Ordinance No. 8,110971023 -1
ORDINANCE NO. 8110
® ORDINANCE AUTHORIZING THE ISSUANCE OF $6,820,000 CITY OF
BAYTOWN, TEXAS, COMBINATION TAX AND REVENUE CERTIFICATES
OF OBLIGATION, SERIES 1997; AND AUTHORIZING AN ESCROW
AGREEMENT
THE STATE OF TEXAS §
COUNTIES OF HARRIS AND CHAMBERS §
CITY OF BAYTOWN §
WHEREAS, the City Council of the City of Baytown, Texas (the "City"), authorized the
publication of a notice of intention to issue certificates of obligation to the effect that the City
Council would meet on October 23, 1997, to adopt an ordinance and take such other action as may
be deemed necessary to authorize the issuance of certificates of obligation payable from City ad
valorem taxes and a pledge of a subordinate lien on the net revenues of the City's waterworks and
sanitary sewer system, for the purpose of evidencing the indebtedness of the City for all or any part
of the cost of constructing improvements to the City's sanitary sewer system, and the -cost of
professional services incurred in connection therewith; and
WHEREAS, such notice was published at the times and in the manner required by the
Constitution and laws of the State of Texas and of the United States of America, respectively,
particularly Chapter 271, Texas Local Government Code as amended; and
WHEREAS, no petition or other request has been filed with or presented to any official of
the City requesting that any of the proceedings authorizing such certificates of obligation be
submitted to a referendum or other election; therefore
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN:
1. Recitals. It is hereby found and determined that the matters and ,facts set out in the
preamble to this Ordinance are true and correct.
2. Definitions. Throughout this ordinance the following terms and expressions as used
herein shall have the meanings set forth below:
"Acts" shall mean Chapter 271, Texas Local Government Code, as amended, and Article
1111, et �eq, Vernon's Texas Civil Statutes, as amended.
"Business Day" means any day which is not a Saturday, Sunday, a day on which banking
institutions in Dallas, Texas, are authorized by law or executive order to close, or a legal holiday.
"Certificate" or "Certificates" means the City of Baytown, Texas, Combination Tax and
Revenue Certificates of Obligation, Series 1997 authorized in this Ordinance, unless the context
clearly indicates otherwise.
® "City" means the City of Baytown, Texas.
n
971023 -1a
"Code" means the Internal Revenue Code of 1986, as amended.
"Comptroller" means the Comptroller of Public Accounts of the State of Texas.
"Construction Fund "shall mean the construction fund established by the City pursuant to
Section 27 of this Ordinance.
"DTC" means The Depository Trust Company of New York, New York, or any successor
securities depository.
"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.
"Interest Payment Date ", when used in connection with any Certificate, means February 1,
1998, and each August 1 and February 1 thereafter until maturity or earlier redemption.
"Initial Certificates" means the Certificates to be initially issued and registered by the
Comptroller in accordance with Section 5 hereof.
"Issuance Date ", with respect to the Certificates initially delivered to TWDB, shall mean the
date on which each such Certificate is authenticated by the Registrar and delivered to and paid for
by TWDB. Certificates delivered on transfer of or in exchange for other Certificates shall bear the
same Issuance Date as the Certificate or Certificates in lieu of or in exchange for which the new
Certificate is delivered.
"MSRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means each person whom the SEC or its staff has determined to be a nationally
recognized municipal securities information repository within the meaning of the Rule from time to
time.
"Ordinance" as used herein and in the Certificates means this ordinance authorizing the
Certificates.
"Owner" means any person who shall be the registered owner of any outstanding Certificate.
"Record Date" means, for any Interest Payment Date, the close of business on the fifteenth
(I 5th) day of the month next preceding such Interest Payment Date.
"Register" means the books of registration kept by the Registrar in which are maintained the
names and addresses of and the principal amounts registered to each Owner.
® "Registrar" means Texas Commerce Bank National Association, and its successors in that
capacity.
&A
•
971023 -1b
"Rule" means SEC Rule 15c2 -12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"SID" means the Municipal Advisory Council of Texas, which has been designated by the
State of Texas as, and determined by the SEC staff to be, a state information depository within the
meaning of the Rule.
"TWDB" means the Texas Water Development Board.
3. Authorization. The Certificates shall be issued pursuant to the Acts in fully registered
form, without coupons, in the total authorized principal amount of Six Million Eight Hundred
Twenty Thousand Dollars ($6,820,000) for the purpose of evidencing the indebtedness of the City
for all or any part of the cost of constructing improvements to the City's sanitary sewer system, and
the cost of professional services incurred in connection therewith.
4. Designation. Date. and Interest Payment Dates. The Certificates shall be designated as
the "CITY OF BAYTOWN, TEXAS, COMBINATION TAX AND REVENUE CERTIFICATES
OF OBLIGATION, SERIES 1997 ", and shall be dated November 1, 1997. The Certificates shall
bear interest at the rates set out in Section 5 of this Ordinance, from the later of the Issuance Date
or the most recent Interest Payment Date to which interest has been paid or duly provided for,
calculated on the basis of a 360 day year of twelve 30 day months.
5. Initial Certificates: Numbers and Denominations. The Certificates shall be issued bearing
the numbers, in the principal amounts, and bearing interest at the rates set forth in the following
schedule, and may be transferred and exchanged as set out in this Ordinance. The Certificates shall
mature on February 1 in each of the years and in the amounts set out in such schedule. Certificates
delivered on transfer of or in exchange for other Certificates shall be numbered in order of their
authentication by the Registrar, shall be in the denomination of $5,000 or integral multiples thereof,
and shall mature on the same date and bear interest at the same rate as the Certificate or Certificates
in lieu of which they are delivered.
IKE
971023 --1c
Certificate
Principal
Interest
® Number
Year
Amount
a e
I- 1
1999
$225,000
3.00%
I- 2
2000
235,000
3.10%
I- 3
2001
245,000
3.20%
I- 4
2002
255,000
3.30%
I- 5
2003
260,000
3.40%
I- 6
2004
275,000
3.50%
I- 7
2005
285,000
3.60%
I- 8
2006
295,000
3.65%
I- 9
2007
310,000
3.70%
I -10
2008
320,000
3.80%
I -11
2009
335,000
3.90%
I -12
2010
350,000
4.00%
I -13
2011
365,000
4.05%
1 -14
2012
380,000
4.10%
I -15
2013
400,000
4.15%
I -16
2014
415,000
4.20%
I -17
2015
435,000
4.25%
I -18
2016
455,000
4.30%
I -19
2017
480,000
4.30%
I -20
2018
500,000
4.35%
6. Execution of Certificates: Seal. The Certificates shall be signed by the Mayor of the City
and countersigned by the City Clerk of the City, by their manual, lithographed, or facsimile
signatures, and the official seal of the City shall be impressed or placed in facsimile thereon. Such
facsimile signatures on the Certificates shall have the same effect as if each of the Certificates had
been signed manually and in person by each of said officers, and such facsimile seal on the
Certificates shall have the same effect as if the official seal of the City had been manually impressed
upon each of the Certificates. If any officer of the City whose manual or facsimile signature shall
appear on the Certificates shall cease to be such officer before the authentication of such Certificates
or before the delivery of such Certificates, such manual or facsimile signature shall nevertheless be
valid and sufficient for all purposes as if such officer had remained in such office.
