HomeMy WebLinkAboutORD 17-024ORDINANCE NO. 17-024
ORDINANCE AUTHORIZING THE ISSUANCE OF THE CITY OF
BEAUMONT, TEXAS, WATERWORKS AND SEWER SYSTEM
REVENUE BONDS, SERIES 2017 IN ONE OR MORE SERIES OR
SUBSERIES AS MAY BE FURTHER DESIGNATED; AUTHORIZING
EACH OF THE MAYOR, THE CITY MANAGER AND THE CITY CHIEF
FINANCIAL OFFICER TO APPROVE THE AMOUNTS, INTEREST
RATES, PRICES, AND TERMS THEREOF AND CERTAIN OTHER
MATTERS RELATING THERETO; PROVIDING FOR THE PAYMENT
THEREOF; MAKING OTHER PROVISIONS REGARDING SUCH BONDS
INCLUDING AUTHORIZING THE PREPARATION AND DISTRIBUTION
OF ONE OR MORE PRELIMINARY OFFICIAL STATEMENTS AND
AUTHORIZING THE PREPARATION AND DISTRIBUTION OF ONE OR
MORE OFFICIAL STATEMENTS AND MATTERS INCIDENT THERETO;
AWARDING THE SALE OF THE BONDS; AUTHORIZING THE
EXECUTION AND DELIVERY OF ONE OR MORE BOND PURCHASE
AGREEMENTS; AUTHORIZING BOND INSURANCE; AUTHORIZING
THE EXECUTION AND DELIVERY OF A PAYING AGENT/REGISTRAR
AGREEMENT AND OTHER RELATED !DOCUMENTS; AND MAKING
OTHER PROVISIONS REGARDING SUCH BONDS.
WHEREAS, The City of Beaumont, Texas (the "City") is authorized, pursuant to
Chapters 1371 and 1502, Texas Government ; Code, as amended, to issue bonds,
without election, payable from the net revenues Of its waterworks and sewer system to
provide money for acquisitions, purchases, expansions, extensions, construction,
reconstruction, renovation, equipping, and improvement of such system; and,
WHEREAS, the City now desires to issue bonds in order to provide funds to
finance the expansion, repair, renovation and related improvements to the City's
waterworks and sewer system; and,
WHEREAS, the City shall by this Ordinance, in accordance with the provisions of
Chapters 1371 and 1502, Texas Government Code, as amended, delegate to a Pricing
Officer (hereinafter designated) the authority to determine the principal amount of Bonds
to be issued and negotiate the terms of sale thereof; and,
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WHEREAS, the Council hereby finds and determines that it is a public purpose
and in the best interests of the City to issue the Bonds with such terms to be included in
a pricing certificate (the "Officer's Pricing Certificate") to be executed by the Pricing
Officer all in accordance with the provisions! of Chapters 1371 and 1502, Texas
Government Code, as amended; and,
WHEREAS, the Council hereby finds that it may purchase a credit agreement in
the form of a municipal bond insurance policy or policies with respect to the Bonds if it
deems such purchase is cost effective; and,
WHEREAS, the bonds to be issued pursuant to the terms and provisions of this
Ordinance will be secured by a pledge of and lien on the Net Revenues (as hereinafter
defined) which is subordinate only to the pledge of and lien on such Net Revenues
associated with the Prior Lien Bonds (as hereinafter defined); and,
WHEREAS, the City is a home -rule municipality that: (i) adopted its charter
under Section 5, Article XI, Texas Constitution; (ii), has a population of more than 50,000
and (iii) has outstanding long-term indebtedness hat is rated by a nationally recognized
rating agency for municipal securities in one of the four highest rating categories for a
long-term obligation;
NOW, THEREFORE, BE 1IT ORDAINED
BY THE CITY COUNCIL OF THE CITY OF BEAUMONT:
1. Findings and Determinations. It is hereby found and determined that 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 "Additional Parity Bonds" shall, mean any credit agreement created
pursuant to Section 28 herein or additional bonds issued with the same priority lien as
the Bonds.
The term "Average Annual Debt Service Requirements" shall mean the average
annual debt service for the Prior Lien Bonds plu's the average annual debt service for
the Parity Bonds.
The term "Blanket Issuer Letter of Reptesentations" shall mean the Blanket
Issuer Letter of Representations between the City, and DTC.
The term "Bond Register" shall mean the books of registration kept by the
Registrar in which are maintained the names and addresses of, and the principal
amounts of the Bonds registered to, each Owner.'
The terms "Bonds" shall mean the City of Beaumont, Texas Waterworks and
Sewer System Revenue Bonds, Series 2017.
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The term "Business Day" shall mean any day which is not a Saturday, Sunday, a
day on which banking institutions in the city where the principal corporate trust office of
the Paying Agent/Registrar or Insurer, if any, is located, are authorized or required by
law or executive order to close, or a legal holiday.
The term "City" shall mean The City of Beaumont, Texas.
The term "Closing Date" shall mean the date of the initial delivery of and payment
for the Bonds.
The term "Code" shall mean the Internal Revenue Code of 1986, as heretofore
and hereafter amended and, with respect to a specific section thereof, such reference
shall be deemed to include (a) the Regulations promulgated under such section, (b) any
successor provision of similar import hereafter enacted, (c) any corresponding provision
of any subsequent Internal Revenue Code, and (d) the Regulations promulgated under
the provisions described in (b) and (c).
The term "Comptroller" shall mean the Comptroller of Public Accounts of the
State of Texas.
The term "DTC" means The Depository Trust Company of New York, New York,
or any successor securities depository.
The term "DTC Participant" means 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 "Gross Revenues" shall mean all revenues, income and receipts of
every nature derived or received by the City from the operation and ownership of the
System (but excluding any utility deposits) and the interest income from the investment
or deposit of money in the Revenue Fund, and the Interest and Sinking Fund. Gross
Revenues shall not include any federal credit subsidy payments received by the City as
a result of the election to designate the City's Waterworks and Sewer System Revenue
Bonds, Taxable Series 2010B (Build America Bonds — Direct Payment to Issuer) as
Build America Bonds.
The term "Insurance Policy" shall have the meaning assigned to that term in
Section 28 of this Ordinance.
The term "Insured Bonds" shall mean the Bonds during the time period in which
the payment of principal and interest in connection with such bonds is guaranteed by
the Insurer.
The term "Insurer" shall mean Build America Mutual Assurance Company, or any
other third party financial institution that provides a credit agreement in the form of a
municipal bond insurance policy as provided herein.
The term "Interest Payment Date", when used in connection with any Bond, shall
mean September 1, 2017 and each March 1 and September 1 thereafter until maturity
or earlier redemption of such Bond.
The term "Issuer" shall mean the City.
The term "Maintenance and Operation Expenses" shall mean the reasonable and
necessary expenses of operation and maintenance of the System, including all salaries,
labor, materials, repairs and extensions necessary to render efficient service, and all
payments under contracts, now or hereafter defined as operating expenses by the
Legislature of the State of Texas. Depreciation shall never be considered as a
Maintenance and Operation Expense.
The term "MSRB" shall mean the Municipal Securities Rulemaking Board.
The term "Net Revenues" shall mean 'all Gross Revenues remaining after
deducting the Maintenance and Operation Expenses. For purposes of any
reimbursement agreement authorized pursua nI t to any Ordinance authorized in
connection with the issuance of any Prior Lien Bonds, agreements to make payments
out of Net Revenues, in all cases Net Revenues for such purpose, shall mean only Net
Revenues available after satisfaction of obligations to holders of current Prior Lien
Bonds. i
The term "Officer's Pricing Certificate" shall mean a certificate or certificates to be
signed by the Mayor, the City Manager or the Chief Financial Officer of the City
pursuant to Section 5 hereof and delivered to the City Clerk, in substantially the form
attached hereto as Exhibit C.
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The term "Ordinance" as used herein and in the Bonds shall mean this ordinance
authorizing the Bonds and all amendments and supplements hereto.
The term "Outstanding" shall mean, in connection with the Bonds, any Bonds that
remain outstanding until maturity, refunding or defeasance.
The term "Owner" shall mean any person) who shall be the registered owner of
any Bonds.
The term "Parity Bonds" shall mean the Bonds, the City's outstanding
Waterworks and Sewer System Revenue Bonds, Series 2014A and 2014B, and the
City's Waterworks and Sewer System Revenue Refunding Bonds, Series 2015A and
any Additional Parity Bonds.
The term "Prior Lien Bonds" shall mean the City's outstanding Waterworks and
Sewer System Revenue Refunding Bonds, Series 2010, and the City's outstanding
Waterworks and Sewer Revenue, Series 2010A, and the City's outstanding Waterworks
and Sewer Revenue Bonds, Taxable Series 20106 (Build America Bonds — Direct
Payment to Issuer), and the City's outstanding Waterworks and Sewer System Revenue
Bonds, Series 2012, but only to the extent such Prior Lien Bonds remain outstanding
within the meaning of this Ordinance.
The term "Paying Agent" for the Bonds shall mean the Registrar.
The term "Pricing Officer" shall mean the Mayor, City Manager, or Chief Financial
Officer of the City.
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 "Registrar" shall mean The Bank of New York Mellon Trust Company,
N.A., Dallas, Texas, and its successors in that capacity.
The term "Regulations" means the applicable proposed, temporary or final
Treasury Regulations promulgated under the Code or, to the extent applicable to the
Code under the Internal Revenue Code of 1954,; as such regulations may be amended
or supplemented from time to time.
The term "Reserve Fund Requirement" (shall mean an amount equal to the
average annual principal and interest requiremelnt on the Parity Bonds, which may be
determined and redetermined each year by the City but in no event less frequently than
upon the issuance of each series of Parity Bonds.
The term "Rule" shall mean SEC Rule 15c-12, as amended from time to time.
The term "SEC' shall mean the United States Securities and Exchange
Commission.
The term "Special Project" shall mean,to the extent permitted by law, any
property, improvement or facility declared by the, City not to be part of the System and
substantially all of the costs of the acquisition, construction and installation of which is
paid from proceeds of a financing transaction other than the issuance of bonds payable
from ad valorem taxes or Net Revenues of the System, and for which all maintenance
and operation expenses are payable from sources other than revenues of the System,
but only to the extent that and for so long as all or any part of the revenues or proceeds
of which are or will be pledged to secure the payment or repayment of such costs of
acquisition, construction and installation under such financing transaction.
The term "System" shall mean all properties, facilities, improvements, equipment,
interests and rights constituting the waterworks and sewer system of the City, including
all future extensions, replacements, betterments, additions, improvements,
enlargements, acquisitions, purchases and repairs to the System, but excluding all
Special Projects.
