Ord 080-2001 1/23/2001ORDINANCE NO. 8 0 - 2 0 01
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
CITY OF WICHITA FALLS, TEXAS WATER AND SEWER
SYSTEM PRIORITY LIEN REVENUE BONDS, SERIES 2001;
AUTHORIZING THE EXECUTION OF A BOND PURCHASE
AGREEMENT AND A PAYING AGENT /REGISTRAR
AGREEMENT; APPROVING AN OFFICIAL STATEMENT;
DECLARING AN EMERGENCY; AND AUTHORIZING OTHER
MATTERS RELATED THERETO
F: \MyFiles \WF WW &SS 2001 \Ordinance \Ordinance -3.wpd
ORDINANCE NO. PO --,7 tl _0 I
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
CITY OF WICHITA FALLS, TEXAS WATER AND SEWER
SYSTEM PRIORITY LIEN REVENUE BONDS, SERIES 2001;
AUTHORIZING THE EXECUTION OF A BOND PURCHASE
AGREEMENT, AND A PAYING AGENT /REGISTRAR
AGREEMENT; APPROVING AN OFFICIAL STATEMENT;
DECLARING AN EMERGENCY; AND AUTHORIZING OTHER
MATTERS RELATED THERETO
TABLE OF CONTENTS
Page
PREAMBLE.................................... ..............................2
Section 1. AMOUNT AND PURPOSE OF THE BONDS ............................... 2
Section 2. DESIGNATION, DENOMINATIONS AND NUMBERS OF BONDS ............ 2
Section 3. PRINCIPAL AND INTEREST ............. ............................... 3
Section 4. CERTIFICATE OF CITY MANAGER AND BOND PURCHASE AGREEMENT.... 3
Section 5. CHARACTERISTICS OF THE BONDS ..... ............................... 3
(a) Registration Transfer, and Exchange. Book -Entry Only System .......... 3
(b) Book -Entry Only System ................... ............................... 4
(c) Successor Securities Depository. Transfers Outside Book -Entry Only S,, s e ........... 5
(d) Payments to Cede & Co .................... ............................... 5
(e) In General ............................... ..............................6
(f j Notices of Redemption and Defeasance ......... ............................... 6
Section 6. PAYING AGENT/REGISTRAR ............ ............................... 7
(a) Payment of Bonds and Interest ............... ............................... 7
(b) Substitute Pang A eg nt/Re ig strar ............. ............................... 7
Section 7. FORM OF BOND ...................... ............................... 7
Section 8. DEFINITIONS ........................ ............................... 16
Section 9. PLEDGE ............................. ............................... 22
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Page
Section 10. SYSTEM FUND ..................... ............................... 22
Section 11. DEBT SERVICE FUND ................ ............................... 22
Section 12. RESERVE FUND ..................... ............................... 23
Section 13. SUBORDINATE OBLIGATIONS FUND .. ............................... 26
Section 14. INVESTMENTS ....................... .............................27
Section 15. FUNDS SECURED ................... ............................... 27
Section 16. APPLICATION OF BOND PROCEEDS .. ............................... 27
Section 17. FLOW OF FUNDS ................... ............................... 27
(a) Debt Service Fund ......................... .............................27
(b) Reserve Fund ............................. .............................28
(c) Subordinate Obligations Fund .............. ............................... 29
(d) Sjolus ................................. .............................29
Section 18. DEFICIENCIES ........................ .............................29
Section 19. PAYMENT OF PRIORITY BONDS ...... ............................... 29
Section 20. FINAL DEPOSITS; GOVERNMENT OBLIGATIONS ...................... 29
Section 21. ISSUANCE OF PRIORITY AND SUBORDINATE LIEN BONDS ............. 31
Section 22. FURTHER REQUIREMENTS FOR PRIORITY BONDS OR SUBORDINATE
LIENBONDS .................... .............................31
Section 23. GENERAL COVENANTS .............. ............................... 37
(a) Performance .............................. .............................37
(b) City's Legal Authority ..................... ............................... 37
(c) Acquisition and Construction: Operation and Maintenance ........................ 37
(d) Title .................................... .............................37
(e) Liens .................................. .............................38
(0 No Free Service .......................... .............................38
(g) Further Encumbrance .................... ............................... 38
(h) Sale, Lease or Disposal of Property .......... ............................... 38
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ORDINANCE NO. 8 0 - 2 0 01
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
CITY OF WICHITA FALLS, TEXAS WATER AND SEWER
SYSTEM PRIORITY LIEN REVENUE BONDS, SERIES 2001;
AUTHORIZING THE EXECUTION OF A BOND PURCHASE
AGREEMENT AND A PAYING AGENT /REGISTRAR
AGREEMENT; APPROVING AN OFFICIAL STATEMENT;
DECLARING AN EMERGENCY; AND AUTHORIZING OTHER
MATTERS RELATED THERETO
F: \MyFiles \WF WW &SS 2001 \Ordinance \Ordinance -3.wpd
ORDINANCE NO. PO --,7 tl _0 I
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
CITY OF WICHITA FALLS, TEXAS WATER AND SEWER
SYSTEM PRIORITY LIEN REVENUE BONDS, SERIES 2001;
AUTHORIZING THE EXECUTION OF A BOND PURCHASE
AGREEMENT, AND A PAYING AGENT /REGISTRAR
AGREEMENT; APPROVING AN OFFICIAL STATEMENT;
DECLARING AN EMERGENCY; AND AUTHORIZING OTHER
MATTERS RELATED THERETO
TABLE OF CONTENTS
Page
PREAMBLE.................................... ..............................2
Section 1. AMOUNT AND PURPOSE OF THE BONDS ............................... 2
Section 2. DESIGNATION, DENOMINATIONS AND NUMBERS OF BONDS ............ 2
Section 3. PRINCIPAL AND INTEREST ............. ............................... 3
Section 4. CERTIFICATE OF CITY MANAGER AND BOND PURCHASE AGREEMENT.... 3
Section 5. CHARACTERISTICS OF THE BONDS ..... ............................... 3
(a) Registration Transfer, and Exchange. Book -Entry Only System .......... 3
(b) Book -Entry Only System ................... ............................... 4
(c) Successor Securities Depository. Transfers Outside Book -Entry Only S,, s e ........... 5
(d) Payments to Cede & Co .................... ............................... 5
(e) In General ............................... ..............................6
(f j Notices of Redemption and Defeasance ......... ............................... 6
Section 6. PAYING AGENT/REGISTRAR ............ ............................... 7
(a) Payment of Bonds and Interest ............... ............................... 7
(b) Substitute Pang A eg nt/Re ig strar ............. ............................... 7
Section 7. FORM OF BOND ...................... ............................... 7
Section 8. DEFINITIONS ........................ ............................... 16
Section 9. PLEDGE ............................. ............................... 22
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Page
Section 10. SYSTEM FUND ..................... ............................... 22
Section 11. DEBT SERVICE FUND ................ ............................... 22
Section 12. RESERVE FUND ..................... ............................... 23
Section 13. SUBORDINATE OBLIGATIONS FUND .. ............................... 26
Section 14. INVESTMENTS ....................... .............................27
Section 15. FUNDS SECURED ................... ............................... 27
Section 16. APPLICATION OF BOND PROCEEDS .. ............................... 27
Section 17. FLOW OF FUNDS ................... ............................... 27
(a) Debt Service Fund ......................... .............................27
(b) Reserve Fund ............................. .............................28
(c) Subordinate Obligations Fund .............. ............................... 29
(d) Sjolus ................................. .............................29
Section 18. DEFICIENCIES ........................ .............................29
Section 19. PAYMENT OF PRIORITY BONDS ...... ............................... 29
Section 20. FINAL DEPOSITS; GOVERNMENT OBLIGATIONS ...................... 29
Section 21. ISSUANCE OF PRIORITY AND SUBORDINATE LIEN BONDS ............. 31
Section 22. FURTHER REQUIREMENTS FOR PRIORITY BONDS OR SUBORDINATE
LIENBONDS .................... .............................31
Section 23. GENERAL COVENANTS .............. ............................... 37
(a) Performance .............................. .............................37
(b) City's Legal Authority ..................... ............................... 37
(c) Acquisition and Construction: Operation and Maintenance ........................ 37
(d) Title .................................... .............................37
(e) Liens .................................. .............................38
(0 No Free Service .......................... .............................38
(g) Further Encumbrance .................... ............................... 38
(h) Sale, Lease or Disposal of Property .......... ............................... 38
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Pa ,ae
(i) Books, Records and Accounts ............. ............................... 39
0) Insurance ............................... .............................39
(k) Rate Covenant ........................... .............................39
(1) Audits .................................. .............................40
(m) Governmental Agencies ................... ............................... 40
(n) No Competition .......................... .............................40
(o) Ri is of Inspection ...................... ............................... 40
Section 24. AMENDMENT OF ORDINANCE ....... ............................... 41
Section 25. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED BONDS ....... 43
Section 26. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE
BONDS......................... .............................44
Section 27. ALLOCATION OF, AND LIMITATION ON, EXPENDITURES FOR THE
PROJECT........................ .............................46
Section 28. DISPOSITION OF PROJECT ........... ............................... 46
Section 29. CONSTRUCTION FUND .............. ............................... 46
Section 30. CUSTODY, APPROVAL, AND REGISTRATION OF BONDS; BOND
COUNSEL'S OPINION, AND CUSIP NUMBERS .................... 46
Section 31. APPROVAL OF PRELIMINARY OFFICIAL STATEMENT .................. 47
Section 32. PAYING AGENT AGREEMENT ........ ............................... 47
Section 33. CONTINUING DISCLOSURE UNDERTAKING .......................... 47
(a) Annual Reports ........................... .............................47
(b) Material Event Notices .................... ............................... 48
(c) Limitations, Disclaimers, and Amendment ...... ............................... 48
Section 34. CLAIMS UPON THE INSURANCE POLICY AND PAYMENTS BY AND
TO THE INSURER .............. ............................... 49
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Page
Section 35. APPROVAL OF INSURANCE ......... ............................... 50
Section 36. FURTHER PROCEDURES ............. ............................... 51
Section 37. SEVERABILITY ..................... ............................... 51
Section 38. NO PERSONAL LIABILITY ............ ............................... 51
Section 39. AMENDMENT OF OUTSTANDING ORDINANCES ...................... 51
Section 40. OPEN MEETING ..................... ............................... 52
Section 41. EMERGENCY ....................... ............................... 52
Section 42. IMMEDIATE EFFECT ................. ............................... 52
EXHIBIT A - DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
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ORDINANCE NO. Vt
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
CITY OF WICHITA FALLS, TEXAS WATER AND SEWER
SYSTEM PRIORITY LIEN REVENUE BONDS, SERIES 2001;
AUTHORIZING THE EXECUTION OF A BOND PURCHASE
AGREEMENT AND A PAYING AGENT /REGISTRAR
AGREEMENT; APPROVING AN OFFICIAL STATEMENT;
DECLARING AN EMERGENCY; AND AUTHORIZING OTHER
MATTERS RELATED THERETO
THE STATE OF TEXAS §
COUNTY OF WICHITA §
CITY OF WICHITA FALLS §
WHEREAS, the City of Wichita Falls, Texas (the "City ") has outstanding the following utilities
system revenue bonds, to -wit:
City of Wichita Falls, Texas Water and Sewer System Refunding Revenue
Bonds, Series 1995, dated June 1, 1995 currently outstanding in the
aggregate principal amount of $7,720,000 (the "Series 1995 Bonds ") and
City of Wichita Falls, Texas Water and Sewer System Refunding Revenue
Bonds, Series 1996, dated April 1, 1996 currently outstanding in the
aggregate principal amount of $3,320,000 (the "Series 1996 Bonds "); and
City of Wichita Falls, Texas Water and Sewer System Priority Lien
Revenue Bonds, Series 1998B, dated October 1, 1998 currently
outstanding in the aggregate principal amount of $4,915,000 (the "Series
1998B Bonds ")
City of Wichita Falls, Texas Water and Sewer System Subordinate Lien
Revenue Bonds, Series 1996, dated June 1, 1996 currently outstanding
in the aggregate principal amount of $11,005,000 (the "Series 1996
Subordinate Lien Bonds ") and
City of Wichita Falls, Texas Water and Sewer System Subordinate Lien
Revenue Bonds, Series 1998, dated April 1, 1998 currently outstanding
in the aggregate principal amount of $7,985,000 (the "Series 1998
Subordinate Lien Bonds "); and
Ordinance -3. wpd -I-
City of Wichita Falls, Texas Water and Sewer System Subordinate Lien
Revenue Bonds, Series 1998A, dated October 1, 1998 currently
outstanding in the aggregate principal amount of $21,300,000 (the "Series
1998A Subordinate Lien Bonds ")
WHEREAS, the Bonds (as defined herein) are being issued as "Additional Priority Bonds" on a
parity with the Series 1995 Bonds, the Series 1996 Bonds, and the Series 1998B Bonds and pursuant to
the ordinances authorizing such bonds (the "Priority Ordinances "); and
WHEREAS, the conditions set forth in the Priority Ordinances for the issuance of the Bonds as
Additional Priority Bonds have been met; and
WHEREAS, it is now deemed necessary and advisable that said Bonds be issued at this time, in
the amounts and for the purposes as herein shown; and
WHEREAS, the City desires to amend the provisions of the Priority Ordinances and the ordinances
authorizing the Series 1996 Subordinate Lien Bonds, the Series 1998 Subordinate Lien Bonds, and the
Series 1998A Subordinate Lien Bonds (collectively, the "Subordinate Lien Ordinances ") relating to the
requirement to maintain the Reserve Fund to permit the substitution of a Reserve Fund Obligation, as such
terms are defined in this Ordinance; and
WHEREAS, by ordinance passed simultaneously with the passage of this Ordinance the City
Council has directed that notice be given as required by the Priority Ordinances and the Subordinate Lien
Ordinances that the City intends to amend the provisions of said ordinances; and
WHEREAS, this Ordinance contains the amended language in Section 12 and by purchasing the
Bonds the purchasers thereof will be deemed to have consented to the amendment; and
WHEREAS, the bonds hereinafter authorized are to be issued and delivered pursuant to Chapters
1371 and 1502, Government Code, as amended, and the Charter of said City.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS:
Section 1. AMOUNT AND PURPOSE OF THE BONDS. The bonds of the City of Wichita
Falls, Texas (the "City ") are hereby authorized to be issued and delivered in the maximum aggregate
principal amount of $125,000,000 FOR THE PURPOSE OF PROVIDING FUNDS FOR CAPITAL
IMPROVEMENTS AND CAPITAL ADDITIONS TO THE CITY'S COMBINED WATER AND
SEWER SYSTEM AND TO PAY THE COSTS OF ISSUANCE RELATED THERETO.
