, this
agreement or any other Financing Document whether or not executed or
completed; costs and expenses shall include a reasonable allocation of
compensation and overhead attributable to time of employees of the Insurer
spent in connection with the actions described in clauses (ii) - (iv) above.
In addition, the Insurer reserves the right to charge a reasonable fee as a
condition to executing any amendment, waiver or consent proposed in
respect of this agreement or any other Financing Document.
12. In addition to any and all rights of reimbursement, subrogation and any
other rights pursuant hereto or under law or in equity, the Issuer agrees, to
the extent permitted by law, to pay or reimburse the Insurer any and all
charges, fees, costs, claims, losses, liabilities (including penalties),
judgments, demands, damages, and expenses which the Insurer or its
officers, directors, shareholders, employees, agents and each Person, if any,
who controls the Insurer within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, may reasonably pay or incur,
including, but not limited to, fees and expenses of attorneys, accountants,
consultants and auditors and reasonable costs of investigations, of any
nature in connection with, in respect of or relating to the transactions
contemplated by this agreement or any other financing document by reason
of-
a. any omission or action (other than of or by the Insurer) in
connection with the offering, issuance, sale, remarketing or
delivery of the Obligations;
b. the negligence, bad faith, willful misconduct, misfeasance,
malfeasance or theft committed by any director, officer, employee
or agent of the Issuer in connection with any transaction arising
from or relating to this agreement or any other financing
document;
C. the violation by the Issuer of any law, rule or regulation, or any
judgment, order or decree applicable to it;
d. the breach by the Issuer of any representation, warranty or
covenant under this agreement or any other financing document or
the occurrence, in respect of the Issuer, under this agreement or
any other financing document of any "event of default" or any
event which, with the giving of notice or lapse of time or both,
would constitute any "event of default"; or
e. any untrue statement or alleged untrue statement of a material fact
contained in any official statement, if any, or any omission or
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A.8.a
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such claims arise out of or are based
upon any untrue statement or omission in information included in
an official statement, if any, and furnished by the Insurer in writing
expressly for use therein.
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A.8.a
PASSED AND APPROVED this 7t'day of December, 2010.
MAYOR
THE CITY OF BEAUMONT,TEXAS
ATTEST:
CITY CLERK
THE CITY OF BEAUMONT,TEXAS
(SEAL)
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A.8.a
EXHIBIT A
The City of Beaumont,Texas
Certificates of Obligation, Series 2011
$35,000,000
Interest Accrues From: January 1, 2011
MATURITY SCHEDULE
Maturity Principal
March 1 Amount Interest Rate Yield
$ %Term Certificates due Yield %
The Certificates maturing on or after March 1, 2021, are subject to optional redemption, in whole
or in part, on March 1, 2020 , or any date thereafter, at a price equal to the principal amount
thereof, plus accrued interest to the date of redemption.
The Term Certificates are subject to mandatory sinking fund redemption as described in the
Ordinance.
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EXHIBIT "A"
2
December 7,2010
Consider authorizing the issuance and sale of up $17,700,000 General Obligation Refunding
Bonds, Series 2011; levying taxes to provide for payment thereof; and containing other matters
related thereto
RICH WITH OPPORTUNITY
IIEA,[11�10111)(
T • E • x • A • s City Council Agenda Item
TO: City Council
FROM: Kyle Hayes, City Manager
PREPARED BY: Laura Clark, Chief Financial Officer
Yt-
MEETING DATE: December 7, 2010
REQUESTED ACTION: Council consider an ordinance authorizing the issuance
and sale of up $17,700,000 General Obligation Refunding
Bonds, Series 2011; levying taxes to provide for payment
thereof; and containing other matters related thereto.
RECOMMENDATION
The administration requests approval.
BACKGROUND
Results of the sale will be presented by the City's Financial Advisor, Ryan O'Hara of RBC
Capital Markets. A recommendation will be made to award the bonds to the underwriters.
The refunding bonds will mature March 1, 2019 through March 1, 2025. Interest is payable
semiannually in March and September beginning September 1, 2011. The Bank of New York
Trust Company, N.A., Dallas, Texas, will serve as paying agent/registrar.
Delivery and receipt of proceeds by the City are scheduled for January 11, 2011. Proceeds
will be used to refund Series 2001, 2003, and 2006 Certificates of Obligations.
