HomeMy WebLinkAboutOrdinance No. 2025-08 ORDINANCE NO.2025-08
OF THE CITY OF FRIENDSWOOD, TEXAS
AUTHORIZING THE ISSUANCE OF
CITY OF FRIENDSWOOD, TEXAS
WATERWORKS AND SEWER SYSTEM REVENUE BONDS
SERIES 2025
TABLE OF CONTENTS
ARTICLE I 2
RECITALS 2
ARTICLE II 2
DEFINITIONS AND INTERPRETATIONS 2
Section 2.1: Definitions 2
Section 2.2: Interpretations 4
ARTICLE III 4
TERMS OF THE BONDS 4
Section 3.1: Purpose and Amount of Bonds. 4
Section 3.2: Designation,Date,and Interest Payment Dates 4
Section 3.3: Principal Amounts and Interest Rates;Numbers and Denominations 5
Section 3.4: Execution of Bonds: Seal 6
Section 3.5: Payment of Principal and Interest 6
Section 3.6: Successor Registrars. 6
Section 3.7: Special Record Date 7
Section 3.8: Ownership;Unclaimed Principal and Interest 7
Section 3.9: Registration,Transfer,and Exchange 7
Section 3.10: Mutilated,Lost,or Stolen Bonds 8
Section 3.11: Cancellation of Bonds. 9
Section 3.12: Book-Entry System 9
Section 3.13: Successor Securities Depository: Transfer Outside Book-Entry Only System. 10
Section 3.14: Payments to Cede&Co 10
Section 3.15: Optional and Mandatory Redemption. 10
Section 3.16: Conditional Notice of Redemption 1 1
Section 3.17: Forms. 1 1
ARTICLE IV 18
SECURITY AND SOURCE OF PAYMENT FOR ALL PARITY BONDS 18
Section 4.1: Pledge and Source of Payment 18
Section 4.2: Rates and Charges. 19
Section 4.3: Special Funds 19
Section 4.4: Flow of Funds. 19
Section 4.5: Interest and Sinking Fund 20
Section 4.6: Reserve Fund. 20
Section 4.7: Deficiencies in Funds 21
Section 4.8: Investment of Funds; Transfer of Investment Income '1
ARTICLE V 22
ADDITIONAL BONDS 22
Section 5.1: Additional Parity Bonds. 22
Section 5.2: Subordinate Lien Bonds. 22
Section 5.3: Special Project Bonds. 22
ARTICLE VI 23
COVENANTS AND PROVISIONS 23
RELATING TO ALL PARITY BONDS 23
Section 6.1: Punctual Payment of Parity Bonds. 23
Section 6.2: Maintenance of System 23
Section 6.3: Sale or Encumbrance of System. 23
Section 6.4: Insurance 23
Section 6.5: Accounts, Records,and Audits 23
Section 6.6: Competition. 24
Section 6.7: Pledge and Encumbrance of Net Revenues 24
Section 6.8: Bondowners'Remedies 24
Section 6.9: Discharge by Deposit 24
Section 6.10: Paying Agents May Own Parity Bonds. 25
Section 6.11:No Recourse Against City Officials 26
ARTICLE VII 26
PROVISIONS CONCERNING SALE AND 26
APPLICATION OF PROCEEDS OF BONDS 26
Section 7.1: Sale; Bond Purchase Agreement. 26
Section 7.2: Federal Income Tax Exclusion 26
Section 7.3: Use of Proceeds. 28
ARTICLE VIII 29
CONTINUING DISCLOSURE 29
Section 8.1: Continuing Disclosure Undertaking. 29
ARTICLE IX 32
MISCELLANEOUS 32
Section 9.1: Official Statement. 32
Section 9.2: Further Proceedings. 32
Section 9.3: Severability. 32
Section 9.4: Paving Agent Registrar Agreement 32
Section 9.5:No Personal Liability 33
Section 9.6: Parties Interested 33
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Section 9.7: Repealer. 33
Section 9.8: Open Meeting. 33
Section 9.9: Method of Amendment 33
Section 9.10: Effective Date. 34
Section 9.11: Custody,Approval,and Registration of Bonds; Bond Counsel's Opinion; CUSIP
Numbers and Contingent Insurance Provision, if Obtained; Engagement of Bond Counsel;
Attorney General Review Fee 34
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ORDINANCE NO. 2025-08
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FRIENDSWOOD, TEXAS, AUTHORIZING THE ISSUANCE AND SALE
OF CITY OF FRIENDSWOOD, TEXAS, WATERWORKS AND SEWER
SYSTEM REVENUE BONDS, SERIES 2025; PROVIDING FOR THE
SECURITY OF THE BONDS; AUTHORIZING THE EXECUTION AND
DELIVERY OF A PAYING AGENT/REGISTRAR AGREEMENT;
APPROVING AN OFFICIAL STATEMENT; AND ENACTING OTHER
PROVISIONS RELATING TO THE SUBJECT; AND PROVIDING AN
EFFECTIVE DATE.
THE STATE OF TEXAS §
COUNTIES OF HARRIS AND GALVESTON §
CITY OF FRIENDSWOOD §
WHEREAS, the City Council (the "Council") of the City of Friendswood, Texas (the
"City") has heretofore issued and delivered revenue bonds under the authority of Chapter 1502,
Texas Government Code, as amended ("Chapter 1502"), to finance improvements to the System
(as hereinafter defined); and
WHEREAS, at the date of delivery of the bonds authorized hereby (the "Bonds"),the City
will have three series of its System revenue bonds outstanding,which are payable from a first lien
on the Net Revenues(as hereinafter defined),to wit: the City of Friendswood,Texas, Waterworks
and Sewer System Revenue Bonds, Series 2016,outstanding in the principal amount of$3,595,000
(the "Series 2016 Bonds"); the City of Friendswood, Texas, Waterworks and Sewer System
Revenue Bonds, Series 2018, outstanding in the principal amount of$15,615,000, (the "Series
2018 Bonds"); and the City of Friendswood, Texas, Waterworks and Sewer System Revenue
Bonds, Series 2021,outstanding in the principal amount of$11,690,000(the "Series 2021 Bonds"
and,collectively with the Series 2016 Bonds and the Series 2018 Bonds,the"Outstanding Bonds");
and
WHEREAS, the Bonds are being issued as Parity Bonds (as hereinafter defined) and
secured on a parity with the Outstanding Bonds with respect to the pledge of the Net Revenues;
and
WHEREAS,the Council deems it advisable to issue the Bonds to provide funds to finance
capital improvements to the System and to pay costs incurred in connection with the issuance of
the Bonds; and
WHEREAS, the Bonds are to be issued and delivered pursuant to the laws of the State of
Texas, including, in particular, Chapter 1502 and other applicable laws;Now, Therefore
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD,
STATE OF TEXAS:
ARTICLE I
RECITALS
It is hereby found and determined that the matters and facts set out in the preamble to this
Ordinance are true and correct.
ARTICLE II
DEFINITIONS AND INTERPRETATIONS
Section 2.1: Definitions. In addition to the terms defined in the preambles hereto and
elsewhere in this Ordinance,the following terms shall have the following meanings when used in
this Ordinance,unless the context clearly indicates otherwise:
"Act" means Chapter 1502.
"Additional Parity Bonds" mean the additional parity revenue bonds permitted to be issued
by the City pursuant to Section 5.1 of this Ordinance.
"Bond Purchase Agreement" means the agreement between the City and the Underwriters
described in Section 7.1 of this Ordinance.
"Bonds" means the $20,350,000 City of Friendswood, Texas, Waterworks and Sewer
System Revenue Bonds, Series 2025, authorized in this Ordinance, unless the context clearly
indicates otherwise.
"Business Day" means any day that is not a Saturday, Sunday, or a day on which the
Registrar is authorized by law or executive order to close
"City" means the City of Friendswood, Texas.
"Closing Date" means the date of the initial delivery of and payment for the Bonds.
"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.
"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.
"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.
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"Initial Bond" means the Initial Bond authorized by Section 3.4(d).
"Interest and Sinking Fund" means the debt service fund for payment of principal of and
interest on the Bonds described in Section 4.3 of this Ordinance.
"Interest Payment Date" when used in connection with any Bond, means September 1, 2025,
and each March 1 and September 1 thereafter until maturity or earlier redemption.
"Maintenance and Operation Expenses" means 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 its inhabitants,or such as might be necessary to meet some
physical accident or condition that would otherwise impair the System), and all payments under
contracts now or hereafter defined as operating expenses by the Legislature of Texas.Depreciation
shall never be considered a Maintenance and Operation Expense.
"Net Revenues" means all Gross Revenues remaining after deducting the Maintenance and
Operation Expenses.
"Ordinance"means this bond ordinance and all amendments hereof and supplements hereto.
"Outstanding Bonds" means the City's Waterworks and Sewer System Revenue Bonds,
Series 2016, dated March 1, 2016, outstanding at the date of issuance of the Bonds in the amount
of $3,595,000, the City's Waterworks and Sewer System Revenue Bonds, Series 2018, dated
December 1,2018,outstanding at the date of issuance of the Bonds in the amount of $15,615,000,
and the City of Friendswood,Texas, Waterworks and Sewer System Revenue Bonds, Series 2021,
outstanding at the date of issuance of the Bonds in the amount of $11,690,000.
"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 means the Owners at the particular time of the specified percentage or proportion in
aggregate principal amount of all Bonds then outstanding under this Ordinance,exclusive of Bonds
held by the City.
"Parity Bonds" means 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 within the meaning of this Ordinance.
"Record Date" means,with respect to the Bonds,the close of business on the fifteenth day
of the month preceding such Interest Payment Date.
"Register" means the books of registration kept by the Registrar, in which are maintained
the names and addresses of, and the principal amounts of the Bonds registered to, each Owner.
"Registrar" means The Bank of New York Mellon Trust Company,N.A.,and its successors
in that capacity.
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"Reserve Fund Requirement"means the average annual principal and interest requirements
on the Parity Bonds, which may be determined and redetermined each year by the City, but in no
event less frequently than upon the issuance of each series of Parity Bonds.
"Reserve Fund Surety Policy" means an insurance policy or other credit agreement as
provided in Section 4.6 of this Ordinance.
"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
for which substantially all costs of acquisition, construction, and installation are paid from
proceeds of a financing transaction other than the issuance of bonds payable from ad valorem taxes
or Gross Revenues or Net Revenues of the System. Additionally, all maintenance and operation
expenses for a Special Project must be payable from sources other than revenues of the System,
but only to the extent and for so long as any part of its revenues or proceeds are or will be pledged
to secure the payment or repayment of such costs 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. The System shall not
include any Special Project.