Section2. DESIGNATION, DENOMINATIONS AND NUMBERS OF BONDS. Each Bond
issued pursuant to this Ordinance shall be designated: "CITY OF WICHITA FALLS, TEXAS WATER
AND SEWER SYSTEM PRIORITY LIEN REVENUE BOND, SERIES 2001 ", and initially there shall
be issued, sold and delivered hereunder fully registered Bonds, with the Bonds being in the respective
Ordinance -3. wpd -2-
denominations and principal amounts set forth in the Certificate of City Manager pursuant to Section 4, with
the Bonds being numbered consecutively from R -1 upward, payable to the initial registered owner thereof
(as hereinafter designated), or to the registered assignee or assignees of said Bonds or any portion or
portions thereof (in each case, the 'Registered Owner ").
Section 3. PRINCIPAL AND INTEREST. The Bonds shall mature and be payable serially on
August 1 in each of the years and in the principal amounts, respectively, as set forth in the Certificate of City
Manager and the Bond Purchase Agreement executed pursuant to Section 4. The Bonds shall bear interest
calculated on the basis of a 360 -day year composed of twelve 30 -day months from the dates specified in
the FORM OF BOND set forth in this Ordinance to their respective dates of maturity at the rates per
annum set forth in the Certificate of City Manager and the Bond Purchase Agreement. Said interest shall
be payable in the manner provided and on the dates stated in the FORM OF BOND set forth in this
Ordinance.
Section4. CERTIFICATE OF CITY MANAGER AND BOND PURCHASE AGREEMENT.
As authorized by Chapter 1371, Government Code, as amended, the City Manager is hereby authorized,
appointed, and designated to act on behalf of the Issuer in selling and delivering the Bonds and carrying out
the other procedures specified in this Ordinance, including detemlining and fixing the date of the Bonds,
any additional designation or title by which the Bonds shall be known, the price at which the Bonds will be
sold, the years in which the Bonds will mature, which shall be not later than August 1, 2031, the principal
amount to mature in each of such years, the aggregate principal amount of the Bonds, the rate of interest
to be borne by each such maturity, the price, the terms upon and at which the Bonds shall be subject to
redemption prior to maturity at the option of the Issuer, as well as any mandatory sinking fund redemption
provisions, and all other matters relating to the issuance, sale, and delivery of the Bonds, all of which shall
be specified in a certificate of the City Manager (the "Certificate of City Manager "). In the event that the
City Manager determines that the Bonds are to be sold with the benefit of one or more municipal bond
insurance policies pursuant to Section 35 or that a Reserve Fund Obligation is to be used to satisfy the
required deposit to the Reserve Fund pursuant to Section 12(g), a finding to that effect shall be included
in the Certificate of City Manager. The City Manager, acting for and on behalf of the Issuer, is authorized
to enter into and cant' out the Bond Purchase Agreement with the Underwriters at such price, with and
subject to such terms as determined as provided above; provided that (i) the price to be paid for the Bonds
shall not be less than 95% of the aggregate original principal amount thereof plus accrued interest thereon
from their date to their delivery, and (ii) none of the Bonds shall bear interest at a rate greater than 8% per
annum or in excess of the maximum rate allowed by law. It is further provided, however, that,
notwithstanding the foregoing provisions, the Bonds shall not be delivered unless prior to delivery, the
Bonds has been rated by a nationally recognized rating agency for municipal securities in one of the four
highest rating categories for long term obligations, as required by Chapter 1371, Government Code, as
amended. The Certificate of City Manager is hereby incorporated in and made a part of this Ordinance
and shall be filed in the minutes of the City Council as a part of this Ordinance. The Bond Purchase
Agreement between the Issuer and Dain Rauscher Incorporated, as the Underwriter shall be in substantially
the form presented to the City Council at the meeting at which this Ordinance was adopted.
Ordinance -3.wpd -3-
Section 5. CHARACTERISTICS OF THE BONDS. (a) Registration. Transfer, and Exchange:
Authentication; Book -Entry Only System. The City shall keep or cause to be kept at the corporate trust
office of Wells Fargo Bank Texas, N.A. (the "Paying Agent/Registrar ") books or records for the
registration of the transfer and exchange of the Bonds (the 'Registration Books "), and the City hereby
appoints the Paying Agent/Registrar as its registrar and transfer agent to keep such books or records and
make such registrations of transfers and exchanges under such reasonable regulations as the City and
Paying Agent/Registrar may prescribe; and the Paying Agent/Registrar shall make such registrations,
transfers and exchanges as herein provided. The Paying Agent/Registrar shall obtain and record in the
Registration Books the address of the registered owner of each Bond to which payments with respect to
the Bonds shall be mailed, as herein provided; but it shall be the duty of each registered owner to notify the
Paying Agent/Registrar in writing of the address to which payments shall be mailed, and such interest
payments shall not be mailed unless such notice has been given. To the extent possible and under
reasonable circumstances, all transfers of Bonds shall be made within three business days after request and
presentation thereof. The City shall have the right to inspect the Registration Books during regular business
hours of the Paying Agent/Registrar, but otherwise the Paying Agent/Registrar shall keep the Registration
Books confidential and, unless otherwise required by law, shall not permit their inspection by any other
entity. The Paying Agent/Regisft&s standard or customary fees and charges for making such registration,
transfer, exchange and delivery of a substitute Bond or Bonds shall be paid as provided in the FORM OF
BOND set forth in this Ordinance. Registration of assignments, transfers and exchanges of Bonds shall
be made in the manner provided and with the effect stated in the FORM OF BOND set forth in this
Ordinance. Each substitute Bond shall bear a letter and/or number to distinguish it from each other Bond.
Except as provided in (e) below, an authorized representative of the Paying Agent/Registrar shall,
before the delivery of any such Bond, date and manually sign the Paying Agent/Regisft&s Authentication
Certificate, and no such Bond shall be deemed to be issued or outstanding unless such Certificate is so
executed. The Paying Agent/Registrar promptly shall cancel all paid Bonds and Bonds surrendered for
transfer and exchange. No additional ordinances, orders, or resolutions need be passed or adopted by the
governing body of the City or any other body or person so as to accomplish the foregoing transfer and
exchange of any Bond or portion thereof, and the Paying Agent/ Registrar shall provide for the printing,
execution, and delivery of the substitute Bonds in the manner prescribed herein. Pursuant to Subchapter
D, Chapter 1201, Texas Government Code, the duty of transfer and exchange of Bonds as aforesaid is
hereby imposed upon the Paying Agent/Registrar, and, upon the execution of said Certificate, the
transferred and exchanged Bond shall be valid, incontestable, and enforceable in the same manner and with
the same effect as the Bonds which initially were issued and delivered pursuant to this Ordinance, approved
by the Attorney General, and registered by the Comptroller of Public Accounts.
(b) Book -Entry Only Sys The Bonds issued in exchange for the Bonds initially issued to the
purchaser specified herein shall be initially issued in the form of a separate single fully registered Bond for
each of the maturities thereof. Upon initial issuance, the ownership of each such Bond shall be registered
in the name of Cede & Co., as nominee of The Depository Trust Company of New York ( "DTC "), and
except as provided in subsection (c) hereof, all ofthe outstanding Bonds shall be registered in the name of
Cede & Co., as nominee of DTC.
Ordinance -3. wpd -4-
With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the City and
the Paying Agent/Registrar shall have no responsibility or obligation to any DTC Participant or to any
person on behalf of whom such a DTC Participant holds an interest on the Bonds. Without limiting the
immediately preceding sentence, the City and the Paying Agent/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 a Bondholder, as shown on the Registration Books, 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 a Bondholder, as shown in the Registration Books of any amount with respect to principal of,
premium, if any, or interest on the Bonds. Notwithstanding any other provision of this Ordinance to the
contrary, the City and the Paying Agent/Registrar shall be entitled to treat and consider the person in whose
name each Bond is registered in the Registration Books as the absolute owner of such Bond for the
purpose of payment of principal, premium, if any, and interest on such Bond, for the purpose of giving
notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers
with respect to such Bond, and for all other purposes whatsoever. The Paying Agent/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 Registration Books as provided in this Ordinance, or their respective attorneys
duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge
the City's obligations with respect to payment of principal of, premium, if any, and interest on the Bonds
to the extent of the sum or sums so paid. No person other than an owner, as shown in the Registration
Books, shall receive a Bond certificate evidencing the obligation of the City to make payments of principal,
premium, if any, and interest pursuant to this Ordinance. Upon delivery by DTC to the Paying
Agent/Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place
ofCede & Co., and subject to the provisions in this Ordinance with respect to interest checks being mailed
to the registered owner at the close of business on the Record Date, the word "Cede & Co." in this
Ordinance shall refer to such new nominee of DTC.
(c) Successor Securities Depository; Transfers Outside Book -Entry Only System In the event
that the City determines to discontinue the use of the Book -Entry Only System through DTC or DTC
determines to discontinue providing its services with respect to the Bonds, the City shall (i) appoint a
successor securities depository, qualified to act as such under Section 17(a) ofthe Securities and Exchange
Act of 1934, as amended, notify DTC and DTC Participants 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 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 Registration Books 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 Bondholders transferring or exchanging Bonds shall designate in
accordance with the provisions of this Ordinance.
(d) Payments to Cede & Co. Notwithstanding any other provision of this Ordinance to the
contrary, so long as any Bond is 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 Bond and all notices with respect to such
Ord inan ce -3. wpd -5-
Bond shall be made and given, respectively, in the manner provided in the representation letter of the City
to DTC.
(e) In General. The Bonds (i) shall be issued in fully registered form, without interest coupons, with
the principal of and interest on such Bonds to be payable only to the registered owners thereof, (ii) may
be transferred and assigned, (iii) may be exchanged for other Bonds, (iv) shall have the characteristics, (v)
shall be signed, sealed, executed and authenticated, (vi) the principal of and interest on the Bonds shall be
payable, (vii) may be redeemed prior to their scheduled maturities, and (viii) shall be administered and the
Paying Agent/Registrar and the City shall have certain duties and responsibilities with respect to the Bonds,
all as provided, and in the manner and to the effect as required or indicated, in the FORM OF BOND set
forth in this Ordinance and in the Certificate of City Manager. The Bonds initially issued and delivered
pursuant to this Ordinance are not required to be, and shall not be, authenticated by the Paying Agent/
Registrar, but on each substitute Bond issued in exchange for any Bond or Bonds issued under this
Ordinance the Paying Agent/Registrar shall execute the PAYING AGENT/REGISTRAR'S
AUTHENTICATION CERTIFICATE, in the form set forth in the FORM OF BOND.