7. Approval by Attorney General: Registration by Comptroller. The Certificates to be
initially issued shall be delivered to the Attorney General of Texas for approval and shall be
registered by the Comptroller. The manually executed registration certificate of the Comptroller
substantially in the form provided in Section 18 of this Ordinance shall be attached or affixed to the
Certificates to be initially issued.
8. Authentication. Except for the Certificates to be initially issued, which need not be
authenticated by the Registrar, only Certificates which bear thereon a certificate of authentication,
® substantially in the form provided in Section 18 of this Ordinance, manually executed by an
authorized representative of the Registrar, shall be entitled to the benefits of this Ordinance or shall
-4-
971023 -1d
be valid or obligatory for any purpose. Such duly executed certificate of authentication shall be
conclusive evidence that the Certificates so authenticated were delivered by the Registrar hereunder.
The Registrar, when it authenticates a Certificate, shall cause the Issuance Date to be
stamped, typed or imprinted on such Certificate. Certificates issued on transfer of or in exchange
for other Certificates shall bear the same Issuance Date as the Certificate or Certificates presented
for transfer or exchange.
9. Payment of Principal and Interest. The Registrar is hereby appointed as the paying agent
for the Certificates. The principal of the Certificates shall be payable, without exchange or collection
charges, in any coin or currency of the United States of America which, on the date of payment, is
legal tender for the payment of debts due the United States of America, upon their presentation and
surrender as they become due and payable at the principal payment office of the Registrar in Dallas,
Texas. The interest on each Certificate shall be payable by check payable on the Interest Payment
Date, mailed by the Registrar on or before each Interest Payment Date to the Owner of record as of
the Record Date, to the address of such Owner as shown on the Register; provided, however, that
for so long as the TWDB is the Owner of the Certificates, all payments of principal and interest will
be made in wire transfer form at no cost to the TWDB.
If the date for payment of the principal of or interest on any Certificate is not a Business Day,
then the date for such payment shall be the next succeeding Business Day, with the same force and
effect as if made on the original date payment was due.
10. Successor Registrars. The City covenants that at all times while any Certificates are
outstanding it will provide a commercial bank or trust company, organized under the laws of the
United States or any which is duly qualified and legally authorized to serve as and perform the duties
and services of Registrar for the Certificates. The City reserves the right to change the Registrar 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 Certificates.
Promptly upon the appointment of any successor Registrar, the previous Registrar shall deliver the
Register or copies thereof to the new Registrar, and the new Registrar shall notify each Owner, by
United States mail, first class postage prepaid, of such change and of the address of the new
Registrar. Each Registrar hereunder, by acting in that capacity, shall be deemed to have agreed to
the provisions of this Section.
11. Special Record Date. If interest on any Certificate is not paid on any Interest Payment
Date and continues unpaid for thirty (30) days thereafter, the Registrar shall establish a new record
date for the payment of such interest, to be known as a Special Record Date. The Registrar shall
establish a Special Record Date when funds to make such interest payment are received from or on
behalf of the City. Such Special Record Date shall be fifteen (15) days prior to the date fixed for
payment of such past due interest, and notice of the date of payment and the Special Record Date
shall be sent by United States mail, 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.
512
971023 -1e
12. Ownership: Unclaimed Principal and Interest. The City, the Registrar and any other
person may treat the person in whose name any Certificate is registered as the absolute Owner of
such Certificate for the purpose of making payment of principal or interest on such Certificate, and
for all other purposes, whether or not such Certificate is overdue, and neither the City nor the
Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the
person deemed to be the Owner of any Certificate in accordance with this Section shall be valid and
effectual and shall discharge the liability of the City and the Registrar upon such Certificate to the
extent of the sums paid.
Amounts held by the Registrar which represent principal of and interest on the Certificates
remaining unclaimed by the Owner after the expiration of three 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, to the extent applicable, Title 6 of the Texas
Property Code, as amended.
13. Registration. Transfer, and Exchange. So long as any Certificates remain outstanding,
the Registrar shall keep the Register at its principal payment office in Dallas, Texas, and, subject to
such reasonable regulations as it may prescribe, the Registrar shall provide for the registration and
transfer of Certificates in accordance with the terms of this Ordinance. The Issuance Date of each
Certificate originally delivered to and paid for by TWDB shall be recorded in the Register.
Each Certificate shall be transferable only upon the presentation and surrender thereof at the
principal payment office of the Registrar in Dallas, Texas, duly endorsed for transfer, or
accompanied by an assignment duly executed by the registered Owner or his authorized
representative in form satisfactory to the Registrar. Upon due presentation of any Certificate for
transfer, the Registrar shall authenticate and deliver in exchange therefor, within three (3) Business
Days after such presentation, a new Certificate or Certificates, registered in the name of the
transferee or transferees, in authorized denominations and of the same maturity, aggregate principal
amount, and Issuance Date, bearing interest at the same rate as the Certificate or Certificates so
presented.
All Certificates shall be exchangeable upon presentation and surrender thereof at the principal
payment office of the Registrar in Dallas, Texas, for a Certificate or Certificates of the same
maturity, Issuance Date, and interest rate and in any authorized denomination, in an aggregate
principal amount equal to the unpaid principal amount of the Certificate or Certificates presented for
exchange. The Registrar shall be and is hereby authorized to authenticate and deliver exchange
Certificates in accordance with the provisions of this Section. Each Certificate delivered in
accordance with this Section shall be entitled to the benefits and security of this Ordinance to the
same extent as the Certificate or Certificates in lieu of which such Certificate is delivered.
The City or the Registrar may require the Owner of any Certificate to pay a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection. with the transfer
or exchange of such Certificate. Any fee or charge of the Registrar for such transfer or exchange
shall be paid by the City.
M
971023 -1f
14. Mutilated. Lost. or Stolen Certificates. Upon the presentation and surrender to the Regis-
trar of a mutilated Certificate, the Registrar shall authenticate and deliver in exchange therefor a
replacement Certificate of like maturity, Issuance Date, interest rate and principal amount, bearing
a number not contemporaneously outstanding. If any Certificate is lost, apparently destroyed, or
wrongfully taken, the City, pursuant to the applicable laws of the State of Texas and in the absence
of notice or knowledge that such Certificate has been acquired by a bona fide purchaser, shall
authorize and the Registrar shall authenticate and deliver a replacement Certificate of like maturity,
Issuance Date, interest rate and principal amount, bearing a number not contemporaneously
outstanding.
The City or the Registrar may require the Owner of a mutilated Certificate to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection
therewith and any other 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 Certificate, before any replacement Certificate is issued, to:
(1) furnish to the City and the Registrar satisfactory evidence of the
ownership of and the circumstances of the loss, destruction or theft of such
Certificate;
(2) furnish such security or indemnity as may be required by the Registrar
.and the City to save them harmless;
(3) pay all expenses and charges in connection therewith, including, but
not limited to, printing costs, legal fees, fees of the Registrar and any tax or other
governmental charge that may be imposed; and
(4) meet any other reasonable requirements of the City and the Registrar.
If, after the delivery of such replacement Certificate, a bona fide purchaser of the original Certificate
in lieu of which such replacement Certificate was issued presents for payment such original
Certificate, the City and the Registrar shall be entitled to recovensuch replacement Certificate from
the person to whom -it was delivered or any person taking therefrom, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the City or the Registrar in connection therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Certificate has become
or is about to become due and payable, the City in its discretion may, instead of issuing a
replacement Certificate, authorize the Registrar to pay such Certificate.
Each replacement Certificate delivered in accordance with this Section shall be entitled to
the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in lieu
of which such replacement Certificate is delivered.
