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HomeMy WebLinkAboutORD 10-096 A.S.a ORDINANCE NO. 10-096 ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF$35,380,000 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 A.B.a 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 Laf n 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 Cleric 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; -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,as hereinafter authorized and provided. 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 "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 1 and September 1 thereafter until maturity or earlier redemption. 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. - 3 - I A.8.a 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 MELLON TRUST COMPANY,N.A.,Dallas,Texas,and its successors in that capacity. The term "SEC" shall mean the United States Securities and Exchange Commission and its successors. The term "System" shall mean the City's waterworks and sewer system. The term "Underwriter" shall mean, collectively, Merrill Lynch, Pierce Fenner and Smith Incorporated (Senior Manager), Citigroup Global Markets, Inc., 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 THREE HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($35,380,000), 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; (b) 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) constriction 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- -4- A.8.a way of two remaining phases of the High School Ditch Project including drainage improvements in area bounded by Hi-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 Latin 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 officetwarehouse 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 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. - 5 - A.S.a The Certificates shall be in the total aggregate principal amount of$35,380,000 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 Maturi ty Amount Rate CR-1 2015 CR-2 2016 CR-3 2017 CR-4 2018 SEE EXHIBIT A CR-5 2019 CR-6 2020 CR-7 2021 CR-8 2022 CR-9 2023 CR-10 2024 CR-11 2025 CR-12 2026 CR-13 2027 CR-14 2028 CR-15 2029 CR-16 2030 CR-17 2035 CR-18 2040 6. Execution of Certificates: Seal. The Certificates 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 Certificates shall have the same effect as if each of the Certificates had been signed manually and in person by each of said officers, and such facsimile seal on the Certificates shall have the same effect as if the official seal of the City had been manually impressed upon each of the Certificates. If any officer of the City whose manual or facsimile signature shall appear on the Certificates shall cease to be such officer before the authentication of such Certificates or before the delivery of such Certificates, such 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 -6- A.B.a 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 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, fast 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. -7- A.8.a 12. Ownership: Unclaimed Principal and Interest. The City, the Registrar and any other person may treat the person in whose name any Certificate is registered as the absolute Owner of such Certificate for the purpose of making payment of principal or interest on such Certificate, and for all other purposes, whether or not such Certificate is overdue, and neither the City nor the Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the person deemed to be the Owner of any Certificate in accordance with this Section 12 shall be valid and effectual and shall discharge the liability of the City and the Registrar upon such Certificate to the extent of the sums paid. Amounts held by the Registrar which represent principal of and interest on the Certificates remaining unclaimed by the Owner after the expiration of three (3) years from the date such amounts have become due and payable shall be reported and disposed of by the Registrar in accordance with the provisions of Texas law,including to the extent applicable,Title 6 of the Texas Property Code,as amended. 13. Registration, Transfer, and Exchange; Special Election for Uncertificated Certificates. So long as any Certificates remain outstanding,the Registrar shall keep the Register at its principal corporate trust office and, subject to such reasonable regulations as it may prescribe, the Registrar shall provide for the registration and transfer of Certificates in accordance with the terms of this Ordinance. Each Certificate shall be transferable only upon the presentation and surrender thereof at the principal corporate trust office of the Registrar, duly endorsed for transfer, or accompanied by an assignment duly executed by the registered Owner or his authorized representative in form satisfactory to the Registrar. Upon due presentation of any Certificate for transfer, the Registrar shall authenticate and deliver in exchange therefor, within three (3) Business Days after such presentation,a new Certificate or Certificates,registered in the name of the transferee or transferees, in authorized denominations and of the same maturity and aggregate principal amount and bearing interest at the same rate as the Certificate or Certificates so presented. All Certificates shall be exchangeable upon presentation and surrender thereof at the principal corporate trust office of the Registrar for a Certificate or Certificates of the same maturity and interest rate in any authorized denomination, in an aggregate principal amount equal to the unpaid principal amount of the Certificate or Certificates presented for exchange. The Registrar shall be and is hereby authorized to authenticate and deliver exchange Certificates in accordance with the provisions of this Section 13. Each Certificate delivered in accordance with this Section 13 shall be entitled to the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in lieu of which such Certificate is delivered. The City or the Registrar may require the Owner of any Certificate to pay a sum sufficient 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 - 8 - A.8.a 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 a 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 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 -9- A.S.a 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 a letter of representation from the City to the DTC. 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. 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 - 10- A.8.a 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 years 2035 and 2040 (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 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 - 11 - A.8.a 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. 