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The term "Underwriter" shall mean, collectively, Estrada Hinojosa & Co., Inc., as
senior underwriter, Hilltop Securities Inc. and Raymond James & Associates, Inc. as co -
managers.
3. Authorization. The Bonds shall be issued in fully registered form in the
total authorized aggregate principal amount not to exceed TWENTY ONE MILLION
AND NO/100 DOLLARS ($21,000,000) for the purpose of providing funds to (i) finance
capital expenditures acquisition, purchase, construction, reconstruction, improvement,
renovation, expansion, or equipping of property, buildings, structures, facilities, or
related infrastructure for the City's waterworks and sewer system (the "Project") and (ii)
paying costs of issuance of the Bonds.
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a
vment Dates. The Bonds shall be
designated as "THE CITY OF BEAUMONT, TEXAS, WATERWORKS AND SEWER
SYSTEM REVENUE BONDS, SERIES 2017." The Bonds shall be dated, mature, bear
interest from the dates and at the rates per annum, and be payable on the dates and in
the principal amounts as set forth in the Officer's Pricing Certificate.
5. Sale of Bonds. As authorized by Chapters 1371 and 1502, Texas
Government Code, as amended, the Pricing Officers are hereby authorized to act on
behalf of the City in selling and delivering the Bonds and carrying out the other
procedures specified in this Ordinance, including any additional designation or title by
which the ,Bonds shall be known, the number of subseries of Bonds to be issued and
the principal amount of each subseries, the price at which each series of the Bonds will
be sold, the manner in which the Bonds should be delivered, the date or dates (which
may be different dates for each series of the Bonds) on which the Bonds shall be sold,
the form in which the Bonds shall be issued whether as current interest bonds, as
compound interest bonds, or as a combination of current interest bonds and compound
interest bonds, any additional designation or title by which the Bonds shall be known,
the year or years in which each series of the Bonds will mature, the principal amount to
mature in each of such years, the aggregate principal amount of each series of the
Bonds, the rate of interest to be borne by each such maturity, the first interest payment
date or compounding date, as the case may be, the dates, prices, and terms, if any,
upon and at which each series of the Bonds shall be subject to redemption prior to
maturity at the option of the City, as well as any mandatory sinking fund redemption
provisions, or make -whole provisions, and such !officers are also hereby authorized to
act on behalf of the City in approving all other matters relating to the issuance, sale and
delivery of the Bonds and the purchase of a bond insurance policy or policies for all or
any portion of the Bonds, all of which shall be specified in one or more bond purchase
agreements (the "Bond Purchase Agreement") for the Bonds substantially in the form
attached hereto as Exhibit B, in accordance with the terms below:
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(a) the price to be paid for each series of the Bonds shall not be less than
90% of the aggregate original principal amount of the current interest bonds plus
accrued interest, if any, thereon from their date to their delivery,
(b) none of the Bonds shall bear interest at a rate greater than 6% per
annum or in excess of the maximum rate allowed by Chapter 1204, Texas
Government Code,
(c) the aggregate principal amount of each subseries of the Bonds shall not
exceed the maximum amount authorized in Section 3, and
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(d) each series of the Bonds to be issued, prior to delivery, must have been
rated by a nationally recognized rating agency for municipal securities in one of the four
highest rating categories for long-term obligations.
(e) to the extent the City shall purchase any Insurance Policy (one or more)
issued by one or more Insurers such policy, or policies shall be determined to be most
cost effective to the City for the Bonds and shall result in a net interest rate savings to
the City which is greater than the costs of the premium of such policy or policies, as
may be certified in the Officer's Pricing Certificate.
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Any finding by the Mayor, City Manager or the Chief Financial Officer relating to
the sale and delivery of the Bonds and the purchase of bond insurance shall have the
same force and effect as a finding or determination made by the City Council.
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6. Bond Numbers and Denominations) Each series of Bonds shall be
numbered from R-1 and upward (except the Initial !Bond, which shall each be numbered T-
1), and may be transferred and exchanged as set out in this Ordinance. Such Bonds shall
mature on September 1 in each of the years and in the amounts set forth in the Initial
Bond. The Bonds delivered in transfer of or inn 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 Bonds or Bonds in lieu of which they are delivered.
7. Execution of Bonds; Seal. The Bonds shall be signed by the Mayor or
Mayor Pro Tem and countersigned by the City Clerk or Deputy City Clerk, 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 Comptroller. The Bonds to
be initially issued shall be delivered to the Attorney General of Texas for approval and
shall be registered by the Comptroller of Public Accounts of the State of Texas. The
manually executed registration Bond of the Comptroller of Public Accounts substantially
in the form provided in the Officer's Pricing Certificate 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 ds which bear thereon a certificate of
authentication, substantially in the form provided in Section 19 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 Bonds so
authenticated were delivered by the Registrar hereunder.
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10. Payment of Principal and Interest. The Registrar is hereby appointed as
the paying agent for the Bonds. The principal of and premium, if any, on 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 respectively become due and payable, whether at maturity or by prior redemption,
at the principal corporate trust office of the Registrar. The interest on each Bond shall
be payable by check 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 Bond Register. Any accrued interest payable
at maturity on a Bond shall be paid upon presentation and surrender of such Bond at
the principal corporate trust office of the Registrar.
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 such payment was due.
11. Successor Registrars. The City covenants that at all times while any
Bonds are outstanding it will provide a legally qualified bank, trust company, financial
institution or other agency to act as Registrar for the Bonds. The City reserves the right
to change the Registrar for the Bonds on not less than 60 days written notice to the
Registrar, so long as any such notice is effective not less than 60 days prior to the next
succeeding principal or interest payment date on the Bonds. Promptly upon the
appointment of any successor Registrar, the previous Registrar shall deliver the Bond
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.
12. Special Record Date. 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 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) 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.
13. 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
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absolute owner of such Bond for the purpose of making and receiving payment of
principal of and premium, if any, or interest on such Bond, 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 13 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 three years from the
date such amounts have become due and payable shall be reported and disposed of by
the Registrar in accordance with the applicable provisions of Texas law, including Title 6
of the Texas Property Code, as amended.
14. Registration, Transfer, and Exchange. So long as any Bonds remain
outstanding, the Registrar shall keep the Bond 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 Bonds in accordance with the terms of
this Ordinance. If the Registrar does not maintain its principal offices in the State of
Texas, the City agrees to keep a Bond Register at its offices which is identical to the
Bond Register maintained by the Registrar and the Registrar will notify the City as to
any changes in the Bond Register within 1 business day.
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 in proper form for transfer, the Registrar shall authenticate and deliver in
exchange therefor, within three (3) business day's after such presentation, a new Bond
or Bonds, registered in the name of the transferee or transferees, in authorized
denominations and of the same type, maturity and aggregate principal amount and
bearing interest at the same rate as the Bond or Bonds so presented.
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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 type,
maturity and interest rate and in any authorized denomination, in an aggregate 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 14. Each 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 Bond is
delivered.
The City or the Registrar may require the Owner of any Bond to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with the transfer or exchange of such Bond. Any fee or charge of the
Registrar for such transfer or exchange shall bepaid by the City.
Neither the City nor the Registrar shall be required to transfer or exchange any
Bond 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 Bond called for redemption in
part.
15. 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. 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.
The City or the Registrar may require the Owner of a mutilated 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. The City or the Registrar may require the Owner of a
lost, apparently destroyed or wrongfully taken Bond, before any replacement Bond is
issued, to:
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(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
Bond;
(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 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 iextent of any loss, damage, cost or
expense incurred by the City or the Registrar in connection therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Bond has
become or is about to become due and payable, the City in its discretion may, instead
of issuing a replacement Bond, authorize the Registrar to pay such Bond.
Each replacement Bond delivered in accordance with this Section 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.
16. Cancellation of Bonds. All Bonds plaid in accordance with this Ordinance,
and all Bonds in lieu of which exchange Bonds o , 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 Bonds of destruction of such Bonds.
17. Book -Entry System. (a) Notwithstanding any other provision hereof, upon
initial issuance of the Bonds but at the sole election of the Underwriter, 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 Bond for each of the maturities thereof. If the Underwriter
shall elect to invoke the provisions of this Section,! then the following provisions shall take
effect with respect to the Bonds.
(b) 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 Own, er 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 Registerias 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
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.
(c) In the event that the City in its sole discretion determines that the beneficial
owners of the Bonds be able to obtain Bonds, or in the event DTC discontinues the
services described herein, the City 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 and DTC Participants, as identified by 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 and DTC Participants,
as identified by DTC, of the availability through DTC of Bonds and transfer one or more
separate Bonds to DTC Participants having Bonds credited to their DTC , as identified
by DTC. 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 Owners transferring or exchanging Bonds shall designate, in accordance with
the provisions of this Ordinance.
(d) The execution and delivery of the Blanket Letter of Representations is hereby
ratified and approved and the Mayor is hereby authorized and directed to execute a new
Blanket Letter of Representations, if required, with such changes as may be approved
by the Mayor or City Manager of the City.
(e) 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 such Bonds, and
all notices with respect to such Bonds, shall be made and given, respectively, in the
manner provided in the Blanket Letter of Representations.
18. Redemption and Defeasance.
(a) Optional Redemption. The Bonds shall be subject to redemption
prior to the stated maturity, at the option of the City at such times, in such amounts, in
such manner and at such redemption prices as may be designated and provided for in
the Officer's Pricing Certificate.
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(b) Partial Redemption. If less than all of the Bonds are to be redeemed
pursuant to this Section, the City shall determine the maturity or maturities and the
amounts thereof to be redeemed and shall direct the Paying Agent/Registrar to call by
lot the Bonds, or portions thereof, within such maturity or maturities and in such
principal amounts for redemption at the close of business on the Business Day next
preceding the date of mailing such notice.
(c) Notice of Redemption. Notice of any redemption shall be sent by the
Paying Agent/Registrar by United States mail, first-class postage prepaid, at least 30
days prior to the date fixed for any such redemption, to the registered owner of each
Bond, or portion thereof to be redeemed, at its address as it appeared on the Register
on the close of business on the business day next preceding the date of mailing such
notice; provided, however, that the failure to send, mail, or receive such notice, or any
defect therein or in the sending or mailing thereof, shall not affect the validity or
effectiveness of the proceedings for the redemption of any Bond. By the date fixed for
any such redemption, due provision shall be': made by the City with the Paying
Agent/Registrar for the payment of the required redemption price for this Bond or the
portion hereof which is to be so redeemed, plus accrued interest thereon to the date
fixed for redemption. If such notice of redemption is given, and if due provision for such
payment is made, all as provided above, this Bond, or the portion thereof which is to be
so redeemed, thereby automatically shall be redeemed prior to its scheduled maturity,
and shall not bear interest after the date fixed, for its redemption, and shall not be
regarded as being outstanding except for the rigt of the registered owner to receive the
redemption price plus accrued interest to the date fixed for redemption from the Paying
Agent/Registrar out of the funds provided for such payment. The Paying Agent/
Registrar shall record in the Register all such redemptions of principal of this Bond or
any portion hereof. If a portion of any Bond shall be redeemed, a substitute Bond or
Bonds having the same maturity date, bearing interest at the same rate, in any
denomination or denominations in any integral multiple of $5,000, at the written request
of the registered owner, and in aggregate principal amount equal to the unredeemed
portion thereof, will be issued to the registered owner upon the surrender thereof for
cancellation, at the expense of the City, all as prgvided in the Ordinance.