-7-
971023 -1g
® 15. Cancellation of Certificates. All Certificates paid in accordance with this Ordinance, and
all Certificates in lieu of which exchange Certificates or replacement Certificates are authenticated
and delivered in accordance herewith, shall be canceled and destroyed upon the making of proper
records regarding such payment. The Registrar shall furnish the City with appropriate certificates
of destruction of such Certificates.
16. Book -Entry System. The Initial Certificates shall be delivered against payment to the
Board. The Board shall be required to promptly surrender the Initial Certificates to the Registrar for
exchange. Certificates issued in exchange shall be registered in the name of Cede & Co., as nominee
of DTC, as registered owner of the Certificates, and held in the custody of DTC. Unless otherwise
requested by DTC, a single certificate will be issued and delivered to DTC for each maturity of the
Certificates. Beneficial owners of Certificates will not receive physical delivery of Certificates
except as provided hereinafter. For so long as DTC shall continue to serve as securities depository
for the certificates as provided herein, all transfers of beneficial ownership interest will be made by
book -entry only, and no investor or other party purchasing, selling or otherwise transferring
beneficial ownership of Certificates is to receive, hold or deliver any Certificate.
With respect to Certificates registered in the name of Cede & Co., as nominee of DTC, the
City and the Registrar shall have no responsibility or obligation to any DTC participant or any person
on whose behalf a DTC participant holds an interest in the Certificates. Without limiting the
immediately preceding sentence, the City and the Registrar shall have no responsibility or obligation
with respect to (i) the accuracy of the records of DTC, Cede & Co., or any DTC participant with
respect to any ownership interest in the Certificates, (ii) the delivery to any DTC participant or any
other person, other than a registered owner of the Certificates, as shown on the Register, of any
notice with respect to the Certificates, including any notice of redemption, and (iii) the payment of
any DTC participant or any other person, other than a registered owner of the Certificates, as shown
on the Register, of any amount with respect to principal of or premium, if any, or interest on the
Certificates.
Replacement Certificates may be issued directly to beneficial owners of Certificates other
than DTC, or its nominee, but only in the event that (i) DTC determines not to continue to act as
securities depository for the Certificates (which determination shall become effective no less than
90 days after written notice to such effect to the City and the Registrar); or (ii) the City has advised
DTC of its determination (which determination is conclusive asto DTC and the beneficial owners
of the Certificates) that the interests of the beneficial owners of the Certificates might be adversely
affected if such book -entry only system bf transfer is continued. Upon occurrence of any of the
foregoing events; the City shall use its best efforts to attempt to locate another qualified securities
depository. If the City fails to locate another qualified securities depository to replace DTC, the City
shall cause to be authenticated and delivered replacement Certificates, in certificate form, to the
beneficial owners of the Certificates. In the event that the City makes the determination noted in (ii)
above (provided that the City undertakes no obligation to make any investigation to determine the
occurrence of any events that would permit the City to make any such determination), and has made
provisions to notify the beneficial owners of Certificates of such determination by mailing an
appropriate notice to DTC, it shall cause to be issued replacement Certificates in certificate form to
® beneficial owners of the Certificates as shown on the records of DTC provided to the City.
-8-
0
971023 -1h
Whenever, during the term of the Certificates, the beneficial ownership thereof is determined
by a book entry at DTC, the requirements in this Ordinance of holding, delivering or transferring
Certificates shall be deemed modified to require the appropriate person or entity to meet the
requirements of DTC as to registering or transferring the book entry to produce the same effect.
If at any time, DTC ceases to hold the Certificates as securities depository, all references
herein to DTC shall be of no further force or effect.
17. Optional Redemption. The City reserves the right to redeem Certificates prior to
maturity, in whole or from time to time in part, in inverse order of maturity, on February 1, 2008,
or any date thereafter, at a price of par plus accrued interest on the Certificates called for redemption
to the date fixed for redemption. If less than all of the Certificates of any maturity are redeemed, the
particular Certificates within such maturity to be redeemed shall be selected by the City.
Principal amounts may be redeemed only in integral multiples of $5,000. If a Certificate
subject to redemption is in a denomination larger than $5,000, a portion of such Certificate may be
redeemed, but only in integral multiples of $5,000. Upon surrender of any Certificate for redemption
in part, the Registrar, in accordance with Section 13 hereof, shall authenticate and deliver in
exchange therefor a Certificate or Certificates of like maturity, Issuance Date, and interest rate in an
aggregate principal amount equal to the unredeemed portion of the Certificate so surrendered.
Notice of any redemption identifying the Certificates to be redeemed in whole or in part shall
be given by the Registrar at least thirty days prior to the date fixed for redemption by sending written
notice by first class mail, postage prepaid, to the Owner of each Certificate to be redeemed in whole
or in part at the address shown on the Register. Such notices shall state the redemption date, the
redemption price, the place at which Certificates are to be surrendered for payment and, if less than
all Certificates outstanding of a particular maturity are to be redeemed, the numbers of the
Certificates or portions thereof of such maturity to be redeemed. Any notice given as provided in
this Section shall be conclusively presumed to have been duly given, whether or not the Owner
receives such notice. By the date fixed for redemption, due provision shall be made with the
Registrar for payment of the redemption price of the Certificates or portions thereof to be redeemed,
plus accrued interest to the date fixed for redemption. When Certificates have been called for
redemption in whole or in part and due provision has been made to redeem the same as herein
provided, the Certificates or portions thereof so redeemed shall no longer be regarded as outstanding
except for the purpose of receiving payment solely from the funds so provided for redemption, and
the rights of the Owners to collect interest which would otherwise accrue after the redemption date
on any Certificate or portion thereof called for redemption shall terminate on the date fixed for
redemption.
18. Forms. The form of the Certificates, including the form of the Registrar's Authentication
Certificate, the form of Assignment, the form of Insurance Legend, and the form of Registration
Certificate of the Comptroller shall be, respectively, substantially as follows, with such additions,
deletions and variations as may be necessary or desirable and not prohibited by this Ordinance:
ST
971023 -1i
is (Face of Certificate)
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTIES OF HARRIS AND CHAMBERS
NUMBER DENOMINATION
REGISTERED REGISTERED
CITY OF BAYTOWN, TEXAS
COMBINATION TAX AND REVENUE
CERTIFICATE OF OBLIGATION
SERIES 1997
INTEREST RATE: MATURITY DATE: ISSUANCE DATE: CUSIP:
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
THE CITY OF BAYTOWN, TEXAS (the "City ") promises to pay to the registered owner
identified above, or registered assigns, on the maturity date specified above, upon presentation and
surrender of this Certificate to Texas Commerce Bank National Association (the "Registrar ") at its
principal payment office in Dallas, Texas, the principal amount identified above, payable in any coin
or currency of the United States of America which on the date of payment of such principal is legal
tender for the payment of debts due the United States of America, and to pay interest thereon at the
rate shown above, calculated on the basis of a 360 day year of twelve 30 day months, from the later
of the Issuance Date identified above, or the most recent interest payment date to which interest has
been paid or duly provided for. The date of this Certificate is November 1, 1997, but interest shall
accrue on the principal amount hereof from the Issuance Date. Interest on this Certificate is payable
by check on February 1, 1998, and semiannually thereafter on each February 1 and August 1, mailed
to the registered owner as shown on the books of registration kept by the Registrar as of the close
of business on the fifteenth (15th) day of the month next preceding each interest payment date;
provided, however, that for so long as the Texas Water Development Board is the Owner of the
Certificates, all payments of principal and interest will be made in wire transfer form at no cost to
the Texas Water Development Board.