BUDGETARYIMPACT
All debt shall be incurred in the Debt Service Fund which is supported by property taxes. The
current debt service property tax rate is $.200615/$100 of assessed valuation. The refunding
bonds will allow the debt service property tax rate to remain constant in Fiscal Year 2012.
A.8.b
ORDINANCE NO.
ORDINANCE AUTHORIZING THE ISSUANCE OF THE CITY OF BEAUMONT,TEXAS,
GENERAL OBLIGATION REFUNDING BONDS,SERIES 2011;LEVYING TAXES TO
PROVIDE FOR PAYMENT THEREOF;AUTHORIZING THE CALL AND REFUNDING
OF CERTAIN BONDS AND OBLIGATIONS AND THE EXECUTION AND DELIVERY
OF AN ESCROW AGREEMENT AND THE SUBSCRIPTION FOR AND PURCHASE OF
CERTAIN ESCROWED SECURI TES;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, Certificates of Obligation, Series 2001, its City of Beaumont, Texas, Certificates
of Obligation, Series 2003, and its City of Beaumont,Texas, Certificates of Obligation, Series 2006
(collectively the 'Refunded Obligations"), and now desires to refund certain maturities of the
Refunded Obligations in advance of their maturities in order restructure the City's future debt
service, whether or not there is an overall savings in debt service, as permitted by Section 1207.008
of the Government Code of Texas;and
WHEREAS, Chapter 1207, Texas Government Code,as amended(formerly Article 717k of
Vernon's Annotated Texas Civil Statutes, as amended), and Sections 1 and 2 of Article II of the
Charter of the City, most recently amended on September 16, 2003, authorize 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 any of
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 Callable Refunded Obligations for
redemption prior to their maturities and desires to deposit sufficient funds to pay in full at maturity
the respective Non-Callable Bonds;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 Non-Callable Bonds and to
redeem the Callable Refunded Obligations;and
WHEREAS, upon issuance of the refunding bonds herein authorized and the deposit of
funds referred to above, the Non-Callable Refunded Obligations shall be considered discharged and
A.8.b
the Callable 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
Callable Refunded Obligations shall be discharged,terminated and defeased;
NOW,THEREFORE,BE IT ORDAINED BY THE CITY OF BEAUMONT:
1. Consideration and Findings. The matters and facts contained in the preamble to this
Ordinance are hereby found to be true and correct. Pursuant to Section 1207.008 of the Government
Code of Texas, the City Council as the governing body of the City of Beaumont, Texas, in these
proceedings authorizing the issuance of the Bonds, hereby finds that the issuance of the Bonds is in
the best interest of the City by helping the City manage its tax rates to pay future debt service. The
City Council specifies and authorizes that the maximum amount by which the aggregate amount of
payments to be made under the refunding bonds exceeds the aggregate amount of payments that
would have been made under the terms of the obligations being refunded is $ . The
City Council finds that the restructuring of the City's future debt service is in the best interests of the
City even though the aggregate amount of payment to be made under the refunding bonds exceeds
the aggregate amount of payments that would have been made under the terms of the obligations
being refunded. The benefit so found 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 2011 Bonds"shall mean The City of Beaumont,Texas, General
Obligation Refunding Bonds, Series 2011 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 18 of this Ordinance.
The term "Interest Payment Date", when used in connection with any Bond, shall mean
September 1,2011, and each March 1 and September 1 thereafter until maturity of such Bond.
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A.8.b
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"Obligation"as used herein shall mean the"Bonds".
The term "Ordinance" as used herein and in the Bonds shall mean this ordinance 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 "Paying Agent of the Refunded Obligations" shall mean the Bank of New York
Mellon Trust Company, N.A., Dallas, Texas, successor to the Bank of New York Trust Company,
N.A. as to the City's Certificates of Obligation, Series 2006, and Wells Fargo Bank, N.A.,
Minneapolis, MN, successor to Wells Fargo Bank Texas, National Association, as to the City's
Certificates of Obligation, Series 2001 and Series 2003.
