Ordinance No. 8,324980709 -4
ORDINANCE NO. 8324
® ORDINANCE AUTHORIZING THE ISSUANCE OF $9,605,000 CITY OF
BAYTOWN, TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE
REFUNDING BONDS, SERIES 1998; AUTHORIZING THE REDEMPTION
PRIOR TO MATURITY OF CERTAIN OUTSTANDING BONDS;
AUTHORIZING THE ADVANCE REFUNDING OF CERTAIN OUTSTANDING
BONDS AND THE EXECUTION AND DELIVERY OF AN ESCROW
AGREEMENT AND THE SUBSCRIPTION FOR AND PURCHASE OF CERTAIN
•
ESCROWED SECURITIES
WHEREAS, the City Council of the City of Baytown, Texas (the "City") has heretofore
issued the bonds described in Exhibit A attached hereto (the "Refunded Bonds "); and
WHEREAS, the City desires to refund the Refunded Bonds in advance of their maturities;
and
WHEREAS, Article 717k, Vernon's Texas Civil Statutes, as amended, authorizes the City
to issue refunding bonds payable from taxes, without an election, for the purpose of refunding the
Refunded Bonds in advance of their maturities, and to accomplish such refunding by depositing
directly with any paying agent for the Refunded Bonds the proceeds of such refunding bonds,
together with other available funds, in an amount sufficient to provide for the payment or redemption
of the Refunded Bonds, and provides that such deposit shall constitute the making of firm banking
and financial arrangements for the discharge and final payment or redemption of the Refunded
Bonds; and
WHEREAS, the City desires to authorize the execution of an escrow agreement and provide
for the deposit of proceeds of the refunding bonds, together with other funds, to pay the Refunded
Bonds; and
WHEREAS, upon the issuance of the refunding bonds herein authorized and the deposit of
funds referred to above, the Refunded Bonds shall no longer be regarded as being outstanding,
except for the purpose of being paid pursuant to such deposit, and the pledges, liens, trusts and all
other covenants, provisions, terms and conditions of the ordinances authorizing the issuance of the
Refunded Bonds shall be, with respect to the Refunded Bonds, discharged, terminated and defeased;
Now, Therefore
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN:
980709 -4a
• ARTICLE I
RECITALS: CONSIDERATION
It is hereby found and determined that the matters and facts set out in the preamble to this
Ordinance are true and correct.
It is hereby found and determined that the refunding contemplated in this Ordinance will
benefit the City by providing a present value savings of $529,988.08 in the debt service payable by
the City, and that such benefit is sufficient consideration for the refunding of the Refunded Bonds.
ARTICLE II
DEFINITIONS AND INTERPRETATIONS
Section 2.1: Definitions. In this Ordinance, the following terms shall have the following
meanings, unless the context clearly indicates otherwise:
"Act" means Article 717k, Vernon's Texas Civil Statutes, as amended.
"Additional Parity Bonds" means the additional parity revenue bonds permitted to be issued
by the City pursuant to Section 6.1 of this Ordinance.
"Blanket Issuer Letter of Representations" means the Blanket Issuer Letter of Representations
between the City, the Registrar and DTC.
"Bond Purchase Agreement" means the agreement between the City and the Underwriter
described in Section 8.1 of this Ordinance.
"Bonds" or "Series 1998 Bonds" means the City of Baytown, Texas, Waterworks and Sewer
System Revenue Refunding Bonds, Series 1998, authorized by this Ordinance.
"Business Day" means any day which is not a Saturday, Sunday, or a day on which banking
institutions in Dallas, Texas, are authorized by law or executive order to be closed.
"City" means the City of Baytown, Texas, and where appropriate, the City Council thereof
and any successor to the City as owner of the System.
"Closing Date" means the date of the initial delivery of and payment for the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended.
"Comptroller" means the Comptroller of Public Accounts of the State of Texas.
® "DTC" means The Depository Trust Company of New York, New York, or any successor
securities depository.
-2-
980709 -4b
"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.
"Escrow Agent" means The Bank of New York,. New York, New York, and any successor
in that capacity.
"Escrow Agreement" means the agreement between the City and the Escrow Agent relating
to the escrow of funds to pay the Refunded Bonds.
"Gross Revenues" means all revenues, income and receipts of every nature derived or
received by the City from the operation and ownership of the System and the interest income from
the investment or deposit of money in the Revenue Fund, the Interest and Sinking Fund, and the
Reserve Fund.
"Initial Bond" means the Initial Bond authorized by Section 3.4(d).
"Interest Payment Date ", when used in connection with any Bond, means February 1, 1999,
and each August 1 and February 1 thereafter until maturity or earlier redemption.
"Maintenance and Operation Expenses" 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 (but only such repairs and extensions as, in the
judgment of the governing body of the City, are necessary to keep the System in operation and
render adequate service to the City and the inhabitants thereof, or such as might be necessary to meet
some physical accident or condition which would otherwise impair the Parity Bonds), and all
payments under contracts now or hereafter defined as operating expenses by the Legislature of
Texas. Depreciation shall never be considered as a Maintenance and Operation Expense.
"MSRB" means the Municipal Securities Rulemaking Board.
"Net Revenues" means all Gross Revenues remaining after deducting the Maintenance and
Operation Expenses.
"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" means this bond ordinance and all amendments hereof and supplements hereto.
"Outstanding Bonds" mean the Series 1991 Bonds, the Series 1992 Bonds, the Series 1993
Bonds, the Series 1994 Bonds, and the Series 1995 Bonds.
® "Owner" or "Registered Owner ", when used with respect to any Bond means the person or
entity in whose name such Bond is registered in the Register. Any reference to a particular
percentage or proportion of the Owners shall mean the Owners at a particular time of the specified
-3-
980709 -4c
percentage or proportion in aggregate principal amount of all Bonds then outstanding under this
Ordinance, exclusive of Bonds held by the City.
"Parity Bonds" mean the Bonds, the Outstanding Bonds, and each series of Additional Parity
Bonds from time to time hereafter issued, but only. to the extent such Parity Bonds remain
outstanding.
"Record Date" means, for any Interest Payment Date, the close of business on the 15th day
of the month next preceding each Interest Payment Date.
"Refunded Bonds" mean those bonds described on Exhibit A attached hereto.
"Register" means 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.
"Registrar" means Chase Bank of Texas, National Association, and its successors in that
capacity.
"Report" means the report of Deloitte & Touche LLP, Certified Public Accountants, verifying
the accuracy of certain mathematical computations relating to the Bonds and the Refunded Bonds.