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: FORM OF CERTIFICATE UNITED STATES OF AMERICA STATE OF TEXAS COUNTY OF JEFFERSON NUMBER DENOMINATION CR-_ $ REGISTERED REGISTERED THE CITY OF BEAUMONT,TEXAS - 12 - A.8.a 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, aggregating $35,380,000 (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 R 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. 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 years 2035 and 2040 (the "Term Certificates") are also subject to mandatory redemption prior to maturity in the amounts and on the dates set out below, at a price equal to the principal amount to be redeemed plus accrued interest to the redemption date: TERM CERTIFICATES DUE MARCH 1.2035 - 13 - A.8.a Date Amount 2031 $2,065,000 2032 $2,170,000 2033 $2,280,000 2034 $2,400,000 2035 (Maturity) $2,175,000 TERM CERTIFICATES DUE MARCH 1,2040 2036 $2,285,000 2037 $2,405,000 2038 $2,525,000 2039 $2,655,000 2040(Maturity) $2,795,000 The Paying Agent shall select for redemption by lot,or by any other customary method that results in random selection,a principal amount of Term Certificates equal to the aggregate principal amount of such Term Certificates to be redeemed, shall call such Term Certificates for redemption on the scheduled mandatory redemption date, and shall give notice of such redemption in accordance with the Ordinance authorizing the Certificates. The principal amount of Term Certificates required to be mandatorily redeemed shall be reduced by the principal amount of Term Certificates which, at least 45 days prior to the mandatory redemption date, shall have been delivered to the Registrar for cancellation or shall have been optionally redeemed and not previously credited against a mandatory redemption requirement. NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior the date fixed for redemption by first class mail, addressed to the registered owner of each Certificate to be redeemed in whole or in part at the address shown on the books of registration kept by the Registrar. When Certificates or portions thereof have been called for redemption and due provision has been made to redeem the same,the principal amounts so redeemed shall be payable solely from the funds provided for redemption and interest which would otherwise accrue on the amounts called for redemption shall terminate on the date fixed for redemption. The Certificates may be defeased as provided in the Ordinance authorizing the Certificates. THIS CERTIFICATE is transferable only upon presentation and surrender at the principal corporate trust office of the Registrar,duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his authorized representative, subject to the terms and conditions of the Ordinance. THE CERTIFICATES are exchangeable at the principal corporate trust office of the Registrar for Certificates in the principal amount of$5,000 or any integral multiple thereof, subject to the terms and conditions of this Ordinance. - 14- A.8.a 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. - 15 - A.8.a 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 .201—. 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 - 16- A.8.a (Please print or type name, address, and zip code of Transferee) (Please insert Social Security or Taxpayer Identification Number of Transferee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises. DATED: Signature Guaranteed: NOTICE: The signature above must correspond to the name of the registered NOTICE: Signature must be owner as shown on the face guaranteed by a member firm of this Certificate in of the New York Stock Exchange every particular,without or a commercial bank or trust any alteration,enlargement company. or change whatsoever. END OF FORM OF CERTIFICATE 18. Legal Opinion;CusiRNumbers. The approving opinion of Orgain Bell&Tucker,LLP, Beaumont, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Certificates, but errors or omissions in the printing of such opinion or such numbers shall have no effect on the validity of the Certificates. 19. Interest and Sinking Fund; Tax Levy; Pledge of Revenues, Construction Fund. The proceeds from all taxes levied, assessed and collected for and on account of the Certificates authorized by this Ordinance are hereby irrevocably pledged and shall be deposited,as collected,in a special fund to be designated "City of Beaumont, Texas, Certificates of Obligation, Series 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 - 17- A.8.a 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 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 1201.044 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 - 18 - i A.8.a 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$35,156,154.40, which represents the par amount of the Certificates of $35,380,000.00, less a net original issue discount of$118,768.70,plus a premium of$124,893.10, and less an underwriting discount of $229,970.00, 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 City finds that the net effective interest of the Certificates is 4.879869%. The premium received for the Certificates shall be counted against the noticed amount of $36,000,000 authorized by and published as required by law pursuant to the Resolution adopted by the City Council on November 2,2010. 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 - 19- A.8.a Section 22 will satisfy the applicable requirements of the Code,in which case compliance with such other requirement specified in such Counsel's Opinion shall constitute compliance with the corresponding requirement specified in this Section 22. (b) The City covenants and agrees that its use of Net Proceeds (as defined below)of the Certificates will at all times satisfy the following requirements: (i) The City will use all of the Net Proceeds of the Certificates for the cost of construction of authorized street, drainage, building, park, and other capital improvements, equipment purchases and the cost of issuance of the Certificates. The City has limited and will limit with respect to the Certificates the amount of original or investment proceeds thereof to be used(other than use as a member of the general public)in the trade or business of any person other than a governmental unit to an amount aggregating no more than 10% of the Net Proceeds of the Certificates ("private-use proceeds"). For purposes of this Section,the term "person" includes any individual, corporation,partnership,unincorporated association, or any other entity capable of carrying on a trade or business; and the term "trade or business" means, with respect to any natural person, any activity regularly carried on for profit and, with respect to