"Underwriters" means SAMCO Capital Markets, Inc. and FHN Financial Capital Markets.
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 forms 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. They shall not in any way modify or
restrict any of the terms or provisions herein. This Ordinance, and all its terms and provisions,
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: Purpose and Amount of Bonds. The Bonds shall be issued pursuant to the Act
in fully registered form in the aggregate principal amount of $20,350,000 for the purpose of
financing improvements to the System.
Section 3.2: Designation, Date, and Interest Payment Dates. The Bonds shall be designated
as "City of Friendswood, Texas, Waterworks and Sewer System Revenue Bonds, Series 2025,"
and shall be dated March 1, 2025. The Bonds shall bear interest at the rates set out in Section 3.3
of this Ordinance, accruing from the date of initial delivery to the Underwriters or from the most
recent Interest Payment Date to which interest has been paid or duly provided for. Interest shall be
calculated on the basis of a 360-day year,consisting of twelve 30-day months,and shall be payable
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on September 1,2025, and semiannually thereafter on March 1 and September 1 of each year until
maturity or earlier redemption.
Section 3.3:Principal Amounts and Interest Rates;Numbers and Denominations.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, subject to prior redemption in accordance with this Ordinance, on March 1 in each of the
years and in the amounts set out in such schedule. The Initial Bond shall be numbered T-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 Registrar,
shall be in the denomination of$5,000 or integral multiples thereof, and shall mature on the same
date and bear interest at the same rate as the Bond or Bonds in lieu of which they are delivered.
Principal Interest
Year Amount($) Rate(%)
2026 105,000 6.000
2027 200,000 6.000
2028 205,000 6.000
2029 110,000 6.000
2030 110,000 6.000
2031 655,000 6.000
2032 695,000 6.000
2033 740,000 6.000
2034 790,000 6.000
2035 850,000 6.000
2036 905,000 5.000
2037 950,000 5.000
2038 1,000,000 5.000
2039 1,070,000 5.000
2040 1,120,000 5.000
2041 1,180,000 5.000
2042 1,045,000 5.000
2043 1,100,000 5.000
2044 1,155,000 5.000
2045 1,215,000 5.000
2047 1,930,000 4.250
2050 3,220,000 4.250
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Section 3.4: Execution of Bonds: Seal. (a) The Bonds shall be signed on behalf of the City
by the Mayor and countersigned by the City Secretary,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 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.
(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 Underwriters or their designee,executed
by manual or facsimile signature of the Mayor and City Secretary of the City, approved by the
Attorney General, and registered and manually signed by the Comptroller, shall be delivered to
the Underwriters or their designee. Upon payment for the Initial Bond, the Registrar shall cancel
the Initial Bond and deliver definitive Bonds to DTC.
Section 3.5: Payment of Principal and Interest. The Registrar is hereby appointed as the
paying agent and registrar 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 to the United States of America,
upon their presentation and surrender as they respectively become due and payable at the principal
payment office of the Registrar in Dallas, Texas. The interest on each Bond shall be payable on
each Interest Payment Date, by check mailed by the Registrar on or before the Interest Payment
Date to the Owner of record as of the Record Date.
If the date for payment of the principal of or interest on any Bond is not a Business Day,
then the date for such payment shall be the next succeeding Business Day,with the same force and
effect as if made on the date payment was originally 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 any state, authorized under such laws to exercise trust powers, and subject to
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supervision or examination by federal or state authority, to serve as and perform the duties and
services of Registrar for the Bonds. The City reserves the right to change the Registrar on not less
than 50 days' written notice to the Registrar, so long as any such notice is effective not less than
45 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 copies thereof to the new Registrar, and the new Registrar shall notify each Owner, by United
States mail, first-class postage prepaid, of such change and of the address of the new Registrar.
Each Registrar hereunder, by acting in that capacity, shall be deemed to have agreed to the
provisions of this Section.
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 affected Owner of record as of the close of business on
the day prior to the mailing of such notice.
Section 3.8: Ownership; Unclaimed Principal and Interest. The City, the Registrar, and any
other person may treat the person in whose name any Bond is registered as the absolute owner of
such Bond for the purpose of making and receiving payment of the principal 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 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 6 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 for transfer,
the Registrar shall authenticate and deliver in exchange therefor,within three Business Days after
such presentation, a new Bond or Bonds registered in the name of the transferee or transferees, in
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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 like 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: Mutilated, Lost, or Stolen Bonds. Upon the presentation and surrender to the
Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a
replacement Bond of like maturity, interest rate, and principal amount bearing a number not
contemporaneously outstanding. If any Bond is lost, apparently destroyed, or wrongfully taken,
the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or
knowledge that such Bond has been acquired by a bona fide purchaser, shall authorize and the
Registrar shall authenticate and deliver a replacement Bond of like maturity, interest rate, and
principal amount,bearing a number not contemporaneously outstanding.
The City or the Registrar may require the Owner of a mutilated Bond to pay a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection therewith and
any other expenses connected therewith,including the fees and expenses of the Registrar.The City
or the Registrar may require the Owner of a lost, apparently destroyed or wrongfully taken Bond,
before any replacement Bond is issued,to:
(1) furnish to the City and the Registrar satisfactory evidence of the ownership of
and the circumstances of the loss, destruction,or theft of such Bond;
(2) furnish such security or indemnity as may be required by the Registrar and the
City to save them harmless;
(3) pay all expenses and charges in connection therewith, including, but not limited
to, printing costs, legal fees, fees of the Registrar, and any tax or other
governmental charge that may be imposed; and
(4) meet any other reasonable requirements of the City and the Registrar.
If, after the delivery of such replacement Bond, a bona fide purchaser of the original Bond in lieu
of which such replacement Bond was issued presents for payment such original Bond, the City
and the Registrar shall be entitled to recover such replacement Bond from the person to whom it
was delivered or any person taking it therefrom,except a bona fide purchaser,and shall be entitled
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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 3.11: Cancellation of Bonds.All Bonds paid in accordance with this Ordinance,and
all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and delivered
in accordance herewith, shall be canceled and destroyed upon the making of proper records
regarding such payment. The Registrar shall furnish the City with appropriate certificates of
destruction of such Bonds.
Section 3.12: Book-Entry System. (a) The Initial Bond shall be registered in the name of
Samco Capital Markets, 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
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 the Owner, as shown on the
Register, of any amount with respect to principal or 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.
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Section 3.13: Successor Securities Depository: Transfer Outside Book-Entry Only System.
In the event that the City,in its sole discretion, determines that the beneficial owners of the Bonds
should be able to obtain certificated Bonds,or in the event DTC discontinues the services described
herein, the City shall appoint a successor securities depository, qualified to act as such under
Section 17(a) of the Securities 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. In
such event, the Bonds shall no longer be restricted to being registered in the Register in the name
of Cede& Co., as nominee of DTC, but may be registered in the name of the successor securities
depository, or its nominee, or in whatever name or names Owners transferring or exchanging
Bonds shall designate, in accordance with the provisions of this Ordinance.
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.
Section 3.15: Optional and Mandatory Redemption. The Bonds are subject to optional and
mandatory redemption to the extent set forth in the Form of 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,Issuance Date,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.
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Section 3.16: Conditional Notice of Redemption. With respect to any optional redemption
of the Bonds,unless certain prerequisites to such redemption, as required by this Ordinance,have
been met and moneys sufficient to pay the principal of, and premium, if any, and interest on the
Bonds to be redeemed shall have been received by the Registrar prior to the giving of such notice
of redemption, such notice shall state that said redemption may, at the option of the City, be
conditional upon the satisfaction of such prerequisites and receipt of such moneys by the Registrar
on or prior to the date fixed for such redemption, or upon any prerequisite set forth in such notice
of redemption. If a conditional notice of redemption is given and such prerequisites to the
redemption and sufficient moneys are not received, such notice shall be of no force and effect,the
City shall not redeem such Bonds, and the Registrar shall give notice, in the manner in which the
notice of redemption was given,to the effect that the Bonds have not been redeemed.
Section 3.17: Forms. The form of the Bonds, including the form of the Registration
Certificate of the Comptroller of Public Accounts, which shall be attached or affixed to the Initial
Bond,the form of the Registrar's Authentication Certificate, and the form of Assignment shall be,
respectively, substantially as follows, with such additions, deletions, and variations as may be
necessary or desirable and not prohibited by this Ordinance:
(a) Form of Bonds.
NO. R- PRINCIPAL
UNITED STATES OF AMERICA
STATE OF TEXAS AMOUNT
$20,350,000.00
CITY OF FRIENDSWOOD, TEXAS
WATERWORKS AND SEWER SYSTEM
REVENUE BOND, SERIES 2025
Interest Rate Date of Delivery Maturity Date CUSIP No.
March 27, 2025 March 1,
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
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THE CITY OF FRIENDSWOOD, TEXAS, a municipal corporation duly incorporated
under the laws of the State of Texas(herein referred to as 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 The Bank of New York Mellon Trust Company,N.A. (the "Registrar"),
at its principal payment office in Dallas, Texas, the principal amount identified above, payable in
any coin or currency of the United States of America which,on the date of payment,is legal tender
for the payment of debts due to 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 the Date of Delivery set forth above, 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 March 1 and September 1 of each year,beginning on September 1,2025,mailed
to the registered owner of record as of the close of business on the fifteenth day of the month
preceding each interest payment date.
THIS BOND is one of a duly authorized issue of Bonds, dated March 1, 2025, aggregating
$20,350,000 (the "Bonds"), issued for the purposes of improving the City's water and sewer
system, under and in strict conformity with the Constitution and laws of the State of Texas,
particularly Chapter 1502, Texas Government Code, and pursuant to an ordinance adopted by the
City Council (the "Ordinance"), which Ordinance is of record in the City's official minutes.
THE CITY RESERVES THE RIGHT to redeem the Bonds maturing on or after March 1,
2036, in whole or, from time to time, in part, in integral multiples of$5,000, on Match 1,2035 or
any date thereafter, at par plus accrued interest on the principal amounts called for redemption to
the date fixed for redemption.