Bonds may be redeemed only in integral i
redemption is in a denomination larger than $
redeemed, but only in integral multiples of $5,
redemption in part, the Registrar, in accon
authenticate and deliver in exchange therefor a
in an aggregate principal amount equal to the
surrendered.
iultiples of $5,000. If a Bond subject to
,000, a portion of such Bond may be
00. Upon surrender of any Bond for
ance with Section 14 hereof, shall
ond(s) of like maturity and interest rate
inredeemed portion of the Bond(s) so
The City, at least 45 days before the redemption date, unless a shorter period shall
be satisfactory to the Paying Agent/Registrar, shall notify the Paying Agent/Registrar of
such redemption date and of the principal amount of Bonds to be redeemed.
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With respect to any optional redemption ofi the Bonds, unless moneys sufficient to
pay the principal of and premium, if any, and interest on the Bonds to be redeemed shall
have been received by the Paying Agent/Regist far prior to the giving of such notice of
redemption, such notice may state that said rede T ption is conditional upon the receipt of
such moneys by the Paying Agent/Registrar on or prior to the date fixed for such
redemption, or upon the satisfaction of any prerequisites set forth in such notice of
redemption; and, if sufficient moneys are not received, such notice shall be of no force and
effect, the City shall not redeem such Bonds and the Paying Agent/Registrar shall give
notice, in the manner in which the notice of redemption was given, to the effect that the
Bonds have not been redeemed.
(d) Conditional Redemption. The City reserves the right in the case of an
optional redemption to give notice of its election or direction to redeem Bonds
conditioned upon the occurrence of subsequent events. Such notice may state (i) that
the redemption is conditioned upon the deposit of moneys and/or authorized securities,
in an amount equal to the amount necessary to ;effect the redemption, with the Paying
Agent/Registrar, or such other entity as may be authorized by law, no later than the
redemption date or (ii) that the City retains the right to rescind such notice at any time
prior to the scheduled redemption date if the City delivers a certificate of the City to the
Paying Agent/Registrar instructing the Paying Agent/Registrar to rescind the redemption
notice, and such notice and redemption shall be of no effect if such moneys and/or
authorized securities are not so deposited or if the notice is rescinded. The Paying
Agent/Registrar shall give prompt notice of any such rescission of a conditional notice of
redemption to the affected owners. Any Bonds subject to conditional redemption where
redemption has been rescinded shall remain outstanding, and the rescission shall not
constitute an Event of Default. Further, in the case of a conditional redemption, the
failure of the City to make moneys and/or authorized securities available in part or in
whole on or before the redemption date shall not constitute an Event of Default.
(e) Defeasance. The City may defease the provisions of this Ordinance or any
ordinance applicable to any Parity Bonds being defeased and discharge its obligation to
the Owners of any or all of the Bonds, or any or all Parity Bonds to pay principal, interest
and redemption premium, if any, thereon in any Imanner 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 bonds being
defeased plus interest thereon to the date of maturity or redemption; or (b) pursuant to an
escrow or trust agreement, cash and/or direct bonds of, or bonds the principal of and
interest on which are guaranteed by or secured by;the pledge of direct bonds 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 being defeased plus interest thereon to the date of maturity
or redemption; provided, however, that if any of ;such bonds being defeased 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 or ordinance applicable to the
Parity Bonds being defeased. Upon such deposit, such bonds being defeased 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.
19. Form. The Form of Bond as set forth in the Officer's Pricing Certificate is
hereby approved. The form of the Bonds, including the form of the Registrar's
Authentication Certificate, the form of Assignment, and the form of Registration Bond of
the Comptroller of Public Accounts of the State of Texas which shall be attached or affixed
to the Bonds initially issued shall be, respectively, substantially as set forth in the Officer's
Pricing Certificate, with such additions, deletions and variations as may be necessary or
desirable and not prohibited by this Ordinance.
20. Legal Opinion; CUSIP Numbers. The approving opinion of Bracewell LLP,
Houston, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Bonds, but
errors or omissions in the printing of such opinion or such numbers shall have no effect
on the validity of the Bonds.
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21. (a) Pledge and Source of Payrri'ent. The City hereby covenants and
agrees that, subject only to the prior lien on and pledge of the Net Revenues of the
System to the payment and security of the Prior Lien Bonds (including the
establishment and maintenance of the specials funds created for the payment and
security thereof) under the terms and conditions of the ordinances and proceedings
pertaining to their authorization, all Gross Revenues of the System shall, as collected
and received by the City, be deposited and paid into the special funds established in
this Ordinance, and shall be applied in the manner hereinafter set forth, in order to
provide for (i) the payment of all Maintenance.and and Operation Expenses and (ii) the
payment of principal, interest and any redemption premiums on the Bonds and any
Parity Bonds, and all expenses of paying, securing and insuring the same.
The Bonds are special obligations of the City payable solely from and secured by
a lien on and pledge of the Net Revenues of the System, such lien and pledge,
however, being junior and subordinate only to the lien on and pledge of such Net
Revenues to the payment and security of the Prior Lien Bonds, which Net Revenues
shall, in the manner hereafter provided, be set aside for and are hereby pledged by the
City to the payment of the Bonds and any Parity Bonds. The Bonds do not constitute a
legal or equitable pledge, charge, lien or encumbrance upon any property of the City or
the System, except with respect to the Net Revenues. THE HOLDER OF THIS
OBLIGATION IS NOT ENTITLED TO DEMAND PAYMENT OF THIS OBLIGATION
OUT OF ANY MONEY RAISED BY TAXATION.
IT IS ORDERED AND DIRECTED that this Ordinance pledging Net Revenues 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,
if 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 jmake the pledge valid or continue its
validity.
(b) Construction Fund. 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, Waterworks and Sewer System Revenue Bonds, Series 2017
Construction Fund". Immediately after the sale and delivery of the Bonds, that portion
of the proceeds of the Bonds to be used for the cost of the Project and the cost of
issuance of the Bonds shall be deposited into such Construction Fund and disbursed for
such purposes. Pending completion of construction of the Project, interest earned on
such proceeds may be used, at the City's discretion, for the Project and shall be
accounted for, maintained, deposited and expended as permitted by the provisions of
Section 1201.043 of the Government Code of Texas, 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 the Project, the monies, if any,
remaining in such Construction Fund shall be transferred and deposited by the City into
the Interest and Sinking Fund.
(c) Rates and Charges. So long as I Parity Bonds remain outstanding,
there shall be fixed, charged and collected rates and charges for the use and services
of the System, which may be fully sufficient at all times:
(i) to pay all Maintenance and Operation Expenses; and
(ii) to produce Net Revenues in each fiscal year at least equal to 110
percent of the principal and interest requirements scheduled to occur in such
fiscal year on all Prior Lien Bonds (including the Reserve Fund Requirement) and
Parity Bonds then outstanding, but in no event less than the amount required to
establish and maintain the Interest and Sinking Fund, and, to the extent that
funds for such purpose are not otherwise 'available, to pay all other outstanding
obligations payable from the Net Revenues of the System as and when the same
become due.
The City covenants that it will not grant or permit any free service from the
System except for public buildings and institutions operated by the City.
(d) Special Funds. The following special funds shall be maintained and
accounted for as hereinafter provided so long as any of the Parity Bonds remain
outstanding:
(i) Waterworks and Sewer System Revenue Fund (the "Revenue
Fund");
(ii) Waterworks and Sewer System Revenue Bond Interest and Sinking
Fund (the "Interest and Sinking Fund");
(iii) Waterworks and Sewer System Bond Reserve Fund (the "Reserve
Fund")-, and
(iv) Waterworks and Sewer System Prior Lien Bond Reserve Fund (the
"Prior Lien Reserve Fund").
The Revenue Fund shall be maintained as a separate account on the books of
the City. The Interest and Sinking Fund, the Reserve Fund and the Prior Lien Reserve
Fund shall be maintained at an official depository bank of the City, separate and apart
from all other funds and accounts of the City, and shall constitute trust funds which shall
be held in trust for the benefit of the holders of the Parity Bonds, and the proceeds of
which (except for interest income, which shall be transferred to the Revenue Fund) shall
be and are hereby pledged to the payment of the Parity Bonds. All of the funds named
above shall be used solely as provided in this Ordinance so long as any Parity Bonds
remain outstanding.
(e) Flow of Funds. All Gross Revenues of the System shall be deposited as
collected into the Revenue Fund. Moneys from time to time on deposit to the credit of
the Revenue Fund shall be applied as follows in the following order of priority:
(i) First, to pay Maintenance and Operation Expenses and to provide
by encumbrance for the payment of all obligations incurred by the City for
Maintenance and Operation Expenses which may include an operating reserve
equal to one month's estimated MaintenanI ce and Operation Expenses.
(ii) Second, To the payment of the amounts required to be deposited in
the Prior Lien Reserve Fund, special funds or accounts created and established
for the payment and security of the Prior Lien Bonds in accordance with the
ordinances authorizing the issuance there f.
(iii) Third, to make all deposits into the Interest and Sinking Fund
required by this Ordinance and any ordinance authorizing the issuance of any
outstanding Additional Parity Bonds. j
(iv) Fourth, to make all deposits Tinto the Reserve Fund required by this
Ordinance and any ordinance authorizing the issuance of Additional Parity
Bonds.
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(v) Fifth, to pay any amounts due to any bond insurer of Parity Bonds
not paid pursuant to subsections (ii) or (ii) above.
(vi) Sixth, for any lawful purpose, including transfers to the General
Fund as permitted by law. Such permitted transfers to the General Fund are
hereby expressly authorized by this Ordinance and the purposes for which such
surplus revenues may be used shall include, but not be limited to, payment of
any other debt, expense, or obligation of the City.
Whenever the total amounts on deposit to the credit of the Interest and Sinking
Fund, Reserve Fund shall be equivalent to the sum of the aggregate principal amount of
all outstanding Parity Bonds plus the aggregate jamount of all interest accrued and to
accrue thereon, no further payments need be made into the Interest and Sinking Fund,
and the Reserve Fund.