persons other than natural persons, any activity other than an activity carried on by a governmental unit. Any use of proceeds of the Certificates in any manner contrary to the guidelines set forth in Revenue Procedure 93-19, including any revisions or amendments thereto, shall constitute the use of such proceeds in the trade or business of one who is not a governmental unit; (ii) The City has not permitted and will not permit more than 5% of the Net Proceeds of the Certificates to be used in the trade or business of any person other than a governmental unit if such use is unrelated to the governmental purpose of the Certificates. Further, the amount of private-use proceeds of the Certificates in excess of 5% of the Net Proceeds thereof("excess private-use proceeds")did not and will not exceed the proceeds of the Certificates expended for the governmental purpose of the Certificates to which such excess private-use proceeds relate; (iii) Principal of and interest on the Certificates shall be paid solely from ad valorem tax receipts collected by the City and from the Net Revenues of the System to the extent pledged hereunder. Further, no person using more than 10% of the Net Proceeds of the Certificates in a trade or business, other than a governmental unit, has made or shall make payments (other than as a member of the general public), directly or indirectly, accounting for more than 10%of such receipts; (iv) The City has not permitted and will not permit with respect to the Certificates an amount of proceeds thereof exceeding the lesser of(a) $5,000,000 or(b) 5% of the Net Proceeds of the Certificates to be used, directly or indirectly, to finance loans to persons other than a governmental unit;and (v) The City will use$381,940.00 of the Net Proceeds of the Certificates to pay the costs of issuance of the Certificates. -20- A.8.a 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 eared from the investment of the gross proceeds of the Certificates which is required to be rebated to the federal government, and (iii) pay, not less often than every 5th anniversary date of the delivery of the Certificates, and within sixty (60) days after retirement of the Certificates, all amounts required to be rebated to the federal government. Further, the City will not indirectly pay any amount otherwise payable to the federal government pursuant to the foregoing requirements to any person other than the federal government by entering into any investment arrangement with respect to the gross proceeds of the Certificates that might result in a reduction in the amount required to be paid to the federal government because such arrangement results in a smaller profit or larger loss than would have resulted if the arrangement had been at arm's length and had the yield on the issue not been relevant to either party. The City covenants and agrees to comply with, among other things, the requirements of section 148(f) of the Code and, if required,the City will satisfy the requirements out of funds other than the proceeds of the Bonds and those in the Interest and Sinking Fund. (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 -21 - A.8.a 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 Certificates as part of an"abusive arbitrage device" (as defined in Section 1.148-10(a) of the Regulations).Without limiting the foregoing, the Certificates 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. 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$ N/A will be used to pay the premium for the Certificates Insurance Policy; - 22- A.8.a (c) The sum of $381,940.00 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. Oven 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. Registrar. The form of agreement setting forth the duties of the Registrar is hereby approved, and the appropriate officials of the City are hereby authorized to execute such agreement for and on behalf of the City. 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 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 Obli ations. The City undertakes and agrees for the benefit of the holders of the Certificates to provide the following to the Municipal Securities Rulemaking Board - 23 - A.8.a ("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: INVESTMENT AUTHORITY AND INVESTMENT OBJECTIVES OF THE CITY 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; 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; -24- A.8.a F 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 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 -25 - A.8.a OWNERS OF CERTIFICATES MAY SEEK AS TF= 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. Re er. 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. (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: -26 - A.8.a (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(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 Certificates then outstanding, which instrument or instruments shall refer to the proposed amendment described in said notice and which specifically consent to and approve such amendment in substantially the form of the copy thereof on file with the Paying Agent, the City Council may adopt the amendatory resolution in substantially the same form. (d) Upon adoption of any amendatory resolution pursuant to the provision of this Section, this Ordinance shall be deemed to be amended in accordance with such amendatory resolution, and the respective rights, duties and obligations under this Ordinance of the City and all the owners of then outstanding Series 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 -27 - A.8.a 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-Tern 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 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. [omitted] -28 - I - A.B.a PASSED AND APPROVED this 7`h day of December,2010. 4PL� — MAYOR THE CITY BEAUMONT,TEXAS ATTEST: —IAII A AA MAWM d "S'LES CITY CLERK THE CITY OF BEAUMONT,TEXAS -29- A.8.a EXHIBIT A The City of Beaumont,Texas Certificates of Obligation,Series 2011 $35,380,000 Interest Accrues From: January 1,2011 MATURITY SCHEDULE Maturity Principal March 1) Amount Interest Rate Yield 2015 $ 100,000 3.00% 1.94% 2016 $ 150,000 3.00% 2.17% 2017 $ 200,000 3.00% 2.56% 2018 $ 200,000 3.00% 2.87% 2019 $ 205,000 3.00% 3.19% 2020 $ 205,000 3.25% 3.43% 2021 $ 215,000 3.50% 3.67% 2022 $ 220,000 3.75% 3.86% 2023 $ 230,000 4.00% 4.05% 2024 $ 240,000 4.00% 4.22% 2025 $ 245,000 4.00% 4.33% 2026 $ 1,715,000 4.50% 4.53% 2027 $ 1,795,000 4.50% 4.61% 2028 $ 1,875,000 4.50% 4.68% 2029 $ 1,965,000 4.75% 4.780/a 2030 $ 2,065,000 4.75% 4.82% 2035(Term Certificate) $11,090,000 5.00% 4.91% 2040(Term certificate) $12,665,000 5.00% 4.96% 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.