* "I" for Initial Certificates; "R" for definitive Bonds issued in exchange for the Initial Certificates.
II111
971023 -1j
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
40 CERTIFICATE SET FORTH ON THE REVERSE HEREOF, WHICH PROVISIONS SHALL
HAVE THE SAME FORCE AND EFFECT AS IF SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, this Certificate has been signed with the manual or facsimile
signature of the Mayor of the City and countersigned with the manual or facsimile signature of the
City Clerk of the City, and the official seal of the City has been duly impressed, or placed in
facsimile, on this Certificate.
(AUTHENTICATION CERTIFICATE) (SEAL) CITY OF BAYTOWN, TEXAS
Mayor
City Clerk
(Back Panel of Certificate)
THIS CERTIFICATE is one of a duly authorized issue of certificates of obligation,
aggregating $6,820,000 (the "Certificates "), issued in accordance with the Constitution and laws of
the State of Texas, particularly Chapter 271, Texas Local Government Code, as amended, for the
purpose of evidencing the indebtedness of the City for all or any part of the cost of constructing
improvements to the City's sanitary sewer system, and the cost of professional services incurred in
connection therewith, pursuant to an ordinance duly adopted by the City Council of the City (the
"Ordinance "), which Ordinance is of record in the official minutes of the City Council.
THE CITY RESERVES THE RIGHT to redeem Certificates prior to maturity, in whole or
from time to time in part, in inverse order of maturity, in integral multiples of $5,000, on February 1,
2008, or any date thereafter at par plus accrued interest on the principal amounts called for
redemption to the date fixed for redemption. Reference is made to the Ordinance for complete
details concerning the manner of redeeming the Certificates.
NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior to the date
fixed for redemption by first class mail, addressed to the registered owner of each Certificate to be
redeemed in whole or in part at the address shown on the books of registration kept by the Registrar.
When Certificates or portions thereof have been called for redemption, and due provision has been
made to redeem the same, the principal amounts so redeemed shall be payable solely from the funds
provided for redemption, and interest which would otherwise accrue on the amounts called for
redemption shall terminate on the date fixed for redemption.
THIS CERTIFICATE is transferable only upon presentation and surrender�at the principal
payment office of the Registrar in Dallas, Texas, duly endorsed for transfer or accompanied by an
assignment duly executed by the registered owner or his authorized representative, subject to the
® terms and conditions of the Ordinance.
971023 -1k
® THE CERTIFICATES are exchangeable at the principal payment office of the Registrar in
Dallas, Texas, for Certificates in the principal amount of $5,000 or any integral multiple thereof,
subject to the terms and conditions of the Ordinance.
THIS CERTIFICATE shall not be valid or obligatory for any purpose or be entitled to any
benefit under the Ordinance unless this Certificate is either (1) registered by the Comptroller of
Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii)
authenticated by the Registrar by due execution of the authentication certificate endorsed hereon.
THE REGISTERED OWNER of this Certificate, by acceptance hereof, acknowledges and
agrees to be bound by all the terms and conditions of the Ordinance.
THE CITY has covenanted in the Ordinance that it will at all times provide a legally qualified
registrar for the Certificates and will cause notice of any change of registrar to be mailed to each
registered owner.
IT IS HEREBY certified, recited and covenanted that this Certificate has been duly and
validly issued and delivered; that all acts, conditions and things required or proper to be performed,
to exist and to be done precedent to or in the issuance and delivery of this Certificate have been
performed, exist and have been done in accordance with law; and that annual ad valorem taxes,
within the limits prescribed by law, sufficient to provide for the payment of the interest on and
principal of this Certificate, as such interest comes due and such principal matures, have been levied
and ordered to be levied against all taxable property in the City.
IT IS FURTHER certified, recited and represented that the revenues to be derived from the
operation of the City's waterworks and sanitary sewer system, after the payment of all operation and
maintenance expenses thereof (the "Net Revenues "), are pledged to the payment of the principal of
and interest on the Certificates to the extent that taxes may ever be insufficient or unavailable for
said purpose; provided, however, that such pledge is junior and subordinate in all respects to the
pledge of Net Revenues to the payment of any obligation of the City, whether authorized heretofore
or hereafter, which the City designates as having a pledge senior to the pledge of Net Revenues to
the payment of the Certificates. The City also reserves the right to issue, for any lawful purpose at
any time, in one or more installments, bonds, certificates of obligation and other obligations of any
kind payable in whole or in part from the Net Revenues of its waterworks and sanitary sewer system,
secured by a pledge of the Net Revenues that may be prior and superior in right to, on a parity with,
or junior and subordinate to the pledge of Net Revenues securing the Certificates.
•af • •• • 114140MOTM,
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this Certificate has been examined, certified as to validity, and approved
by the Attorney General of the State of Texas, and that this Certificate has been registered by the
® Comptroller of Public Accounts of the State of Texas.
Spa
971023 -11
0 WITNESS MY SIGNATURE AND SEAL this
Xxxxxxxxxxxxx
Comptroller of Public Accounts
of the State of Texas
(SEAL)
AUTHENTICATION CERTIFICATE
It is hereby certified that this Certificate has been delivered pursuant
to the Ordinance described in the text of this Certificate.
By
Authorized Signature
Date of Authentication
ASSIGNMENT
For value received, the undersigned hereby sells, assigns, and transfers unto
(Please print or type name, address, and zip code of Transferee)
(Please insert Social Security or Taxpayer Identification Number of Transferee)
the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said
Certificate on the books kept for registration thereof, with full power of substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: Signature must be
guaranteed by a member firm of the
New York Stock Exchange or a
commercial bank or trust company.
-13-
Registered Owner
NOTICE: The signature above must
correspond to the name of the registered
owner as shown on the face of this
Certificate in every particular, without
any alteration, enlargement or change
whatsoever.
97].023 -1m
® Form of Insurance Legend
Financial Security Assurance Inc. ( "Financial Security"), New York, New York, has
delivered its insurance policy with respect to the scheduled payments due of principal of and interest
on this Bond to Texas Commerce Bank National Association, Houston, Texas, or its successor, as
paying agent for the Bonds (the "Paying Agent "). Said Policy is on file and available for inspection
at the principal office of the Paying Agent and a copy thereof may be obtained from Financial
Security or the Paying Agent.
19. Legal Opinion: Cusip Numbers; Bond Insurance. The approving opinion of Vinson &
Elkins L.L.P., Houston, Texas, and CUSIP Numbers may be printed on the Certificates, but errors
or omissions in the printing of such opinion or such numbers shall have no effect on the validity of
the Certificates.
The purchase of and payment of the premium for municipal bond insurance by the City, in
accordance with the terms of a commitment for such insurance presented to and hereby approved
by the City Council is hereby authorized. All officials and representatives of the City are authorized
and directed to execute such documents and to do any and all things necessary or desirable to obtain
such insurance, and the printing on the Certificates of an appropriate legend regarding such insurance
is hereby approved.