"Rule" means SEC Rule 15c2 -12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"Series 1991 Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System
Revenue Bonds, Series 1991.
"Series 1992 Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System
Revenue Bonds, Series 1992.
"Series 1993 Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System
Revenue Bonds, Series 1993.
"Series 1994 Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System
Revenue Bonds, Series 1994.
"Series 1995 Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System
Revenue Bonds, Series 1995.
"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.
® "Special Project" means, to the extent permitted by law, any waterworks or sanitary sewer
system property, improvement or facility declared by the City not to be part of the System and
-4-
980709 -4d
substantially all of the costs of acquisition, construction, and installation of which are 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.
"System" means all properties, facilities, improvements, equipment, interests, and rights
constituting the waterworks and sanitary sewer system of the City, including all future extensions,
replacements, betterments, additions, and improvements to the System.
"Underwriter" means Morgan Keegan & Company, Inc., Dain Rauscher, Inc. and Southwest
Securities.
Section 2.2: 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 articles and 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 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.
ARTICLE III
TERMS OF THE BONDS
Section 3.1: Authorization and Authorized Amount. The Bonds shall be issued, pursuant
to the Act, in fully registered form in the aggregate principal amount of $9,605,000 for the purpose
of refunding the Refunded Bonds.
Section 3.2: Designation. Date. and Interest Payment Date . The Bonds shall be designated
as "City of Baytown, Texas, Waterworks and Sewer System Revenue Refunding Bonds, Series
1998 ", and shall be dated July 1, 1998. The Bonds shall bear interest at the rates set out in Section
3.3 of this Ordinance from the later of July 1, 1998, 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, payable on February 1, 1999, and semiannually thereafter on August 1 and
February 1 of each year until maturity or earlier redemption.
Section 3.3: Initial Bonds; Numbers and Denomination. The Bonds shall be issued in the
principal amounts and bearing interest at the rates set forth in the following schedule, and may be
transferred and exchanged as set out in this Ordinance. The Bonds shall mature on February 1 in
® each of the years and in the amounts set out in such schedule. The Initial Bond shall be numbered
I -1 and all other Bonds shall be numbered in sequence beginning with R -1. Bonds delivered on
transfer of or in exchange for other Bonds shall be numbered in order of their authentication by the
-5-
980709 -4e
® Registrar, shall be in the denomination of $5,000 or integral multiples thereof, and shall mature on
the same date and bear interest at the same rate as the Bond or Bonds in lieu of which they are
delivered.
Section 3A Execution and Registration of Bonds. (a) The Bonds shall be signed on behalf
of the City by the Mayor and countersigned by the 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.
(b) 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.
(c) Except as provided below, no Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit of this Ordinance unless and until there appears thereon the
Registrar's Authentication Certificate substantially in the form provided herein, duly authenticated
by manual execution by an officer or duly authorized signatory of the Registrar. In lieu of the
executed Registrar's Authentication Certificate described above, the Initial Bond delivered at the
Closing Date shall have attached hereto the Comptroller's Registration Certificate substantially in
the form provided herein, manually executed by the Comptroller of Public Accounts of the State of
Texas, or by his duly authorized agent, which certificate shall be evidence that the Initial Bond has
been duly approved by the Attorney General of the State of Texas and that it is a valid and binding
obligation of the City, and has been registered by the Comptroller of Public Accounts of the State
of Texas.
(d) On the Closing Date, the Initial Bond, being a single bond representing the entire
principal amount of the Bonds, payable in stated installments to the Underwriter or its designee,
!rell
Principal
Interest
Year
Amount
Rate
2003
$ 415,000
4.20%
2004
510,000
4.30%
2005
775,000
4.40%
2006
805,000
4.40%
2007
845,000
4.45%
2008
1,140,000
4.55%
2009
1,200,000
4.60%
2010
1,260,000
4.65%
2011
1,330,000
4.75%
2012
955,000
4.85%
2013
370,000
5.00%
Section 3A Execution and Registration of Bonds. (a) The Bonds shall be signed on behalf
of the City by the Mayor and countersigned by the 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.
(b) 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.
(c) Except as provided below, no Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit of this Ordinance unless and until there appears thereon the
Registrar's Authentication Certificate substantially in the form provided herein, duly authenticated
by manual execution by an officer or duly authorized signatory of the Registrar. In lieu of the
executed Registrar's Authentication Certificate described above, the Initial Bond delivered at the
Closing Date shall have attached hereto the Comptroller's Registration Certificate substantially in
the form provided herein, manually executed by the Comptroller of Public Accounts of the State of
Texas, or by his duly authorized agent, which certificate shall be evidence that the Initial Bond has
been duly approved by the Attorney General of the State of Texas and that it is a valid and binding
obligation of the City, and has been registered by the Comptroller of Public Accounts of the State
of Texas.
(d) On the Closing Date, the Initial Bond, being a single bond representing the entire
principal amount of the Bonds, payable in stated installments to the Underwriter or its designee,
!rell
980709 -4f
executed by manual or facsimile signature of the Mayor and City Clerk of the City, approved by the
Attorney General, and registered and manually signed by the Comptroller of Public Accounts, shall
be delivered to the Underwriter or its designee. Upon payment for the Initial Bond, the Registrar
shall cancel the Initial Bond and deliver Bonds to DTC in accordance with Section 3.12.
Section 3.5. Payment of Principal and Interest. The Registrar is hereby appointed as the
paying agent for the Bonds. The principal of the Bonds shall be payable, without exchange or
collection charges, in any coin or currency of the United States of America which, on the date of
payment, is legal tender for the payment of debts due the United States of America, upon their
presentation and surrender as they respectively become due and payable at maturity or earlier
redemption to the Registrar at its principal payment office in Dallas, Texas. The interest on each
Bond shall be payable by check payable on the Interest Payment Date, mailed by the Registrar on
or before each Interest Payment Date to the Owner of record as of the Record Date, to the address
of such Owner as shown on the Register.
If the date for the payment of principal 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.
Section 3.6. Successor Registrars. The City covenants that at all times while any Bonds are
outstanding it will provide a commercial bank or trust company organized under the laws of the
United States or of any state and duly qualified and legally authorized 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 Register or a copy 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.
Section 3.7. 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 Owner or record of an affected Bond as of the close of business on
the day prior to the mailing of such notice.