(fl Notices of Redemption and Defeasance. (i) In addition to the Notice of Redemption set forth
in the FORM OF BOND, the City shall give notice of redemption or defeasance to the Paying
Agent/Registrar at least 45 days prior to a redemption date in the case of a redemption and on the
defeasance date in the case of a defeasance and the Paying Agent/Registrar shall give notice of redemption
or of defeasance of Bonds by mail, first -class postage prepaid at least thirty (30) days prior to a redemption
date and within thirty (30) days after a defeasance date to each registered securities depository and to any
national information service that disseminates such notices. In addition, in the event of a redemption caused
by an advance refunding of the Bonds, the Paying Agent/Registrar shall send a second notice of redemption
to the persons specified in the immediately preceding sentence at least thirty (30) days but not more than
ninety (90) days prior to the actual redemption date. Any notice sent to the registered securities
depositories or such national information services shall be sent so that they are received at least two (2)
days prior to the general mailing or publication date of such notice. The Paying Agent/Registrar shall also
send a notice of prepayment or redemption to the registered owner of any Bond who has not sent the
Bonds in for redemption sixty (60) days after the redemption date.
(ii) Each Notice of Redemption or Defeasance, whether required in the FORM OF BOND or in
this Section, shall contain a description of the Bonds to be redeemed or defeased including the complete
name of the Bonds, the Series, the date of issue, the interest rate, the maturity date, the CUSIP number,
the certificate numbers, the amounts called of each certificate, the publication and mailing date for the
notice, the date of redemption or defeasance, the redemption price, if any, the name of the Paying
Agent/Registrar and the address at which the Bonds may be redeemed or paid, including a contact person
and telephone number.
(iii) All redemption payments made by the Paying Agent/Registrar to the registered owners of the
Bonds shall include a CUSIP number relating to each amount paid to such registered owner.
Ordinance -3. wpd -6-
Section 6. PAYING AGENT/REGISTRAR. (a) Payment of Bonds and Interest. The City
hereby further appoints the Paying Agent/Registrar to act as the paying agent for paying the principal of and
interest on the Bonds, all as provided in this Ordinance. The Paying Agent/ Registrar shall keep proper
records of all payments made by the City and the Paying Agent/Registrar with respect to the Bonds.
However, in the event of a nonpayment of interest on a scheduled payment date, and for thirty (30) days
thereafter, a new record date for such interest payment (a "Special Record Date ") will be established by
the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the
City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (the
"Special Payment Date ", which shall be 15 days after the Special Record Date) shall be sent at least five
(5) business days prior to the Special Record Date by United States mail, first -class postage prepaid, to
the address of each Holder of a Bond appearing on the Registration Books of the Paying Agent/Registrar
at the close of business on the last business day next preceding the date of mailing of such notice.
(b) Substitute Paying Agent/Registrar. The City covenants with the registered owners of the Bonds
that at all times while the Bonds are outstanding the City will provide a competent and legally qualified
bank, trust company, financial institution, or other agency to act as and perform the services of Paying
Agent/Registrar for the Bonds under this Ordinance, and that the Paying Agent/Registrar will be one entity.
The City reserves the right to, and may, at its option, change the Paying Agent/Registrar upon not less than
120 days written notice to the Paying Agent/Registrar, effective not later than 60 days prior to the next
principal or interest payment date after such notice. In the event that the entity at any time acting as Paying
Agent/Registrar (or its successor by merger, acquisition, or other method) should resign or otherwise cease
to act as such, the City covenants that promptly it will appoint a competent and legally qualified bank, trust
company, financial institution, or other agency to act as Paying Agent /Registrar under this Ordinance. Upon
any change in the Paying Agent/Registrar, the previous Paying Agent/Registrar promptly shall transfer and
deliver the Registration Books (or a copy thereof j, along with all other pertinent books and records relating
to the Bonds, to the new Paying Agent/Registrar designated and appointed by the City. Upon any change
in the Paying Agent/Registrar, the City promptly will cause a written notice thereof to be sent by the new
Paying Agent/Registrar to each registered owner of the Bonds, by United States mail, first -class postage
prepaid, which notice also shall give the address of the new Paying Agent/Registrar. By accepting the
position and performing as such, each Paying Agent/Registrar shall be deemed to have agreed to the
provisions of this Ordinance, and a certified copy of this Ordinance shall be delivered to each Paying
Agent/Registrar.
Section 7. FORM OF BOND. The form of the Bonds, including the form of Paying
Agent/Registrar's Authentication Certificate, the form of Assignment and the form ofRegistration Certificate
ofthe Comptroller of Public Accounts of the State of Texas to be attached only to the Bonds initially issued
and delivered pursuant to this Ordinance, shall be, respectively, substantially as follows, with such
appropriate variations, omissions, or insertions as are permitted or required by this Ordinance.
Ord innn ce -3. wpd -7-
FORM OF BOND:
R- UNITED STATES OF AMERICA PRINCIPAL
STATE OF TEXAS AMOUNT
COUNTY OF WICHITA
CITY OF WICHITA FALLS, TEXAS
WATER AND SEWER SYSTEM PRIORITY LIEN
REVENUE BOND
SERIES 2001
INTEREST RATE MATURITY DATE
August 1,
REGISTERED OWNER:
PRINCIPAL AMOUNT:
BOND DATE
15, 2001
CUSIP No.
DOLLARS
ON THE MATURITY DATE SPECIFIED ABOVE, THE CITY OF WICHITA FALLS, IN
WICHITA COUNTY, TEXAS, a municipal corporation of the State of Texas (the "Issuer "), hereby
promises to pay to the Registered Owner specified above, or to the registered assignee thereof (either being
hereinafter called the "registered owner ") the Principal Amount specified above and to pay interest thereon,
from the Bond Date specified above to the date of its scheduled maturity or the date of its redemption prior
to scheduled maturity, at the rate of interest per annum specified above, with said interest being payable
on February 1, 2002, and semiannually on each August 1 and February 1 thereafter; except that if this
Bond is required to be authenticated and the date of its authentication is later than the first Record Date
(hereinafter defined), such Principal Amount shall bear interest from the interest payment date next
preceding the date of authentication, unless such date of authentication is after any Record 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 or converted from
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.
THE PRINCIPAL OF AND INTEREST ON this Bond are payable in lawful money of the United
States of America, without exchange or collection charges. The principal of this Bond shall be paid to the
registered owner hereof upon presentation and surrender of this Bond at maturity or upon the date fined
Ordinance -3.wpd -8-
for its redemption prior to maturity, at the corporate office of Wells Fargo Bank Texas, N.A., in Dallas,
Texas which is the "Paying Agent/Registrar" for this Bond. The payment of interest on this Bond shall be
made by the Paying Agent/Registrar to the registered owner hereof on each interest payment date by check
dated as of such interest payment date, drawn by the Paying Agent/Registrar on, and payable solely from,
funds of the Issuer required by the ordinance authorizing the issuance of the Bonds (the 'Bond Ordinance ")
to be on deposit with the Paying Agent/Registrar for such purpose as hereinafter provided; and such check
shall be sent by the Paying Agent/Registrar by United States mail, first class postage prepaid, on each such
interest payment date, to the registered owner hereof, at its address as it appeared at the close of business
on the fifteenth (15th) day of the month next preceding each such date (the 'Record Date ") on the
Registration Books kept by the Paying Agent/Registrar, as hereinafter described. In addition, interest
payments may be made by such other methods, acceptable to the Paying Agent/Registrar, requested by
and at the risk and expense of the registered owner. Any accrued interest due at maturity shall be paid to
the registered owner upon presentation and surrender of this Bond for payment at the principal corporate
trust office of the Paying Agent/Registrar. The Issuer covenants with the registered owner of this Bond that
on or before each principal payment date and interest payment date for this Bond it will make available to
the Paying Agent/Registrar, from the 'Debt Service Fund" created by the Bond Ordinance, the amounts
required to provide for the payment, in immediately available funds, of all principal of and interest on the
Bonds, when due. Notwithstanding the foregoing, during any period in which ownership of the Bonds is
determined by a book entry at a securities depository for the Bonds, payments made to the securities
depository, or its nominee, shall be made in accordance with arrangements between the Issuer and the
securities depository.
IF THE DATE for any payment due on this Bond shall be a Saturday, Sunday, a legal holiday, or
a day on which banking institutions in the city where the principal corporate office of the Paying
Agent/Registrar is located are authorized by law or executive order to close, or the United States Postal
Service is not open for business, then the date for such payment shall be the next succeeding day which is
not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to close,
or the United States Postal Service is not open for business; and payment on such date shall have the same
force and effect as if made on the original date payment was due.
THIS BOND is one of a series of bonds of like tenor and effect except as to number, principal
amount, right of prior redemption and maturity, aggregating $ (herein sometimes called
the 'Bonds "), issued for the purpose of providing funds for capital improvements and capital additions to
the System and to pay the costs of issuance related thereto, all in accordance with the Constitution and laws
of the State of Texas, particularly Chapters 1371 and 1502, Government Code, as amended, and the
Charter of the Issuer and pursuant to the Bond Ordinance. The Bonds are issuable solely as fully registered
bonds, without interest coupons, in the denomination of any integral multiple of $5,000. Capitalized terns
used in this Bond and not otherwise defined shall have the meaning given in the Bond Ordinance.
THE ISSUER reserves the right to redeem the Bonds maturing on and after August 1, in
whole or in part in principal amounts of $5,000 or integral multiples thereof on any date on and after
Ordinance -3. wpd -9-
August 1, , at the redemption price equal to the principal amount thereofplus accrued interest to the
redemption date. If less than all of the Bonds of a maturity are to be redeemed, the Issuer shall determine
the maturity or maturities and the amounts thereof to be redeemed and shall direct the Paying
Agent/Registrar to call by lot Bonds, or portions thereof, within such maturity or maturities and in such
principal amounts, for redemption; provided that during any period in which ownership of the Bonds is
determined by a book entry at a securities depository for the Bonds, if fewer than all of the Bonds of the
same maturity and bearing the same interest rate are to be redeemed, the particular Bonds of such maturity
and bearing such interest rate shall be selected in accordance with the arrangements between the Issuer and
the securities depository.
[Insert provisions regarding mandatory redemption of term bonds if applicable.}
AT LEAST 30 days prior to the date fixed for any redemption of Bonds or portions thereof prior
to maturity, the Issuer shall cause a written notice of such redemption to be sent by the Paying
Agent/Registrar by United States mail, fast -class postage prepaid, to the registered owner of each Bond
to be redeemed at its address as it appeared on the Registration Books on the business day next preceding
the date of mailing such notice; provided, however, that the failure to send, mail or receive such notice, or
any defect therein or in the sending or mailing thereof, shall not affect the validity or effectiveness of the
proceedings for the redemption of any Bond, and it is hereby specifically provided that the delivery of such
notice to the Paying Agent Registrar as required by the Bond Ordinance shall be the only notice actually
required in connection with or as a prerequisite to the redemption of any Bonds or portions thereof. By
the date fixed for any such redemption, due provision shall be made with the Paying Agent/Registrar for
the payment of the required redemption price for the Bonds or portions thereof which are to be so
redeemed. If such notice of redemption is given and if due provision for such payment is made, all as
provided above, the Bonds or portions thereof which are to be so redeemed thereby automatically shall
be treated as redeemed prior to their scheduled maturities, and they shall not bear interest after the date
fixed for redemption, and they shall not be regarded as being outstanding except for the right of the
registered owner to receive the redemption price from the Paying Agent/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 principal amount
equal to the unredeemed portion thereof, will be issued to the registered owner upon the surrender thereof
for cancellation, at the expense of the Issuer, all as provided in the Bond Ordinance.