20. interest and Sinking Fund; . The proceeds from all taxes levied, assessed and
collected for and on account of the Certificates authorized by this Ordinance shall be deposited, as
collected, in a special fund to be designated "City of Baytown, Texas, Combination Tax and Revenue
Certificates of Obligation, Series 1997 Interest and Sinking Fund ". While the Certificates or any part
of the principal thereof or interest thereon remain outstanding and unpaid, there is hereby levied and
there shall be annually levied, assessed and collected in due time, form and manner, and at the same
time other City taxes are levied, assessed and collected, in each year, beginning with the current year,
a continuing direct annual ad valorem tax, within the limits prescribed by law, upon all taxable
property in the City sufficient to pay the current interest on the Certificates as the same becomes due,
and to provide and maintain a sinking fund adequate to pay the principal of the Certificates as such
principal matures, but never less than two percent (2 %) of the original principal amount of the
Certificates each year, full allowance being made for delinquencies and costs of collection, and such
taxes when collected shall be applied to the payment of the interest on and principal of the
Certificates and to no other purpose.
To pay the debt service coming due on the Certificates prior to receipt of the taxes levied to
pay such debt service, there is hereby appropriated from current funds on hand, which are hereby
certified to be on hand and available for such purpose, an amount sufficient to pay such debt service,
and such amount shall be used for no other purpose.
21. Pledge of Revenues. The revenues to be derived from the operation of the City's
waterworks and sanitary sewer system, after the payment of all operation and maintenance expenses
thereof (the "Net Revenues "), are hereby pledged to the payment of the principal of and interest on
the Certificates as the same come due, to the extent that the taxes mentioned in Section 20 of this
Ordinance may ever be insufficient or unavailable for said purpose; provided, however, that such
-14-
971023 -1n
pledge is and shall be junior and subordinate in all respects to the pledge of the Net Revenues to the
payment of any obligation of the City, whether authorized heretofore or hereafter, which the City
designates as having a pledge senior to the pledge of the Net Revenues to the payment of the
Certificates. The City also reserves the right to issue, for any lawful purpose at any time, in one or
more installments, bonds, certificates of obligation and other obligations of any kind payable in
whole or in part from the Net Revenues, secured by a pledge of the Net Revenues that may be prior
and superior in right to, on a parity with, or junior and subordinate to the pledge of Net Revenues
securing this series of Certificates.
22. Further Proceedings. After the Certificates to be initially issued have been executed, it
shall be the duty of the Mayor of the City to deliver the Certificates to be initially issued and all
pertinent records and proceedings to the Attorney General of Texas, for examination and approval.
After the Certificates to be initially issued have been approved by the Attorney General, they shall
be delivered to the Comptroller for registration. Upon registration of the Certificates to be initially
issued, the Comptroller (or a deputy lawfully designated in writing to act for the Comptroller) shall
manually sign the Comptroller's Registration Certificate prescribed herein to be affixed or attached
to the Certificates to be initially issued, and the seal of said Comptroller shall be impressed, or placed
in facsimile, thereon.
23. ate. The Certificates are hereby sold and shall be delivered to TWDB, as soon as
practicable after adoption of this Ordinance, at a price of par, subject to the approval of the Attorney
General of Texas and Vinson & Elkins L.L.P., bond counsel. The Mayor and other appropriate
officers, agents and representatives of the City are hereby authorized to do any and all things
necessary or desirable to provide for the issuance and delivery of the Certificates.
24. Books and Records. So long as any of the Certificates are outstanding the City covenants
and agrees that it will keep proper books of record and account in which full, true and correct entries
will be made of all transactions relating to the Certificates and the funds created pursuant to this
Ordinance, and all books, documents and vouchers relating thereto shall at all reasonable times be
made available for inspection upon request of any Owner.
25. Federal Income Tax Inclusion.
(a) General Tax Covenant. The City intends that the interest on the Certificates shall be
excludable from gross income for purposes of federal income taxation pursuant to sections 103 and
141 through 150 of the Internal Revenue Code of 1986, as amended (the "Code), and applicable
Income Tax Regulations (the "Regulations "). The City covenants and agrees not to take any action,
or knowingly omit to take any action within its control that, if taken or omitted, respectively, would
cause the interest on the Certificates to be includable in gross income, as defined in section 61 of the
Code, for federal income tax purposes. In particular, the City covenants and agrees to comply with
each requirement of this Section; provided, however, that the City shall not be required to comply
with any particular requirement of this Section if the City has received an opinion of nationally
recognized bond counsel ( "Counsel's Opinion ") that such noncompliance will not adversely affect
the exclusion from gross income for federal income tax purposes of interest on the Certificates or
if the City has received a Counsel's Opinion to the effect that compliance with some other
requirement set forth in this Section will satisfy the applicable requirements of the Code and
-15-
971023- -10
Regulations, 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.
(b) No Private Use or Payment and No Private Loan Financing. The City shall certify,
through an authorized officer, employee or agent that based upon all facts and estimates known or
reasonably expected to be in existence on the date the Certificates are delivered, that the proceeds
of the Certificates will not be used in a manner that would cause the Certificates to be "private
activity bonds" within the meaning of section 141 of the Code and the Regulations promulgated
thereunder. Moreover, the City covenants and agrees that it will make such use of the proceeds of
the Certificates including interest or other investment income derived from Certificate 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 Certificates will not be "private activity bonds"
within the meaning of section 141 of the Code and the Regulations promulgated thereunder.
(c) NQ 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 Certificates to be "federally guaranteed" within the meaning of section 149(b) of the Code
and the applicable Regulations thereunder, except as permitted by section 149(b)(3) of the Code and
such Regulations.
(d) No Hedge Bonds. The City covenants and agrees that it has not and will not to take any
action, and has not knowingly omitted and will not knowingly omit to take any action, within its
control, that, if taken or omitted, respectively, would cause the Certificates to be "hedge bonds"
within the meaning of section 149(g) of the Code and the applicable Regulations thereunder.
(e) No Arbitrage. The City shall certify, through an authorized officer, employee or agent
that based upon all facts and estimates known or reasonably expected to be in existence on the date
the Certificates are delivered, the City will reasonably expect that the proceeds of the Certificates
will not be used in a manner that would cause the Certificates to be "arbitrage bonds" within the
meaning of section 148(a) of the Code and the applicable Regulations promulgated thereunder.
Moreover, the City covenants and agrees that it will make such use of the proceeds of the Certificates
including interest or other investment income derived from Certificate proceeds, regulate
investments of proceeds of the Certificates, and take such other and further action as may be required
so that the Certificates will not be "arbitrage bonds" within the meaning of section 148(a) of the
Code and the applicable Regulations promulgated thereunder.
(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
necessary steps to comply with the requirement that certain amounts earned by the City on the
investment of the "gross proceeds" of the Certificates (within the meaning of section 148(f)(6)(B)
of the Code), be rebated to the federal government. Specifically, the City will (i) maintain records
regarding the investment of the gross proceeds of the Certificates as may be required to calculate the
amount earned on the investment of the gross proceeds of the Certificates separately from records
® 'of amounts on deposit in the funds and accounts of the City allocable to other bond issues of the City
or moneys which do not represent gross proceeds of any bonds of the City, (ii) calculate at such
times as are required by applicable Regulations, the amount earned from the investment of the gross
-16-
971023 -Ip
proceeds of the Certificates 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 Certificates 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
Certificates that might result in a reduction in the amount required to be paid to the federal
government because such arrangement results in a smaller profit or 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.
(g) Information Reaming. 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 Certificates are issued, an information statement concerning the
Certificates, all under and in accordance with section 149(e) of the Code and the applicable
Regulations promulgated thereunder.
(h) Continuing Obligation. Notwithstanding any other provision of this Ordinance, the City's
obligations under the covenants and provisions of this Section shall survive the defeasance and
discharge of the Certificates.