Section 3.8. Ownership. Unclaimed Principal and Interest. Subject to the further provisions
of this Section, the City, the Registrar and any other person may treat the person in whose name any
Bond is registered as the absolute Owner of such Bond for the purpose of making and receiving
payment of the principal of 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
-7-
980709 -4g
accordance with this Section 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, to the extent applicable, Title b of the Texas
Property Code, as amended.
Section 3.9. Registration. Transfer. and Exchange. So long as any Bonds 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 Bonds in accordance with the terms of this Ordinance.
Each Bond 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 Bond in proper
form for transfer, the Registrar shall authenticate and deliver in exchange therefor, within three (3)
Business Days after such presentation, a new Bond or Bonds, registered in the name of the transferee
or transferees, in authorized denominations and of the same maturity and aggregate principal amount,
bearing interest at the same rate as the Bond or Bonds so presented.
All Bonds shall be exchangeable upon presentation and surrender thereof at the principal
payment office of the Registrar in Dallas, Texas, for a Bond or Bonds of the same 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. Each Bond delivered in accordance with this Section 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 be
paid by the City.
Section 3.10. Cancellation of Bonds. All Bonds paid or redeemed in accordance with this
Ordinance, and all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated
and delivered in accordance herewith, shall be canceled and destroyed upon the making of proper
records regarding such payment or redemption. The Registrar shall furnish the City with appropriate
certificates of destruction of such Bonds.
® section 3.11. 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
-8-
980709 -4h
contemporaneously outstanding. The City or the Registrar may require the Owner of such Bond to
pay a sum sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith and any other expenses connected therewith, including the fees and expenses
of the Registrar.
If any Bond is lost, apparently destroyed, or wrongfully taken, the City, pursuant to the
applicable laws of the State of Texas and in the absence of notice or knowledge that such Bond has
been acquired by a bona fide purchaser, shall execute and the Registrar shall authenticate and deliver
a replacement Bond of like maturity, interest rate and principal amount, bearing a number not
contemporaneously outstanding, provided that the Owner thereof shall have:
(1) furnished to the City and the Registrar satisfactory evidence of the ownership
of and the circumstances of the loss, destruction or theft of such Bond;
(2) furnished such security or indemnity as may be required by the Registrar and
the City to save them harmless;
(3) paid all expenses and charges in connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Registrar and any tax or other
governmental charge that may be imposed; and
(4) met any other reasonable requirements of the City and the Registrar.
If, after the delivery of such replacement Bond, a bona fide purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original Bond, the City and the
Registrar shall be entitled to recover such replacement Bond from the person to whom it was
delivered or any person taking therefrom, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the City or the Registrar in connection therewith.
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 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.
Section 3.12: Book -En M System. (a) The Initial Bond shall be registered in the name of
Morgan Keegan & Company, Inc. Except as provided in Section 3.13 hereof, all other Bonds shall
be registered in the name of Cede & Co., as nominee of DTC.
(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 DTC Participant holds an interest in the Bonds, except as provided
in this Ordinance. Without limiting the immediately preceding sentence, the City and the Registrar
In
980709 -4i
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, 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, as shown on the Register, of any amount with
respect to principal of, premium, if any, or interest on the Bonds. Notwithstanding any other
provision of this Ordinance to the contrary, the City and the Registrar shall be entitled to treat and
consider the person in whose name each Bond is registered in the Register as the absolute Owner of
such Bond for the purpose of payment of principal of and interest on the Bonds, for the purpose of
giving notices of redemption and other matters with respect to such Bond, for the purpose of
registering transfer with respect to such Bond, and for all other purposes whatsoever. The Registrar
shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the
respective Owners, as shown in the Register as provided in this Ordinance, or their respective
attorneys duly authorized in writing, and all such payments shall be valid and effective to fully
satisfy and discharge the City's obligations with respect to payments of principal, premium, if any,
and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner,
as shown in the Register, shall receive a Bond certificate evidencing the obligation of the City to
make payments of amounts due pursuant to this Ordinance. Upon delivery by DTC to the Registrar
of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede
& Co., and subject to the provisions of this Ordinance with respect to interest checks being mailed
to the Owner of record as of the Record Date, the phrase "Cede & Co." in this Ordinance shall refer
to such new nominee of DTC.
(c) The execution and delivery of the Blanket Issuer Letter of Representations is hereby
approved with such changes as may be approved by the Mayor of the City and the Mayor is hereby
authorized and directed to execute such Blanket Issuer Letter of Representations.
Section 3.13: Successor Securities De sno itory: Transfer Outside Book -Entry Only System.
In the event that the City in its sole discretion, determines that the beneficial owners of the Bonds
be able to obtain certificated 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, 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 accounts, as identified
by DTC. In such event, the Bonds shall not 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.
Section 3.14: Payments to Cede & Co. 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.
-10-
r
980709 -4j
Section 3.15: Optional Redemption. The Bonds are subject to optional redemption as set
forth in the form of the Bonds in this Ordinance.
Principal amounts may be redeemed only in integral multiples of $5,000. If a Bond subject
to redemption is in a denomination larger than $5,000, a portion of such Bond may be redeemed, but
only in integral multiples of $5,000. Upon surrender of any Bond for redemption in part, the
Registrar, in accordance with Section 3.9 hereof, shall authenticate and deliver in exchange therefor
a Bond or Bonds of like maturity and interest rate in an aggregate principal amount equal to the
unredeemed portion of the Bond so surrendered.
Notice of any redemption identifying the Bonds 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 Bond 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 Bonds are to be surrendered for payment and, if less than all
Bonds outstanding of a particular maturity are to be redeemed, the numbers of the Bonds 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 Bonds or portions thereof to be redeemed, plus accrued interest to the date
fixed for redemption. When Bonds have been called for redemption in whole or in part and due
provision has been made to redeem the same as herein provided, the Bonds or portions thereof so
redeemed shall no longer be regarded as outstanding except for the purpose of 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 Bond or portion thereof called for
redemption shall terminate on the date fixed for redemption.
ARTICLE IV
40151 u • :• HOW-
Section 4.1: Forms. The form of the Bonds, including the form of the Registrar's
Authentication Certificate, the form of Assignment, the form of Registration Certificate of the
Comptroller, and the form of Insurance Legend, which shall be attached or affixed to the Bonds
initially issued, shall be, respectively, substantially as follows, with such additions, deletions and
variations as may be necessary or desirable and not prohibited by this Ordinance:
-11-,
980709 -4k
0 (a) Form of Bond.