ADDITIONALLY, THE BONDS MATURING on March 1 in the years 2047 and 2050
(the "Term Bonds")are subject to mandatory redemption prior to maturity in part by lot,at a price
equal to the principal amount thereof plus accrued interest to the date of redemption, on the dates
and in the respective principal amounts shown below:
TERM BONDS MATURING TERM BONDS MATURING
MARCH 1, 2047 MARCH 1, 2050
Mandatory Redemption Mandatory Redemption
Redemption Date Amount($) Redemption Date Amount($)
March 1, 2046 945,000 March 1, 2048 1,030,000
March 1, 2047 985,000 March 1, 2049 1,070,000
March 1, 2050 1,120,000
The principal amount of the Term Bonds required to be redeemed pursuant to the operation of such
mandatory redemption requirements may be reduced, at the option of the City, by the principal
amount of any such Term Bonds which,prior to the date of the mailing of notice of such mandatory
redemption, (i) shall have been acquired by the City and delivered to the Paying Agent/Registrar
for cancellation, (ii) shall have been purchased and canceled by the Paying Agent/Registrar at the
request of the City, or (iii) shall have been redeemed pursuant to the optional redemption
provisions described in the preceding paragraph and not theretofore credited against a mandatory
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redemption requirement.
AT LEAST 30 DAYS PRIOR to the date fixed for any redemption of Bonds or portions
thereof prior to maturity, a written notice of such redemption shall be sent by the Registrar by
United States mail, first-class postage prepaid, to the registered owner of each Bond to be
redeemed at its address as it appeared on the day such notice of redemption is mailed; provided,
however, that the failure of the registered owner to receive such notice, or any defect therein or in
the sending or mailing thereof, shall not affect the validity or effectiveness of the proceedings for
the redemption of any Bond. By the date fixed for any such redemption, due provision shall be
made with the Registrar for the payment of the required redemption price for the Bonds or portions
thereof which are to be so redeemed. If such written notice of redemption is sent and if due
provision for such payment is made, all as provided above, the Bonds or portions thereof which
are to be so redeemed shall automatically be treated as redeemed prior to their scheduled
maturities.They shall not bear interest after the date fixed for redemption and shall not be regarded
as being outstanding except for the right of the registered owner to receive the redemption price
from the Registrar out of the funds provided for such payment. If a portion of any Bond shall be
redeemed, a substitute Bond or Bonds,having the same maturity date,bearing interest at the same
rate, in any denomination or denominations in any integral multiple of $5,000, at the written
request of the registered owner, and in an aggregate amount equal to the unredeemed portion
thereof, will be issued to the registered owner upon the surrender thereof for cancellation, at the
expense of the City, all as provided in 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 shall not be valid or obligatory for any purpose,nor be entitled to any benefit
under the Ordinance,unless this Bond is either(i)registered by the Comptroller of Public Accounts
of the State of Texas by a registration certificate attached or affixed hereto,or(ii)authenticated by
the Registrar by due execution of the authentication certificate endorsed hereon.
THE REGISTERED OWNER of this Bond, by acceptance hereof, acknowledges and
agrees to be bound by all the terms and conditions of the Ordinance.
THE CITY has covenanted in the Ordinance that it will at all times provide a legally
qualified registrar for the Bonds and will cause notice of any change of registrar to be mailed to
each registered owner.
THIS BOND AND THE SERIES OF WHICH IT IS A PART are special obligations of the
City that,along with the City's outstanding Waterworks and Sewer System Revenue Bonds, Series
2016, Waterworks and Sewer System Revenue Bonds, Series 2018 and Waterworks and Sewer
System Revenue Bonds, Series 2021 (collectively, the "Outstanding Bonds"), are payable 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. These 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
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maintained for the payment of all such bonds, 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 holder of this obligation is not entitled to demand payment of this obligation out
of any money 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.
BY BECOMING the registered owner of this Bond, the registered owner thereby
acknowledges all of the terms and provisions of the Ordinance, agrees to be bound by such terms
and provisions, acknowledges that the Ordinance is duly recorded and available for inspection in
the official minutes and records of the governing body of the City, and agrees that the terms and
provisions of this Bond and the Ordinance constitute a contract between each registered owner
hereof and the City.
IN WITNESS WHEREOF,the City has caused this Bond to be signed with the manual or
facsimile signature of the Mayor of the City (or, in the Mayor's absence, by the Mayor Pro Tern)
and countersigned with the manual or facsimile signature of the City Secretary of the City,and has
caused the official seal of the City to be duly impressed or placed in facsimile on this Bond.
(signature) (signature)
City Secretary Mayor
(SEAL)
(b) Form of Registrar's Authentication Certificate.
REGISTRAR'S AUTHENTICATION CERTIFICATE
(To be executed if this Bond is not accompanied by an executed
Registration Certificate of the Comptroller of Public Accounts of the State of Texas)
It is hereby certified that this Bond has been issued under the provisions of the Ordinance
described in the text of this Bond;and that this Bond has been issued in conversion or replacement
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of,or in exchange for,a Bond,Bonds,or a portion of a Bond or Bonds of a series that originally was
approved by the Attorney General of the State of Texas and registered by the Comptroller of Public
Accounts of the State of Texas.
Dated:
The Bank of New York Mellon Trust Company,N.A.
Dallas,Texas
Registrar
By:
Authorized Representative
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(c)Form of Assignment.
ASSIGNMENT
For value received, the undersigned hereby sells,assigns and transfers unto
Please insert Social Security or Taxpayer Identification Number of Transferee:
Please print or typewrite name and address, including zip code of Transferee:
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
, attorney, to register the transfer of the
within Bond on the books kept for registration thereof, with full power of substitution in
the premises.
Dated:
Signature Guaranteed:
NU110E: Signature(s) must be guaranteed by NU 110E: 1 he signature above must correspond
an eligible guarantor institution participating in with the name of the Registered Owner as it
a securities transfer association recognized appears upon the front of this Bond in every
signature guarantee program. particular, without alteration, enlargement, or
any change whatsoever.
(d) Form of Registration Certificate of the Comptroller of Public Accounts.
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.
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Witness my signature and seal this
Comptroller of Public Accounts of the State of Texas
(COMPTROLLER'S SEAL)
(e) Initial Bond Insertions.
(i) The initial Bond shall be in the form set forth is paragraph (a) of this Section.
except that:
A. 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
"CUSIP No. " shall be deleted.
B. the first paragraph shall be deleted and the following will be inserted:
"THE CITY OF FRIENDSWOOD, 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 The Bank of New York Mellon Trust Company, N.A. (the "Registrar"), at its principal
payment office in Dallas, Texas, the principal amount identified above, payable in any coin or
currency of the United States of America, which on the date of payment is legal tender for the
payment of debts due the United States of America, and to pay, solely from such Net Revenues,
on March 1 in each of the years, in the principal installments and bearing interest at the per annum
rates set forth in the following schedule:
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Principal Interest Principal Interest
Years Installments Rates Years Installments Rates
$ % $
2026 105,000 6.000 2039 1,070,000 5.000
2027 200,000 6.000 2040 1,120,000 5.000
2028 205,000 6.000 2041 1,180,000 5.000
2029 110,000 6.000 2042 1,045,000 5.000
2030 110,000 6.000 2043 1,100,000 5.000
2031 655,000 6.000 2044 1,155,000 5.000
2032 695,000 6.000 2045 1,215,000 5.000
2033 740,000 6.000
2034 790,000 6.000 2047 1,930,000 4.250
2035 850,000 6.000 ***
2036 905,000 5.000 2050 3,220,000 4.250
2037 950,000 5.000
2038 1,000,000 5.000
The City promises to pay interest on the unpaid principal amount hereof(calculated on the
basis of a 360-day year of twelve 30-day months) from the Date of Delivery shown above at the
respective Interest Rate per annum specified above. Interest is payable on September 1, 2025, and
semiannually on each March 1 and September 1 thereafter to the date of payment of the principal
installment specified above, or the date of redemption prior to maturity; except that if this Bond is
required to be authenticated and the date of its authentication is later than the close of business on
the fifteenth day of the month preceding each interest payment date, such Principal Amount shall
bear interest from the interest payment date next preceding the date of authentication, unless such
date of authentication is after such date but on or before the next following interest payment date,
in which case such principal amount shall bear interest from such next following interest payment
date; provided, however, that if on the date of authentication hereof the interest on the Bond or
Bonds,if any, for which this Bond is being exchanged is due but has not been paid,then this Bond
shall bear interest from the date to which such interest has been paid in full.
C. The Initial Bond shall be numbered "T-1."
ARTICLE IV
SECURITY AND SOURCE OF PAYMENT FOR ALL PARITY BONDS
Section 4.1: 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 established for
the Parity Bonds, as provided in this Ordinance, 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, securing, and insuring the 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
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the System,which Net Revenues shall,in the manner herein provided,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 holders of the Parity Bonds shall not have the right to demand
payment out of any funds raised or to be raised by taxation.
Section 4.2: 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
fully sufficient to produce Net Revenues 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, plus an amount equal to the sum of all deposits required to be made to the Reserve
Fund in such fiscal year; 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
The City will not grant or permit any free service from the System except for public
buildings and institutions operated by the City.
Section 4.3: Special Funds. The following special funds, created pursuant to, or confirmed
in, the ordinance authorizing the Outstanding Bonds, are hereby confirmed, and such funds shall
be maintained and accounted for as hereinafter provided, so long as any Parity Bonds remain
outstanding:
Waterworks and Sewer System Revenue Fund(the "Revenue Fund");
Waterworks and Sewer System Revenue Bonds Interest and Sinking Fund(the "Interest and
Sinking Fund"); and
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 shall be and are hereby pledged to the payment of the Parity Bonds. All of the
funds named above shall be used solely as provided in this Ordinance,so long as any Parity Bonds
remain outstanding.
Section 4.4: Flow of Funds. All Gross Revenues of the System (except for interest and
earnings on investments in the Reserve Fund and the Interest and Sinking Fund)shall be deposited
as collected into the Revenue Fund.Money from time to time on deposit in the Revenue Fund shall
be applied as follows, in the following order of priority:
(a) First,to pay Maintenance and Operation Expenses.
(b) Second, to make all deposits into the Interest and Sinking Fund required by this
Ordinance,the ordinance authorizing the issuance of the Outstanding Bonds,and any
ordinance authorizing the issuance of Additional Parity Bonds.
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(c) Third, to make all deposits into the Reserve Fund required by this Ordinance, the
ordinance authorizing the issuance of the Outstanding Bonds, and any ordinance
authorizing the issuance of Additional Parity Bonds.
(d) Fourth,to pay any amounts due to any bond insurer of Parity Bonds not paid pursuant
to subsections(b)or(c)above.
(e) Fifth, to pay any amounts due to any issuer of a reserve fund surety policy not paid
pursuant to subsections(b)or(c)above.
(f) Sixth, 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 4.5: 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.