ALL BONDS OF THIS SERIES are issuable solely as fully registered Bonds, without interest
coupons, in the denomination of any integral multiple of $5,000. As provided in the Bond Ordinance, this
Bond may, at the request of the registered owner or the assignee or assignees hereof, be assigned,
transferred and exchanged for a like aggregate amount of fully registered Bonds, without interest coupons,
payable to the appropriate registered owner, assignee or assignees, as the case may be, having any
authorized denomination or denominations as requested in writing by the appropriate registered owner,
assignee or assignees, as the case may be, upon surrender of this Bond to the Paying Agent/Registrar for
Ordinance -3. wpd -10-
cancellation, all in accordance with the form and procedures set forth in the Bond Ordinance. Among other
requirements for such assignment and transfer, this Bond must be presented and surrendered to the Paying
Agent/Registrar, together with proper instruments of assignment, in form and with guarantee of signatures
satisfactory to the Paying Agent/Registrar, evidencing assignment of this Bond or any portion or portions
hereof in any authorized denomination to the assignee or assignees in whose name or names this Bond or
any such portion or portions hereof is or are to be registered. The Form of Assignment printed or endorsed
on this Bond may be executed by the registered owner to evidence the assignment hereof, but such method
is not exclusive, and other instruments of assignment satisfactory to the Paying Agent/Registrar may be used
to evidence the assignment of this Bond or any portion or portions hereof from time to time by the
registered owner. The Issuer shall pay the Paying Agent/Registrar's reasonable standard or customary fees
and charges for transferring and exchanging any Bond or portion thereof. Any taxes or governmental
charges required to be paid with respect thereto shall be paid by the one requesting such assignment,
transfer or exchange, as a condition precedent to the exercise of such privilege. The Paying
Agent/Registrar shall not be required to make any such transfer or exchange with respect to any Bond or
any portion thereof called for redemption prior to maturity, within 45 days prior to its redemption date;
provided, however, such limitation of transfer shall not be applicable to an exchange by the Registered
Owner of an unredeemed balance of a Bond called for redemption in part.
WHENEVER the beneficial ownership of this Bond is determined by a book entry at a securities
depository for the Bonds, the foregoing requirements of holding, delivering, or transferring this Bond shall
be modified to require the appropriate person or entity to meet the requirements ofthe securities depository
as to registering or transferring the book entry to produce the same effect.
IN THE EVENT any Paying Agent/Registrar for the Bonds is changed by the Issuer, resigns, or
otherwise ceases to act as such, the Issuer has covenanted in the Ordinance that it promptly will appoint
a competent and legally qualified substitute therefor, and promptly will cause written notice thereof to be
mailed to the registered owners of the Bonds.
BY BECOMING the registered owner of this Bond, the registered owner thereby acknowledges
all of the terms and provisions of the Bond Ordinance, agrees to be bound by such terms and provisions,
acknowledges that the Bond Ordinance is duly recorded and available for inspection in the official minutes
and records of the Issuer, and agrees that the terms and provisions of this Bond and the Bond Ordinance
constitute a contract between each registered owner hereof and the Issuer. The Issuer has reserved the
rights in the Bond Ordinance to issue additional parity obligations to the Bonds and to amend the provisions
of the Bond Ordinance under the conditions set forth in the Bond Ordinance.
THE BONDS are special obligations of the Issuer payable, together with the Issuer's Series 1995
Bonds, Series 1996 Bonds, and Series 1998B Bonds, solely from and equally secured by a first lien on
and pledge of the "Pledged Revenues" ofthe Issuer's combined Water and Sewer System on a parity with
the Series 1995 Bonds, the Series 1996 Bonds, and the Series 1998B Bonds.
Ordinance - i, wpd -11-
THE REGISTERED OWNER HEREOF shall never have the right to demand payment of this
obligation out of any funds raised or to be raised by taxation.
IT IS HEREBY certified, recited, and covenanted that this Bond has been duly and validly
authorized, issued, and delivered; that all acts, conditions, and things required or proper to be performed,
exist, and be done precedent to or in the authorization, issuance, and delivery of this Bond have been
performed, existed, and been done in accordance with law.
IN TESTIMONY WHEREOF, the City Council of the City of Wichita Falls, Texas, has caused
the seal of the Issuer to be impressed or a facsimile thereof to be printed hereon, and this Bond to be
executed with the manual or imprinted facsimile signatures of the Mayor and City Clerk of the Issuer.
CITY OF WICHITA FALLS, TEXAS
7
By: '1%
ayor, , ity of Wichita Falls, Texas
COUNTERSIGNED:
City of Wichita Falls, Texas
Ordinance -1 wpd -12-
[FORM OF PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE]
PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond has been issued under the provisions of the Bond Ordinance
described on the face of this Bond; and that this Bond has been issued in exchange for or replacement of
a bond, bonds, or a portion of a bond or bonds of an issue which 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
Wells Fargo Bank Texas, N.A., , Texas
Paying Agent/Registrar
Orelinan ce -3. wpd —13—
Authorized Representative
[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:
NOTICE: Signatures must be guaranteed by an
eligible guarantor institution participating in a
Securities Transfer Association recognized
signature guarantee program.
Ordinance -3. wpd -14-
NOTICE: The signature above must correspond
with the name of the registered owner as it
appears upon the front of this Bond in every
particular, without alteration or enlargement or
any change whatsoever.
[FORM OF COMPTROLLER'S CERTIFICATE ATTACHED TO
THE BONDS UPON INITIAL DELIVERY THEREOF]
OFFICE OF COMPTROLLER
REGISTER NO.
STATE OF TEXAS
I hereby certify that there is on file and of record in my office a certificate of the Attorney General
of the State of Texas to the effect that this Bond has been examined by him as required by law, and that
he finds that it has been issued in conformity with the Constitution and laws of the State of Texas, and that
it is a valid and binding special obligation of the City of Wichita Falls, Texas, payable in the manner
provided by and in the ordinance authorizing same, and said Bond has this day been registered by me.
(SEAL)
WITNESS MY HAND and seal of office at Austin, Texas
Comptroller of Public Accounts of
the State of Texas
[FORM OF INSURANCE LEGEND]
** *END OF BOND FORM * **
Ordinance -3. wpJ -15-
Section 8. DEFINITIONS. That, as used in this Ordinance, the following terms shall have the
meanings set forth below, unless the text hereof specifically indicates otherwise:
(a) The term "Accountant" shall mean a nationally recognized independent certified public
accountant, or an independent firm of certified public accountants.
(b) The term "Additional Priority Bonds" shall mean the additional revenue bonds on a parity
with the Bonds and the Series 1995 Bonds, the Series 1996 Bonds, and the Series 1998B Bonds which
the City reserves the right to issue in the future, as provided in this Ordinance.
(c) The term "Additional Subordinate Lien Bonds" shall mean the additional revenue bonds on
a panty with the Series 1996 Subordinate Lien Bonds, the Series 1998 Subordinate Lien Bonds, and the
Series 1998A Subordinate Lien Bonds which the City reserves the right to issue in the future, as provided
in this Ordinance.
(d) The term "Amortization Installment" shall mean the amount of money which is required for
retirement of Term Bonds (whether at maturity or by mandatory redemption and including redemption
premium, if any).
(e) The term "Average Annual Principal and Interest Requirements" shall mean that amount
equal to the average annual principal and interest requirements (including Amortization Installments) of all
the Priority Bonds, including any Additional Priority Bonds, and Subordinate Lien Bonds, as the case may
be, outstanding. With respect to Additional Priority Bonds or Subordinate Lien Bonds, as the case may
be, that bear interest at a rate which is not established at the time of issuance at a single numerical rate for
each maturity of such series, Average Annual Principal and Interest Requirements shall be calculated by
(i) assuming that the interest rate for every 12 -month period on such bonds is equal to the rate of interest
reported in the most recently published edition of The Bond Buyer (or its successor) at the time of
calculation as the Revenue Bond Index or, if such Revenue Bond Index is no longer being maintained by
The Bond Buyer (or its successor) at the time of calculation, such interest rate shall be assumed to be 80%
of the rate of interest then being paid on United States Treasury Obligations of like maturity, and (ii) that
the principal of such bonds is amortized such that annual debt service is substantially level over the
remaining stated life of the bonds.
M The term "Bonds" shall mean, collectively, the Bonds initially issued and delivered pursuant
to this Ordinance and all substitute obligations exchanged therefor, as well as all other substitute bonds and
replacement bonds issued pursuant hereto, and the term 'Bond" shall mean any of the Bonds.
(g) The term "Bond Insurance Policy" shall mean an insurance policy issued by a Bond Insurer
insuring or guaranteeing the payment of principal of and interest on any Priority Bonds.
Ordinance -1 wpd -16-
(h) The term "Bond Insurer" shall mean an entity that insures or guarantees the payment of
principal of and interest on any of the Priority Bonds.
(i) The term "Capital Additions" shall mean a reservoir or an interest therein, a water treatment
plant or an interest therein and a wastewater treatment plant or an interest therein and associated
transmission facilities with respect to each and any combination thereof, which shall become a part of the
System.
0) The term "Capital Improvements" shall mean any capital extensions, improvements and
additions to the System other than Capital Additions.
(k) The terms "City" and "Issuer" shall mean the City of Wichita Falls, in Wichita County,
Texas.
0) The term "Credit Facility" shall mean a Bond Insurance Policy, a surety bond (including any
supporting Insurance Agreement), or a letter or line of credit issued in support of the Priority Bonds and
Subordinate Lien Bonds by a Credit Facility Provider at the request of the City.
(m) The term "Credit Facility Provider" shall mean (i) with respect to any Credit Facility
consisting of a policy of municipal bond insurance or a surety bond, an issuer of policies of insurance
insuring the timely payment of debt service on governmental obligations such as the Bonds, provided that
a Rating Agency having an outstanding rating on the Bonds would rate the Bonds upon delivery of the
Bonds fully insured by a standard policy issued by the issuer in its highest generic rating category for such
obligations; and (ii) with respect to any Credit Facility consisting of a letter or line of credit, any financial
institution, provided that a Rating Agency having an outstanding rating on the Bonds would rate the Bonds
in one of its two highest generic rating categories for such obligations if the letter or line of credit proposed
to be issued by such financial institution secured the timely payment of the entire principal amount of the
series of Bonds and the interest thereon.
(n) The term "Credit Obligation" shall mean, to the extent permitted by law, any obligation of
the City under a contract, lease, installment sales agreement, or other instrument, with another entity to
make payments out of revenues of the System for power, energy, water or other property, services or
commodities for the benefit of the System, on a basis that such must be paid for whether or not the same
are made available, furnished or received and whether or not the entity selling such services or commodities
is amortizing its capital costs with such payments.
(o) The term "DTC" shall mean The Depository Trust Company of New York, New York,
New York, or any successor securities depository.
Ordinance -3.wpd -17-
(p) The term "DTC Participant" shall mean securities 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.
(q) The term "Engineer of Record" shall mean the independent engineer or firm at the time
employed by the City to perform and carry out the duties imposed on such engineer or firm by this
Ordinance and having a favorable reputation nationally for skill and experience in the engineering of water
and sewer systems of comparable size and character as those forming parts of the System.
(r) The term "Fitch" means Fitch Investors Service, L.P., its successors and their assigns, and,
if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities
rating agency, Fitch shall be deemed to refer to any other nationally recognized securities rating agency
designated by the Issuer.
(s) The term "Gross Revenues" shall mean all revenues, income, and receipts of every nature
derived or received by the City from the operation and ownership of the System (other than grants,
contributions in aid of construction, and meter deposits and amounts received pursuant to the Water Supply
Contract between the City and West Texas Utilities dated January 1, 1977), including the interest income
from the investment or deposit of money in any Fund created by this Ordinance, or maintained by the City
in connection with the System.
(t) The term "Insurance Agreement" shall mean an agreement between the City and the Bond
Insurer respecting a municipal bond debt service reserve insurance policy constituting a Reserve Fund
Obligation.
(u) The term "Insurance Policy" shall mean the insurance policy issued by the Insurer
guaranteeing the scheduled payment of principal of and interest on the Bonds when due.
(v) The term "Insurer" shall mean , a New York stock insurance
company, or any successor thereto or assignee thereof. The Insurer shall be deemed to be a third party
beneficiary to this Ordinance.
(w) The term "MSRB" shall mean the Municipal Securities Rulemaking Board.
(x) The term " Moody's" shall mean Moody's Investors Service, Inc., its successors and their
assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, Moody's shall be deemed to refer to any other nationally recognized securities
rating agency designated by the City.
Ordinance-1 wpd -18-
(y) The term "NRMSIR" shall mean each person whom the SEC or its staff has determined
to be a nationally recognized municipal securities information repository within the meaning of the Rule from
time to time.
(z) The term "Net Revenues of the City's Combined Water and Sewer System ", and "Net
Revenues" shall mean all Gross Revenues less Operating Expenses.
(aa) The term "Operating Expenses" shall mean the expenses of operation and maintenance of
the System, including all salaries, labor, materials, repairs, and extensions necessary to render efficient
service, provided, however, that only such repairs and extensions, as in the judgment of the City,
reasonably and fairly exercised by the passage of appropriate ordinances, are necessary to render adequate
service, or such as might be necessary to meet some physical accident or condition which would otherwise
impair the Priority Bonds or Subordinate Lien Bonds. Operating Expenses shall include the purchase of
electric power, water and sewer services as received from other entities and the expenses related thereto,
and, to the extent permitted by law, Operating Expenses may include payments made on or in respect of
Credit Obligations. Depreciation, and payments from the System Fund to other funds established in this
Ordinance, shall never be considered as expenses of operation and maintenance.