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTIES OF HARRIS AND CHAMBERS
NUMBER AMOUNT
REGISTERED REGISTERED
CITY OF BAYTOWN, TEXAS
WATERWORKS AND SEWER SYSTEM
REVENUE REFUNDING BOND
SERIES 1998
INTEREST RATE: MATURITY DATE: ISSUE DATE: CUSIP:
July 1, 1998
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
The City of Baytown, Texas, a municipal corporation duly incorporated under the laws of
the State of Texas (herein the "City ") for value received, promises to pay, but solely from certain Net
Revenues as hereinafter provided, to the Registered Owner identified above or registered assigns,
on the Maturity Date specified above, upon presentation and surrender of this Bond to Chase Bank
of Texas, National Association (the "Registrar "), at its principal payment office in Dallas, Texas, the
principal amount identified above, 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, solely from such Net Revenues, 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 July 1,
1998, or the most recent interest payment date to which interest has been paid or duly provided for.
Interest on this Bond is payable by check on February 1 and August 1, beginning on February 1,
1999, mailed to the registered owner as shown on the books of registration kept by the Registrar as
of the close of business on the 15th day of the month next preceding each interest payment date.
THIS BOND is one of a duly authorized issue of Bonds, aggregating $9,605,000 (the
"Bonds "), issued for the purpose of refunding the City's outstanding waterworks and sewer system
revenue bonds, pursuant to an ordinance adopted by the City Council (the "Ordinance "), which
Ordinance is of record in the official minutes of the City Council.
THE CITY RESERVES THE RIGHT to redeem Bonds, in whole or from time to time in
part, in integral multiples of $5,000, on August 1, 2008, or any date thereafter at par plus accrued
-12-
980709 -41
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 Bonds.
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 owners of each Bond to be
redeemed in whole or in part at the address shown on the books of registration kept by the Registrar.
When Bonds or portions thereof have been called for redemption, and due provision has been made
to redeem the same, the amounts so redeemed shall be payable solely from the funds provided for
redemption, and interest which would otherwise accrue on the amounts called for redemption shall
terminate on the date fixed for redemption.
THIS BOND IS TRANSFERABLE only upon presentation and surrender at the principal
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.
THE BONDS ARE EXCHANGEABLE at the principal payment office of the Registrar in
Dallas, Texas, for bonds in the principal amount of $5,000 or any integral multiple thereof, subject
to the terms and conditions of the Ordinance.
THIS BOND AND THE SERIES OF WHICH IT IS A PART are special obligations of the
City that are payable, together with the City's outstanding waterworks and sewer system revenue
bonds, from and are equally and ratably secured by a first lien on the revenues of the City's
waterworks and sewer system remaining after deduction of the operation and maintenance expenses
of that system (the "Net Revenues "), as defined and provided in the Ordinance, which Net Revenues
are required to be set aside and pledged to the payment of the Bonds, the outstanding bonds, and all
additional bonds issued on a parity therewith, in the Interest and Sinking Fund and the Reserve Fund
maintained for the payment of all such Bonds, all as more fully described and provided for in the
Ordinance. This Bond and the series of which it is a part, together with the interest thereon, are
payable solely from such Net Revenues and do not constitute an indebtedness or general obligation
of the City. The owner hereof shall never have the right to demand payment of this obligation out
of any funds raised or to be raised by taxation.
THE CITY HAS RESERVED THE RIGHT to issue additional parity revenue bonds, subject
to the restrictions contained in the Ordinance, which may be equally and ratably payable from and
secured by a first lien on and pledge of the Net Revenues in the same manner and to the same extent
as this Bond and the series of which it is a part.
IT IS HEREBY DECLARED AND REPRESENTED that this Bond has been duly and
validly issued and delivered; that all acts, conditions, and things required or proper to be performed,
exist, and be done precedent to or in the issuance and delivery of this Bond have been performed,
existed, and been done in accordance with law; that the Bonds do not exceed any statutory limitation;
and that provision has been made for the payment of the principal of and interest on this Bond and
all of the Bonds by the creation of the aforesaid lien on and pledge of the Net Revenues.
-13-
9$0709 -4m
® IN WITNESS WHEREOF, this Bond has been signed with the manual or facsimile signature
of the Mayor and countersigned with the manual or facsimile signature of the City Clerk, and the
official seal of the City has been duly impressed, or placed in facsimile, on this Bond.
(AUTHENTICATION (SEAL) CITY OF BAYTOWN, TEXAS
CERTIFICATE)
Mayor
City Clerk
(b) Form of Registration Certificate.
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this Bond has been examined, certified as to validity, and approved by
the Attorney General of the State of Texas, and that this Bond has been registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS MY SIGNATURE AND SEAL this
(SEAL)
(c)
xxxxxxxxxx
Comptroller of Public Accounts
Form of Authentication Certificate.
AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond
has been delivered pursuant to the Bond
Ordinance described in the text of this
Bond.
Chase Bank of Texas, National Association
As Paying Agent/Registrar
By
Authorized Signature
Date of Authentication
-14-
of the State of Texas
0 (d) Form of Assignmen.
ASSIGNMENT
980709 -4n
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 Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: Signature must be guaranteed
by a member firm of the New York Stock
Exchange or a commercial bank or trust
company.
(e) Form of Insurance Legend.
Registered Owner
NOTICE: The signature above must
correspond to the name of the registered
owner as shown on the face of this Bond in
every particular, without any alteration,
enlargement or change whatsoever.
The Municipal Bond Investors Assurance Corporation (the "Insurer ") has issued a policy
containing the following provisions, such policy being on file at Chase Bank of Texas, National
Association, Houston, Texas.