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. The paying agent shall destroy all paid Parity Bonds and shall provide
the City with appropriate certificates of destruction.
Section 4.6: Reserve Fund. (a) 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, in approximately equal monthly installments, amounts sufficient to
accumulate within sixty(60)months the Reserve Fund Requirement. Each increase in the Reserve
Fund Requirement resulting from the issuance of Additional Parity Bonds shall be accumulated
within sixty(60)months of the issuance of such Additional Parity Bonds by making transfers from
the Revenue Fund into the Reserve Fund in approximately equal monthly installments of amounts
20
sufficient for such purpose. After the Reserve Fund Requirement has accumulated in the Reserve
Fund and so long thereafter as such Fund contains the Reserve Fund Requirement, no further
deposits shall be required to be made into the Reserve Fund, and any excess amounts may be
transferred to the Revenue Fund. If the balance in the Reserve Fund is reduced below the Reserve
Fund Requirement, either due to a draw on the funds or reduction or cancellation of a Reserve
Fund Surety Policy, monthly deposits into such Fund shall be resumed and continued in amounts
at least equal to one twenty-fourth (1/24th) of the deficiency in the Reserve Fund Requirement
until the Reserve Fund again equals the Reserve Fund Requirement. 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 to pay and retire the last
Parity Bonds to mature or be redeemed.
(b)The City expressly reserves the right at any time to satisfy all or any part of the Reserve
Fund Requirement by obtaining for the benefit of the Reserve Fund a Reserve Fund Surety Policy
(as defined below). In the event the City elects to substitute a Reserve Fund Surety Policy for any
funded amounts in the Reserve Fund, it may apply any bond proceeds thereby released, including
investment earnings on such proceeds, to any purposes for which the bonds were issued, and any
other funds thereby released to any purposes for which such funds may lawfully be used,including
the payment of debt service on the Parity Bonds. A Reserve Fund Surety Policy shall be an
insurance policy or other credit agreement (as such term is defined by Section 1371.001,
Government Code)in a principal amount equal to the portion of the Reserve Fund Requirement to
be satisfied and 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. A Reserve Fund Surety Policy shall be for the pro rata benefit of all
Parity Bonds. The premium for any such policy shall be paid from bond proceeds or other funds
of the City lawfully available for such purpose. Any Reserve Fund Surety Policy shall be
authorized by resolution or ordinance and submitted to the Attorney General for examination and
approval.
(c) In connection with the issuance of the Bonds, the City will deposit the amount of
$1,411,129.00 to the Reserve Fund from proceeds of the Bonds to fully fund the required increase
in the Reserve Fund associated with the issuance of the Bonds on the date of initial delivery of the
Bonds.
Section 4.7: 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 4.8: 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 as permitted by law;provided that all such deposits and investments shall be made in such
a manner that the money within each 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
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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 Fund from which the investment was made. All such
investments shall be promptly sold when necessary to prevent any default in connection with the
Parity Bonds.
(b) All interest and income derived from such deposits and investments shall be
credited as received to the Fund from which the investment was made.
ARTICLE V
ADDITIONAL BONDS
Section 5.1: Additional Parity 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 and any previously issued Additional Parity
Bonds; provided, however,that no Additional Parity Bonds may be issued unless:
(g) The Additional Parity Bonds mature on, and interest is payable on,the same days of the
year as any outstanding Parity Bonds;
(h) The Interest and Sinking Fund and the Reserve Fund each contain the amount of money
then required to be on deposit therein;
(i) For either the preceding fiscal year or a 12-consecutive-calendar-month period ending
no more than 90 days prior to the adoption of the ordinance authorizing such Additional
Parity Bonds,Net Revenues were equal to at least 140%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 Controller or Director of Finance or by an independent certified public accountant
or firm of independent certified public accountants; and
(j) If the City cannot meet the test described in (c) above, but a change in the rates and
charges applicable to the System becomes effective at least sixty (60) days prior to the
adoption of the ordinance authorizing Additional Parity Bonds,and the City's Controller
or Director of Finance certifies that,had such change in rates and charges been effective
for the preceding fiscal year or 12-consecutive-calendar-month period ending no more
than 90 days prior to the adoption of said ordinance, the Net Revenues for such period
would have met the test described in(c)above.
Section 5.2: 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 the 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 purpose.
Section 5.3: 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.
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ARTICLE VI
COVENANTS AND PROVISIONS
RELATING TO ALL PARITY BONDS
Section 6.1: 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 6.2: 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, regulations, directions, or orders of any governmental, administrative, or judicial body
promulgating the same, noncompliance with which would materially and adversely affect the
operation of the System.
Section 6.3: 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 an encumbrance of the System.
Section 6.4: 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 systems, 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, to make other capital improvements to the System, or to redeem Parity
Bonds.
Section 6.5: 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 that 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 an independent firm of certified public
accountants. Each year, promptly after such audit report is prepared, the City shall furnish a copy
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thereof, without cost, to the Municipal Advisory Council of Texas, the major municipal rating
agencies, and any Owner of Parity Bonds who shall request the same. All expenses incurred in
preparing such audits shall be Maintenance and Operation Expenses.
Section 6.6: Competition. 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 that might be
used as a substitute for the System and will prohibit the operation of any such competing facilities.
Section 6.7: 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
Bonds.
Section 6.8: Bondowners'Remedies.This Ordinance shall constitute a contract between the
City and the Owners of the Parity Bonds from time to time outstanding (including any bond
insurers of Parity Bonds) and shall remain in effect until the Parity Bonds and the interest thereon
shall be fully paid or discharged, or provision therefor shall have been made as provided herein
(including payments of any amounts due to bond insurers of Parity Bonds).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 proceed at law or in equity,by suit,action,mandamus,
or other proceedings,to 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 the Gross Revenues and the Net Revenues
in the manner required in this Ordinance.
Section 6.9: Discharge by Deposit. (a) Any Bond and the interest thereon shall be deemed
to be paid, retired, and no longer outstanding (a "Defeased Bond") within the meaning of this
Ordinance, except to the extent provided in subsection (b) of this Section, when payment of the
principal of such Bond, plus interest thereon to the due date (whether such due date is by reason
of maturity or otherwise), either: (i) Shall have been made or caused to be made in accordance
with the terms thereof,or(ii)Shall have been provided for on or before such due date by irrevocably
depositing with or making available to the Registrar, in accordance with an escrow agreement or
other instrument (the "Future Escrow Agreement"), for such payment:(1) Lawful money of the
United States of America sufficient to make such payment, or (2) Defeasance Securities that
mature as to principal and interest in such amounts and at such times as will ensure the availability,
without reinvestment, of sufficient money to provide for such payment. Additionally, proper
arrangements must have been made by the City with the Registrar for the payment of its services
until all Defeased Bonds have become due and payable. After this, the City will have no further
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responsibility regarding amounts available to such paying agent (or other financial institution
permitted by applicable law)for the payment of such Defeased Bonds,including any insufficiency
caused by the failure of such paying agent (or financial institution) to receive payment when due
on the Defeasance Securities.At such time as a Bond is deemed to be a Defeased Bond,such Bond
and the interest thereon shall no longer be secured by,payable from, or entitled to the benefits of,
the ad valorem taxes herein levied and pledged as provided in this Ordinance. Instead, such
principal and interest shall be payable solely from such money or Defeasance Securities.
Notwithstanding any other provision of this Ordinance to the contrary, it is provided that any
determination not to redeem Defeased Bonds that is made in conjunction with the payment
arrangements specified in Subsection(a)(i)or(ii)shall not be irrevocable,provided that: (1)In the
proceedings providing for such payment arrangements,the City expressly reserves the right to call
the Defeased Bonds for redemption; (2) The City gives notice of this reservation of right to the
Owners of the Defeased Bonds immediately following the establishment of the payment
arrangements;and(3)The City directs that notice of the reservation be included in any redemption
notices that it authorizes.
(b) Any moneys so deposited with the Registrar may, at the written direction of the City,
be invested in Defeasance Securities,maturing in the amounts and at the times as hereinbefore set
forth. All income from such Defeasance Securities received by the Registrar that is not required
for the payment of the Bonds and interest thereon, with respect to which such money has been so
deposited, shall be turned over to the City or deposited as directed in writing by the City. Any
future Escrow Agreement pursuant to which the money and/or Defeasance Securities are held for
the payment of Defeased Bonds may contain provisions permitting the investment or reinvestment
of such moneys in Defeasance Securities, or the substitution of other Defeasance Securities,upon
the satisfaction of the requirements specified in Subsection(a)(i)or(ii)of this Section.All income
from such Defeasance Securities received by the Registrar that is not required for the payment of
the Defeased Bonds,with respect to which such money has been so deposited, shall be remitted to
the City or deposited as directed in writing by the City.
(c)The term"Defeasance Securities"means any securities and obligations now or hereafter
authorized by State law that are eligible to refund, retire, or otherwise discharge obligations such
as the Bonds; provided, however, that Defeasance Securities shall exclude securities described in
Section 1207.062(b)(3) of the Texas Government Code.
(d)Until all Defeased Bonds have become due and payable,the Registrar shall continue to
perform the services of Registrar for such Defeased Bonds as if they had not been defeased. The
City shall make proper arrangements to provide and pay for such services as required by this
Ordinance.
(e)In the event that the City elects to defease less than all of the principal amount of Bonds
of a maturity,the Registrar shall select,or cause to be selected,such amount of Bonds by a random
method it deems fair and appropriate.
Section 6.10: 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.
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Section 6.11:No Recourse Against City Officials. No recourse shall be had for the payment
of the 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.
ARTICLE VII
PROVISIONS CONCERNING SALE AND
APPLICATION OF PROCEEDS OF BONDS
Section 7.1: Sale; Bond Purchase Agreement. The Bonds are hereby sold and shall be
delivered to the Underwriters at a price of$22,061,051.70 (representing the par amount of the
Bonds, less an Underwriters' discount of $127,187.50, plus an aggregate premium of
$1,838,239.20), all in accordance with the terms of the Bond Purchase Agreement of even date
herewith,which is presented to and hereby approved by the City Council. The 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 the
Bond Purchase Agreement on behalf of the City. The Mayor and all other officers, agents, and
representatives of the City are further authorized to take any and all actions necessary or desirable
to satisfy the conditions set out therein and to provide for the issuance and delivery of the Bonds.
Section 7.2: Federal Income Tax Exclusion.