26. Escrow Agreement. To facilitate the delivery of and payment for the Certificates
pending completion of review of plans and specifications, the City Council hereby authorizes an
Escrow Agreement to be entered into by and between the City and TexPool Participant Services, as
Escrow Agent, which shall be substantially in the form attached hereto as Exhibit A, the terms and
conditions of which are hereby approved, subject to such insertions, additions, and modifications as
shall be necessary to comply with all applicable laws, regulations, and procedures and to carry out
the intent and purposes of this Ordinance. The Mayor or Mayor Pro Tern and the City Clerk or
Assistant City Clerk are authorized to execute and deliver such Escrow Agreement in multiple
counterparts on behalf of the City.
27. Construction Fund. There is hereby created and established a special fund of the City,
to be known as the "City of Baytown, Texas, Combination Tax and Revenue Certificates of
Obligation, Series 1997 Construction Fund ", which shall be established at an official depository of
the City and kept separate and apart from other funds of the City. The proceeds of the Certificates,
as received, shall be deposited in the Construction Fund. Money on deposit in the Construction Fund
shall be used only for the purposes set forth in Section 3 of this Ordinance and to pay costs of
issuance. Money on deposit in the Construction Fund, may, at the option of the City, be invested as
permitted by Texas law including, without limitation, the Public Funds Investment Act; provided
that all such deposits and investments shall be made in such manner that the money required to be
expended from the Construction Fund will be available at the proper time or times. All interest and
income derived from such deposits and. investments shall be used for the purposes set forth in
Section 3 of this Ordinance and to pay the costs of issuing the Certificates.
28. TV DB Rum. In compliance with the published rules and regulations of TWDB, the
City covenants and agrees that upon final completion of the project to be financed with the proceeds
-17-
971023 -1q
of the Certificates, and if all or any portion of the Certificates shall be held by or on account of
TWDB or the State of Texas, the proper officials of the City shall render due and final accounting
to TWDB of the total cost of the project. If, following completion of the project, funds remain on
hand in the Construction Fund, or if the Development Fund Manager disapproves construction of
any portion of the project as not being in accordance with the plans and specifications, the City shall,
immediately after filing the final accounting, return to TWDB the amount of such excess and/or the
cost as determined by the Development Fund Manager relating to the parts of the project not
constructed in accordance with the plans and specifications, to the nearest multiple of $5,000, and
TWDB shall thereupon cancel and deliver to the City, in inverse maturity order, a like amount of
Certificates held by TWDB. Any further amounts remaining in the City's Construction Fund
thereafter shall be promptly deposited by the City into the Interest and Sinking Fund and applied to
the payment of the principal of and interest on the Certificates. Unless otherwise stated in the loan
commitment of TWDB with respect to the purchase of the Certificates, in determining the amount
of available funds for constructing the project to be financed, the City shall account for all monies
in the Construction Fund, including all loan funds extended by TWDB, all other funds available from
the project as described in the project engineer's sufficiency of funds statement required for closing
TWDB's loan and all interest earned by the City on money in the Construction Fund. This
requirement shall not be interpreted as prohibiting TWDB from enforcing such other rights as it may
have under law.
29. Audit. So long as any of the Certificates are held by TWDB, the City shall provide to
TWDB's Development Fund Manager a copy of an annual audit of the City's finances within 180
days of the end of the City's fiscal year.
30. Insurance. The City covenants that the project to be financed by the Certificates will be
kept continually insured against such perils and to such extent that insurance is customarily carried
by cities operating similar facilities in similar locations; provided, however, that the City shall not
be required to maintain such insurance so long as builders risk insurance covering such facilities
during the period of construction is in effect.
31. Plans. The City covenants that "as built" plans shall be provided to TWDB, and that so
long as any Certificates are held by TWDB it will abide by TWDB's rules and the relevant statutes
of the State of Texas, including Chapters 15, 16 and 17, Texas Water Code.
32. Conservation Program. The City covenants that to the extent required by TWDB, the
City will implement any water conservation program adopted by the City and approved by TWDB
in connection with the sale of the Certificates to TWDB, together with any amendments to such
program which are so adopted and approved, for so long as any outstanding Certificate or
Certificates are owned by TWDB.
33. Environmental Determinations. The City covenants that to the extent required by
TWDB, the City will comply with any special conditions specified by TWDB's environmental
determination in connection with the sale of the Certificates to TWDB, for so long as any
• outstanding Certificate or Certificates are owned by the TWDB.
-18-
971023 -1r
34. Compliance with Rule and Statutes. The City covenants that it will comply with
TWDB's rules and relevant state statutes in connection with the sale of the Certificates to TWDB and
the use of the proceeds in connection with the construction of improvements and extensions to the
City's sanitary sewer system project approved by TWDB.
35. Continuing Disclosure Undertaking. (a) Annual Reports. The City shall provide
annually to each NRMSIR and the SID, 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 City's
Audit Report. The information to be provided shall include the complete 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 shall be audited, if the audit is completed within
the period during which they must be provided. If the audit of such financial statements is not
complete within such period, then the City shall provide unaudited financial statements for the
applicable fiscal year to each NRMSIR and the SID within such six month period, and audited
financial statements when the audit report on such statements becomes available.
If the City changes its fiscal year, it will notify each NRMSIR and the SID 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 each NRMSIR and the SID or filed with the SEC.
(b) Material Event Notices. The City shall notify the SID and either each NRMSIR or the
MSRB, in a timely manner, of any of the following events with respect to the Certificates, if such
event is material within the meaning of the federal securities laws:
A. Principal and interest payment delinquencies;
B. Non- payment related defaults;
C. Unscheduled draws on debt service reserves reflecting financial
difficulties;
D. Unscheduled draws on credit enhancements reflecting financial
difficulties;
E. Substitution of credit or liquidity providers, or their failure to
perform;
F. Adverse tax opinions or events affecting the tax- exempt status of the
G.
H.
I.
J.
K.
Certificates;
Modifications to rights of holders of the Certificates;
Certificate calls;
Defeasances;
Release, substitution, or sale of property securing repayment of the
Certificates; and
Rating changes.
-19-
971023 -1s
® The City shall notify the SID and either each NRMSIR or the MSRB, in a timely manner, of
any failure by the City to provide financial information or operating data in accordance with Section
35(a) of this Ordinance by the time required by such Section.
(c) Limitations. Disclaimers. md Amendments'. The City shall be obligated to observe and
perform the covenants specified in this Section for so long as, but only for so long as, the City
remains an "obligated person" with respect to the Certificates 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 Certificates no longer to be outstanding.
The provisions of this Section are for the sole benefit of the holders and beneficial owners
of the Certificates and the beneficial owners of the TWDB's bonds if the City is an obligated person
with respect to the TWDB's bonds under the Rule, and nothing in this 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 Certificates at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY CERTIFICATE OR ANY OTHER PERSON, IN CONTRACT
OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY
THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY
COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY
SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH
SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
comprise 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, change in law, or change in
the identity, nature, status or type of operations of the City, if (i) the agreement, as amended, would
have permitted an underwriter to purchase or sell Certificates in the original primary offering in
compliance with the Rule, taking into account any amendments or interpretations of the 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 Certificates consent to such amendment,
® or (b) any person unaffiliated with the City (such as nationally recognized bond counsel), determines
that the amendment will not materially impair the interests of the holders and beneficial owners of
-20-
971023 -1t
• the Certificates. If any such amendment is made, the City will include in its next annual update an
explanation in narrative form of the reasons for the amendment and its impact on the type of
operating data or financial information being provided.