The Insurer, in consideration of the payment of the premium and subject to the terms of this
policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter defined, of
the following described obligations, the full and complete payment required to be made by or on
behalf of the Issuer to Chase Bank of Texas, National Association, or its successor (the "Paying
Agent ") of an amount equal to (i) the principal of (either at the stated maturity or by any
advancement of maturity pursuant to a mandatory sinking fund payment) and interest on, the
Obligations (as that term is defined below) as such payments shall become due but shall not be so
paid (except that in the event of any acceleration of the due date of such principal by reason of
mandatory or optional redemption or acceleration resulting from default or otherwise, other than any
advancement of maturity pursuant to mandatory sinking fund payment, the payments guaranteed
hereby shall be made in such amounts and at such times as such payments of principal would have
been due had there not been any such acceleration); and (ii) the reimbursement of any such payment
which is subsequently recovered from any owner pursuant to a final judgment by a court of
-15
980709 -4o
competent jurisdiction that such payment constitutes an avoidable preference to such owner within
the meaning of any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii) of the
preceding sentence shall be referred to herein collectively as the "Insured Amounts." "Obligations"
shall mean:
$9,605,000
CITY OF BAYTOWN, TEXAS
WATERWORKS AND SEWER SYSTEM
REVENUE REFUNDING BONDS, SERIES 1998
Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in
writing by registered or certified mail, or upon receipt of written notice by registered or certified
mail, by the Insurer from the Paying Agent or any owner of any Obligation the payment of an Insured
Amount for which is then due, that such required payment has not been made, the Insurer on the due
date of such payment or within one business day after receipt of notice of such nonpayment,
whichever is later, will make a deposit of funds, in an account with State Street Bank and Trust
Company, N.A., in New York, New York, or its successor, sufficient for the payment of any such
Insured Amounts which are then due. Upon presentment and surrender of such Obligations or
presentment of such other proof of ownership of the Obligations, together with any appropriate
instruments of assignment to evidence the assignment of the Insured Amounts due on the
Obligations as are paid by the Insurer, and appropriate instruments to effect the appointment of the
Insurer as agent for such owners of the Obligations in any legal proceeding relating to payment of
Insured Amounts on the Obligations, such instruments being in a form satisfactory to State Street
Bank and Trust Company, N.A., State Street Bank and Trust Company, N.A. shall disburse to such
owners or the Paying Agent payment of the Insured Amounts due on such Obligations, less any
amount held by the Paying Agent for the payment of such Insured Amounts and legally available
therefor. This policy does not insure against loss of any prepayment premium which may at any time
be payable with respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any Obligation as
indicated in the books maintained by the Paying Agent, the Issuer, or any designee of the Issuer for
such purpose. The term owner shall not include the Issuer or any party whose agreement with the
Issuer constitutes the underlying security for the Obligations.
Any service of process on the Insurer may be made to the Insurer at its offices located at 113
King Street, Armonk, New York 10504 and such service of process shall be valid and binding.
This policy is non - cancellable for any reason. The premium on this policy is not refundable
for any reason including the payment prior to maturity of the Obligations.
DISCLOSURE OF GUARANTY FUND NONPARTICIPATION: In the event the Insurer is unable
to fulfill its contractual obligation under this policy or contract or application or certificate or
evidence of coverage, the policyholder or certificateholder is not protected by an insurance guaranty
fund or other solvency protection arrangement.
MBIA INSURANCE CORPORATION
-16-
980709 -4p
is (f) The Initial Bond shall be in the form set forth in paragraphs (a), (b), (d) and (e) of this
Section, except for the following alterations:
(1) immediately under the name of the Bond, the headings
"INTEREST RATE" and "MATURITY DATE" shall both be
completed with the words "As Shown Below" and the word "CUSIP"
deleted;
(ii) in the first paragraph of the Bond, the words "on the maturity
date specified above" and "at the rate shown above" shall be deleted
and the following shall be inserted at the end of the first sentence "...,
with such principal to be paid in installments on February 1 in each
of the years and in the principal amounts identified in the following
schedule and with such installments bearing interest at the per annum
rates set forth in the following schedule:
[Information to be inserted from schedule in Section 3.3]
(iii) the Initial Bond shall be numbered I -1.
Section 4.2: Legal Opinion: Cusin Numbers: Bond Insurance. The approving opinion of
Vinson & Elkins L.L.P., Houston, Texas, 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.
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 Bonds of an appropriate legend regarding such insurance is
hereby approved.
ARTICLE V
SECURITY AND SOURCE OF
PAYMENT FOR ALL PARITY BONDS
Section 5.1: Pledge and Source of Payment. The City hereby covenants and agrees that all
Gross Revenues of the System shall be deposited and paid into the special funds heretofore
established, and shall be applied in the manner set out herein, to provide for the payment of all
Maintenance and Operation Expenses and to provide for the payment of principal, interest and any
redemption premium of the Parity Bonds and all expenses of paying same. The Parity Bonds shall
constitute special obligations of the City that shall be payable solely from, and shall be equally and
ratably secured by a first lien on, the Net Revenues, as collected and received by the City, from the
operation and ownership of the System, which Net Revenues shall, in the manner herein provided,
-17-
r�
980709 -4q
be set aside for and pledged to the payment of the Parity Bonds in the Interest and Sinking Fund and
Reserve Fund as hereinafter provided, and the Parity Bonds shall be in all respects on a parity with
and of equal dignity with one another. The owners of the Parity Bonds shall never have the right to
demand payment out of any funds raised or to be raised by taxation.
Section 5.2: Rates and Charges. So long as any Parity Bonds remain outstanding, the City
shall fix, charge and collect rates and charges for the use and services of the System which are
calculated to be fully sufficient to produce Net Earnings of the System (as herein defined) in each
fiscal year at least equal to 125% of the principal and interest requirements scheduled to occur in
such fiscal year on all Parity Bonds then outstanding; but in no event shall Net Revenues ever be less
than the amount required to maintain the Interest and Sinking Fund and the Reserve Fund as
hereinafter provided, 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.
For purposes of this Section, the term "Net Earnings" shall mean all Net Revenues of the
System, except that in calculating Net Earnings there shall not be deducted as Maintenance and
Operation Expenses any charge, disbursement or expenditure for extensions, repairs or
improvements which, under standard accounting practice, constitutes a capital expenditure.
The City will not grant or permit any free service from the System except for public buildings
and institutions operated by the City.
Section 5.3: Special Funds. The creation and confirmation of the following special funds
in the ordinances authorizing the issuance of the Outstanding Bonds is hereby confirmed, and such
funds shall be maintained and accounted for as hereinafter provided, so long as any Parity Bonds
remain outstanding:
(a) Waterworks and Sewer System Revenue Fund (the "Revenue Fund ");
(b) Waterworks and Sewer System Revenue Bonds Interest and Sinking Fund
(the "Interest and Sinking Fund "); and
(c) Waterworks and Sewer System Revenue Bonds Reserve Fund (the "Reserve
Fund ").
The Revenue Fund shall be maintained as a separate account on the books of the City. The Interest
and Sinking Fund and the 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 Owners 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 herein so long as any Parity Bonds remain outstanding.