(a) Covenants. The City covenants to take any action necessary to assure,or refrain from
any action that would adversely affect, the treatment of the Bonds as obligations described in
Section 103 of the Internal Revenue Code (the "Code"), the interest on which is not includable in
the "gross income" of the holder for federal income tax purposes. In furtherance thereof, the City
covenants as follows:
(1) to take any action necessary to ensure that no more than 10 percent of the
proceeds of the Bonds (less amounts deposited into a reserve fund, if any) are used for any
"private business use," as defined in Section 141(b)(6)of the Code. If more than 10 percent
of the proceeds or the projects financed therewith are so used, then such amounts, whether
or not received by the City,with respect to such private business use,do not,under the terms
of this Ordinance or any underlying arrangement, directly or indirectly secure or provide
for the payment of more than 10 percent of the debt service on the Bonds, in contravention
of Section 141(b)(2) of the Code.
(2) to take any action necessary to ensure that, in the event the'private business
use' described in subsection (1) exceeds 5 percent of the proceeds of the Bonds or the
projects financed therewith (less amounts deposited into a reserve fund, if any), then the
amount in excess of 5 percent is used for a 'private business use' that is 'related' and not
'disproportionate' to the governmental use, within the meaning of Section 141(b)(3) of the
Code.
(3) to take any action necessary to ensure that no amount greater than the lesser
of $5,000,000 or 5 percent of the proceeds of the Bonds (less amounts deposited into a
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reserve fund,if any)is directly or indirectly used to finance loans to persons other than state
or local governmental units, in contravention of Section 141(c)of the Code.
(4) to refrain from taking any action that would otherwise result in the Bonds
being treated as "private activity bonds" within the meaning of Section 141(b)of the Code.
(5) to refrain from taking any action that would result in the Bonds being
"federally guaranteed" within the meaning of Section 149(b)of the Code.
(6) to refrain from using any portion of the proceeds of the Bonds, directly or
indirectly, to acquire or replace funds that were used, directly or indirectly, to acquire
investment property(as defined in Section 148(b)(2)of the Code)that produces a materially
higher yield over the term of the Bonds, except for investment property acquired with:
(A) proceeds of the Bonds invested for a reasonable temporary period of three
years or less, or, in the case of a refunding bond, for a period of 90 days or less
until such proceeds are needed for the purpose for which the Bonds are issued.
(B) amounts invested in a bona fide debt service fund, within the meaning of
Section 1.148-1(b)of the Treasury Regulations.
(C) amounts deposited in any reasonably required reserve or replacement fund, to
the extent such amounts do not exceed 10 percent of the proceeds of the Bonds.
(7) to otherwise restrict the use of the proceeds of the Bonds or amounts treated
as proceeds of the Bonds as necessary to ensure that the Bonds do not contravene the
requirements of Section 148 of the Code (relating to arbitrage).
(8) to refrain from using the proceeds of the Bonds or the proceeds of any prior
bonds to pay debt service on another issue more than 90 days after the date of issue of the
Bonds, in contravention of the requirements of Section 149(d) of the Code (relating to
advance refundings).
(9) to pay to the United States of America at least once during each five-year
period (beginning on the date of delivery of the Bonds) an amount that is at least equal to
90 percent of the "Excess Earnings," within the meaning of Section 148(f)of the Code,and
to pay to the United States of America, not later than 60 days after the Bonds have been
paid in full, 100 percent of the amount then required to be paid as a result of Excess Earnings
under Section 148(f) of the Code.
(10) to assure that the proceeds of the Bonds issued for improvements to the
System will be used solely for new money projects.
(b) Rebate Fund. In order to facilitate compliance with the above covenant (a)(8), a
"Rebate Fund" is hereby established by the City for the sole benefit of the United States of
America. The Rebate Fund shall not be subject to the claim of any other person,including,without
limitation, the Bondholders. The Rebate Fund is established for the additional purpose of
compliance with Section 148 of the Code.
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(c) Use of Proceeds. For purposes of the foregoing covenants (a)(1) and (a)(2), the City
understands that the term "proceeds" includes "disposition proceeds," as defined in the Treasury
Regulations,and, in the case of refunding bonds,transferred proceeds(if any)and proceeds of the
refunded bonds expended prior to the date of issuance of the Bonds. The City understands that the
covenants contained herein are intended to assure compliance with the Code and any regulations
or rulings promulgated by the U.S. Department of the Treasury pursuant thereto. In the event that
regulations or rulings are hereafter promulgated that modify or expand provisions of the Code as
applicable to the Bonds, the City will not be required to comply with any covenant contained
herein to the extent that such failure to comply, in the opinion of nationally recognized bond
counsel, will not adversely affect the exemption from federal income taxation of interest on the
Bonds under Section 103 of the Code. In the event that regulations or rulings are hereafter
promulgated that impose additional requirements applicable to the Bonds, the City agrees to
comply with the additional requirements to the extent necessary, in the opinion of nationally
recognized bond counsel, to preserve the exemption from federal income taxation of interest on
the Bonds under Section 103 of the Code. In furtherance of such intention, the City hereby
authorizes and directs the Mayor, the City Manager, or the Director of Finance to execute any
documents, certificates, or reports required by the Code and to make such elections, on behalf of
the City,that may be permitted by the Code,provided they are consistent with the purpose for the
issuance of the Bonds.
(d) Allocation of and Limitation on Expenditures for the Project. The City covenants to
account for the expenditure of sale proceeds and investment earnings to be used for the
construction and acquisition of the improvements financed with the Bonds (the "Project") on its
books and records by allocating proceeds to expenditures within 18 months of the later of the date
that (i) the expenditure is made, or (ii) the Project is completed. The foregoing notwithstanding,
the City shall not expend proceeds of the sale of the Bonds or investment earnings thereon more
than 60 days after the earlier of(i) the fifth anniversary of the delivery of the Bonds, or (ii) the
date the Bonds are retired,unless the City obtains an opinion of nationally recognized bond counsel
that such expenditure will not adversely affect the status, for federal income tax purposes, of the
Bonds or the interest thereon. For purposes hereof, the City shall not be obligated to comply with
this covenant if it obtains an opinion that such failure to comply will not adversely affect the
excludability for federal income tax purposes from gross income of the interest.
(e) Disposition of Project. The City covenants that the Project will not be sold or
otherwise disposed of in a transaction resulting in the receipt by the City of cash or other
compensation unless the City obtains an opinion of nationally recognized bond counsel that such
sale or other disposition will not adversely affect the tax-exempt status of the Bonds. For purposes
of the foregoing, the portion of the property comprising personal property and disposed of in the
ordinary course shall not be treated as a transaction resulting in the receipt of cash or other
compensation. The City shall not be obligated to comply with this covenant if it obtains a legal
opinion that such failure to comply will not adversely affect the excludability for federal income
tax purposes from gross income of the interest.
Section 7.3: Use of Proceeds. Proceeds from the sale of the Bonds shall,promptly upon
receipt by the City,be applied as follows:
(a) $1,411,129.00 shall be deposited to the Reserve Fund;
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(b) $241,394.16 shall be applied to pay costs of issuing the Bonds, including the
underwriting discount of$127,187.50; and
(c) $20,500,000.00 shall be used to pay for improvements to the System..
ARTICLE VIII
CONTINUING DISCLOSURE
Section 8.1: Continuing Disclosure Undertaking.
(a) Definitions. As used in this Section,the following terms have the meanings ascribed
to them below:
"Financial Obligation" means(i)a debt obligation; (ii) a derivative instrument entered into
in connection with,or pledged as security or a source of payment for,an existing or planned
debt obligation; or(iii) a guarantee of a debt obligation or any such derivative instrument;
provided that "Financial Obligation" shall not include municipal securities as to which a
final official statement(as defined in the Rule)has been provided to the MSRB consistent
with the Rule.
"MSRB" means the Municipal Securities Rulemaking Board.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC"means the United States Securities and Exchange Commission.
(b) Annual Reports. (i) The City shall provide annually to the MSRB, in the electronic
format prescribed by the MSRB, financial information and operating data with respect to the
City of the general type included in the final Official Statement authorized by this Ordinance,
being the financial information and operating data with respect to the City of the general type
included in the Official Statement under the headings "OFFICIAL STATEMENT SUMMARY
- Selected Financial Information," "CITY REVENUE DEBT," and "THE SYSTEM"
(collectively, the "Annual Operating Report"). The City will additionally provide financial
statements of the City(the "Financial Statements")that will be: (A)Prepared in accordance with
the accounting principles described in the notes to the financial statements that are attached to
the Official Statement as Appendix B, or such other accounting principles as the City may be
required to employ from time to time pursuant to state law or regulation, and shall be in
substantially the form included in the final Official Statement; and (B) Audited, if the City
commissions an audit of such Financial Statements and the audit is completed within the period
during which they must be provided. The City will update and provide the Annual Operating
Report within six months after the end of each fiscal year and the Financial Statements within
12 months of the end of each fiscal year, in each case beginning with the fiscal year ending in
and after 2024. The City may provide the Financial Statements earlier, including at the time it
provides its Annual Operating Report, but if the audit of such Financial Statements is not
complete within 12 months after any such fiscal year end, then the City shall file unaudited
Financial Statements within such 12-month period and audited Financial Statements for the
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applicable fiscal year when and if the audit report on such Financial Statements becomes
available.
(ii) If the City changes its fiscal year,it will notify the MSRB of the change(and of the
date of the new fiscal year end)prior to the next date by which the City otherwise would be required
to provide financial information and operating data pursuant to this Section. The financial
information and operating data to be provided pursuant to this Section may be set forth in full in
one or more documents or may be included by specific reference to any documents available to
the public on the MSRB's internet website or filed with the SEC.
(iii)Event Notices: The City shall notify the MSRB, in a timely manner not in excess
of ten Business Days after the occurrence of the event,of any of the following events with respect
to the Bonds:
1. Non-payment-related defaults, if material.
2. Principal and interest payment delinquencies.
3. Unscheduled draws on debt service reserves reflecting financial difficulties.
4. Unscheduled draws on credit enhancements reflecting financial difficulties.
5. Substitution of credit or liquidity providers,or their failure to perform.
6. Adverse tax opinions; the issuance by the Internal Revenue Service of proposed or
final determinations of taxability,Notices of Proposed Issue(IRS Form 5701-TEB),
or other material notices or determinations with respect to the tax status of the
Bonds, or other material events affecting the tax status of the Bonds.
7. Modifications to rights of holders of the Bonds, if material.
8. Bond calls, if material, and tender offers.
9. Defeasances.
10. Release, substitution, or sale of property securing repayment of the Bonds, if
material.