(bb) The term "Paying Agent/Registr&' shall mean the financial institution specified in
Section 5(a) hereof, or its herein permitted successors and assigns;
(cc) The term "Pledged Revenues" shall mean
(1) the Net Revenues, plus
(2) any additional revenues, income, receipts, or other resources, including, without
limitation, any grants, donations, or income received or to be received from the United
States Government, or any other public or private source, whether pursuant to an
agreement or otherwise, which hereafter are pledged to the payment of the Priority Bonds
and Subordinate Lien Bonds.
(dd) The term "Priority Bonds" shall mean the Series 1995 Bonds, the Series 1996 Bonds, the
Series 1998B Bonds, the Bonds, and any Additional Priority Bonds hereafter issued which are secured by
a first lien on the Net Revenues.
(ee) The term "Priority Ordinance" or "Priority Bond Ordinance" shall mean collectively the
ordinances authorizing the Priority Bonds and the ordinance authorizing the Series 1986 Bonds.
(fl) The term "Prudent Utility Practice" shall mean any of the practices, methods and acts, in
the exercise of reasonable judgment, in the light of the facts, including but not limited to the practices,
methods and acts engaged in or approved by a significant portion of the public utility industry prior thereto,
Ordinance -3. wpd -19-
known at the time the decision was made, would have been expected to accomplish the desired result at
the lowest reasonable cost consistent with reliability, safety and expedition. It is recognized that Prudent
Utility Practice is not intended to be limited to the optimum practice, method or act at the exclusion of all
others, but rather is a spectrum of possible practices, methods or acts which could have been expected to
accomplish the desired result at the lowest reasonable cost consistent with reliability, safety and expedition.
In the case of any facility included in the System which is owned in common with one or more other entities,
the term "Prudent Utility Practice ", as applied to such facility, shall have the meaning set forth in the
agreement governing the operation of such facility.
(gg) The term "Rating Agencies "shall mean S &P, Moody's and/or Fitch according to which of
such rating agencies then rates the Priority Bonds of the applicable series; and provided that if neither of
such rating agencies then rates the Priority Bonds of such series, the term "Rating Agencies" shall refer to
any national rating agency (if any) which provides such rating.
(hh) The term "Required Amount" shall mean an amount equal to the Average Annual Principal
and Interest Requirements of the outstanding Priority Bonds and Subordinate Lien Bonds.
(ii) The term "Reserve Fund Obligation" shall mean a Credit Facility satisfying the requirements
of Section 12 which is deposited in the Reserve Fund to meet all or part of the Required Amount as
provided in Section 12.
(b) The term "Rule" shall mean SEC Rule 15c2 -12, as amended from time to time.
(kk) The term "S &P" shall mean Standard & Poor's Ratings Services, A Division of The
McGraw -Hill Companies, Inc., its successors and their assigns, and, if such corporation shall be dissolved
or liquidated or shall no longer perform the functions of a securities rating agency, S &P shall be deemed
to refer to any other nationally recognized securities rating agency designated by the City by notice to the
Trustee.
(ll) The term "SEC" shall mean the United States Securities and Exchange Commission.
(mm) The term "Series 1986 Bonds" shall mean the City of Wichita Falls, Texas Water and
Sewer System Refunding Revenue Bonds, Series 1986, the initial series of Priority Bonds issued. The
Series 1986 Bonds are no longer outstanding.
(nn) The term "Series 1995 Bonds" shall mean the City of Wichita Falls, Texas Water and
Sewer System Refunding Revenue Bonds, Series 1995.
(oo) The term "Series 1996 Bonds" shall mean the City of Wichita Falls, Texas Water and
Sewer System Refunding Revenue Bonds, Series 1996.
Ordinance -3. wpd -20-
(pp) The term "Series 1996 Subordinate Lien Bonds" shall mean the City of Wichita Falls, Texas
Water and Sewer System Subordinate Lien Revenue Bonds, Series 1996.
(qq) The term "Series 1998 Subordinate Lien Bonds" shall mean the City of Wichita Falls, Texas
Water and Sewer System Subordinate Lien Revenue Bonds, Series 1998.
(rr) The term "Series 1998A Subordinate Lien Bonds" shall mean the City of Wichita Falls,
Texas Water and Sewer System Subordinate Lien Revenue Bonds, Series 1998A.
(ss) The term "Series 1998B Bonds" shall mean the City of Wichita Falls, Texas Water and
Sewer System Priority Lien Revenue Bonds, Series 1998B.
(tt) The term "SID" shall mean any person designated by the State of Texas or an authorized
department, officer, or agency thereof as, and determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
(uu) The term "Subordinated Obligations" shall mean any bonds, notes, or other obligations
issued pursuant to law payable in whole or in part from the Pledged Revenues and subordinate to the
Priority Bonds and Subordinate Lien Bonds.
(w) The term "Subordinate Lien Bonds" shall mean the Series 1996 Subordinate Lien Bonds,
the Series 1998 Subordinate Lien Bonds, the Series 1998A Subordinate Lien Bonds, and all revenue
bonds which from time to time may hereafter be issued and incurred on a parity therewith in accordance
with the provisions of Section 21 hereof, and secured in whole or in part by a lien on and pledge of the
Pledged Revenues subordinate only to the Priority Bonds.
(ww) The term "System" shall mean and include the City's existing combined waterworks system
and sewer system, together with all future extensions, improvements, enlargements, and additions thereto,
and all replacements thereof-, provided that, notwithstanding the foregoing, and to the extent now or
hereafter authorized or permitted by law, the term System shall not include any water or sewer facilities
which are declared by the City not to be a part of the System and which are hereafter acquired or
constructed by the City with the proceeds from the issuance of "Special Facilities Bonds ", which are hereby
defined as being special revenue obligations of the City which are not secured by or payable from the
Pledged Revenues, but which are secured by and payable solely from special contract revenues or
payments received from the System, any other legal entity, or any combination thereof, in connection with
such facilities; and such revenues or payments shall not be considered as or constitute Gross Revenues of
the System, unless and to the extent otherwise provided in the ordinance or ordinances authorizing the
issuance of such "Special Facilities Bonds ".
(xx) The term "Tenn Bonds" means Bonds so designated in the Certificate of City Manager.
Ordinance -3. wpd -21-
(yy) The term "Value of Investment Securities" and words of like import shall mean the
amortized value thereof, provided, however, that all United States of America, United States Treasury
Obligations - -State and Local Government Series shall be valued at par and those obligations which are
redeemable at the option of the holder shall be valued at the price at which such obligations are then
redeemable. The computations made under this paragraph shall include accrued interest on the investment
securities paid as a part of the purchase price thereof and not collected. For the purposes of this definition
"amortized value ", when used with respect to a security purchased at par means the purchase price of such
security and when used with respect to a security purchased at a premium above or discount below par,
means as of any subsequent date of valuation, the value obtained by dividing the total premium or discount
by the number of interest payment dates remaining to maturity on any such security after such purchase and
by multiplying the amount as calculated by the number of interest payment dates having passed since the
date of purchase and (i) in the case of a security purchased at a premium, by deducting the product thus
obtained from the purchase price, and (ii) in the case of a security purchased at a discount, by adding the
product thus obtained to the purchase price.
(zz) The term "Year" shall mean the regular fiscal year used by the City in connection with the
operation of the System, which may be any twelve consecutive months period established by the City.
Section 9. PLEDGE. That the Priority Bonds are and shall be secured by and payable from a first
lien on and pledge of the Pledged Revenues including such revenues within the System Fund and the funds
hereinafter created in this Ordinance; and the Pledged Revenues are further pledged to the establishment
and maintenance of the Debt Service Fund and the Reserve Fund as hereinafter provided. The Priority
Bonds are and will be secured by and payable only from the Pledged Revenues, and are not secured by
or payable from a mortgage or deed of trust on any properties, whether real, personal, or mixed,
constituting the System.
Section 10. SYSTEM FUND. That there shall continue to be established and maintained on the
books of the City, and accounted for separate and apart from all other funds of the City, a special fund to
be entitled the "City of Wichita Falls Water and Sewer Fund" (the "System Fund "). All Gross Revenues
shall be credited to the System Fund immediately upon receipt, unless otherwise provided in this
Ordinance. All current expenses of operation and maintenance of the System shall be paid from such Gross
Revenues credited to the System Fund as a first charge against same. Before making any deposits
hereinafter required to be made from the System Fund, the City shall retain in the System Fund at all times
an amount at least equal to one -sixth of the amount budgeted for the then current fiscal year for the current
operation and maintenance expenses of the System.
Section 11. DEBT SERVICE FUND. (a) That for the sole purpose of paying the principal
amount of, premium, if any, and interest on all Priority Bonds or Subordinate Lien Bonds, as the same come
due, there shall continue to be established and maintained on the books of the City a separate fund to be
entitled the "City of Wichita Falls, Texas Water and Sewer Revenue Bonds Debt Service Fund"
Ordinance -3. wpd -22-
(hereinafter called the "Debt Service Fund "). Monies in said Fund shall be deposited and maintained in an
official depository bank of the City.
(b) That within the Debt Service Fund there has been established the Capitalized Interest Account.
The proceeds of Priority Bonds and Subordinate Lien Bonds representing Capitalized Interest may be
deposited into the Capitalized Interest Account. On or before the day next preceding any interest payment
date of bonds for which any interest has been capitalized, the City shall use the monies in the Capitalized
Interest Account to pay such interest to the extent of the amounts therein representing such capitalized
interest.
Section 12. RESERVE FUND. (a) That there shall continue to be established and maintained on
the books of the City a separate fund to be entitled the "City of Wichita Falls, Texas Water and Sewer
Revenue Bonds Reserve Fund" (hereinafter called the "Reserve Fund "). Monies in said Fund shall be used
solely for the purpose of retiring the last of any Priority Bonds or Subordinate Lien Bonds as they become
due or paying principal of and interest on any Priority Bonds or Subordinate Lien Bonds when and to the
extent the amounts in the Debt Service Fund are insufficient for such purpose. The Reserve Fund shall be
maintained in an amount equal to the Average Annual Principal and Interest Requirements of the
outstanding Priority Bonds and Subordinate Lien Bonds (the 'Required Amount "). The City may, at its
option, withdraw and transfer to the System Fund, all surplus in the Reserve Fund over the Required
Amount. Monies in said Fund shall be deposited and maintained in an official depository bank of the City.
(b) For purposes of calculating the amount on hand in the Reserve Fund, an amount equal to the
maximum available amount which may be drawn under any Reserve Fund Obligation, as described in (0
below, will be deemed on deposit in the Reserve Fund. If a Reserve Fund Obligation is used as provided
above, any reimbursements required thereunder to be paid to a Credit Facility Provider as a result of a
draw or demand thereunder and any interest thereon and expenses payable thereunder shall be made, as
provided in the Reserve Fund Obligation, from moneys deposited into the Reserve Fund until fully paid.
If it becomes necessary to pay interest on or principal of any Priority Bonds or Subordinate Lien Bonds
from the Reserve Fund, money and investments held for the credit of the Reserve Fund shall be utilized first
for such purpose, before any demand or draw is made on a Reserve Fund Obligation.
(c) Once the Required Amount has been accumulated, no further deposits shall be made into the
Reserve Fund as long as the money and investments, together with any Reserve Fund Obligation, in the
Reserve Fund are at least equal in market value to the Required Reserve; but if and whenever the market
value of money and investments, together with any Reserve Fund Obligation, in the Reserve Fund is
reduced below said Required Amount because of a decrease in market value of investments, then the City
shall, as soon as practicable, and in all events by the end of the next Fiscal Year, make deposits into the
Reserve Fund in an amount sufficient to restore the Reserve Fund to the Required Amount; and in the event
the Reserve Fund is used to pay the principal of or interest on the Priority Bonds or Subordinate Lien
Bonds because of insufficient amounts being available in the Debt Service Fund, then the City shall deposit
in the Reserve Fund, in approximately equal periodic installments, not less than annually, such amounts as
Ord inan ce -3. wpd -23-
are required to restore the Reserve Fund to the Required Amount in market value as soon as practicable,
but in any case, within five years from any date of the use of the Reserve Fund to pay such principal or
interest.