•
36. Benefit ct' on: Authorization and Purpose. In order to reduce the debt service
requirements on the Certificates, the City is authorized to purchase the Bond Insurance Policy from
the Bond Insurer in accordance with the provisions of its commitment to the City and as more fully
provided in Section 37 below. The Mayor and City Manager are authorized and directed to take all
action necessary to purchase such Bond Insurance Policy for the Certificates. In consideration for
the Bond Insurer's issuance of the Bond Insurance Policy, the City hereby makes the agreements,
covenants, provisions and representations set forth in this Section.
37. Special Provisions Relating to Bond Insurance Policy. (a) In the event of conflict with
any other provisions of this Ordinance, the following provisions of this Section shall govern and
control.
(b) In this Section, the following terms shall have the following meanings:
(i) "Bond Insurance Policy" shall mean the municipal bond insurance
policy issued by the Bond Insurer guaranteeing the scheduled
payment of principal of and interest on the Certificates.
(ii) "Bond Insurer" shall mean Financial Security Assurance Inc., a
New York stock insurance company, or any successor thereto.
(iii) "Bondholder" shall mean Owner.
(iv) "Event of Default" shall mean the failure to pay principal of and
interest on the Certificates, insolvency proceedings regarding the
Issuer, or the continued breach of any covenant by the Issuer
hereunder following written notice thereof by the Bond Insurer to the
Issuer and the Issuer's failure to cure the same within 60 days or such
longer period as shall be reasonably necessary and agreed upon by the
Bond Insurer.
(v) "Issuer" shall mean the City, as issuer of the Certificates.
(v) "Paying Agent" shall mean the Registrar.
(c) The Bond Insurer shall be deemed to be the sole holder of the Certificates insured by it
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 Certificates insured by it are entitled to take pertaining to
defaults and remedies.
-21-
971023 -1u
® (d) Copies of any modification or amendment to the Ordinance shall be sent to Standard &
Poor's Ratings Services, a division of The McGraw -Hill Companies, Inc. and Moody's Investors
Service, Inc. at least 10 days prior to the effective date thereof.
(e) The rights of the Bond Insurer to direct or consent to Issuer or Bondholder actions under
the Ordinance shall be suspended during any period in which the Bond Insurer is in default in its
payment obligations under the Bond Insurance Policy (except to the extent of amounts previously
paid by the Bond Insurer and due and owing to the Bond Insurer) and shall be of no force or effect
in the event the Bond Insurance Policy is no longer in effect or the Bond Insurer asserts that the Bond
Insurance Policy is not in effect or the Bond Insurer shall have provided written notice that it waives
such rights.
(f) The rights granted to the Bond Insurer under the Ordinance to request, consent to or direct
any action are rights granted to the Bond Insurer in consideration of its issuance of the Bond
Insurance Policy. Any exercise by the Bond Insurer of such rights is merely an exercise of the Bond
Insurer's contractual rights and shall not be construed or deemed to be taken for the benefit of or on
behalf of the Bondholders nor does such action evidence any position of the Bond Insurer, positive
or negative, as to whether Bondholder consent is required in addition to consent of the Bond Insurer.
(g) Only (i) cash, (ii) non - callable direct obligations of the United States of America
( "Treasuries'), (iii) 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 or (iv) pre - refunded municipal obligations
rated "AAA" and "Aaa" by S &P and Moody's, respectively, or any combination thereof, shall be
authorized to be used to effect defeasance of the Certificates unless the Bond Insurer otherwise
approves.
None of the Certificates shall be deemed defeased until 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 Bond Insurer ( "Accountant ") verifying the sufficiently of the
escrow established to pay the Certificates in full on the maturity or redemption date ( "Verification "),
(ii) an Escrow Agreement (which shall be acceptable in form and•substance to the Bond Insurer), and
(iii) an opinion of nationally recognized bond counsel to the effect that the Certificates are no longer
"Outstanding" under the Ordinance; each Verification and defeasance opinion shall be acceptable
in form and substance, and addressed, to the Issuer and the Bond Insurer. In the event a forward
purchase agreement will be employed in the refunding, such agreement shall be subject to the
approval of the Bond Insurer and shall be accompanied by such opinions of counsel as may be
required by the Bond Insurer. The Bond 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.
Certificates shall be deemed "Outstanding" under the Ordinance unless and until they are in
fact paid and retired or the above criteria are met.
-22-
971023 -1v
(h) Certificate principal and interest paid by the Bond Insurer under the Bond Insurance
Policy shall not be deemed paid for purposes of the Ordinance and 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 Bond
Insurer have been paid in full or duly provided for.
(i) 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 Certificates due on such payment date, the Paying Agent shall give notice to the Bond
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 date. 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 Certificates due on such payment date,
the Paying Agent shall make a claim under the Bond Insurance Policy and give notice to the Bond
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 Certificates and the
amount required to pay principal of the Certificates, confirmed in writing to the Bond Insurer and
the Insurer'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 Bond Insurance Policy.
In the event the claim to be made is for a mandatory sinking fund redemption installment,
upon receipt of the moneys due, the Paying Agent shall authenticate and deliver to affected
Bondholders who surrender their Certificates a new Certificate or Certificates in an aggregate
principal amount equal to the unredeemed portion of the Certificate surrendered. The Paying Agent
shall designate any portion of payment of principal on Certificates paid by the Bond 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 Certificates registered to the then current
Bondholder, whether DTC or its nominee or otherwise, and shall issue a replacement Certificate to
the Bond Insurer, registered in the name of Financial Security Assurance Inc., in a principal amount
equal to the amount of principal so paid (without regard to authorized denominations); provided that
the Paying Agent's failure to so designate any payment or issue any replacement certificate shall have
no effect on the amount of principal or interest payable by the Issuer on any Certificate or the
subrogation rights of the Bond Insurer.
The Paying Agent shall keep a complete and accurate record of all funds deposited by the
Bond Insurer into the Policy Payment Account and the allocation of such funds to payment of
interest on and principal paid in respect to any Certificate. The Bond 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 Bond 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 Bond Insurance
Policy in trust on behalf of Bondholders and shall deposit any such amount in the Policy Payments
-23-
971023 -1w
® 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 Certificates under the
sections hereof regarding payment of Certificates. 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.
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 Certificate payment date
shall promptly be remitted to the Bond Insurer.
0) The Bond Insurer shall, to the extent it makes any payment of principal or interest on the
Certificates, become subrogated to the rights of the recipients of such payments in accordance with
the terms of the Bond Insurance Policy.
(k) The Issuer shall pay or reimburse the Bond Insurer any and all charges, fees, costs and
expenses which the Bond Insurer may reasonably pay or incur in connection with (i) the
administration, enforcement, defense or preservation of any rights or security in respect of the
Ordinance or any other transaction document (each a "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, (iv) the violation by the Issuer
or the Obligor of any law, rule or regulation, or any judgment, order or decree applicable to it or (v)
any litigation or other dispute in connection with the Ordinance or any other Related Document or
the transactions contemplated thereby, other than amounts resulting from the failure of the Bond
Insurer to honor its obligations under the Bond Insurance Policy. The Bond 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.