11. Rating changes.
12. Bankruptcy, insolvency, receivership, or similar event of the City.
13. The consummation of a merger,consolidation, or acquisition involving the City, or
the sale of all or substantially all of the assets of the City,other than in the ordinary
course of business;the entry into a definitive agreement to undertake such an action,
or the termination of a definitive agreement relating to any such actions, other than
pursuant to its terms, if material.
14. Appointment of a successor Paying Agent Registrar or change in the name of the
Paying Agent Registrar, if material.
15. Incurrence of a Financial Obligation of the City, if material, or agreement to
covenants, events of default, remedies, priority rights, or other similar terms of a
Financial Obligation of the City, any of which affect security holders, if material.
16. Default, event of acceleration, termination event, modification of terms, or other
similar events under the terms of a Financial Obligation of the City, any of which
reflect financial difficulties.
The City shall notify the MSRB, in a timely manner, of any failure by the City to provide
financial information or operating data in accordance with subsection (ii) of this Section by the
time required. As used in clause (iii)(12) above,the phrase "bankruptcy, insolvency,receivership,
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or similar event" means the appointment of a receiver, fiscal agent, or similar officer for the City
in a proceeding under the U.S. Bankruptcy Code or any other state or federal law proceeding in
which a court or governmental authority has assumed jurisdiction over substantially all of the
City's assets or business.It also includes instances where jurisdiction is assumed while leaving the
City Council and officials in possession but subject to the supervision and orders of a court or
governmental authority, or when an order confirming a plan of reorganization, arrangement, or
liquidation is entered by a court or governmental authority overseeing substantially all of the City's
assets or business.
(iv) Limitations.Disclaimers.and Amendments.(A)The City shall be obligated to observe
and perform the covenants specified in this Section for as long as,but only for as 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 this Ordinance
or applicable law that causes the Bonds to no longer be outstanding._
(B) The provisions of this Section are for the sole benefit of the registered owners 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 that it has expressly agreed to provide pursuant to this Section and does not 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, nor does it undertake to update any information
provided in accordance with this Section or otherwise, except as expressly provided herein. The
City makes no representation or warranty concerning such information or its usefulness in a
decision to invest in or sell Bonds at any future date.
(C) UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE
REGISTERED OWNER OR BENEFICIAL OWNER OF ANY BOND, OR TO ANY OTHER
PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING, IN WHOLE OR IN
PART, FROM ANY BREACH BY THE ISSUER, WHETHER NEGLIGENT OR WITHOUT
FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION. 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.
(D) No default by the City in observing or performing its obligations under this Section
shall constitute a breach of or default under the Ordinance for purposes of any other provision of
this Ordinance. Nothing in this Section is intended to, nor shall it, disclaim, waive, or otherwise
limit the duties of the City under federal and state securities laws.
(E) The provisions of this Section may be amended by the City from time to time to adapt
to changed circumstances arising from a change in legal requirements,a change in law,or a change
in the identity,nature, status,or type of operations of the City,but only if(1)the provisions of this
Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the
primary offering of the Bonds in compliance with the Rule, taking into account any amendments
or interpretations of the Rule since such offering as well as such changed circumstances, and (2)
either(a)the registered owners of a majority in aggregate principal amount(or any greater amount
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required by any other provision of this Ordinance that authorizes such an amendment) of the
outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with the City
(such as nationally recognized bond counsel)determines that such amendment will not materially
impair the interests of the registered owners and beneficial owners of the Bonds.If the City amends
the provisions of this Section,it shall include,with any amended financial information or operating
data next provided in accordance with subsection (b) of this Section, an explanation in narrative
form of the reason for the amendment and the impact of any change in the type of financial
information or operating data so provided. The City may also amend or repeal the provisions of
this continuing disclosure agreement if the SEC amends or repeals the applicable provision of the
Rule or if a court of final jurisdiction enters a judgment that 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
from lawfully purchasing or selling Bonds in the primary offering of the Bonds.
ARTICLE IX
MISCELLANEOUS
Section 9.1: Official Statement. The 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 Bond Purchase Agreement with the Underwriters and other relevant matters. The use of
such Official Statement in the reoffering of the Bonds by the Underwriters is hereby approved and
authorized.
Section 9.2: Further Proceedings. The Mayor, the Director of Finance, the City Manager,
the City Secretary, 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. In
addition, prior to the initial delivery of the Bonds, the Mayor, Director of Finance, City Manager,
City Attorney and Bond Counsel are hereby authorized and directed to approve any technical
changes or correction to this Ordinance or to any of the instruments authorized and approved by
this Ordinance necessary in order to (i) correct any ambiguity or mistake or properly or more
completely document the transactions contemplated and approved by this Ordinance and as
described in the Official Statement, (ii) obtain a rating from any of the national bond rating
agencies or satisfy any requirements of the provider of a municipal bond insurance policy, if any,
or(iii)obtain the approval of the Bonds by the Attorney General's office.
Section 9.3: 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 9.4: Paving Agent Registrar Agreement. The form of agreement setting forth the
duties of the Registrar is hereby approved and an appropriate official of the City is hereby
authorized to execute such agreement for and on behalf of the City.
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Section 9.5:No Personal Liability. No recourse shall be had for payment of the principal of
or interest on any Bond or for any claim based thereon, or on this Ordinance, against any official
or employee of the City or any person executing any Bond.
Section 9.6: 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, 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, and the Owners of the Bonds.
Section 9.7: Repealer. All orders,resolutions,and ordinances, or parts thereof,inconsistent
herewith are hereby repealed to the extent of such inconsistency.
Section 9.8: Open Meeting. It is hereby officially found and determined that the meeting at
which this Ordinance was 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.
Section 9.9: Method of Amendment. The City hereby reserves the right to amend this
Ordinance subject to the following terms and conditions,to wit:
(a) The City may, from time to time, without the consent of any holder, except as
otherwise required by paragraph (b) below, amend or supplement this Ordinance in order to: (i)
cure any ambiguity,defect,or omission in this Ordinance that does not materially adversely affect
the interests of the holders;(ii)grant additional rights or security for the benefit of the holders; (iii)
add events of default that are not inconsistent with the provisions of this Ordinance and do not
materially adversely affect the interests of the holders; (iv)qualify this Ordinance under the Trust
Indenture Act of 1939, as amended, or corresponding provisions of federal laws from time to time
in effect; or (v) make such other provisions regarding matters or questions arising under this
Ordinance that are not inconsistent with its provisions and that, in the opinion of the City's Bond
Counsel, do not materially adversely affect the interests of the holders.
(b) Except as provided in paragraph (a) above, the holders of Bonds aggregating in
principal amount 51% of the aggregate principal amount of then outstanding Bonds that are the
subject of a proposed amendment shall have the right from time to time to approve any amendment
hereto that may be deemed necessary or desirable by the City;provided,however,that without the
consent of 100% of the holders in aggregate principal amount of the then outstanding Bonds,
nothing herein contained shall permit or be construed to permit amendment of the terms and
conditions of this Ordinance or in any of the Bonds so as to:
(1) Make any change in the maturity of any of the outstanding Bonds.
(2) Reduce the rate of interest borne by any of the outstanding Bonds.
(3) Reduce the amount of the principal or redemption premium, if any,payable on any
outstanding Bonds.
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(4) Modify the terms of payment of principal, interest, or redemption premium on
outstanding Bonds, or impose any condition with respect to such payment.
(5) Change the minimum percentage of the principal amount of any series of Bonds
necessary for consent to such an amendment.
(c) If at any time the City shall desire to amend this Ordinance under this Section,the
City shall send by U.S. mail to each registered owner of the affected Bonds a copy of the proposed
amendment and cause notice of the proposed amendment to be published at least once in a financial
publication published in The City of New York, New York, or in the State of Texas. Such
published notice shall briefly set forth the nature of the proposed amendment and shall state that a
copy thereof is on file at the office of the City for inspection by all holders of such Bonds.
(d) Whenever, at any time within one year from the date of publication of such notice,
the City shall receive an instrument or instruments executed by the holders of at least 51% in
aggregate principal amount of all of the Bonds then outstanding that are required for the
amendment, which instrument or instruments shall refer to the proposed amendment and
specifically consent to and approve such amendment, the City may adopt the amendment in
substantially the same form.
(e) Upon the adoption of any amendatory Ordinance pursuant to the provisions of this
Section, this Ordinance shall be deemed to be modified and amended in accordance with such
amendatory Ordinance,and the respective rights,duties,and obligations of the City and all holders
of such affected Bonds shall thereafter be determined, exercised, and enforced, subject in all
respects to such amendment.
(f) Any consent given by the holder of a Bond pursuant to the provisions of this Section
shall be irrevocable for a period of six months from the date of the publication of the notice
provided for in this Section, and shall be conclusive and binding upon all future holders of the
same Bond during such period. Such consent may be revoked at any time after six months from
the date of the publication of said notice by the holder who gave such consent, or by a successor
in title,by filing notice with the City.However,such revocation shall not be effective if the holders
of 51% in aggregate principal amount of the affected Bonds then outstanding have, prior to the
attempted revocation, consented to and approved the amendment.
For the purposes of establishing ownership of the Bonds,the City shall rely solely upon the
registration of the ownership of such Bonds on the registration books kept by the Registrar.
Section 9.10:Effective Date.In accordance with the provisions of Texas Government Code,
Section 1201.028,this Ordinance shall be effective immediately upon its adoption by the Council.
Section 9.11: Custody, Approval, and Registration of Bonds; Bond Counsel's Opinion;
CUSIP Numbers and Contingent Insurance Provision, if Obtained; Engagement of Bond Counsel;
Attorney General Review Fee; Bond Insurance.
(a) The Mayor of the Issuer is hereby authorized to have control of the Bonds initially
issued and delivered hereunder, as well as all necessary records and proceedings pertaining to the
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Bonds, pending their delivery and their investigation, examination, and approval by the Attorney
General of the State of Texas.Upon registration of the Bonds,the Comptroller of Public Accounts
(or a deputy designated in writing to act on behalf of the Comptroller) shall manually sign the
Comptroller's Registration Certificate attached to such Bonds,and the seal of the Comptroller shall
be impressed or placed in facsimile on such Bonds. The approving legal opinion of the Issuer's
Bond Counsel and the assigned CUSIP numbers may,at the option of the Issuer,be printed on the
Bonds issued and delivered under this Ordinance; however, neither shall have any legal effect and
shall be solely for the convenience and information of the registered owners of the Bonds.
Additionally,if bond insurance is obtained,the Bonds may bear an appropriate legend as provided
by the insurer.