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) the City's outstanding Certificates of
Obligation, Series 2001, maturing on March 1 in the years 2012 through 2018 in the principal
amounts of $750,000, $750,000, $750,000, $750,000, $750,000, $750,000 and $750,000
respectively; (b)the City's outstanding Certificates of Obligation, Series 2003, maturing on March 1
in the years 2011 through 2018 in the principal amounts of $655,000, $685,000, $715,000,
$745,000, $780,000, $815,000, $855,000, and $895,000, respectively; and(c)the City's outstanding
Certificates of Obligation, Series 2006, maturing on March 1, 2011 through 2014, in the principal
amounts of $1,515,000, $1,610,000, $1,690,000, and $1,745,000, respectively. The Series 2001
Bonds (all maturities) and the Series 2003 Bonds (maturing on March 1, 2014 through 2018)which
constitute a portion of the Refunded Obligations may be referred to as the "Callable Refunded
Obligations" and the Series 2003 Bonds (maturing prior to March 1, 2014) and the Series 2006
Bonds (maturing on March 1 of 2011 through 2014) which constitute a portion of the Refunded
Obligations may be referred to as the"Non-Callable Refunded Obligations."
The term "Register" shall mean the books of registration kept by the Registrar in which are
maintained the names and addresses of and the principal amounts registered to each Owner.
The term "Registrar" shall mean The Bank of New York Mellon Trust Company, N.A.,
Dallas,Texas,and its successors in that capacity.
The term "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 Capital
Markets for the City with respect to the defeasance of the Refunded Obligations.
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A.8.b
The term "SEC" shall mean the United States Securities and Exchange Commission, and its
successors.
The term "Underwriters" shall meanBank of America Merrill Lynch (Senior Manager),
Citigroup, Wells Fargo Securities, Estrada Hinojosa&Company, Inc., and Raymond James.
3. Authorization and Findings. The Bonds shall be issued in fully registered form,
without coupons, in the total authorized aggregate amount of SEVENTEEN MILLION FIVE
HUNDRED THOUSAND and NO/100 Dollars ($17,500,000.00) for the purpose of(i) refunding
certain of the outstanding Refunded Obligations,and(ii)paying all costs of issuance of the Bonds.
4. Designation, Date and Interest Payment Date. The Bonds shall be designated as the
"THE CITY OF BEAUMONT, TEXAS, GENERAL OBLIGATION REFUNDING BONDS,
SERIES 2011", and shall be dated January 1, 2011. The Bonds shall bear interest from the later of
January 1, 2011, or the most recent Interest Payment Date to which interest has been paid or duly
provided for, calculated on the basis of a 360 day year of twelve 30 day months, with interest
payable on September 1, 2011, and semiannually thereafter on March 1 and September 1 of each
year until maturity or earlier redemption.
5. Initial Bonds, 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 Maturt Amount Rate
R-1
R-2
R-3
R-4
R-5 [SEE EXHIBIT A]
R-6
R-7
R-8
R-9
R-10
R-11
6. Optional and Mandatory Redemption,Defeasance. The City reserves the right, at its
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A.8.b
option,to redeem Bonds having stated maturities on and after March 1, 2021, in whole or in part, on
March 1, 2020, or any date thereafter, at a price of par plus accrued interest to the date fixed for
redemption. If less than all of the Bonds are to be redeemed,the City shall determine the Bonds, or
portions thereof,to be redeemed.
The Bonds maturing in the year (the "Term Bonds") are also subject to mandatory
redemption prior to scheduled maturity, in the amount, on the date, and on the terms set out in the
form of Bonds in this Ordinance, at a price of par plus accrued interest to the date fixed for
redemption.
Bonds may be redeemed only in integral multiples of $5,000. If a Bond subject to
redemption is in a denomination larger that $5,000, a portion of such Bond may be redeemed, but
only in integral multiples of $5,000. Upon surrender of any Bond for redemption in part, the
Registrar, in accordance with Section 12 hereof, shall authenticate and deliver in exchange therefor a
Bond or Bonds of like maturity and interest rate in an aggregate principal amount equal to the
unredeemed portion of the Bond so surrendered.
Not less than thirty (30) days prior to a redemption date for the Bonds,the City shall cause a
notice of redemption to be sent by United States mail, first class, postage prepaid,to each Owner of
each Bond to be redeemed in whole or in part, at the address of the Owner appearing on the Register
at the close of business on the Business Day next preceding the date of the mailing of such notice.