(d) Upon the issuance of Additional Priority Bonds or Additional Subordinate Lien Bonds the
Required Amount will automatically be adjusted as of the date of delivery of the Additional Priority Bonds
or Subordinate Lien Bonds to take into account the revised Average Annual Principal and Interest
Requirements. Each ordinance pursuant to which Additional Priority Bonds and Additional Subordinate
Lien Bonds are issued shall provide and require that (i) the aggregate amount to be accumulated and
maintained in the Reserve Fund shall be increased (if and to the extent necessary) to the Required Amount
required after the issuance of such Priority Bonds or Subordinate Lien Bonds; and (ii) the required
additional amount, if any, shall be so accumulated by the deposit in the Reserve Fund of all of said required
additional amount in cash or a Reserve Fund Obligation immediately after the delivery of the then proposed
Additional Priority Bonds and Subordinate Lien Bonds.
(e) Notwithstanding any other provisions of this Ordinance, an equivalent Reserve Fund Obligation
may be substituted by the City at any time and from time to time for all or any part of the money and/or
investments held for the credit of the Reserve Fund, and such money and/or investments may be withdrawn
and used for any lawful purpose, provided, however, that to the extent such funds were derived from the
proceeds of Priority Bonds or Subordinate Lien Bonds, such funds may only be withdrawn and either (i)
deposited into the Debt Service Fund or (ii) applied for a purpose for which such Priority Bonds or
Subordinate Lien Bonds were originally issued.
(f) A Reserve Fund Obligation permitted under (b), above, must be a Credit Facility in the form
of a surety bond, insurance policy, or letter of credit meeting the requirements described in this subsection
(f) below.
(1) A surety bond or insurance policy issued to the City or other party, as agent of the
registered owners, by a company licensed to issue an insurance policy guaranteeing the timely
payment of debt service on the Priority Bonds and Subordinate Lien Bonds (a "municipal bond
insurer ") if the claims paying ability of the issuer thereof shall be rated by at least two of the
following rating agencies in the indicated rating categories, to -wit, "AAA" by S &P or Fitch or
"Aaa" by Moody's.
(2) A surety bond or insurance policy issued to the City or other party, as agent of the
registered owners, guaranteeing the timely payment of debt service on the Priority Bonds and
Subordinate Lien Bonds by an entity other than a municipal bond insurer, if the form and substance
of such instrument and the issuer thereof shall be approved in writing by each Bond Insurer of
record.
Ordinance -3. wpd -24-
(3) An unconditional irrevocable letter of credit securing the payment of debt service on
the Priority Bonds and the Subordinate Lien Bonds issued to the City or other party, as agent of
the registered owners, by a bank if the issuer thereof is rated by at least two of the following rating
agencies in the indicated rating categories, to -wit, at least "AA" by S &P or Fitch or "Aa" by
Moody's. The letter of credit shall be payable in one or more draws upon presentation by the City
or other party of a sight draft accompanied by its certificate (which must be satisfactory in form and
substance to the City or other party and the issuer of the letter of credit) that the City then holds
insufficient funds to make a required payment of principal or interest on the Priority Bonds and
Subordinate Lien Bonds. The draws shall be payable within two days of presentation of the sight
draft. The letter of credit shall be for a term of not less than three years and shall be subject to an
"evergreening" feature so as to provide the City with at least 30 months notice of termination. The
issuer of the letter of credit shall be required to notify the City not later than 30 months prior to the
stated expiration date of the letter of credit, as to whether such expiration date shall be extended,
and if so, shall indicate the new expiration date. If such notice indicates that the expiration date
shall not be extended, the City shall deposit in the Reserve Fund, in accordance with this section,
an amount sufficient to cause the money or investments on deposit in the Reserve Fund, together
with any other qualifying Reserve Fund Obligations, to accumulate to the Required Reserve, unless
the expired Reserve Fund Obligation is replaced by a Reserve Fund Obligation meeting the
requirements in any of 1 through 3, above. The letter of credit shall permit a draw in full prior to
the expiration or termination of such letter of credit if the letter of credit has not been replaced or
renewed. The City or other party shall draw upon the letter of credit prior to its expiration or
termination unless an acceptable replacement is in place or the Reserve Fund is fully funded to the
Required Amount.
(4) The obligation to reimburse the issuer of a Reserve Fund Obligation for any expenses,
claims, or draws upon such Reserve Fund Obligation, including interest thereon, shall be made from
the deposits made to the Reserve Fund as provided in this section and in accordance with the
provisions of the Reserve Fund Obligation. The Reserve Fund Obligation shall provide for a
revolving feature under which the amount available thereunder will be reinstated to the extent of any
reimbursement of draws or claims paid. If the revolving feature is suspended or terminated for any
reason, the right of the issuer of the Reserve Fund Obligation to reimbursement will be
subordinated to the cash replenishment of the Reserve Fund to an amount equal to the difference
between the full original amount available under the Reserve Fund Obligation and the amount then
available for further draws or claims. In the event (a) the issuer of a Reserve Fund Obligation
becomes insolvent, or (b) the issuer of a Reserve Fund Obligation defaults in its payment
obligations thereunder, or (c) the claims paying ability of the issuer of the insurance policy or surety
bond falls below "AAA" by S &P or Fitch or "Aaa" by Moody's, or (d) the rating ofthe issuer of
the letter of credit falls below "AA" by S &P or Fitch or "Aa" by Moody's, the obligation to
reimburse the issuer of the Reserve Fund Obligation shall be subordinate to the cash replenishment
of the Reserve Fund.
Ordinance -3. wpd -25-
(5) In the event (a) the revolving reinstatement feature described in the preceding
paragraph is suspended or terminated, or (b) the rating of the claims paying ability of the issuer of
the surety bond or insurance policy falls below "AAA" by S &P or Fitch or "Aaa" by Moody's, or
(c) the rating of the issuer of the letter of credit falls below "AA" by S &P or Fitch or "Aa" by
Moody's, the City shall either (i) deposit into the Reserve Fund, in accordance with this section,
an amount sufficient to cause the money or investments on deposit in the Reserve Fund to
accumulate to the Required Reserve, or (ii) replace such instrument with a surety bond, insurance
policy, or letter of credit meeting the requirements in any of 1 through 3, above, within six months
of such occurrence. In the event (a) the rating of the claims - paying ability of the issuer of the surety
bond or insurance policy falls below "A" by S &P, Moody's or Fitch, or (b) the rating of the issuer
of the letter of credit falls below "A" by S &P, Moody's or Fitch, or (c) the issuer of the Reserve
Fund Obligation defaults in its payment obligations hereunder, or (d) the issuer of the Reserve Fund
Obligationbecomes insolvent, the City shall either (i) deposit into the Reserve Fund, in accordance
with this section, an amount sufficient to cause the money or investments on deposit in the Reserve
Fund to accumulate to the Required Amount, or (ii) replace such instrument with a surety bond,
insurance policy, or letter of credit meeting the requirements in any of 1 through 3 above within six
months of such occurrence.
(6) Where applicable, the amount available for draws or claims under a Reserve Fund
Obligation may be reduced by the amount of money or investments deposited in the Reserve Fund
pursuant to clause (i) of the preceding subparagraph 5.
(7) The City shall ascertain the necessity for a claim or draw upon any Reserve Fund
Obligation and provide notice to the issuer of the Reserve Fund Obligation in accordance with its
terms not later than three days (or such appropriate time period as will, when combined with the
timing of required payment under the Reserve Fund Obligation, ensure payment under the Reserve
Fund Obligation on or before the interest payment date) prior to each interest payment date.
(8) Cash on deposit in the Reserve Fund shall be used (or investments purchased with
such cash shall be liquidated and the proceeds applied as required) prior to any drawing on any
Reserve Fund Obligation. If and to the extent that more than one Reserve Fund Obligation is
deposited in the Reserve Fund, drawings thereunder and repayments of costs associated therewith
shall be made on a pro rata basis, calculated by reference to the maximum amounts available
thereunder.
(g) In connection with the issuance of the Bonds and the increased amount of the Required Amount
for the Reserve Fund, the City Manager shall determine whether the use of proceeds of the Bonds or a
Reserve Fund Obligation would be the most economically advantageous to the City. The City Manager
is hereby authorized to sign a commitment letter with the issuer of the Reserve Fund Obligation and to pay
the premium for the Reserve Fund Obligation at the time of the delivery of the Bonds to the Underwriter
out of the proceeds of sale of the Bonds or from other legally available funds and to execute such other
Ordinance -3.wpd -26-
documents and certificates as necessary in connection with the Reserve Fund Obligation as he may deem
appropriate. In addition to the other requirements of this Ordinance, a copy of any report, notice, and
correspondence required to be given by this Ordinance to any party shall also be given to the issuer of the
Reserve Fund Obligation at the address designated in writing to the City.
Section 13. SUBORDINATE OBLIGATIONS FUND. That there shall continue to be
established and maintained on the books of the City a separate fund to be entitled the "City of Wichita Falls,
Texas Water and Sewer Revenue Bonds Subordinated Obligations Fund" (herein defined as the
"Subordinated Obligations Fund "). Monies in said Fund shall be maintained in an official depository bank
of the City. Monies in the Subordinated Obligations Fund shall be withdrawn to pay the principal of and
interest on Subordinated Obligations and shall be paid over to the Paying Agent/Registrar to make the
payments required in clauses (a) and (b) of Section 17 in the event that monies are not available in the
System Fund for that purpose.
Section 14. INVESTMENTS. That money in any Fund established pursuant to this Ordinance
may, at the option of the City, and subject to the provisions of the Public Funds Investment Act, be (A)
placed in time deposits or certificates of deposit which (to the extent not insured by the Federal Deposit
Insurance Corporation) are secured by obligations of the type described in (B) hereinbelow, or (B)
invested, including investments held in book -entry foam, in (i) direct obligations of the United States of
America, (ii) obligations guaranteed or insured by the United States of America, which, in the opinion of
the Attorney General of the United States, are backed by its full faith and credit or represent its general
obligations, or, (iii) to the extent permitted by law, evidences of indebtedness and repurchase agreements
issued, insured or guaranteed by such governmental agencies as the Federal Land Banks, Federal
Intermediate Credit Banks, Banks for Cooperatives, Federal Home Loan Banks, Government National
Mortgage Association, United States Postal Service, Farmers Home Administration, Federal Home Loan
Mortgage Association; provided that all money required to be expended from any Fund will be available
at the proper time or times. Money in the Reserve Fund shall not be invested in securities maturing later
than the final maturity of the Priority Bonds and Subordinate Lien Bonds. If monies in a Fund herein
established are permitted to be invested the value of any such Fund shall be established by adding the
monies therein to the Value of Investment Securities. The value of each such Fund shall be established
annually during the last month of each Year and in addition thereto, with respect to the Reserve Fund, value
shall be established within thirty days prior to the issuance of Priority Bonds or Additional Bonds and at
the time or times withdrawals are made therefrom. Such investments shall be sold promptly when
necessary to prevent any default in connection with the Priority Bonds or Subordinate Lien Bonds.
Section 15. FUNDS SECURED. That monies in the System Fund and all Funds created by this
Ordinance, to the extent not invested, shall be secured in the manner prescribed by law for securing funds
of the City.
Ordinance -3. wpd -27-
Section 16. APPLICATION OF BOND PROCEEDS. Concurrently with the delivery of the
Bonds, the proceeds thereof shall be applied in the various amounts and for the purposes described in a
certificate of the City, to be delivered by the City upon delivery of the Bonds.
Section 17. FLOW OF FUNDS. That all monies in the System Fund not required for paying
Operating Expenses during each month shall be applied by the City, on or before the 25th day of the
following month, commencing during the months and in the order of priority with respect to the Funds and
Accounts that such applications are hereinafter set forth in this Section.
(a) Debt Service Fund - To the credit of the Debt Service Fund without priority among the
deposits except that the deposits set forth in (1), (2) and (3) shall have priority over the other deposits in
this paragraph (a), to -wit:
(1) such amounts, deposited in approximately equal monthly installments, commencing
during the month in which the Bonds are delivered, or the month thereafter if delivery is made after
the 25th day thereof, as will be sufficient, together with other amounts, if any, in the Debt Service
Fund available for such purpose, to pay the interest scheduled to come due on the Priority Bonds
on the next succeeding interest payment date;
(2) such amounts, deposited in approximately equal monthly installments, commencing
during the month which shall be the later to occur of, (i) the twelfth month before the first maturity
date of Priority Bonds, or (ii) the month in which Priority Bonds are delivered, or the month
thereafter if delivery is made after the 25th day thereof, as will be sufficient, together with other
amounts, if any, in the Debt Service Fund available for such purpose, to pay the principal scheduled
to mature on the Priority Bonds on the next succeeding principal payment date;
(3) such amounts, deposited in approximately equal monthly installments, commencing
during the month in which the Subordinate Lien Bonds are delivered, or the month thereafter if
delivery is made after the 25th day thereof, as will be sufficient, together with other amounts, if any,
in the Debt Service Fund available for such purpose, to pay the interest scheduled to come due on
the Subordinate Lien Bonds on the next succeeding interest payment date; and
(4) such amounts, deposited in approximately equal monthly installments, commencing
during the month which shall be the later to occur of, (i) the twelfth month before the first maturity
date of the Subordinate Lien Bonds, or (ii) the month during which the Subordinate Lien Bonds are
delivered, or the month thereafter if delivery is made after the 25th day thereof, as will be sufficient,
together with other amounts, if any, in the Debt Service Fund available for such purpose, to pay
the principal scheduled to mature on the Subordinate Lien Bonds on the next succeeding principal
payment date.