(f) Interest and Sinking Fund. On or before the last Business Day of each
month so long as any Parity Bonds remain outstanding, after making all required
payments and provision for payment of Maintenance and Operation Expenses, there
shall be transferred into the Interest and Sinking Fund from the Revenue Fund the
following amounts:
(i) Such amounts, in approximately equal monthly installments, as will
be sufficient to pay the interest scheduled to become due on the Parity Bonds on
the next interest payment date; and
(ii) Such amounts, in approximately equal monthly installments, as will
be sufficient to pay the next maturing principal of the Parity Bonds, including the
principal amounts of, and any redemption premiums on, any Parity Bonds
payable as a result of the exercise or operation of any redemption provision
contained in this Ordinance or in any ordinance authorizing the -issuance of Parity
Bonds.
Moneys deposited to the credit of the Interest and Sinking Fund (except for
interest income, which shall be transferred to the Revenue Fund) shall be used solely
for the purpose of paying principal (either at maturity or prior redemption or to purchase
Parity Bonds in the open market to be credited against mandatory redemption
requirements), interest and redemption premiums on the Parity Bonds, plus all bank
charges and other costs and expenses relating to such payment, on a pro rata basis
among all series of Parity Bonds. On or before each principal and/or interest payment
date for the Parity Bonds, the City shall transfer ifrom the Interest and Sinking Fund to
the paying agents for the Parity Bonds an amount equal to the principal, interest and
redemption premiums payable on the Parity Bonds on such date, together with an
amount equal to all bank charges and other costs and expenses relating to such
payment. The paying agents for the Parity Bonds shall totally destroy all paid Parity
Bonds and coupons (if any) and shall provide the City with an appropriate Bond of
destruction.
(g) Reserve Fund.
Unless the Reserve Fund is fully funded, on or before the last Business Day of
each month so long as any Parity Bonds remain outstanding, after making all required
payments and provision for payment of Maintenance and Operation Expenses, and
after making the transfers into the Interest and Sinking Fund required in the preceding
Section, there shall be transferred into the Reserve Fund from the Revenue Fund an
amount at least equal to one -sixtieth (1/60th) of the average annual principal and interest
requirements on the Parity Bonds, so that the Reserve Fund shall contain, in no more
than 60 months after the issuance of each such issue of Parity Bonds, money and
investments in an aggregate amount at least equal to the average annual principal and
interest requirements on all Parity Bonds then outstanding. After such amount has
accumulated in the Reserve Fund and so long thereafter as such Fund contains such
amount, no further deposits shall be required to Abe made into the Reserve Fund, and
any excess amounts may be transferred to the Revenue Fund. But if and whenever the
balance in the Reserve Fund is reduced below such amount, monthly deposits into such
fund shall be resumed and continued in amounts at least equal to one -sixtieth (1/60th) of
the average annual principal and interest requirements on the Parity Bonds until the
Reserve Fund has been restored to such amount; provided however, if a Reserve Fund
Policy has been obtained by the City pursuant to the next paragraph below, then the
provisions of such next paragraph shall govern and control with respect to
replenishment of amounts drawn under the Reserve Fund Surety Policy. The Reserve
Fund shall be used to pay the principal of and interest on the Parity Bonds at any time
when there is not sufficient money available in the Interest and Sinking Fund for such
purpose and it may be used finally to pay and retire the last Parity Bonds to mature or
be redeemed.
To the extent permitted by law, the City expressly reserves the right at any time
to satisfy all or any part of the amounts required to be on deposit in the Reserve Fund
(the "Reserve Fund Requirement") by obtaining for the benefit of the Reserve Fund one
or more Reserve Fund Surety Policies (a "Reserve Fund Surety Policy"). The purchase
of such Reserve Fund Surety Policy is approved,' and the Mayor, Mayor Pro -Tem, City
Manager, Chief Financial Officer, City Clerk, Deputy City Clerk, and all other appropriate
officers and agents of the City are each authorized to execute such documents,
including but not limited to a reimbursement agreement, to grant a subordinated pledge
and lien on the Net Revenues as security for the payment of amounts due under the
reimbursement agreement (which grant if made is hereby approved), and to do any and
all things necessary or desirable to obtain such a Policy if in the discretion of the acting
official deems its acquisition in the best interests of the City. In the event the City elects
to substitute at .any time a Reserve Fund Surety Policy for any funded amounts in the
Reserve Fund, it may apply any bond proceeds thereby released, to the greatest extent
permitted by law, to any purposes for which the bonds were issued, and ' if all such
purposes have been satisfied, to the payment of debt service on such bonds, and it may
apply any other funds thereby released to any of the purposes for which such funds
may lawfully be applied including the payment of, debt service on the Parity Bonds. A
Reserve Fund Surety Policy shall be an insurance policy or other similar guarantee in a
principal amount equal to the portion of the Reserve Fund Requirement to be satisfied
which is issued by a financial institution or insurance company with a rating for its long
term unsecured debt or claims paying ability of at least an investment grade category by
two major municipal securities evaluation sources. The premium for any such policy
shall be paid from bond proceeds or other funds; of the City lawfully available for such
purpose. The City reserves the right to fund any increase in the Reserve Fund
Requirement caused by the issuance of Additional Parity Bonds by the purchase of a
Reserve Fund Surety Policy in the amount of such increase or by making transfers from
the Revenue Fund to the Reserve Fund, in approximately equal monthly installments, in
amounts sufficient to accumulate the increase in the Reserve Fund Requirement within
sixty (60) months of the issuance of such Additional Parity Bonds. If the Reserve Fund
contains only cash and the balance in the Reserve Fund is reduced below the Reserve
Fund Requirement at any time, the City shall make monthly transfers from the Revenue
Fund to the Reserve Fund, in approximately equal monthly installments, in amounts
sufficient to restore the balance in the Reserve Fund to the Reserve Fund Requirement
within twelve (12) months of the date on which the balance in the Reserve Fund was so
reduced. If the Reserve Fund contains a Reserve Fund Surety Policy (and no cash)
and a draw is made against such policy, the City ;shall make monthly transfers from the
Revenue Fund, in approximately equal monthly installments, in amounts sufficient to
reimburse the amount drawn under such policy within twelve (12) months. If the
Reserve Fund contains a combination of cash and a Reserve Fund Surety Policy, and
the balance in the Reserve Fund is reduced below the Reserve Fund Requirement by a
combination of cash withdrawals and draws against the Reserve Fund Surety Policy,
the City shall make monthly transfers from the Revenue Fund, in approximately equal
monthly installments, in amounts sufficient to restore the cash balance in the Reserve
Fund and reimburse the amount drawn under such policy within twelve (12) months,
with reimbursement to be made for all amounts drawn under such policy before any
cash deposits are made into the Reserve Fund. Any reimbursement of amounts drawn
against a Reserve Fund Surety Policy shall be limited to the amounts actually paid
under such policy, and the City shall have no obligation to make any reimbursement
payment with respect to any such policy except as provided herein.
Notwithstanding anything to the contrary contained herein, the requirement
set forth above in this subsection to maintain the Reserve Fund Requirement in
the Reserve Fund shall be suspended for such time as the Net Revenues for each
Fiscal Year are equal to at least 1.30 times the Average Annual Debt Service
Requirements. In the event that the Net Revenues for any Fiscal Year are less
than 1.30 times the Average Annual Debt Service Requirements, the City will be
required to commence making Required Reserve Fund Deposits, as provided
above, and to continue such Required Reserve Fund Deposits until the earlier of
(i) such time as the Reserve Fund contains the Reserve Fund Requirement or (ii)
the Net Revenues in each of two consecutive years have been equal to not less
than 1.30 times the Average Annual Debt Service Requirements.
During such time as the Reserve Fund contains the Reserve Fund
Requirement or the obligation to maintain the Reserve Fund Requirement has
been suspended pursuant to the paragraph above, the City may, at its option,
withdraw all surplus funds in the Reserve Fund and deposit such surplus in the
Interest and Sinking Fund or otherwise use such amount in any manner permitted
by law. j
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(h) Prior Lien Reserve Fund. The City shall fully fund the reserve fund as
provided in the ordinances in connection with the Prior Lien Bonds.
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(i) Deficiencies in Funds. If in any month there shall not be deposited into
any Fund maintained pursuant to this Section 21 the full amounts required herein,
amounts equivalent to such deficiency shall be set apart and paid into such Fund or
Funds from the first available and unallocated money in the Revenue Fund, and such
payment shall be in addition to the amounts otherwise required to be paid into such
Funds during the succeeding month or months. To the extent necessary, the rates and
charges for the System shall be increased to make up for any such deficiencies.
(j) Investment of Funds; Transfer of Investment Income. Money in each
Fund maintained pursuant to this Section of thin Ordinance may, at the option of the
City, be invested as permitted by law, provided that all such deposits and investments
shall be made in such manner that the money required to be expended from any Fund
will be available at the proper time or times. Any obligation in which money is so
invested shall be kept and held in the Fund from which the investment was made. All
such investments shall be promptly sold when 'necessary to prevent any default in
connection with the Parity Bonds. All interest and income derived from such deposits
and investments shall be transferred or credited as received to the Revenue Fund, and
shall constitute Gross Revenues of the System; provided, however, to the extent such
interest and income is derived from bond proceeds, such interest and income shall not
constitute Gross Revenues of the System and shall only be used for the purposes for
which the bond proceeds may be used.
22. Additional Bonds.
(a) No Additional Obligations to be Issued on a Parity with the Prior Lien
Bonds. The City shall not hereafter issue any additional obligations on a parity with the
Prior Lien Bonds or create or issue evidences of indebtedness for any purpose
possessing a lien on the Net Revenues of the System superior to that to be possessed
by the Parity Bonds.
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(b) Additional Parity Bonds. In addition to the right to issue bonds of inferior
lien as authorized by law, the City reserves the 'right to issue, for any lawful purpose,
including the refunding of any previously issued Prior Lien Bonds, Parity Bonds or any
other bonds or obligations of the City issued in connection with the System, one or more
series of Additional Parity Bonds payable from, and secured by a lien on and pledge of,
the Net Revenues of the System, on a parity with the Bonds and any other Additional
Parity Bonds then outstanding; provided, however, that no Additional Parity Bonds may
be issued unless:
(i) The Additional Parity Bonds mature on September 1, and interest is
payable on March 1 and September 1;
(ii) The Interest and Sinking Fund contain the amount of money then
required to be on deposit therein;
(iii) For either the preceding Fiscal Year or any consecutive 12 -month
calendar period ending no more than 90 days prior to adoption of the ordinance
authorizing such Additional Parity Bonds, Net Revenues were equal to at least
125% of the average annual principal and interest requirements on all Prior Lien
Bonds and Parity Bonds that will be outstanding after the issuance of the series
of Additional Parity Bonds then proposed to be issued, as certified by the City's
Finance Officer or by an independent certified public accountant or firm of
independent certified public accountants; or
(iv) If the City cannot meet the test] described in (iii) above, but a change
in the rates and charges applicable to th'e System becomes effective at least
sixty (60) days prior to the adoption of the ordinance authorizing Additional Parity
Bonds and the City's Finance Officer certifies that, had such change in rates and
charges been effective for the preceding fiscal year or 12 consecutive calendar
month period ending no more than 90 days prior to adoption of said ordinance,
the Net Revenues for such period would have met the test described in (iii)
above.