-18-
980709 -4r
® Section 5.4: Flow of Funds. All Gross Revenues of the System shall be deposited as
collected into the Revenue Fund. Money from time to time on deposit to the credit of the Revenue
Fund shall be applied as follows in the following order of priority:
n
(a) Fir , to pay Maintenance and Operation Expenses;
(b) Second, to make all deposits into the Interest and Sinking Fund required by
this Ordinance, the ordinances authorizing the issuance of the Outstanding
Bonds, and any ordinance authorizing the issuance of Additional Parity
Bonds;
(c) Third, to make all deposits into the Reserve Fund required by this Ordinance,
the ordinances authorizing the issuance of the Outstanding Bonds, and any
ordinance authorizing the issuance of Additional Parity Bonds;
(d) Fourth, for any lawful purpose.
Whenever the total amounts on deposit to the credit of the Interest and Sinking Fund and the Reserve
Fund shall be equivalent to the sum of the aggregate principal amount of all outstanding Parity
Bonds plus the aggregate amount of all interest accrued and to accrue thereon, no further payments
need be made into the Interest and Sinking Fund or the Reserve Fund.
Section 5.5: 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
(i) such amounts, in approximately equal monthly installments, as will
be sufficient to accumulate the amount required 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 accumulate the amount required to pay the next
maturing principal of the Parity Bonds, including the principal
amounts of, and any redemption premium on, any Parity Bonds
payable as a result of the exercise or operation of any optional or
mandatory redemption provision contained in any ordinance
authorizing the issuance of Parity Bonds.
-19-
980709 -4s
Money deposited to the credit of the Interest and Sinking Fund shall be used solely for the purpose
of paying principal (at maturity or prior redemption or to purchase Parity Bonds issued as term bonds
in the open market to be credited against mandatory redemption requirements), interest and any
redemption premium on the Parity Bonds, plus all bank charges and other costs and expenses
relating to such payment. On or before each.principal and/or interest payment date on the Parity
Bonds, the City shall transfer from the Interest and Sinking Fund to the paying agents an amount
equal to the principal, interest and any redemption premium 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 shall destroy all paid Parity Bonds and shall provide the City with an
appropriate certificate of destruction.
Section 5.6: 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 be 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. 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.
The following provisions shall apply upon final payment or defeasance of the Outstanding
Bonds:
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 "). 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 any other
funds thereby released to any of the purposes for which such funds may lawfully be applied,
including, in either case, 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 in the
highest letter category by two major municipal securities evaluation sources. The premium for any
-20-
980709 -4t
® 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 (64) months of the issuance of such Additional Parity
Bonds. If 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.
•
Section 5.7: Deficiencies in Funds. If in any month there shall not be deposited into any
Fund maintained pursuant to this Article 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.
Section : Investment of Funds. Transfer of Investment Income. (a) Money in the
Revenue Fund, the Interest and Sinking Fund and the Reserve Fund may, at the option of the City,
be invested in time deposits or certificates of deposit of commercial banks secured in the manner
required by law for public funds and insured by the Federal Deposit Insurance Corporation to the
maximum extent permitted by law, or be invested in direct obligations of, or obligations fully
guaranteed by, the United States of America; 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, and provided further that in no event shall such deposits or investments
of money in the Reserve Fund mature later than the final maturity date of the Parity Bonds. Any
obligation in which money is so invested shall be kept and held in the official depository bank of the
City at which the Fund is maintained 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.
(b) 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.
Section 5.9: Secudly for Uninvested Funds. So long as any Parity Bonds remain
outstanding, all uninvested money on deposit in, or credited to, the Revenue Fund, the Interest and
Sinking Fund and the Reserve Fund shall be secured by the pledge of security, as provided by Texas
law.
-21-
980709 -4u
9 ARTICLE VI
ADDITIONAL BONDS
Section -6,1: Additional Panty Bonds. The City reserves the right to issue, for any lawful
purpose (including the refunding of any previously issued Parity Bonds or any other bonds or
obligations of the City issued in connection with or payable from the revenues of the System), one
or more series of Additional Parity Bonds payable from and secured by a first lien on the Net
Revenues of the System, on a parity with the Bonds, the Outstanding Bonds, and any previously
issued Additional Parity Bonds; provided, however, that no Additional Parity Bonds may be issued
unless:
(a) The Additional Parity Bonds mature on, and interest is payable on, the same
days of the year as the Bonds;
(b) The Interest and Sinking Fund and the Reserve Fund each contains the
amount of money then required to be on deposit therein;
(c) For either the preceding fiscal year or any consecutive 12 -month period out
of the 18 month period immediately preceding the month in which the
ordinance authorizing such Additional Parity Bonds is adopted (the "Base
Period "), either:
(1) Net Earnings of the System (as hereinbelow defined) were
equal to at least 125% of the average annual principal and
interest requirements on all 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 Assistant City Manager/Finance or by an independent
certified public accountant or firm of independent certified
public accountants; or
(2) Net Earnings of the System, as adjusted to give effect to any
rate increase for the System that has been in effect for at least
60 days prior to the adoption of the ordinance authorizing the
issuance of the series of Additional Parity Bonds then
proposed to be issued, to the same extent as if such rate
increase had been in effect for the entire Base Period, would
have been at least equal to the amount required in paragraph
(1) above, as certified by an independent consulting engineer
or independent firm of consulting engineers;
provided, however, that this requirement shall not apply to the issuance of
® any series of Additional Parity Bonds for refunding purposes that will have
-22-
980709 -4v
® the result of reducing the average annual principal and interest requirements
on Parity Bonds; and
(d) Provision is made in the ordinance authorizing the Additional Parity Bonds
_then proposed -to be issued for (1) additional payments into the Interest and
Sinking Fund sufficient to provide for any increased principal and interest
requirements on the Parity Bonds resulting from the issuance of the
Additional Parity Bonds and (2) payments into the Reserve Fund so that such
Fund will, in not later than 60 months from the date of issuance of such
Additional Parity Bonds, contain a balance not less than the average annual
principal and interest requirements on all Parity Bonds that will be
outstanding after the issuance of such series of Additional Parity Bonds.
For purposes of Section 6.1(c), the term "Net Earnings of the System" shall mean all of the
Net Revenues of the System, except that in calculating Net Earnings there shall not be deducted as
Maintenance and Operation Expenses any charge, disbursement or expenditure for extensions,
repairs or improvements which, under standard accounting practice, constitutes a capital expenditure.
Section 6.2: Subordinate Lien Bonds. The City reserves the right to issue, for any lawful
purpose, bonds, notes or other obligations secured in whole or in part by liens on the Net Revenues
that are junior and subordinate to the lien on 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.