Ordinance -3. wpd -28-
(b) Reserve Fund. The additional amount required to be on deposit in the Reserve Fund as a
result of the issuance of the Bonds shall be accumulated by the deposit of said required additional amount
in approximately sixty (60) equal monthly installments made on or before the 25th day of each month
following the month in which the Bonds are delivered.
When and so long as the sum of money and the Value of Investment Securities in the Reserve Fund
are not less than the Required Amount, no deposits need be made to the credit of the Reserve Fund. When
and if the Reserve Fund at any time contains less than the Required Amount due to any cause or condition
other than the issuance of Priority Bonds or Subordinate Lien Bonds, then, subject and subordinate to
making the required deposits to the credit of the Debt Service Fund, commencing with the month during
which such deficiency occurs, such deficiency shall be made up from the next available Pledged Revenues,
or from any other sources available for such purpose. If the Reserve Fund contains less than the Required
Amount due to the issuance of Priority Bonds or Subordinate Lien Bonds deposits shall be made to the
Reserve Fund commencing during the month and in the amounts required by Section 21(b).
(c) Subordinate Obligations Fund. Commencing during the month Subordinated Obligations are
delivered, or the month thereafter if delivery is made after the 25th day thereof, the City shall deposit to the
credit of the Subordinated Obligations Fund the amount in cash accruing in such calendar month for
payment of the debt service requirements on any Subordinated Obligations. Such payments shall be
subordinate and junior in right of payment to the payment of principal of and premium, if any, and interest
on the Priority Bonds or Subordinate Lien Bonds.
(d) Surplus. The balance of any monies remaining in the System Fund following such transfers shall
be used by the City for any lawful, provided that any proceeds of the Bonds or proceeds of other debt of
the City on a parity therewith shall be used solely for the purposes for which the Bonds or such parity debt
are issued.
Section 18. DEFICIENCIES. That if on any occasion there shall not be sufficient Pledged
Revenues to make the deposits and other applications of monies required by Section 17 with respect to
the various Funds as provided therein, any such deficiencies shall be made up (in the order that each such
Fund is provided for in Section 17) as soon as possible from the next available Pledged Revenues, or from
any other sources available for such purpose.
Section 19. PAYMENT OF PRIORITY BONDS. That on or before each August 1 and
February 1 while any of the Priority Bonds are outstanding and unpaid, the City shall make available to the
Paying Agent/Registrar therefor, out of the Debt Service Fund (and the other funds, if necessary, in the
order of priority set forth herein) monies sufficient to pay such interest on and such principal amount of the
Priority Bonds as shall become due and mature on such dates, respectively, at maturity or by redemption
prior to maturity. The Paying Agent/Registrar shall destroy all paid Priority Bonds and famish the City with
an appropriate certificate of cancellation or destruction.
Ordinance -1 wpd -29-
Section 20. FINAL DEPOSITS; GOVERNMENT OBLIGATIONS. (a) Defeased Bonds.
That 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 (d) of
this Section, when payment of the principal of such Bond, plus interest thereon to the due date (whether
such due date be 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 Paying Agent/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 insure the availability, without
reinvestment, of sufficient money to provide for such payment, and when proper arrangements have been
made by the Issuer with the Paying Agent/Registrar for the payment of its services until all Defeased Bonds
shall have become due and payable. At such time as a Bond shall be deemed to be a Defeased Bond
hereunder, as aforesaid, such Bond and the interest thereon shall no longer be secured by, payable from,
or entitled to the benefits of, the revenues herein pledged as provided in this Ordinance, and 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 hereby provided that any determination not to redeem
Defeased Bonds that is made in conjunction with the payment arrangements specified in clauses (i) or (ii)
above shall not be irrevocable, provided that, in the proceedings providing for such payment arrangements,
the Issuer (1) expressly reserves the right to call the Defeased Bonds for redemption; (2) gives notice of
the reservation of that right to the owners of the Defeased Bonds immediately following the making of the
payment arrangements; and (3) directs that notice of the reservation be included in any redemption notices
that it authorizes.
(b) Investment in Defeasance Securities. Any moneys so deposited with the Paying
Agent/Registrar may at the written direction of the Issuer be invested in Defeasance Securities, maturing in
the amounts and times as hereinbefore set forth, and all income from such Defeasance Securities received
by the Paying Agent/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 Issuer, or deposited as
directed in writing by the Issuer. 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 19(a)(i) or (ii). All income from
such Defeasance Securities received by the Paying Agent/Registrar which 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
Issuer or deposited as directed in writing by the Issuer.
(c) Defeasance Securities Defined. The term 'Defeasance Securities" means (i) direct,
noncallable obligations of the United States of America, including obligations that are unconditionally
guaranteed by the United States of America, (ii) noncallable obligations of an agency or instrumentality of
the United States of America, including obligations that are unconditionally guaranteed or insured by the
Ordinance -3. wpd -30-
agency or instrumentality and that, on the date of the purchase thereof are rated as to investment quality by
a nationally recognized investment rating firm not less than AAA or its equivalent, and (iii) noncallable
obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have
been refunded and that, on the date on the date the governing body of the Issuer adopts or approves the
proceedings authorizing the financial arrangements are rated as to investment quality by a nationally
recognized investment rating firm not less than AAA or its equivalent.
(d) Paying Agent /Registrar Services. Until all Defeased Bonds shall have become due and
payable, the Paying Agent/Registrar shall perform the services of Paying Agent/Registrar for such Defeased
Bonds the same as if they had not been defeased, and the Issuer shall make proper arrangements to provide
and pay for such services as required by this Ordinance.
(e) Selection of Bonds for Defeasance. In the event that the Issuer elects to defease less than
all of the principal amount of Bonds of a maturity, the Paying Agent/Registrar shall select, or cause to be
selected, such amount of Bonds by such random method as it deems fair and appropriate.
Section 21. ISSUANCE OF PRIORITY AND SUBORDINATE LIEN BONDS. (a) That
subject to the provisions hereinafter appearing as conditions precedent which must first be satisfied, the City
reserves the right to issue, from time to time as needed, Priority Bonds and Subordinate Lien Bonds, either
or both, for any lawful purpose relating to the System. Such Priority Bonds and Subordinate Lien Bonds
may be issued in such form and manner as now or hereafter authorized by the laws of the State of Texas
for the issuance of evidences of indebtedness or other instruments, and should new methods or financing
techniques be developed that differ from those now available and in normal use, the City reserves the right
to employ the same in its financing arrangements provided only that the same conditions precedent herein
required for the authorization and issuance of Priority Bonds and Subordinate Lien Bonds are satisfied.
(b) That the Debt Service Fund and the Reserve Fund established by this Ordinance shall secure
and be used to pay all Priority Bonds and Subordinate Lien Bonds as well as the Bonds. Upon the issuance
and delivery of Priority Bonds or Subordinate Lien Bonds, the additional amount required to be deposited
in the Reserve Fund shall be so accumulated by the deposit in the Reserve Fund of all or any part of said
required additional amount in cash or a Reserve Fund Obligation immediately after the delivery of such
Priority Bonds or Subordinate Lien Bonds, or, at the option of the City, by the deposit of said required
additional amount (or any balance of said required additional amount not deposited in cash as permitted
above) in approximately equal monthly installments, made on or before the 25th day of each month following
the delivery of such Priority Bonds or Subordinate Lien Bonds, of not less than 1/60 of said required
additional amount (or 1/60 of the balance of said required additional amount not deposited in cash as
permitted above).
(c) That all calculations of Average Annual Principal and Interest Requirements made pursuant to
this Section shall be made as of and from the date of the Priority Bonds or Subordinate Lien Bonds then
proposed to be issued.
Ordinance -3.wpd -31-
(d) That the principal of all Priority Bonds or Subordinate Lien Bonds (except such obligations
scheduled to mature within twelve months from the date of issuance thereof) must be scheduled to be paid
or mature on August 1 of the years in which such principal is scheduled to be paid or mature; and all interest
thereon must be payable on February 1 and August 1.
Section 22. FURTHER REQUIREMENTS FOR PRIORITY BONDS OR SUBORDINATE
LIEN BONDS. (a) Conditions Precedent for Issuance of Priority Bonds and Subordinate Lien Bonds -
General. That as a condition precedent to the issuance of any Priority Bonds or Subordinate Lien Bonds,
the City Manager (or other officer of the City then having the responsibility for the financial affairs of the
City) shall have executed a certificate stating (i) that the City is not then in default as to any covenant,
obligation or agreement contained in any ordinance or other proceeding relating to any obligations of the City
payable from and secured by alien on and pledge of the Pledged Revenues, and (ii) all payments into all
funds or accounts created and established for the payment and security of all outstanding obligations payable
from and secured by alien on and pledge of the Pledged Revenues have been made in full and that the
amounts on deposit in such funds or accounts are the amounts then required to be deposited therein. Such
certificate shall be dated as of the date of delivery of such Priority Bonds or Subordinate Lien Bonds.
(b) Conditions Precedent for Issuance of Priority Bonds and Subordinate Lien Bonds - Capital
Improvements and for any other lawful purpose except for Capital Additions or for refunding. Except as
otherwise provided in clause (c) of this Section, the City covenants and agrees that neither Priority Bonds
nor Subordinate Lien Bonds will be issued for the purpose of financing Capital Improvements, or for any
other lawful purpose (except for Capital Additions or for refunding, which are to be issued in accordance
with the provisions of clauses (d), (e) or (0 of this Section) unless and until the conditions precedent in clause
(a) above have been satisfied and, in addition thereto, the City has secured:
(i) for the issuance of Priority Bonds, a certificate or opinion of the Accountant to the effect
that, according to the books and records of the City, the Net Earnings (hereafter defined) for the
preceding Year or for 12 consecutive months out of the 15 months immediately preceding the month
the ordinance authorizing the Priority Bonds is adopted are at least equal to the sum of (1) 1.10
times the Average Annual Principal and Interest Requirements for any Subordinate Lien Bonds
outstanding (except Priority Bonds) that are payable from and secured by a lien on and pledge of
the Pledged Revenues of the System, and (2) 1.25 times the Average Annual Principal and Interest
Requirements for all outstanding Priority Bonds after giving effect to the Priority Bonds then
proposed. In making a determination of the Net Earnings, the Accountant may take into
consideration a change in the rates and charges for services and facilities afforded by the System
that became effective at least sixty (60) days prior to the last day of the period for which Net
Earnings are determined and, for purposes of satisfying the above Net Earnings test, make a pro
forma determination of the Net Earnings for the period of time covered by his certification or opinion
based on such change in rates and charges being in effect for the entire period covered by the
Accountant's certificate or opinion; or
Ordinance -3.wpd -32-
(ii) for the issuance of Subordinate Lien Bonds, a certificate or opinion of the Accountant
to the effect that, according to the books and records of the City, the Net Earnings for the preceding
Year or for 12 consecutive months out of the 15 months immediately preceding the month the
ordinance authorizing the Subordinate Lien Bonds is adopted are at least equal to the sum of (1)
1.10 times the Average Annual Principal and Interest Requirements for the Subordinate Lien Bonds
outstanding (except Priority Bonds) that are payable from and secured by a lien on and pledge of
the Pledged Revenues of the System, including Subordinate Lien Bonds then proposed and (2) 1.25
times the Average Annual Principal and Interest Requirements for all outstanding Priority Bonds.
In making a determination of the Net Earnings, the Accountant may take into consideration a change
in the rates and charges for services and facilities afforded by the System that became effective at
least sixty (60) days prior to the last day of the period for which Net Earnings are determined and,
for purposes of satisfying the above Net Earnings test, make a pro forma determination of the Net
Earnings of the System for the period of time covered by his certification or opinion based on such
change in rates and charges being in effect for the entire period covered by the Accountant's
certificate or opinion.
As used in this Section, the term "Net Earnings" shall mean the Gross Revenues of the
System after deducting the Operating Expenses of the System, but not expenditures which, under
standard accounting practice, should be charged to capital expenditures.