(c) Subordinate Lien Obligations. The City reserves the right to issue, for any
lawful purpose, bonds, notes or other obligations (including but not limited to
reimbursement agreements undertaken to obtain reserve fund security policies) secured
in whole or in part by liens on and pledges of the Net Revenues that are junior and
subordinate to the lien on and pledge of Net Revenues securing payment of the Parity
Bonds. Such subordinate lien obligations may be further secured by any other source
of payment lawfully available for such purposes.
(d) Special Project Bonds. The City reserves the right to issue revenue bonds
secured by liens on and pledges of revenues
evenue and proceeds derived from Special
Projects.
23. Covenants and Provisions Relating ito all Parity Bonds.
(a) Punctual Payment of Parity Bonds.- The City will punctually pay or cause
to be paid the interest on and principal of all Parity Bonds according to the terms thereof
and will faithfully do and perform, and at all times fully observe, any and all covenants,
undertakings, stipulations and provisions contained in this Ordinance and in any
ordinance authorizing the issuance of Additional Parity Bonds.
(b) Maintenance of System. So long as any Parity Bonds remain outstanding,
the City covenants that it will at all times maintain the System, or within the limits of its
authority cause the same to be maintained, in good condition and working order and will
operate the same, or cause the same to be operated, in an efficient and economical
manner at a reasonable cost and in accordance with sound business principles. In
operating and maintaining the System, the City will comply with all contractual
provisions and agreements entered into by it Viand with all valid rules, regulations,
directions or order of any governmental, adminiistrative or judicial body promulgating
same, noncompliance with which would materially and adversely affect the operation of
the System.
(c) Sale or Encumbrance of System. 'So long as any Parity Bond remains
outstanding, the City will not sell, dispose of or, except as permitted in this Ordinance,
further encumber the System; provided, however, that this provision shall not prevent
the City from disposing of any portion of the System which is being replaced or is
deemed by the City to be obsolete, worn out, surplus or no longer needed for the proper
operation of the System. Any agreement pursuant to which the City contracts with a
person, corporation, municipal corporation or political subdivision to operate the System
or to lease and/or operate all or part of the System shall not be considered as an
encumbrance of the System.
(d) Insurance. The City further covenants and agrees that it will keep the
System insured with insurers of good standing against risks, accidents or casualties
against which and to the extent insurance is customarily carried by political subdivisions
of the State of Texas operating similar properties, to the extent that such insurance is
available. The cost of all such insurance, together with any additional insurance, shall
be a part of the Maintenance and Operation Expenses. All net proceeds of such
insurance shall be applied to repair or replace the insured property that is damaged or
destroyed, or to make other capital improvements to the System, or to redeem Parity
Bonds.
(e) Accounts, Records and Audits. So long as any Parity Bonds remain
outstanding, the City covenants and agrees that it will maintain a proper and complete
system of records and accounts pertaining to the operation of the System in which full,
true and proper entries will be made of all dealings, transactions, business and affairs
which in any way affect or pertain to the System or the Gross Revenues or the Net
Revenues thereof. The City shall after the close of each of its Fiscal Years cause an
audit report of such records and accounts to bei prepared by an independent certified
public accountant or independent firm of certified public accountants. Each year
promptly after such audit report is prepared, the City shall furnish a copy thereof without
cost to the Municipal Advisory Council of Texas and any holders of Parity Bonds who
shall request same. All expenses incurred ; in preparing such audits shall be
Maintenance and Operation Expenses.
(f) Competition. To the extent it legally may, the City will not grant any
franchise or allow for the acquisition, construction or operation of any competing
facilities which might be used as a substitute for the System and will prohibit the
operation of any such competing facilities.
(g) Pledge and Encumbrance of Net 'Revenues. The City covenants and
represents that it has the lawful power to pledge; the Net Revenues to the payment of
the Parity Bonds and has lawfully exercised such 'power under the Constitution and laws
of the State of Texas. The City further covenants and represents that, other than to the
payment of the Parity Bonds, the Net Revenues ',are not and will not be pledged to the
payment of any debt or obligation of the City, or in any other manner encumbered
unless such pledge or encumbrance is junior and subordinate to the lien and pledge
securing payment of the Parity Bonds.
(h) Remedies. This Ordinance shall constitute a contract between the City
and the holders of the Parity Bonds from time to, time outstanding, and shall remain in
effect until the Parity Bonds and the interest thereon shall be fully paid or discharged or
provision therefor shall have been made as provided herein. In the event of a default in
the payment of the principal of or interest on any sof the Parity Bonds or a default in the
performance of any duty or covenant provided bylaw or in this Ordinance, the holder or
holders of any of the Parity Bonds, as appropriate, may pursue all legal remedies
afforded by the Constitution and laws of the State of Texas to compel the City to remedy
such default and to prevent further default or defaults. Without in any way limiting the
generality of the foregoing, it is expressly provided that any holder of any of the Parity
Bonds may at law or in equity, by suit, action, mandamus, or other proceedings, enforce
and compel performance of all duties required to be performed by the City under this
Ordinance, including the making and collection of reasonable and sufficient rates and
charges for the use and services of the System, the deposit of the Gross Revenues
thereof into the special funds as herein provided, and the application of such Gross
Revenues and Net Revenues in the manner required in this Ordinance. Acceleration of
payment of principal of or interest on the Parity Bonds shall not be a remedy of default.
(i) Legal Holidays. In any case where the date fixed for payment of interest
on or principal of the Parity Bonds or the date fixed for redemption of any Parity Bonds
shall be a legal holiday or a day on which a paying agent for the Parity Bonds is
authorized by law to close, then payment of intertest or principal by such paying agent
need not be made on such date but may be made on the next succeeding business day
with the same force and effect as if made on the date fixed for such payment and no
interest shall accrue for the period from such date, to the date of actual payment.
Q) Unavailability of Authorized Publication. If, because of the temporary or
permanent suspension of any newspaper, journal or other publication, or, for any
reason, publication of notice cannot be made meeting any requirements herein
established, any notice required to be published by the provisions of this Ordinance
shall be given in such other manner and at such time or times as in the judgment of the
City shall most effectively approximate such required publication and the giving of such
notice in such manner shall for all purposes of this Ordinance be deemed to be in
compliance with the requirements for publication thereof.
24. Further Proceedings. After the Bonds to be initially issued shall have
been executed, it shall be the duty of the Mayor and other appropriate officials and
agents 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. After the Bonds to be initially issue Id 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 the Comptroller's bond clerk or an assistant bond
clerk lawfully designated in writing to act for the Comptroller) shall manually sign the
Comptroller's Registration Certificate prescribed herein and the seal of said Comptroller
shall be impressed or placed in facsimile, thereon.
25. Tax Exemption.
(a) The City intends that the interest ori the Bonds be excludable from gross
income for federal income tax purposes pursuant to sections 103 and 141 through 150
of the Code. 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 (i) cause
the interest on the Bonds to be includable in gross income, as defined in section 61 of
the Code, for federal income tax purposes or (ii) result in the violation or failure to satisfy
any provision of sections 103 and 141 through 150 of the Code. In particular, the City
covenants and agrees to comply with each requirement of this Section 25; provided,
however, that the City shall not be required to comply with any particular requirement of
this Section 25 if the City has received an opinion lof nationally recognized bond counsel
(a "Counsel's Opinion") that (i) such noncompliance will not adversely affect the
exclusion from gross income for federal income tax purposes of interest on the Bonds or
(ii) compliance with some other requirement 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 25.
(b) No Private Use or Payment and No Private Loan Financing. The City
covenants and agrees that it will make such use of the proceeds of the Bonds, including
interest or other investment income derived from Bond proceeds, regulate the use of
property financed, directly or indirectly, with such proceeds, and take such other and
further action as may be required so that the Bonds will not be "private activity bonds"
within the meaning of section 141 of the Code. Moreover, the City shall certify, through
an authorized officer, employee or agent that, based upon all facts and circumstances
known or reasonably expected to be in existence on the date the Bonds are delivered,
the proceeds of the Bonds will not be used in a manner that would cause the Bonds to
be "private activity bonds" within the meaning of section 141 of the Code.
(c) No Federal Guarantee. 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 Bonds to be "federally guaranteed" within the meaning of
section 149(b) of the Code, except as permitted by section 149(b)(3) of the Code.
(d) No Hedge Bonds. 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 Bonds to be "hedge bonds" within the meaning of section
149(g) of the Code and the applicable Regulations thereunder.
(e) No -Arbitrage. The City covenants and agrees that it will make such use of
the proceeds of the Bonds, including interest or other investment income derived from
Bond proceeds, regulate investments of proceeds of the Bonds, and take such other
and further action as may be required so that the Bonds will not be "arbitrage bonds"
within the meaning of section 148(a) of the Code. Moreover, the City will certify,
through an authorized officer, employee or agent, based upon all facts and estimates
known or reasonably expected to be in existence on the date the Bonds are delivered,
that the proceeds of the Bonds will not be used in,a manner that would cause the Bonds
to be "arbitrage bonds" within the meaning of section 148(a) of the Code.
(f) Arbitrage Rebate. If the City does not qualify for an exception to the
requirements of section 148(f) of the Code relating to the required rebate to the United
States, the City will take all steps necessary to comply with the requirement that certain
amounts earned by the City on the investment of the "gross proceeds" of the Bonds
(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 Bonds as may be required to calculate the amount earned on
the investment of the gross proceeds of the Bonds 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 that do not represent gross proceeds of any bonds of the City,
(ii) determine at such times as are required by applicable Regulations, the amount
earned from the investment of the gross proceeds of the Bonds which is required to be
rebated to the federal government, and (iii) pay, not less often than every fifth
anniversary date of the delivery of the Bonds, ' or on such other dates as may be
permitted under applicable Regulations, 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 Bonds ;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 a 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.
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(g) Information Reporting. The City covenants and agrees to file or cause to
be filed with the Secretary of the Treasury, not later than the 15th day of the second
calendar month after the close of the calendar quarter in which the Bonds are issued, an
information statement concerning the Bonds, all under and in accordance with section
149(e) of the Code.