Section : Special Project Bonds. The City reserves the right to issue revenue bonds
secured by liens on and pledges of revenues and proceeds derived from Special Projects.
ARTICLE VII
COVENANTS AND PROVISIONS
RELATING TO ALL PARITY BONDS
Section 7.1: 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.
Section 7.2: 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 and with all valid rules,
-23
980709 -4W
® regulations, directions or orders of any governmental, administrative, or judicial body promulgating
same, noncompliance with which would materially and adversely affect the operation of the System.
Section 7.3: Sale or Encumbrance of System. So long as any Parity Bonds remain
outstanding, the City will not sell, dispose of or, except as permitted in Article VI, 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.
Section 7.4: 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 customarily insured against 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.
Section 7.5: 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 be 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, the major municipal rating agencies and any owners
of Parity Bonds who shall request same. All expenses incurred in preparing such audits shall be
Maintenance and Operation Expenses.
Section 7.6: Camnetition. To the extent it legally may, the City will not grant any franchise
or permit 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.
Section 7.7: Pledge and Encumbrance of Net Revenues. The City covenants and represents
that it has the lawful power to create a lien on and to pledge the Net Revenues to secure 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 made subject to any other lien, pledge or
encumbrance to secure the payment of any debt or obligation of the City, unless such lien, pledge
or encumbrance is junior and subordinate to the lien and pledge securing payment of the Parity
SBonds.
-24-
980709 -4x
is Section 7.8: Bondowners' Remedies. This Ordinance shall constitute a contract between the
City and the Owners of the Parity Bonds from time to time outstanding and this Ordinance shall be
and remain irrepealable 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 of the Parity Bonds or a default in the
performance of any duty or covenant provided by law or in this Ordinance, the Owner or Owners
of any of the Parity Bonds 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 Owner 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 into the special
funds herein provided, and the application of such Gross Revenues and Net Revenues in the manner
required in this Ordinance.
Section 7.9: Discharge by Dep slt. The City may discharge its obligation to the Owners of
any or all of the Parity Bonds to pay principal, interest and redemption premium (if any) thereon in
any manner then permitted by law, including by depositing with any paying agent for such Parity
Bonds or with the State Treasurer of the State of Texas either: (i) cash in an amount equal to the
principal amount and redemption premium, if any, of such Parity Bonds plus interest thereon to the
date of maturity or redemption, or (ii) pursuant to an escrow or trust agreement, cash and/or direct
obligations of the United States of America, in principal amounts and maturities and bearing interest
at rates sufficient to provide for the timely payment of the principal amount and redemption
premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or redemption;
provided, however, that if any of such Parity Bonds are to be redeemed prior to their respective dates
of maturity, provision shall have been made for giving notice of redemption as provided in the
ordinance authorizing such Parity Bonds. Upon such deposit, such Parity Bonds shall no longer be
regarded to be outstanding or unpaid.
Section 7.10: Paying Agents May Own Parity Bonds. The paying agents for the Parity
Bonds, in their individual or any other capacity, may become holders or pledges of the Parity Bonds
with the same rights they would have if they were not paying agents.
Section 7.11: No Recourse Against City Officials. No recourse shall be had for the payment
of principal of or interest on any Parity Bonds or for any claim based thereon or on this Ordinance
against any official of the City or any person executing any Parity Bonds.
-25-
980709 -4y
® ARTICLE VIII
PROVISIONS CONCERNING SALE AND
APPLICATION OF PROCEEDS OF BONDS
Section 8.1: Sale: Bond Purchase Agreement. The Bonds are hereby sold and shall be
delivered to the Underwriter at a price of $9,464,319.10 plus accrued interest to the date of delivery,
in accordance with the terms of the Bond Purchase Agreement of even date herewith, presented to
and hereby approved by the City Council, which price and terms are hereby found and determined
to be the most advantageous reasonably obtainable by the City. The Mayor and other appropriate
officials of the City are hereby authorized and directed to execute such Bond Purchase Agreement
on behalf of the City, and the Mayor and all other officers, agents and representatives of the City are
hereby authorized to do any and all things necessary or desirable to satisfy the conditions set out
therein and to provide for the issuance and delivery of the Bonds.
Section 8.2: Federal Income Tax Exclusion.
(a) General. The City intends that the interest on the Bonds shall be excludable from gross
income for federal income tax purposes pursuant to sections 103 and 141 through 150 of the Internal
Revenue Code of 1986, as amended (the "Code "), and the 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 Bonds
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 Bonds or if the City has received a
Counsel's Opinion to the effect that compliance with some other requirement set forth in this Section
will satisfy the applicable requirements of the Code and the 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 Bonds are delivered, that the proceeds of the
Refunded Bonds have not been used, and that proceeds of the Refunded Bonds and 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 and the Regulations promulgated thereunder. Moreover, the
City covenants and agrees that it will make such use of the proceeds of the Refunded Bonds and 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 and the Regulations promulgated thereunder.
-26-
980709 -4z
(c) No Federal Guarantee. 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 Bonds 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 Bonds to be "hedge bonds" within
the meaning of section 149(g) of the Code and the applicable Regulations thereunder.
(e) NQ ALbiD:aQe. 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 Bonds are delivered, the City will reasonably expect 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 and the applicable Regulations promulgated thereunder. Moreover, 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 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 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 issue of the City
or moneys which do not represent gross proceeds of any bonds of the City, (ii) calculate at such
times as are required by applicable Regulations, the amount earned from the investment of the gross
proceeds of the 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.
(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
-27-
980709 -4aa
® Bonds, 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 Bonds.
Section 8.4: Use of Proceeds. Proceeds from the sale of the Bonds shall, promptly upon
receipt by the City, be applied as follows:
(a) Accrued interest on the Bonds shall be deposited into the Interest and
Sinking Fund.
(b) The balance of the proceeds from the sale of the Bonds shall be
applied to establish an escrow fund to refund the Refunded Bonds, as
more fully provided below, and, to the extent not otherwise provided
for, to pay all expenses arising in connection with the issuance of the
Bonds, the establishment of such escrow fund and the refunding of
the Refunded Bonds. Any proceeds of the Bonds remaining after
making all such deposits and payments shall be deposited into the
Interest and Sinking Fund.