Such notice shall state the redemption date,the redemption price,the place at which Bonds are to be
surrendered for payment and, if less than all the Bonds are to be redeemed, the numbers of the
Bonds or portions thereof to be redeemed. Any notice of redemption so mailed shall be conclusively
presumed to have been duly given whether or not the Owner receives such notice. By the date fixed
for redemption, due provision shall be made with the Registrar for payment of the redemption price
of the Bonds or portions thereof to be redeemed. When Bonds have been called for redemption in
whole or in part and due provision made to redeem the same as herein provided, the Bonds or
portions thereof so redeemed shall no longer be regarded as outstanding except for the purpose of
being paid solely from the funds so provided for redemption, and the rights of the Owners to collect
interest which would otherwise accrue after the redemption date on any Bond or portion thereof
called for redemption shall terminate on the date fixed for redemption.
The City may defease the provisions of this Ordinance and discharge its obligation to the
Owners of any or all of the Bonds to pay principal, interest and redemption premium, if any,thereon
in any manner permitted by law, including by depositing with the Paying Agent/Registrar, or if
authorized by Texas law, with any national or state bank having trust powers and having combined
capital and surplus of at least$50 million,or with the State Treasurer of the State of Texas either: (a)
cash in an amount equal to the principal amount and redemption premium, if any, of such Series
2011 Bonds plus interest thereon to the date of maturity or redemption; or(b) pursuant to an escrow
or trust agreement, cash and/or direct obligations of, or obligations the principal of and interest on
which are guaranteed by or secured by the pledge of direct obligations of the United States of
America, in principal amounts and maturities and bearing interest at rates sufficient to provide for
the timely payment of the principal amount and redemption premium, if any, of such Bonds plus
interest thereon to the date of maturity or redemption; provided, however, that if any of such Series
2011 Bonds are to be redeemed prior to their respective dates of maturity, provision shall have been
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made for giving notice of redemption as provided in this Ordinance. Upon such deposit, such Bonds
shall no longer be regarded to be Outstanding or unpaid. Any surplus amounts not required to
accomplish such defeasance shall be returned to the City. Notwithstanding anything herein to the
contrary, in the event that the principal and/or interest due on the Bonds shall be paid by Insurer
pursuant to the Insurance Policy, the Bonds shall remain outstanding for all purposes, not be
defeased or otherwise satisfied and not be considered paid by the City, and all covenants,agreements
and obligations of the City to the registered owners shall continue to exist and shall run to the benefit
of Insurer,and Insurer shall be subrogated to the rights of such registered owners.
7. Execution of Bonds; Seal. The Bonds shall be signed by the Mayor or Mayor Pro
Tern of the City and countersigned by the City Clerk or Deputy City Clerk of the City, by their
manual, lithographed, or facsimile signatures, and the official seal of the City shall be impressed or
placed in facsimile thereon. Such facsimile signatures on the 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.
8. Approval by Attorney General; Registration by CoWtroller. The Bonds to be
initially issued shall be delivered to the Attorney General of Texas for approval and shall be
registered by the Comptroller of Public Accounts of the State of Texas. The manually executed
registration certificate of the Comptroller of Public Accounts substantially in the form provided in
Section 16 of this Ordinance shall be attached or affixed to the Bonds to be initially issued.
9. 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 16 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.
10. 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.
If interest on any Bond is not paid on any Interest Payment Date and continues unpaid for
thirty (30) days thereafter, the Registrar shall establish a new record date for the payment of such
interest, to be known as a Special Record Date. The Registrar shall establish a Special Record Date
when funds to make such interest payment are received from or on behalf of the City. Such Special
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Record Date shall be fifteen (15) days prior to the date fixed for payment of such past due interest,
and notice of the date of payment and the Special Record Date shall be sent by United States mail,
first class, postage prepaid, not later than five (5)business days prior to the Special Record Date,to
each affected Owner of record as of the close of business on the day prior to the mailing of such
notice.
If the date for payment of the principal of or interest on any Bond is not a Business Day,then
the date for such payment shall be the next succeeding Business Day, and payment on such date
shall have the same force and effect as if made on the original date payment was due.
11. Ownership; Unclaimed Principal and Interest. The City,the Registrar and any other
person may treat the person in whose name any Bond is registered as the absolute owner of such
Bond for the purpose of making and receiving payment of 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 11 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.
12. 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
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 12. Each Bond delivered in accordance with this Section 12 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
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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.
13. 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.
14. Mutilated, Lost or Stolen Bonds. Upon the presentation and surrender to the
Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a
replacement Bond of like maturity, interest rate and principal amount, bearing a number not
contemporaneously outstanding. 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 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.
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