(h) Record Retention. The City will retain all pertinent and material records
relating to the use and expenditure of the proceeds of the Bonds until three years after
the last Bond is redeemed, or such shorter period as authorized by subsequent
guidance issued by the Department of Treasury, if applicable. All records will be kept in
a manner that ensures their complete access throughout the retention period. For this
purpose, it is acceptable that such records are kept either as hardcopy books and
records or in an electronic storage and retrieval system, provided that such electronic
system includes reasonable controls and quality assurance programs that assure the
ability of the City to retrieve and reproduce such books and records in the event of an
examination of the Bonds by the Internal Revenue Service.
(i) Registration. The Bonds will be issued in registered form.
Q) Deliberate Actions. The City will not take a deliberate action (as defined in
section 1.141-2(d)(3) of the Regulations) that causes the Bonds to fail to meet any
requirement of section 141 of the Code after the issue date of the Bonds unless an
appropriate remedial action is permitted by section 1.141-12 of the Regulations, the City
takes such action, and an opinion of Bond Counsel is obtained that such remedial
action cures any failure to meet the requirements of section 141 of the Code.
(k) Continuing Obligation. Notwithstanding any other provision of this
Ordinance, the City's obligations under the covenants and provisions of this Section 25
will survive the defeasance and discharge of the Bonds for so long as such matters are
relevant to the exclusion from gross income of interest on the Bonds for federal income
tax purposes.
26. Engagement of Professionals. The City Council hereby (i) confirms the
engagement of RBC Capital Markets, LLC, as Municipal Advisor, to the City and (ii)
approves the engagement of Bracewell LLP, as bond counsel to the City, and (iii)
Estrada Hinojosa & Co., Inc., as senior underwriter, Hilltop Securities Inc. and Raymond
James & Associates, Inc. as co-managers in coninection with the issuance and sale of
the Bonds.
27. Proceeds of Sale. Proceeds from the, sale of the Bonds, together with other
funds of the City, if any, shall, promptly upon receipt by the City, be applied as set forth
in the Officer's Pricing Certificate. Any proceeds remaining after the accomplishment of
such purposes, including interest earnings on the investment of such proceeds, shall be
deposited to the Interest and Sinking Fund
28. Bond Insurance. (a) In order to obtain the lowest attainable interest rates
on the Bonds, the Pricing Officers are authorized to enter into a credit agreement with
one or more Insurers to obtain one or more bond linsurance policies with respect to all or
a portion of the Bonds as set forth in the Officers Pricing Certificate. The Pricing
Officers are authorized to execute and the City Clerk is authorized to attest and affix the
City's seal to any documents required in connection with the purchase of any such
policy or policies.
The City hereby agrees to the following:
(b) "Insurance Policy" shall be defined as follows: "the insurance policy issued by the
Insurer guaranteeing the scheduled payment of principal of and interest on the
Bonds when due". "Insurer" shall be defined as follows: "Build America Mutual
Assurance Company, a New York stock insurance company, or any successor
thereto or assignee thereof'.
(c) The prior written consent of the Insurer shall be a condition precedent to the
deposit of any credit instrument provided in lieu of a cash deposit into the Debt
Service Reserve Fund, if any. Notwithstanding anything to the contrary set forth in
the Ordinance, amounts on deposit in the Debt Service Reserve Fund shall be
applied solely to the payment of debt service due on the Bonds.
(d) The Insurer shall be deemed to be the sole holder of the Insured Bonds for the
purpose of exercising any voting right or privilege or giving any consent or
direction or taking any other action that the holders of the Bonds insured by it are
entitled to take pursuant to the section or article of the Ordinance pertaining to (i)
defaults and remedies and (ii) the duties and obligations of the Paying Agent. In
furtherance thereof and as a term of the Ordinance and each Bond, the Paying
Agent and each Bondholder appoint the Insurer as their agent and attorney-in-fact
and agree that the Insurer may at any itime during the continuation of any
proceeding by or against the Issuer under the United States Bankruptcy Code or
any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar
law (an "Insolvency Proceeding") direct all matters relating to such Insolvency
Proceeding, including without limitation, (A) all matters relating to any claim or
enforcement proceeding in connection with an Insolvency Proceeding (a "Claim"),
(B) the direction of any appeal of any order relating to any Claim, (C) the posting of
any surety, supersedeas or performance bond pending any such appeal, and (D)
the right to vote to accept or reject any plan of adjustment. In addition, the Paying
Agent and each Bondholder delegate ands assign to the Insurer, to the fullest
extent permitted by law, the rights of the Paying Agent and each Bondholder in the
conduct of any Insolvency Proceeding, including, without limitation, all rights of any
party to an adversary proceeding or action with respect to any court order issued
in connection with any such Insolvency Prioceeding. Remedies granted to the
Bondholders shall expressly include mandamus.
(e) The security for the Bonds shall include a pledge of any agreement with any
underlying obligor that is a source of payment for the Bonds and a default under
any such agreement shall constitute an Event of Default under the Ordinance.
(f) If acceleration is permitted under the Ordinance, the maturity of Bonds insured by
the Insurer shall not be accelerated without the consent of the Insurer and in the
event the maturity of the Bonds is accelerated, the Insurer may elect, in its sole
discretion, to pay accelerated principal and interest accrued on such principal to
the date of acceleration (to the extent unpaid by the Issuer) and the Paying Agent
shall be required to accept such amounts;. Upon payment of such accelerated
principal and interest accrued to the acceleration date as provided above, .the
Insurer's obligations under the Insurance Piolicy with respect to such Bonds shall
be fully discharged.
(g) No grace period for a covenant default shall exceed 30 days or be extended for
more than 60 days, without the prior written consent of the Insurer. No grace
period shall be permitted for payment defaults.
(h) 'Fhe Insurer shall be included as a third party beneficiary to the Ordinance.
(i) Upon the occurrence of an extraordinary optional, special or extraordinary
mandatory redemption in part, the selection of Bonds to be redeemed shall be
subject to the approval of the Insurer. The exercise of any provision of the
Ordinance which permits the purchase of Bonds in lieu of redemption shall require
the prior written approval of the Insurer if any Bond so purchased is not cancelled
upon purchase.
Q) Any amendment, supplement, modification to, or waiver of, the Ordinance or any
other transaction document, including any underlying security agreement (each a
"Related Document"), that requires the consent of Bondowners or adversely
affects the rights and interests of the Insurer shall be subject to the prior written
consent of the Insurer.
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(k) Unless the Insurer otherwise directs, upon the occurrence and continuance of an
Event of Default or an event which with notice or lapse of time would constitute an
Event of Default, amounts on deposit in ''the Construction Fund shall not be
disbursed, but shall instead be applied to the payment of debt service or
redemption price of the Bonds.
(1) The rights granted to the Insurer under the Ordinance or any other Related
Document to request, consent to or direct any action are rights granted to the
Insurer in consideration of its issuance of the Insurance Policy. Any exercise by
the Insurer of such rights is merely an exercise of the Insurer's contractual rights
and shall not be construed or deemed to be taken for the benefit, or on behalf, of
the Bondholders and such action does not evidence any position of the Insurer,
affirmative or negative, as to whether the consent of the Bondowners or any other
person is required in addition to the consent of the Insurer.
(m) Only (1) cash, (2) non-callable direct obligations of the United States of America
("Treasuries"), (3) evidences of ownership of proportionate interests in future
interest and principal payments on Treasuries held by a bank or trust company as
custodian, under which the owner of the investment is the real party in interest and
has the right to proceed directly and individually against the obligor and the
underlying Treasuries are not available to any person claiming through the
custodian or to whom the custodian may be obligated, (4) subject to the prior
written consent of the Insurer, pre-refunded municipal obligations rated "AAA" and
"Aaa" by S&P and. Moody's, respectively, or, (5) subject to the prior written consent
of the Insurer, securities eligible for "AAA" defeasance under then existing criteria
of S&P or any combination thereof, shall 'be used to effect defeasance of the
Bonds unless the Insurer otherwise approves. Any obligations or securities
deposited as provided in this paragraph, shall qualify under Section 1207.062(b) of
the Local Government Code, as amended.
To accomplish defeasance, the Issuer shall cause to be delivered (i) a report of an
independent firm of nationally recognized certified public accountants or such other
accountant as shall be acceptable to the Insurer ("Accountant") verifying the
sufficiency of the escrow established to pay the Bonds in full on the maturity or
redemption date ("Verification"), (ii) an Escrow Deposit Agreement (which shall be
acceptable in form and substance to the Insurer), (iii) an opinion of nationally
recognized bond counsel to the effect that the Bonds are no longer "Outstanding"
under the Ordinance and (iv) a certificate of discharge of the Paying Agent with
respect to the Bonds; each Verificationj and defeasance opinion shall be
acceptable in form and substance, and addressed, to the Issuer, Paying Agent and
Insurer. The Insurer shall be provided with final drafts of the above-referenced
documentation not less than five business days prior to the funding of the escrow.
Bonds shall be deemed Outstanding under t Iie Ordinance unless and until they are
in fact paid and retired or the above criteria alre met.
Notwithstanding the above, in the event any !provisions in this Section 30(I) conflict
with Section 1207.033 of the Texas Government Code, as amended ("Section
1207.033"), the provisions of Section 1207.033 shall prevail.
(n) Amounts paid by the Insurer under the Insurance Policy shall not be deemed
paid for purposes of the Ordinance and the Bonds relating to such payments shall
remain Outstanding and continue to be due and owing until paid by the Issuer in
accordance with the Ordinance. The Ordinance shall not be discharged unless all
amounts due or to become due to the Insurer have been paid in full` or duly
provided for.
(o) Each of the Issuer and Paying Agent covenant and agree to take such action
(including, as applicable, filing of UCC financing statements and continuations
thereof) as is necessary from time to time to preserve the priority of the pledge of
the Trust Estate under applicable law.
(p) Claims Upon the Insurance Policy and Payments by and to the Insurer.
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If, on the third Business Day prior to the related scheduled interest payment date
or principal payment date ("Payment Date") there is not on deposit with the
Paying Agent, after making all transfers and deposits required under the
Ordinance, moneys sufficient to pay the principal of and interest on the Bonds
due on such Payment Date, the Paying Agent shall give notice to the Insurer and
to its designated agent (if any) (the "Insurer's Fiscal Agent") by telephone or
telecopy of the amount of such deficiency by 12:00 noon, New York City time, on
such Business Day. If, on the second Business Day prior to the related Payment
Date, there continues to be a deficiency, in the amount available to pay the
principal of and interest on the Bonds due on such Payment Date, the Paying
Agent shall make a claim under the Insurance Policy and give notice to the
Insurer and the Insurer's Fiscal Agent (if any) by telephone of the amount of such
deficiency, and the allocation of such deficiency between the amount required to
pay interest on the Bonds and the amount 'required to pay principal of the Bonds,
confirmed in writing to the Insurer and the iInsurer's Fiscal Agent by 12:00 noon,
New York City time, on such second Business Day by filling in the form of Notice
of Claim and Certificate delivered with the Insurance Policy.