(b) The obligation of the initial purchaser to accept delivery of the Bonds is subject to the
initial purchaser being furnished with the final, approving opinion of McCall, Parkhurst&Horton
L.L.P., bond counsel to the City, which opinion shall be dated as of and delivered on the date of
initial delivery of the Bonds to the initial purchaser. The engagement of this law firm as bond
counsel to the City in connection with the issuance, sale, and delivery of the Bonds is hereby
approved and confirmed. The execution and delivery of an engagement letter between the City and
such firm, with respect to the services of bond counsel, is hereby authorized in such form as may
be approved by the Mayor or the City Manager. The Mayor or the City Manager is hereby
authorized to execute such engagement letter.
(c) In accordance with the provisions of Section 1202.004, Texas Government Code Ann.,
in connection with the submission of the Bonds by the Attorney General of Texas for review and
approval, a statutory fee (an amount equal to 0.1% of the principal amount of the Bonds, subject
to a minimum of$750 and a maximum of$9,500) is required to be paid to the Attorney General
upon the submission of the transcript of proceedings for the Bonds. The City hereby authorizes
and directs that a check in the amount of the Attorney General filing fee for the Bonds, made
payable to the "Texas Attorney General," be promptly furnished to the City's Bond Counsel for
payment to the Attorney General in connection with his review of the Bonds.
(d) The City has elected to purchase municipal bond insurance relating to the Bonds from
Build America Mutual Assurance Company which insurance shall insure the payment of the
principal and interest of the Bonds in accordance with the provisions specified in Exhibit A hereto,
which is approved and incorporated herein for all purposes. In the event of any conflict or any
inconsistency with other provisions of this Ordinance,the provisions in Exhibit A shall control.
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INTRODUCED, READ AND PASSED on first and final reading by the affirmative vote
of the City Council of the City of Friendswood on this the 3rd day of March, 2025.
M I K r ORE AN, Mayor
ATTEST:
• • okIENps00
LETICIA BRYSCH, City Secret 004 O
co
APPROVED AS TO FORM:
KAREN L. HORNER, City Attorney
H:\City Council\Ordinances\2025\03-03-2025\Ordinance-Authorizing the Issuance of Bonds.docx
36
EXHIBIT A
BOND INSURANCE PROVISIONS
1. Notice and Other Information to be given to BAM. The Issuer will provide BAM
with all notices and other information it is obligated to provide(i)under its Continuing Disclosure
Agreement and (ii) to the holders of Insured Obligations or the Trustee under the Security
Documents.
The notice address of BAM is: Build America Mutual Assurance Company, 200 Liberty
Street, 27th Floor, New York, NY 10281, Attention: Surveillance, Re: Policy No.
Telephone: (212) 235-2500, Telecopier: (212) 962-1710, Email:
notices@buildamerica.com. In each case in which notice or other communication refers to
an event of default or a claim on the Policy, then a copy of such notice or other
communication shall also be sent to the attention of the General Counsel at the same
address and at claims@buildamerica.com or at Telecopier: (212) 962-1524 and shall be
marked to indicate "URGENT MATERIAL ENCLOSED."
2. Defeasance.The investments in the defeasance escrow relating to Insured Obligation
shall be limited to non-callable, direct obligations of the United States of America and securities
fully and unconditionally guaranteed as to the timely payment of principal and interest by the
United States of America, or as otherwise maybe authorized under State law and approved by
BAM. At least (three) 3 Business Days prior to any defeasance with respect to the Insured
Obligations, the Issuer shall deliver to BAM draft copies of an escrow agreement, an opinion of
bond counsel regarding the validity and enforceability of the escrow agreement and the defeasance
of the Insured Obligations,a verification report(a"Verification Report")prepared by a nationally
recognized independent financial analyst or firm of certified public accountants regarding the
sufficiency of the escrow fund. Such opinion and Verification Report shall be addressed to BAM
and shall be in form and substance satisfactory to BAM. In addition, the escrow agreement shall
provide that:
(a) Any substitution of securities following the execution and delivery of the escrow
agreement shall require the delivery of a Verification Report, an opinion of bond counsel
that such substitution will not adversely affect the exclusion (if interest on the Insured
Obligations is excludable) from gross income of the holders of the Insured Obligations of
the interest on the Insured Obligations for federal income tax purposes and the prior written
consent of BAM, which consent will not be unreasonably withheld
(b) The Issuer will not exercise any prior optional redemption of Insured Obligations secured
by the escrow agreement or any other redemption other than mandatory sinking fund
redemptions unless (i)the right to make any such redemption has been expressly reserved
in the escrow agreement and such reservation has been disclosed in detail in the official
statement for the refunding bonds,and(ii)as a condition to any such redemption there shall
be provided to BAM a Verification Report as to the sufficiency of escrow receipts without
reinvestment to meet the escrow requirements remaining following any such redemption.
(c) The Issuer shall not amend the escrow agreement or enter into a forward purchase
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agreement or other agreement with respect to rights in the escrow without the prior written
consent of BAM.
3. Paying Agent/Registrar.
(a) BAM shall receive prior written notice of any name change of Paying
Agent/Registrar for the Insured Obligations or the resignation or removal of the Paying
Agent/Registrar. No removal, resignation or termination of the Paying Agent/Registrar
shall take effect until a successor, meeting the requirements above or acceptable to BAM,
shall be qualified and appointed.
4. Amendments, Supplements and Consents. BAM's prior written consent is required
for all amendments and supplements to the Security Documents,with the exceptions noted below.
The Issuer shall send copies of any such amendments or supplements to BAM and the rating
agencies which have assigned a rating to the Insured Obligations.
(a) Consent of BAM. Any amendments or supplements to the Security
Documents shall require the prior written consent of BAM with the exception of
amendments or supplements:
i. To cure any ambiguity or formal defect or omissions or to
correct any inconsistent provisions in the transaction documents or in any
supplement thereto, or
ii. To grant or confer upon the holders of the Insured
Obligations any additional rights, remedies, powers, authority or security
that may lawfully be granted to or conferred upon the holders of the Insured
Obligations, or
iii. To add to the conditions, limitations and restrictions on the
issuance of bonds or other obligations under the provisions of the Security
Documents other conditions, limitations and restrictions thereafter to be
observed, or
iv. To add to the covenants and agreements of the Issuer in the
Security Documents other covenants and agreements thereafter to be
observed by the Issuer or to surrender any right or power therein reserved
to or conferred upon the Issuer.
v. To issue additional parity debt in accordance with the
requirements set forth in the Security Documents (unless otherwise
specified herein).
(b) Consent of BAM in Addition to Bondholder Consent. Whenever any
Security Document requires the consent of holders of Insured Obligations,BAM's consent
shall also be required. In addition,any amendment, supplement,modification to,or waiver
of, any of the Security Documents that adversely affects the rights or interests of BAM
shall be subject to the prior written consent of BAM.
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(c) Insolvency.Any reorganization or liquidation plan with respect to the Issuer
must be acceptable to BAM. The Paying Agent/Registrar and each owner of the Insured
Obligations hereby appoint BAM as their agent and attorney-in-fact with respect to the
Insured Obligations and agree that BAM may at any time during the continuation of any
proceeding by or against the Issuer under the United States Bankruptcy Code or any other
applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an
"Insolvency Proceeding") direct all matters relating to such Insolvency Proceeding,
including without limitation, (A) all matters relating to any claim or enforcement
proceeding in connection with an Insolvency Proceeding (a"Claim"), (B)the direction of
any appeal of any order relating to any Claim, (C) the posting of any surety, supersedeas
or performance bond pending any such appeal, and(D)the right to vote to accept or reject
any plan of adjustment. In addition,the Trustee and each owner of the Insured Obligations
delegate and assign to BAM,to the fullest extent permitted by law,the rights of the Trustee
and each owner of the Insured Obligations with respect to the Insured Obligations in the
conduct of any Insolvency Proceeding,including,without limitation,all rights of any party
to an adversary proceeding or action with respect to any court order issued in connection
with any such Insolvency Proceeding.
(d) Control by BAM Upon Default. Anything in the Security Documents to the
contrary notwithstanding,upon the occurrence and continuance of a default or an event of
default, BAM shall be entitled to control and direct the enforcement of all rights and
remedies granted to the holders of the Insured Obligations or the Paying Agent/Registrar
for the benefit of the holders of the Insured Obligations under any Security Document.No
default or event of default may be waived without BAM's written consent.
(e) BAM as Owner. Upon the occurrence and continuance of a default or an
event of default,BAM shall be deemed to be the sole owner of the Insured Obligations for
all purposes under the Security Documents, including, without limitations, for purpose of
exercising remedies and approving amendments.
(0 Consent of BAM for acceleration. BAM's prior written consent is required
as a condition precedent to and in all instances of acceleration.
(g) Grace Period for Payment Defaults. No grace period shall be permitted for
payment defaults on the Insured Obligations. No grace period for a covenant default shall
exceed 30 days without the prior written consent of BAM.
(h) Special Provisions for Insurer Default. If an Insurer Default shall occur and
be continuing,then,notwithstanding anything in paragraphs 4(a)-(e)above to the contrary,
(1) if at any time prior to or following an Insurer Default, BAM has made payment under
the Policy,to the extent of such payment BAM shall be treated like any other holder of the
Insured Obligations for all purposes, including giving of consents, and(2) if BAM has not
made any payment under the Policy, BAM shall have no further consent rights until the
particular Insurer Default is no longer continuing or BAM makes a payment under the
Policy, in which event, the foregoing clause (1) shall control. For purposes of this
paragraph, "Insurer Default" means: (A) BAM has failed to make any payment under the
Policy when due and owing in accordance with its terms; or(B) BAM shall (i)voluntarily
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commence any proceeding or file any petition seeking relief under the United States
Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency or similar
law,(ii)consent to the institution of or fail to controvert in a timely and appropriate manner,
any such proceeding or the filing of any such petition, (iii) apply for or consent to the
appointment of a receiver,trustee,custodian, sequestrator or similar official for such party
or for a substantial part of its property,(iv)file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, or(vi)take action for the purpose of effecting any of the foregoing; or
(C) any state or federal agency or instrumentality shall order the suspension of payments
on the Policy or shall obtain an order or grant approval for the rehabilitation, liquidation,
conservation or dissolution of BAM (including without limitation under the New York
Insurance Law).
5. BAM As Third Party Beneficiary. BAM is recognized as and shall be deemed to be
a third party beneficiary of the Security Documents and may enforce the provisions of the Security
Documents as if it were a party thereto.