(1) The Bond Insurer shall be entitled to pay principal or interest on the Certificates that shall
become Due for Payment but shall be unpaid by reason of Nonpayment by the Issuer (as such terms
are defined in the Bond Insurance Policy) and any amounts due on the Certificates as a result of
acceleration of the maturity thereof in accordance with the Ordinance, whether or not the Bond
Insurer has received a Notice (as defined in the Bond Insurance Policy) of Nonpayment or a claim
upon the Bond Insurance Policy.
(m) The notice address of the Bond Insurer is: Financial Security Assurance Inc., 350 Park
Avenue, New York, New York 10022 -6022, Attention: Managing Director -- Surveillance. - -Re:
Policy No. Telephone: (212)826 -0100; Telecopier: (212)339 -3529. In each case in which
notice or other communication refers to an Event of Default or with respect to which failure on the
part of the Bond Insurer to respond shall be deemed to constitute consent or acceptance, then a copy
® of such notice or other communication shall also be sent to the attention of General Counsel and
shall be marked to indicate "URGENT MATERIAL ENCLOSED."
-24-
971023 -1x
(n) The Bond Insurer shall be provided with the following information:
(i) Annual audited financial statements within 120 days after the end
of the Issuer's fiscal year and the Issuer's annual budget within 30
days after the approval thereof;
(ii) Notice of any default known to the Paying Agent within five
Business Days after knowledge thereof,
(iii) Prior notice of the advance refunding or redemption of any of the
Certificates, including the principal amount, maturities and CUSIP
numbers thereof,
(iv) Notice of the resignation or removal of the Paying Agent and the
appointment of, and acceptance of duties by, any successor thereto;
(v) The commencement of any proceeding by or against the Issuer
commenced under the United States Bankruptcy Code or any other
applicable bankruptcy, insolvency, receivership, rehabilitation or
similar law (an "Insolvency Proceeding ");
(vi) 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 Certificates;
(vii) A full original transcript of all proceedings relating to the
execution of any amendment or supplement to the Related
Documents; and
(viii) All reports, notices and correspondence to be delivered under
the terms of the Related Documents.
38. Re ig stray. The form of agreement setting forth the duties of the Registrar is hereby
approved, and the appropriate officials of the City are hereby authorized to execute such agreement
for and on behalf of the City.
39. No Personal Liability. No recourse shall be had for payment of the principal of or
interest on any Certificates or for any claim based thereon, or on this Ordinance, against any official
or employee of the City or any person executing any Certificates.
40. Open Meeting. The meeting at which this Ordinance is adopted was open to the public,
and public notice of the time, place and purpose of said meeting was given, all as required by the
Texas Open Meetings Act; and such notice as given is hereby authorized, approved, adopted and
ratified.
-25-
PASSED AND APPROVED this 23rd day of October, 1997.
C]
ATTEST:
&-,,,
City Clerk
CITY OF BAYTOWN, TEXAS
(SEAL)
•
-26-
97]023 -1y
dA e.
Mayor
CITY OF BAYTOWN, TEXAS
ESCROW AGREEMENT FOR
TEXAS WATER DEVELOPMENT BOARD
TRANSACTIONS
This Escrow Agreement (the "Agreement ") is entered into as of October 23 1997 by and
between City of tia town , Texas (the "Issuer "), a political
subdivision of State of Texas, and Texas Commerce Bank National Association, a national banking
association with its principal offices in Houston, Harris County, Texas (the "Escrow Agent ").
WITNESSETH:
WHEREAS, the Issuer has authorized and sold
Revenue Certificates of Obligation
$6,820,000 Combination Tax and
$, Series 1997 , dated
November 1 , 1997, in the aggregate principal amount of S 6.820.000 (the "Bonds ");
and
WHEREAS, the Bonds were sold to Texas Water Development Board (the "Board "), which
required as a condition of the sale that proceeds of the sale, less amounts to pay costs of issuance, (the
"Funds ") be deposited in escrow subject to withdrawal only with the approval of the Development Fund
Manager. of the Board or an authorized representative; provided, however, the Funds can be transferred
in accordance with this Agreement; and
WHEREAS, the Texas Treasury Safekeeping Trust Company (the "Trust Company ") has
created the Texas Local Government Investment Pool ( "TexPool "),.a public funds investment pool, and
the Interlocal Cooperation Act, Ch. 791, Tex Gov't Code Ann. (Vernon 1994) and the Public Funds
Investment Act, Ch. 2256, Tex Gov't Code Ann. (Vernon 1995), authorized the Issuer to delegate to
TexPool the authority to hold legal title as custodian and to make investments with the escrowed funds;
NOW, THEREFORE, in consideration of the premises and the covenants herein contained, the
Issuer and the Escrow Agent agree as follows:
Section I: The Funds shall be deposited with and held in escrow in TexPool to the credit of an
account entitled " City of Baytown, Texas, Series 1997 Escrow
Account" (the "Escrow Account ") until released or transferred as provided in this Agreement. The
escrow period shall begin on the date money is first deposited to the credit of the Escrow Account and
shall terminate when all money so deposited, together with all interest earnings has been released or
transferred in accordance with this Agreement.
Section 2: TexPool shall invest the Funds in accordance with the Participation Agreement
between the Issuer and the Trust Company. All interest earned will be deposited in the Escrow Account
and shall become part of the Funds.
Section 3: The Issuer reserves the right to secure release from the Escrow Agent of all or a
portion of the Funds upon presentation to the Escrow Agent of an executed escrow agreement with
another financial institution. Upon receipt of such an agreement and with the written authorization from
the Board, the Escrow Agent shall transfer the released Funds held in the Escrow Account to such new
escrow agent.
Section 4: Upon written authorization from the Board authorizing release of all or a portion of
the Funds in the Escrow Account, the Escrow Agent will authorize TexPool to release the Funds into the
- Construction Fund, or use as directed by the Issuer.
Section 5: If only a portion of the Funds in the Escrow Account are released pursuant to Section
4, or transferred pursuant to Section 3, the Escrow Agent shall continue to maintain the Escrow Account
in accordance with the terms hereof until all Funds in the Escrow Account have been released or
transferred, after which the Escrow Agent shall have no further duties pursuant to this Agreement.
Section 6: The Escrow Agent may rely on, and shall not be liable for acting or refraining from
acting in accordance with any written notice, instruction, request or other document furnished to it and
believe by it to have been signed or presented by the proper party or parties. The Escrow Agent may
consult with counsel regarding its duties or responsibilities under this Agreement and shall not be liable
for action taken or not taken in good faith in reliance upon such counsel. The Escrow Agent shall not be
liable for any exemplary, consequential, or incidental damages by reason of performance of its duties
under this Agreement. This Agreement shall be governed by the laws of the State of Texas.
Section 7: To the extent permitted by law, the Issuer will indemnify and defend the Escrow
Agent from, and will hold it harmless from, any and all losses, costs, damages, claims and expenses,
including attorney's fees, incurred or suffered by the Escrow Agent in connection with, or arising out of,
this Escrow Agreement, except for a such acts or omissions resulting from the negligence or willful
misconduct of the Escrow Agent.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement in two originals,
each of which shall be deemed to be an original, as of the date and year first written above.
Notice Address: JISSUERJ CITY OF BAYTOWN, TEXAS
[Issuer) City of Baytown, Texas
2123 Market Street BY
Baytown, TX 77520
Name: Monte Mercer
Title: Assistant City Manager /Finance
Notice Address: TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Escrow Agent
600 Travis, Suite 1150
Houston, Texas 77002
Attn: Escrow Section By:
Fax: (713) 216-5476
Phone: (713) 216 -6079 Name:
Title:
Lr]