The Paying Agent shall designate any portion of payment of principal on Bonds
paid by the Insurer, whether by virtue of mandatory sinking fund redemption,
maturity or other advancement of maturity, on its books as a reduction in the
principal amount of Bonds registered to the then current Bondholder, whether
DTC or its nominee or otherwise, and shall issue a replacement Bond to the
Insurer, registered in the name of Assured Guaranty Municipal Corp., in a
principal amount equal to the amount ofd principal so paid (without regard to
authorized denominations); provided that the Paying Agent's failure to so
designate any payment or issue any replacement Bond shall have no effect on
the amount of principal or interest payable by the Issuer on any Bond or the
subrogation rights of the Insurer.
The Paying Agent shall keep a complete and accurate record of all funds
deposited by the Insurer into the Policy Payments Account (defined below) and
the allocation of such funds to payment of "interest on and principal of any Bond.
The Insurer shall have the right to inspect such records at reasonable times upon
reasonable notice to the Paying Agent.
Upon payment of a claim under the Insurance Policy, the Paying Agent shall
establish a separate special purpose trust account for the benefit of Bondholders
referred to herein as the "Policy Payments Account" and over which the Paying
Agent shall have exclusive control and sole, right of withdrawal. The Paying Agent
shall receive any amount paid under the Insurance Policy in trust on behalf of
Bondholders and shall deposit any such amount in the Policy Payments Account
and distribute such amount only for purposes of making the payments for which a
claim was made. Such amounts shall be disbursed by the Paying Agent to
Bondholders in the same manner as principal and interest payments are to be
made with respect to the Bonds under the sections hereof regarding payment of
(q)
(r)
Bonds. It shall not be necessary for such payments to be made by checks or wire
transfers separate from the check or wire transfer used to pay debt service with
other funds available to make such payments. Notwithstanding anything herein to
the contrary, the Issuer agrees to pay to the Insurer (i) a sum equal to the total of
all amounts paid by the Insurer under, the Insurance Policy (the "Insurer
Advances"); and (ii) to the extent permitted by law and subject to annual
appropriation, interest on such Insurer Advances from the date paid by the
Insurer until payment thereof in full, payable to the Insurer at the Late Payment
Rate per annum (collectively, the "Insurer Reimbursement Amounts"). "Late
Payment Rate" means the lesser of (a) the greater of (i) the per annum rate of
interest, publicly announced from time to 'time by JPMorgan Chase Bank at its
principal office in The City of New York, as its prime or base lending rate (any
change in such rate of interest to be effective on the date such change is
announced by JPMorgan Chase Bank) plus 3%, and (ii) the then applicable
highest rate of interest on the Bonds and (b) the maximum rate permissible under
applicable usury or similar laws limiting interest rates. The Late Payment Rate
shall be computed on the basis of the actual number of days elapsed over a year
of 360 days. The Issuer hereby covenants land agrees that the Insurer Advances
are secured by a lien on and pledge of the:Net Revenues and payable from such
Net Revenues on a parity with debt service! due on the Bonds.
Funds held in the Policy Payments Account shall not be invested by the Paying
Agent and may not be applied to satisfy any costs, expenses or liabilities of the
Paying Agent. Any funds remaining in the Policy Payments Account following a
Bond payment date shall promptly be remitted to the Insurer.
The Insurer shall, to the extent it makes any payment of principal of or interest on
the Bonds, become subrogated to the rights, of the recipients of such payments in
accordance with the terms of the Insurance Policy (which subrogation rights shall
also include the rights of any such recipients in connection with any Insolvency
Proceeding). Each obligation of the Issuer to the Insurer under the Related
Documents shall survive discharge or termination of such Related Documents.
The Issuer shall pay or reimburse the Insurer any and all charges, fees, costs
and expenses that the Insurer may reasonably pay or incur in connection with (i)
the administration, enforcement, defense or preservation of any rights or security
in any Related Document; (ii) the pursuit of any remedies under the Ordinance or
any other Related Document or otherwise afforded by law or equity, (iii) any
amendment, waiver or other action with respect to, or related to, the Ordinance or
any other Related Document whether or not executed or completed, or (iv) any
litigation or other dispute in connection with the Ordinance or any other Related
Document or the transactions contemplated thereby, other than costs resulting
from the failure of the Insurer to honor its obligations under the Insurance Policy.
The Insurer reserves the right to charge ;a reasonable fee as a condition to
executing any amendment, waiver or consent proposed in respect of the
Ordinance or any other Related Document.
(s) After payment of reasonable expenses of the Paying Agent, the application of
funds realized upon default shall be applied to the payment of expenses of the
Issuer or rebate only after the payment of past due and current debt service on the
Bonds and amounts required to restore the Debt Service Reserve Fund to the
Debt Service Reserve Requirement.
(t) The Insurer shall be entitled to pay principal or interest on the Bonds that shall
become Due for Payment but shall be unpaid by reason of Nonpayment by the
Issuer (as such terms are defined in the Insurance Policy) and any amounts due
on the Bonds as a result of acceleration of the maturity thereof in accordance with
the Ordinance, whether or not the Insurer has received a Notice of Nonpayment
(as such terms are defined in the Insurance Policy) or a claim upon the Insurance
Policy.
(u) The notice address of the Insurer is: Assured Guaranty Municipal Corp., 31
West 52nd Street, New York, New York 10019, Attention: Managing Director —
Surveillance, Re: Policy No. 216211-N, Telephone: (212) 826-0100; Telecopier:
(212) 339-3556. In each case in which notice or other communication refers to an
Event of Default, then a copy of such notice or other communication shall also be
sent to the attention of the General Counsel and shall be marked to indicate
"URGENT MATERIAL ENCLOSED."
(v) The Insurer shall be provided with the following information by the Issuer or
Paying Agent, as the case may be:
(i) Annual audited financial statements within 180 days (or such
longer period agreed to by AGM) after the end of the Issuer's
fiscal year (together with a certification of the Issuer that it is not
aware of any default or Event of Default under the Ordinance),
and the Issuer's annual budget within 30 days after the approval
thereof together with such other information, data or reports as
the Insurer shall reasonably requestifrom time to time;
(ii) Notice of any draw upon the Debt Service Reserve Fund within
two Business Days after knowledge thereof other than (i)
withdrawals of amounts in excess of the Debt Service Reserve
Requirement and (ii) withdrawals in ,connection with a refunding
of Bonds;
(iii) Notice of any default known to the Paying Agent or Issuer within
five Business Days after knowledge thereof;
(iv) Prior notice of the advance refunding or redemption of any of
the Bonds, including the principal amount, maturities and CUSIP
numbers thereof;
(v) Notice of the resignation or removal of the Paying Agent and
Bond Registrar and the appointment of, and acceptance of
duties by, any successor thereto;
(vi) Notice of the commencement of any proceeding by or against
the Issuer or Obligor commenced under the United States
Bankruptcy Code or any other applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (an
"Insolvency Proceeding");
(vii) Notice of the making of any claim in connection with any
Insolvency Proceeding seeking the' avoidance as a preferential
transfer of any payment of principal of, or interest on, the Bonds;
(w) A full original transcript of all proceedings relating to the execution of any
amendment, supplement, or waiver to the Related Documents; and
(x) All reports, notices and correspondence to !be delivered to Bondholders under the
terms of the Related Documents.
In addition, to the extent that the Issuer has ;entered into a continuing disclosure
agreement, covenant or undertaking with respect to the Bonds, all information furnished
pursuant to such agreements shall also be provided to the Insurer, simultaneously with
the furnishing of such information.
(y) The Insurer shall have the right to receive' such additional information as it may
reasonably request.
(z) The Issuer will permit the Insurer to discuss the affairs, finances and accounts of
the Issuer or any information the Insurer niay reasonably request regarding the
security for the Bonds with appropriate lofficers of the Issuer and will use
commercially reasonable 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.
(aa) The Issuer shall notify the Insurer of any failure of the Issuer to provide notices,
certificates and other information under the transaction documents.
(bb) Notwithstanding satisfaction of the other conditions to the issuance of Additional
Bonds set forth in the Ordinance, no such issuance may occur (1) if an Event of
Default (or any event which, once all notice or grace periods have passed, would
constitute an Event of Default) exists unless such default shall be cured upon such
issuance and (2) unless the Debt Service Reserve Fund is fully funded at the Debt
Service Reserve Requirement (including the, proposed issue) upon the issuance of
such Additional Bonds, in either case unless otherwise permitted by the Insurer.
(cc) In determining whether any amendment, consent, waiver or other action to be
taken, or any failure to take action, under the Ordinance would adversely affect the
security for the Bonds or the rights of the 'Bondholders, the Paying Agent shall
consider the effect of any such amendment; consent, waiver, action or inaction as
if there were no Insurance Policy.
(dd) No contract shall be entered into or any action taken by which the rights of the
Insurer or security for or sources of payment of the Bonds may be impaired or
prejudiced in any material respect except upon obtaining the prior written consent
of the Insurer.
(ee) If the Bonds are issued for refunding purposes, there shall be delivered an
opinion of Bond Counsel addressed to the Insurer (or a reliance letter relating
thereto), or a certificate of discharge of the Paying Agent for the Refunded Bonds,
to the effect that, upon the making of the required deposit to the escrow, the legal
defeasance of the Refunded Bonds shall have occurred. If the Refunded Bonds
are insured by Assured Guaranty Municipal Corp., at least three business days
prior to the proposed date for delivery of the Policy with respect to the Refunding
Bonds, the Insurer shall also receive (i) the verification letter, of which the Insurer
shall be an addressee, by an independent firm of certified public accountants
which is either nationally recognized or otherwise acceptable to the Insurer, of the
adequacy of the escrow established to provide for the payment of the Refunded
Bonds in accordance with the terms and provisions of the Escrow Deposit
Agreement, and (ii) the form of an opinion of Bond Counsel addressed to the
Insurer (or a reliance letter relating thereto) to the effect that the Escrow Deposit
Agreement is a valid and binding obligation of the parties thereto, enforceable in
accordance with its terms (such Escrow Deposit Agreement shall provide that no
amendments are permitted without the prior written consent of the Insurer). An
executed copy of each of such opinion and reliance letter, if applicable, or Paying
Agent's discharge certificate, as the case may be, shall be forwarded to the
Insurer prior to delivery of the Bonds.