6. Payment Procedure Under the Policy. In the event that principal and/or interest due
on the Insured Obligations shall be paid by BAM pursuant to the Policy, the Insured Obligations
shall remain outstanding for all purposes, not be defeased or otherwise satisfied and not be
considered paid by the Issuer the assignment and pledge of the trust estate and all covenants,
agreements and other obligations of the Issuer to the registered owners shall continue to exist and
shall run to the benefit of BAM, and BAM shall be subrogated to the rights of such registered
owners.In the event that on the second(2nd)business day prior to any payment date on the Insured
Obligations,the Paying Agent/Registrar has not received sufficient moneys to pay all principal of
and interest on the Insured Obligations due on such payment date,the Paying Agent/Registrar shall
immediately notify BAM or its designee on the same business day by telephone or electronic mail,
of the amount of the deficiency. If any deficiency is made up in whole or in part prior to or on the
payment date, the Paying Agent/Registrar shall so notify BAM or its designee.
In addition, if the Paying Agent/Registrar has notice that any holder of the Insured
Obligations has been required to disgorge payments of principal of or interest on the Insured
Obligations pursuant to a final,non-appealable order by a court of competent jurisdiction that such
payment constitutes an avoidable preference to such holder within the meaning of any applicable
bankruptcy law,then the Paying Agent/Registrar shall notify BAM or its designee of such fact by
telephone or electronic mail,or by overnight or other delivery service as to which a delivery receipt
is signed by a person authorized to accept delivery on behalf of BAM.
The Paying Agent/Registrar shall irrevocably be designated, appointed, directed and
authorized to act as attorney-in-fact for holders of the Insured Obligations as follows:
(a) If there is a deficiency in amounts required to pay interest and/or principal
on the Insured Obligations, the Paying Agent/Registrar shall:
i. execute and deliver to BAM, in form satisfactory to BAM,
an instrument appointing BAM as agent and attorney-in-fact for such
holders of the Insured Obligations in any legal proceeding related to the
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payment and assignment to BAM of the claims for interest on the Insured
Obligations,
ii. receive as designee of the respective holders (and not as
Paying Agent) in accordance with the tenor of the Policy payment from
BAM with respect to the claims for interest so assigned,
iii. segregate all such payments in a separate account (the
"BAM Policy Payment Account") to only be used to make scheduled
payments of principal of and interest on the Insured Obligation, and
iv. disburse the same to such respective holders; and
(b) If there is a deficiency in amounts required to pay principal of the Insured
Obligations, the Paying Agent/Registrar shall
i. execute and deliver to BAM, in form satisfactory to BAM,
an instrument appointing BAM as agent and attorney-in-fact for such holder
of the Insured Obligations in any legal proceeding related to the payment of
such principal and an assignment to BAM of the Insured Obligations
surrendered to BAM,
ii. receive as designee of the respective holders (and not as
Paying Agent)in accordance with the tenor of the Policy payment therefore
from BAM,
iii. segregate all such payments in the BAM Policy Payment
Account to only be used to make scheduled payments of principal of and
interest on the Insured Obligation, and
iv. disburse the same to such holders.
The Paying Agent/Registrar shall designate any portion of payment of principal on Insured
Obligations paid by BAM, whether by virtue of mandatory sinking fund redemption, maturity or
other advancement of maturity, on its books as a reduction in the principal amount of Insured
Obligations registered to the then current holder, whether DTC or its nominee or otherwise, and
shall issue a replacement Insured Obligation to BAM,registered in the name directed by BAM, in
a principal amount equal to the amount of principal so paid (without regard to authorized
denominations); provided that the Paying Agent/Registrar's failure to so designate any payment
or issue any replacement Insured Obligation shall have no effect on the amount of principal or
interest payable by the Issuer on any Insured Obligation or the subrogation or assignment rights of
BAM.
Payments with respect to claims for interest on and principal of Insured Obligations
disbursed by the Paying Agent/Registrar from proceeds of the Policy shall not be considered to
discharge the obligation of the Issuer with respect to such Insured Obligations, and BAM shall
become the owner of such unpaid Insured Obligations and claims for the interest in accordance
with the tenor of the assignment made to it under the provisions of the preceding paragraphs or
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otherwise. The Security Documents shall not be discharged or terminated unless all amounts due
or to become due to BAM have been paid in full or duly provided for.
Irrespective of whether any such assignment is executed and delivered, the Issuer and the
Paying Agent/Registrar agree for the benefit of BAM that:
(a) They recognize that to the extent BAM makes payments directly or
indirectly (e.g., by paying through the Paying Agent/Registrar), on account of principal of
or interest on the Insured Obligations,BAM will be subrogated to the rights of such holders
to receive the amount of such principal and interest from the Issuer/Obligor, with interest
thereon, as provided and solely from the sources stated in the Security Documents and the
Insured Obligations; and
(b) They will accordingly pay to BAM the amount of such principal and
interest, with interest thereon as provided in the transaction documents and the Insured
Obligations,but only from the sources and in the manner provided therein for the payment
of principal of and interest on the Insured Obligations to holders, and will otherwise treat
BAM as the owner of such rights to the amount of such principal and interest.
7. Additional Payments. The Issuer agrees unconditionally that it will pay or reimburse
BAM on demand any and all reasonable charges, fees, costs, losses, liabilities and expenses that
BAM may pay or incur, including, but not limited to, fees and expenses of BAM's agents,
attorneys,accountants, consultants,appraisers and auditors and reasonable costs of investigations,
in connection with the administration (including waivers and consents, if any), enforcement,
defense, exercise or preservation of any rights and remedies in respect of the Security Documents
("Administrative Costs"); provided, however, that any such obligation to pay or reimburse BAM
any Administrative Costs is subject to annual appropriation of the Issuer and to the extent permitted
by law. For purposes of the foregoing, costs and expenses shall include a reasonable allocation of
compensation and overhead attributable to the time of employees of BAM spent in connection
with the actions described in the preceding sentence. The Issuer agrees that failure to pay any
Administrative Costs on a timely basis will result in the accrual of interest on the unpaid amount
at the Late Payment Rate, compounded semi-annually, from the date that payment is first due to
BAM until the date BAM is paid in full.
Notwithstanding anything herein to the contrary,the Issuer agrees to pay to BAM(i)a sum
equal to the total of all amounts paid by BAM under the Policy ("BAM Policy Payment"); and(ii)
to the extent permitted by law,interest on such BAM Policy Payments from the date paid by BAM
until payment thereof in full by the Issuer,payable to BAM at the Late Payment Rate per annum
(collectively, "BAM Reimbursement Amounts") compounded semi-annually. Notwithstanding
anything to the contrary, including without limitation the post default application of revenue
provisions, BAM Reimbursement Amounts shall be, and the Issuer hereby covenants and agrees
that the BAM Reimbursement Amounts are,payable from and secured by a lien on and pledge of
the same revenues and other collateral pledged to the Insured Obligations on a parity with debt
service due on the Insured Obligations.
8. Reserve Fund. The prior written consent of BAM shall be a condition precedent to
the deposit of any credit instrument provided in lieu of a cash deposit into the Reserve Fund, if
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any.Amounts on deposit in the Reserve Fund shall be applied solely to the payment of debt service
on Parity Bonds.
9. Exercise of Rights by BAM. The rights granted to BAM under the Security
Documents to request, consent to or direct any action are rights granted to BAM in consideration
of its issuance of the Policy. Any exercise by BAM of such rights is merely an exercise of the
BAM's contractual rights and shall not be construed or deemed to be taken for the benefit, or on
behalf,of the holders of the Insured Obligations and such action does not evidence any position of
BAM, affirmative or negative, as to whether the consent of the holders of the Insured Obligations
or any other person is required in addition to the consent of BAM.
10. BAM shall be entitled to pay principal or interest on the Insured Obligations that shall
become Due for Payment but shall be unpaid by reason of Nonpayment by the Issuer (as such
terms are defined in the Policy) and any amounts due on the Insured Obligations as a result of
acceleration of the maturity thereof in accordance with the Security Documents, whether or not
BAM has received a claim upon the Policy.
11. So long as the Insured Obligations are outstanding or any amounts are due and
payable to BAM, the Issuer shall not sell, lease, transfer, encumber or otherwise dispose of the
System or any material portion thereof, except upon obtaining the prior written consent of BAM.
12. No contract shall be entered into or any action taken by which the rights of BAM or
security for or source of payment of the Insured Obligations may be impaired or prejudiced in any
material respect except upon obtaining the prior written consent of BAM.
13. If an event of default occurs under any agreement pursuant to which any Obligation
of the Issuer has been incurred or issued and that permits the holder of such Obligation or trustee
to accelerate the Obligation or otherwise exercise rights or remedies that are adverse to the interest
of the holders of the Insured Obligations or BAM, as BAM may determine in its sole discretion,
then an event of default shall be deemed to have occurred under this Ordinance and the related
Security Documents for which BAM or the Paying Agent/Registrar,at the direction of BAM,shall
be entitled to exercise all available remedies under the Security Documents, at law and in equity.
For purposes of the foregoing "Obligation" shall mean any bonds, loans, certificates, installment
or lease payments or similar obligations that are payable and/or secured on a parity or subordinate
basis to the Insured Obligations.
14. Definitions:
"BAM"shall mean Build America Mutual Assurance Company, or any successor
thereto.
"Insured Obligations" shall mean the Bonds.
"Issuer" shall mean the City.
"Late Payment Rate"means the lesser of(a)the greater of(i) the per annum rate
of interest,publicly announced from time to time by JPMorgan Chase Bank,N.A., at its
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principal office in The City of New York, New York, as its prime or base lending rate
("Prime Rate") (any change in such Prime Rate to be effective on the date such change
is announced by JPMorgan Chase Bank, N.A.) plus 5%, and (ii) the then applicable
highest rate of interest on the Insured Obligations and(b)the maximum rate permissible
under applicable usury or similar laws limiting interest rates. In the event JPMorgan
Chase Bank,N.A., ceases to announce its Prime Rate, the Prime Rate shall be the prime
or base lending rate of such other bank, banking association or trust company as BAM,
in its sole and absolute discretion, shall designate. Interest at the Late Payment Rate on
any amount owing to BAM shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
"Policy" shall mean the Municipal Bond Insurance Policy issued by BAM that
guarantees the scheduled payment of principal of and interest on the Insured Obligations
when due. "Security Documents" shall mean the resolution, trust agreement, indenture,
ordinance, loan agreement, lease agreement,bond,note, certificate and/or any additional
or supplemental document executed in connection with the Insured Obligations.
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