Section 8.5: Escrow Agreement. The discharge and defeasance of the Refunded Bonds shall
be effectuated pursuant to the terms and provisions of an Escrow Agreement to be entered into by
and between the City and the Escrow Agent, the terms and provisions of which are hereby approved,
subject to such insertions, additions and modifications as shall be necessary (a) to carry out the
program designed for the City by the Underwriter, which shall be certified as to mathematical
accuracy by Deloitte & Touche LLP, (b) to minimize the City's costs of refunding, (c) to comply with
all applicable laws and regulations relating to the refunding of the Refunded Bonds and (d) to carry
out the other intents and purposes of this Ordinance, and the Mayor or Mayor Pro Tem is hereby
authorized to execute and deliver such Escrow Agreement on behalf of the City in multiple
counterparts and the City Clerk or an Assistant City Clerk is hereby authorized to attest thereto and
affix the City's seal.
Section 8.6: Redemption of Refunded Bonds. The City hereby authorizes and directs that
the Refunded Bonds shall be called for redemption prior to maturity in the amounts, on the dates and
at the redemption prices set forth in Exhibit A attached hereto, and the Mayor and City Clerk are
hereby authorized and directed to take all necessary and appropriate action to give or cause to be
given a notice of redemption to the holders or paying agent/registrars, as appropriate, of such
Refunded Bonds, and, if required, to publish such notices, all in the manner required by the
ordinances authorizing the issuance of such Refunded Bonds.
Section 83: Purchase United States Treasga Qblig-ations. To assure the purchase of the
Escrowed Securities referred to in the Escrow Agreement, the Mayor or Mayor Pro Tem, the City
Manager, the Assistant City Manager/Finance, and the Escrow Agent are hereby authorized to
subscribe for, agree to purchase, and purchase non - callable obligations of the United States of
-28-
980709 -Gbb
America, in such amounts and maturities and bearing interest at such rates as may be provided for
in the Report, and to execute any and all subscriptions, purchase agreements, commitments, letters
of authorization and other documents necessary to effectuate the foregoing, and any actions
heretofore taken for such purpose are hereby ratified and approved.
ARTICLE IX
MISCELLANEOUS
Section 9.1: 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
final Official Statement authorized by Section 9.2 of this Ordinance under Tables numbered 1
through 7 and 9 through 18, and in Appendix B. The information to be provided will include audited
financial statements, if the City commissions an audit and it is completed by the required time. If
audited financial statements are not available by the required time, the City will provide unaudited
financial statements at the required time and audited financial statements when and if they become
available. Any financial statements so to be provided shall be prepared in accordance with the
accounting principles described in Appendix B to the Official Statement, or such other accounting
principles as the City may be required to employ from time to time pursuant to State law or
regulation.
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 Bonds, 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
Bonds;
G. Modifications to rights of holders of the Bonds;
-29-
980709 -4cc
H. Bond calls;
I. Defeasances;
J. Release, substitution, or sale of property securing repayment of the
Bonds; and
-K. Rating changes.
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
9.1(a) of this Ordinance by the time required by such Section.
(c) Limitations. Disclaimers. and 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 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 the sole benefit of the holders and beneficial owners
of the Bonds, 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 Bonds 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 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 adopt 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, but only if (1) the agreement, as
amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of
-30-
980709 -466
40 the Bonds 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 (2) either (a)
the holders of a majority in aggregate principal amount of the outstanding Bonds consent to such
amendment, or (b) a 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 the Bonds. The City may also amend or repeal the provisions of this continuing disclosure
agreement if the SEC amends or repeals the applicable provisions of the Rule or a court of final
jurisdiction enters judgment hat such provisions of the Rule are invalid, but only if and to the extent
that the provisions of this sentence would not prevent an underwriter form lawfully purchasing or
selling Bonds in the primary offering of the Bonds. 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 change and
its impact on the type of operating data or financial information being provided.
Section 9.2: Official Statement. The City Council ratifies and confirms its prior approval of
the form and content of the Preliminary Official Statement prepared in the initial offering and sale
of the Bonds and hereby authorizes the preparation of a final Official Statement reflecting the terms
of the Underwriter's bid and other relevant information. The use of such Official Statement in the
reoffering of the Bonds by the Underwriter is hereby approved and authorized. The proper officials
of the City are hereby authorized to execute and deliver a certificate regarding the accuracy and
completeness of such Official Statement, dated as of the date of payment for and delivery of the
Bonds.
Section 9.3: Related Matters. To satisfy in a timely manner all of the City's obligations under
this Ordinance, the Bond Purchase Agreement, and the Escrow Agreement, the Mayor or Mayor Pro
Tem, the City Clerk or an Assistant City Clerk, and all other appropriate officers and agents of the
City are hereby authorized and directed to take all other actions that are reasonably necessary to
provide for the refunding of the Refunded Bonds, including, without limitation, executing and
delivering on behalf of the City all certificates, consents, receipts, requests, and other documents as
may be reasonably necessary to satisfy the City's obligations under the Escrow Agreement, the Bond
Purchase Agreement, and this Ordinance and to direct the application of funds of the City consistent
with the provisions of the Escrow Agreement and this Ordinance.
Section 9.4: Further Proceedings. The Mayor, the City Manager, the City Clerk, and other
appropriate officials of the City are hereby authorized and directed to do any and all things necessary
and/or convenient to carry out the terms of this Ordinance.
Section 9.5: Severability. If any Section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
Section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Ordinance.
Section 9.6: Re ig strar. 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
Is agreement for and on behalf of the City.
-31-
980709 -4ee
is Section 9.7: 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.
I
Section 9.8: Parties Interested. Nothing in this Ordinance expressed or implied is intended
or shall be construed to confer upon, or to give to, any person or entity, other than the City, the
Registrar, the Insurer and the Owners of the Bonds, any right, remedy or claim under or by reason
of this Ordinance or any covenant, condition or stipulation hereof, and all covenants, stipulations,
promises and agreements in this Ordinance shall be for the sole and exclusive benefit of the City,
the Registrar, the Insurer and the Owners of the Bonds.
Section 9.9: Repealer. All orders, resolutions and ordinances, or parts thereof, inconsistent
herewith are hereby repealed to the extent of such inconsistency.
Section 9.10: Open Meeting. The meeting at which this Ordinance is adopted was open to
the public, and that 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.
-32-
® PASSED AND APPROVED this 9th day of July, 1998.
ATTEST:
City Clerk
CITY OF BAYTOWN, TEXAS
(SEAL)
l.�
-33-
980709 -4ff
Mayor
CITY OF BAYTOWN, TEXAS