(ff) Any interest rate exchange agreement ("Swap Agreement") entered into by the
Issuer shall meet the following conditions: (i) the Swap Agreement must be
entered into to manage interest costs related to, or a hedge against (a) assets
then held, or (b) debt then outstanding, or, (iii) debt reasonably expected to be
issued within the next twelve (12) months, and (ii) the Swap Agreement shall not
contain any leverage element or multiplier I component greater than 1.Ox unless
there is a matching hedge arrangement which effectively off -sets the exposure
from any such element or component. Unless otherwise consented to in writing by
the Insurer, any uninsured net settlement, breakage or other termination amount
then in effect shall be subordinate to debt service on the Bonds and on any debt
on parity with the Bonds. The Issuer shall not terminate a Swap Agreement
unless it demonstrates to the satisfaction of the Insurer prior to the payment of any
such termination amount that such payment will not cause the Issuer to be in
default under the Related Documents, including but not limited to, any monetary
obligations thereunder. All counterparties or guarantors to any Swap Agreement
must have a rating of at least "A-" and "A3" by Standard & Poor's ("S&P") and
Moody's Investors Service ("Moody's"). If the counterparty or guarantor's rating
falls below "A-" or "AY by either S&P or M'oody's, the counterparty or guarantor
shall execute a credit support annex to the Swap Agreement, which credit support
annex shall be acceptable to the Insurer. 1 I the counterparty or the guarantor's
long term unsecured rating falls below "Baal" or "BBB+" by either Moody's or
S&P, a replacement counterparty or guarantor, acceptable to the Insurer, shall be
required.
Any consent, approval or permit required herein by the Insurer shall not be
unreasonably withheld.
29. Paving Agent/Registrar Agreement.) The paying agent/registrar agreement
(the "Paying Agent Agreement") by and between! the City and Paying Agent, a form of
which is attached hereto as Exhibit A and incorporated herein by reference as a part of this
Ordinance for all purposes, is hereby approved, together with such changes or revisions
as may be necessary to accomplish the refunding or benefit the City, is hereby authorized
to be executed by the Mayor or Mayor Pro Tem and City Clerk for and on behalf of the
City.
30. 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
Underwriter is hereby approved, authorized and ratified. The proper officials of the City
are hereby authorized to execute and deliver a Bond pertaining to the Preliminary Official
Statement and the Official Statement as prescribed therein, dated as of the date set forth
herein.
31. No Personal Liability. No recourse shall be had for payment of the
principal of or interest on any Bonds or for any claim based thereon, or on this
Ordinance, against any official or employee of the City or any person executing any
Bonds.
32. Continuing Disclosure Undertaking. (a) Annual Reports. The City
undertakes and agrees for the benefit of the Bond holders to provide annually to the
MSRB, within six months after the end of each; fiscal year, financial information and
operating data with respect to the City of the general type included in the final Official
Statement authorized in this Ordinance (i) under the headings "CITY WATERWORKS
AND SEWER SYSTEM REVENUE DEBT", "ADMINISTRATION OF THE CITY", "THE
SYSTEM -WATER AND SEWER RATES" and in APPENDIX B. The information to be
provided shall include the financial statements of the City prepared in accordance with the
accounting principles the City may be required to; employ from time to time pursuant to
State law or regulation and audited, if the audit is completed within the period during which
they must be provided. If the audit of such financial statements is not completed within
such period, then the City shall provide unaudited financial statements for the applicable
fiscal year to the MSRB within such six month period, and audited financial statements
when the audit report on such statement becomes available.
If the City changes its fiscal year, it will notify the MSRB of the change (and of the
date of the new fiscal year end) prior to the next date by which the City otherwise would
be required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this
Section may be set forth in full in one or more documents or may be included by specific
reference to any document (including an official statement or other offering document, if
it is available from the MSRB) that theretofore has been provided to the MSRB or filed
with the SEC.
(a) Material Event Notices. The City shall notify the MSRB, in a timely
manner, of any of the following events with respect to the Bonds, if such event is
material within the meaning of the federal securities laws:
i. Principal and interest payment delinquencies;
ii. Non-payment related defaults,' if material;
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iii. Unscheduled draws on debt service reserves reflecting financial
difficulties;
iv. Unscheduled draws on credit enhancements reflecting financial
difficulties;
V. Substitution of credit or liquidity providers, or their failure to perform;
vi. Adverse tax opinions or the issuance by the Internal Revenue
Service of proposed or final determination of taxability, Notices of
Proposed Issue (IRS Form 5701-TEB) or other material notices or
determinations with respect to the tax status of the security, or other
material events affecting the tax status of the security;
vii. Modifications to rights of Bondholders, if material;
viii. Bond calls, if material, and tender offers;
ix. Defeasances;
X. Release, substitution or sale 'of property securing repayment of the
securities, if material;
A. Rating changes;
xii. Bankruptcy, insolvency, or receivership, or similar event of the
obligated person;
xiii. The consummation of a merger, consolidation, or acquisition
involving an obligated person I 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 or undertake such
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.
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The City shall notify the MSRB, in a timely manner, of any failure by the City to
provide financial information or operating data in' accordance with section (a) above. All
documents provided to the MSRB shall be accompanied by identifying information as
prescribed by the MSRB.
(b) Limitations, Disclaimers and Amendments. The City shall be obligated to
observe and perform the covenants specified in his Section for so long as, but only for
so long as, the City remains an "obligated person" with respect to the Bonds within the
meaning of the Rule, except that the City in any event will give notice of any deposit
made in accordance with Texas law that causes Bonds no longer to be outstanding.
The provisions of this Section are for Ithe sole benefit of the holders and
beneficial owners of the Bonds, and nothing in Ithis Section, express or implied, shall
give any benefit or any legal or equitable right, remedy, or claim hereunder to any other
person. The City undertakes to provide only the financial information, operating data,
financial statements, and notices which it has expressly agreed to provide pursuant to
this Section and does not hereby undertake to provide any other information that may
be relevant or material to a complete presentation of the City's financial results,
condition, or prospects or hereby undertake to update any information provided in
accordance with this Section or otherwise, except as expressly provided herein. The
City does not make any representation or warranty concerning such information or its
usefulness to a decision to invest in or sell Bondsl at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE
HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN
CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM
ANY BREACH, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF
ANY COVENANT SPECIFIED IN THIS SECTION OR FROM ANY STATEMENT MADE
PURSUANT TO THIS SECTION. HOLDERS OR BENEFICIAL OWNERS OF BONDS
MAY SEEK AS THEIR SOLE REMEDY A WRIT OF MANDAMUS TO COMPEL THE
CITY TO COMPLY WITH ITS AGREEMENT. I
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 Section is intended or shall act to disclaim, waive, or otherwise
limit the duties of the City under federal and state 'securities laws.
The provisions of this Section may be amended by the City from time to time 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 (i) the agreement, as amended, would have permitted the Underwriter to
purchase or sell the Bonds in the initial primary loffering in compliance with the Rule,
taking into account any amendments or interpretations of such rule to the date of such
amendment, as well as such changed circumstances, and (ii) either (a) the holders of a
majority in aggregate principal amount of the outstanding Bonds consent to such
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amendment, or (b) any person unaffiliated with the City (such as nationally recognized
bond counsel) determines the amendment will not materially impair the interests of the
holders and beneficial owners of the Bonds. The City may also amend or repeal the
obligations and agreement in this Section if the SEC amends or repeals the applicable
provisions of the Rule 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 an underwriter from lawfully purchasing or reselling the Bonds in the primary
offering of the Bonds in compliance with the Rule. 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.
33. Repealer. All orders, resolutions; and ordinances, and parts thereof
inconsistent herewith are hereby repealed to the extent of such inconsistency.
34. Effective Date. This Ordinance shall�be in force and effect from and after its
final passage, and it is so ordered.
35. Amendment of Ordinance
(a) If and to the extent permitted by this; Ordinance, the owners of the Bonds
aggregating in the principal amount of 51% of the aggregate principal amount of the
outstanding 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 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 Bonds;
(2) Reduce the rate of interest borne by any of the outstanding Bonds;
(3) Reduce the amount of the principal payable on the outstanding
Bonds;
(4) Modify the terms of payment of principal of or interest on the
outstanding Bonds, or impose any conditions with respect to such payment;
(5) Affect the owners of less than all of the outstanding Bonds then
outstanding;
(6) Change the percentage of the principal amount of outstanding
Bonds, 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
the Bonds. Such publication is not required, however, if notice in writing is given to
each owner of the outstanding 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 the 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 tesolution 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 Bonds under this
Ordinance of the City and all the owners of then outstanding Bonds, shall thereafter be
determined, exercised and enforced hereunder, subject in all respect to such
amendments.
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(e) Any consent given by the owner of the outstanding 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 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
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 Bonds, by any
owner of Bonds, and the amount and number of such 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, Mayor Pro Tem,
City Manager or Chief Financial Officer as to changes prior to issuance to comply with
requirements by the Attorney General of Texas or Underwriter) may amend this
Ordinance for any one or more of the following purposes:
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(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 Bonds or required by the Underwriter 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 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 Bonds o.utstanding 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 Bonds
issued after the date of the adoption of such modification.
36. Related Matters. To satisfy in a timely manner all of the City's obligations
under this Ordinance, the Mayor or Mayor Pro Tem, City Manager, Chief Financial
Officer, City Clerk or any Deputy 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 the issuance of the Bonds, including without
limitation, executing and delivering on behalf of the City all Bonds, consents, receipts,
requests, and other documents as may be reasonably necessary to satisfy the City's
obligations under this Ordinance and to direct Ithe application of funds of the City
consistent with the provisions of this Ordinance.
37. 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.
38. Interpretations. All terms defined herein and all pronouns used in this
Ordinance shall be deemed to apply equally to singular and plural and to all genders.
The titles and headings of the sections of this Ordinance have been inserted for
convenience of reference only and are not to be considered a part hereof and shall not
in any way modify or restrict any of the terms or provisions hereof. This Ordinance and
all of the terms and provisions hereof shall be� liberally construed to effectuate the
purposes set forth herein and to sustain the validity of the Parity Bonds and the validity
of the lien on and pledge of the Net Revenues -to secure the payment of the Parity
Bonds.
39. 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.
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PASSED BY THE CITY COUNCIL of the City of Beaumont this the 2nd day of
cc- a/,
City Clerk
The City of Beaumont
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EXHIBIT "A"
PAYING AGENT/REGISTRAR AGREEMENT
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EXHIBIT "B"
BOND PURCHASE AGREEMENT
EXHIBIT "C"
FORM OF OFFICER'S PRICING CERTIFICATE
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