(c) The City covenants and agrees that neither Priority Bonds nor Subordinate Lien Bonds may be
issued for the purpose of financing Capital Improvements when other outstanding Priority Bonds or
Subordinate Lien Bonds have been issued for Capital Additions and capitalized interest for such other
Priority Bonds or Subordinate Lien Bonds has been provided for at least the twelve months subsequent to
the date of issuance of the new Priority Bonds or Subordinate Lien Bonds being issued, unless the conditions
precedent in clause (a) above have been satisfied and, in addition thereto, the City has either (1) complied
with the conditions of clause (b) of this Section, or (2) has satisfied the conditions precedent in clauses (d)(i)
and (d)(ii) of this Section (but, for purposes of such clauses, the term Capital Improvements shall be
substituted for the term Capital Additions where the term Capital Additions appears therein to the extent
necessary to give recognition to the fact that Capital Improvements, rather than Capital Additions, are then
to be financed) and has secured:
(i) for the issuance of Priority Bonds, a certificate or opinion of the Accountant to the effect
that, according to the books and records of the City, the Net Earnings (hereafter defined) for the
preceding year or for 12 consecutive months out of the 15 months immediately preceding the month
the ordinance authorizing the Priority Bonds is adopted are at least equal to the sum of (a) 1.10
times the Average Annual Principal and Interest Requirements for the Subordinate Lien Bonds
outstanding other than any Subordinate Lien Bonds issued for Capital Additions for which
capitalized interest has been provided for at least the twelve months subsequent to the date of
issuance of the new Priority Bonds being issued that are payable from and secured by a lien on and
pledge of the Pledged Revenues of the System, and (b) 1.25 times the Average Annual Principal
Ordinance -3. wpd -33-
and Interest Requirements for all outstanding Priority Bonds other than any Priority Bonds issued
for Capital Additions for which capitalized interest has been provided for at least the twelve months
subsequent to the date of issuance of the new Priority Bonds being issued after giving effect to the
Priority Bonds then proposed. In making a determination of the Net Earnings, the Accountant may
take into consideration a change in the rates and charges for services and facilities afforded by the
System that became effective at least sixty (60) days prior to the last day of the period for which
Net Earnings are determined and, for purposes of satisfying the above Net Earnings test, make a
pro forma determination of the Net Earnings for the period of time covered by his certification or
opinion based on such change in rates and charges being in effect for the entire period covered by
the Accountant's certificate or opinion; or
(ii) for the issuance of Subordinate Lien Bonds, a certificate or opinion ofthe Accountant
to the effect that, according to the books and records of the City, the Net Earnings for the preceding
Year or for 12 consecutive months out of the 15 months immediately preceding the month the
ordinance authorizing the Subordinate Lien Bonds is adopted are at least equal to the sum of (a)
1.10 times the Average Annual Principal and Interest Requirement for the Subordinate Lien Bonds
outstanding other than any Subordinate Lien Bonds issued for Capital Additions for which
capitalized interest has been provided for at least twelve months subsequent to the date of issuance
ofthe new Subordinate Lien Bonds being issued that are payable from and secured by a lien on and
pledge of the Pledged Revenues of the System, including Subordinate Lien Bonds then proposed
and (b) 1.25 times the Average Annual Principal and Interest Requirements for all outstanding
Priority Bonds other than any Priority Bonds issued for Capital Additions for which capitalized
interest has been provided for at least twelve months subsequent to the date of the new Subordinate
Lien Bonds being issued. In making a determination of the Net Earnings, the Accountant may take
into consideration a change in the rates and charges for services and facilities afforded by the System
that became effective at least sixty (60) days prior to the last day of the period for which Net
Eanungs are determined and, for purposes of satisfying the above Net Earnings test, make a pro
forma determination of the Net Earnings of the System for the period of time covered by his
certification or opinion based on such change in rates and charges being in effect for the entire
period covered by the Accountant's certificate or opinion.
(d) Conditions Precedent for Issuance of Priority Bonds or Subordinate Lien Bonds - Capital
Additions: Initial Issue. The City covenants and agrees that neither Priority Bonds nor Subordinate Lien
Bonds will be issued for the purpose of financing Capital Additions, unless the same conditions precedent
specified in clause (a) above have been satisfied and, in addition thereto, the conditions precedent specified
in clause (b) above are satisfied or, in the alternative, the City shall have obtained:
(i) from the Engineer of Record a comprehensive Engineering Report for each Capital
Addition to be financed, which report shall (A) contain (1) detailed estimates ofthe cost of acquiring
and constructing the Capital Addition, (2) the estimated date the acquisition and construction of the
Capital Addition will be completed and commercially operative, and (3) a detailed analysis of the
Ordinance -3. wpd -34-
impact of the Capital Addition on the financial operations of the system for which the Capital
Addition is to be integrated and to the System as a whole during the construction thereof and for at
least five Years after the date the Capital Addition becomes commercially operative, and (B)
conclude that (1) the Capital Addition is necessary and will substantially increase the capacity, or
is needed to replace existing facilities, to meet current and projected demands for the service or
product to be provided thereby, and (2) the estimated cost of providing the service or product from
the Capital Addition will be reasonable in comparison with projected costs for famishing such
service or product from other reasonably available sources; and
(ii) a certificate of the Engineer of Record to the effect that, based on the Engineering Report
prepared for each Capital Addition, the projected Net Earnings for each of the five years
subsequent to the date the Capital Addition becomes commercially operative (as estimated in the
Engineering Report) will be equal to at least the sum of (A) 1.25 times the Average Annual Principal
and Interest Requirements for Priority Bonds then outstanding or incurred and all Priority Bonds
estimated to be issued, if any, for all Capital Improvements and for all Capital Additions then in
progress or then being initiated, during the period from the date the first series of obligations for the
Capital Additions is to be delivered through the fifth year subsequent to the date the Capital
Addition is estimated to become commercially operative, and (B) 1.10 times the Average Annual
Principal and Interest Requirements for Subordinate Lien Bonds (other than Priority Bonds) payable
from the Pledged Revenues, which are then outstanding or incurred and all Subordinate Lien Bonds
estimated to be issued, if any, for all Capital Improvements and for all Capital Additions then in
progress or then being initiated, during the period from the date the first series of obligations for the
Capital Addition is to be delivered through the fifth year subsequent to the date the Capital Addition
is estimated to become commercially operative.
(e) Subsequent Issues. Once a Capital Addition has been initiated by meeting the conditions
precedent specified in clauses (d)(i) and (d)(ii) above and the initial Priority Bonds or Subordinate Lien
Bonds delivered therefor, the City reserves the right to issue Priority Bonds and Subordinate Lien Bonds,
as the case may be, to finance the remaining costs of such Capital Addition in such amounts as may be
necessary to complete the acquisition and construction thereof and make the same commercially operative
without satisfaction of any condition precedent under clauses (d)(i) and (d)(ii) or clause (b) ofthis Section
but subject to satisfaction of the following conditions precedent:
(i) the City makes a forecast (the "Forecast ") of the operations of the System demonstrating
the System's ability to pay all obligations, payable from the Pledged Revenues of the System to be
outstanding after the issuance of the Priority Bonds or Subordinate Lien Bonds then being issued
for the period (the "Forecast Period ") of each ensuing year through the fifth year subsequent to the
latest estimated date such Capital Addition is expected to be commercially operative, and
(ii) the Engineer of Record reviews such Forecast and executes a certificate to the effect that
such Forecast is reasonable, and based thereon (and such other factors deemed to be relevant), the
Ordinance -3. wpd -35-
Pledged Revenues of the System will be adequate to pay all the obligations, payable from the
Pledged Revenues of the System to be outstanding after the issuance of the Priority Bonds or
Subordinate Lien Bonds then being issued for the Forecast Period.
(f The City reserves the right to issue refunding bonds to refund all or any part of the outstanding
Priority Bonds or Subordinate Lien Bonds (pursuant to any law then available), upon such terms and
conditions as the City Council of the City may deem to be in the best interest of the City and its inhabitants,
and if less than all such outstanding Priority Bonds or Subordinate Lien Bonds are refunded, the conditions
precedent prescribed (for the issuance of Priority Bonds or Subordinate Lien Bonds) set forth in clauses (a)
and (b) of this Section shall be satisfied and the Accountant's certificate or opinion required by clause (b)
shall give effect to the issuance of the proposed refunding bonds (and shall not give effect to the Priority
Bonds or Subordinate Lien Bonds being refunded following their cancellation or provision being made for
their payment). No Accountant's certificate otherwise required by clause (b) will be required for refunding
bonds, after giving effect to such proposed refunding, if there is no increase in debt service for any Year
before or including any Year in which there will be debt service on Priority Bonds or Subordinate Lien
Bonds outstanding both before and after such refunding and any such refunding bond does not have alien
on Pledged Revenues superior to the obligation which it refunds.
(g) With reference to Priority Bonds and Subordinate Lien Bonds anticipated and estimated to be
issued or incurred, the Average Annual Principal and Interest Requirements therefor shall be those
reasonably estimated and computed by the City's Director of Finance (or other officer of the City then
having the primary responsibility for the financial affairs of the City). In the preparation of the Engineering
Report required in clause (d)(i) above, the Engineer of Record may rely on other experts or professionals,
including those in the employment of the City, provided such Engineering Report discloses the extent of such
reliance and concludes it is reasonable so to rely. In connection with the issuance of Subordinate Lien
Bonds or Priority Bonds for Capital Additions, the certificate of the City's Director of Finance and Engineer
of Record, together with the Engineering Report for the initial issue and the Forecast for a subsequent issue,
shall be conclusive evidence and the only evidence required to show compliance with the provisions and
requirements and this clause of this Section.
(h) Priority Bonds or Subordinate Lien Bonds for Capital Additions may be combined in a single
issue with Priority Bonds or Subordinate Lien Bonds, as the case may be, for Capital Improvements or for
any lawful purpose provided the conditions precedent set forth in clauses (b) through (f) are complied with
as the same relate to the appropriate purpose.
(i) The City may, at any time and from time to time, for any lawful purpose, issue Subordinated
Obligations, the principal of and redemption premium, if any, and interest on which is payable from and
secured by a pledge of and lien on the Pledged Revenues junior and subordinate to the lien and pledge
created hereby for the security of the Priority Bonds and Subordinate Lien Bonds, the payments required
to be made hereunder into the Debt Service Fund, the Reserve Fund and the retained amount of Operating
Expenses in accordance with Section 17(c); provided, however, that any such pledge and lien securing the
Ordinance -3.wpd -36-
Subordinated Obligations shall be, and shall be expressed to be, subordinate in all respects to the pledge
of and lien on the Pledged Revenues as security for the Priority Bonds and Subordinate Lien Bonds.
Section 23. GENERAL COVENANTS. That the City further covenants and agrees that in
accordance with and to the extent required or permitted by law:
(a) Performance. It will faithfully perform at all times any and all covenants, undertakings,
stipulations, and provisions contained in this Ordinance, and each ordinance authorizing the issuance of
Priority Bonds or Subordinate Lien Bonds, and in each and every Priority Bond and Subordinate Lien Bond;
it will promptly pay or cause to be paid the principal amount of and interest on every Priority Bond and
Subordinate Lien Bond, on the dates and in the places and manner prescribed in such ordinances and
Priority Bonds or Subordinate Lien Bonds; and it will, at the time and in the manner prescribed, deposit or
cause to be deposited the amounts required to be deposited into the System Fund and the Funds herein
created; and any registered owner of any Priority Bond or Subordinate Lien Bond may require the City, its
officials and employees to carry out, respect or enforce the covenants and obligations of this Ordinance, or
any ordinance authorizing the issuance of Priority Bonds or Subordinate Lien Bonds, by all legal and
equitable means, including specifically, but without limitation, the use and filing of mandamus proceedings,
in any court of competent jurisdiction, against the City, its officials and employees.
(b) Citv's Legal Authority. It is a duly created and existing home rule city of the State of Texas, and
is duly authorized under the laws of the State of Texas to issue the Bonds; that all action on its part for the
issuance of the Bonds has been duly and effectively taken, and that the Bonds in the hands of the owners
thereof are and will be valid and enforceable special obligations of the City in accordance with their terms.
(c) Acquisition and Construction; Operation and Maintenance. (1) The City shall use its best efforts
in accordance with Prudent Utility Practice to acquire and construct, or cause to be acquired and
constructed, any Capital Additions or Capital Improvements, in accordance with the plans and specifications
therefor, as modified from time to time with due diligence and in a sound and economical manner; and (2)
the City shall at all times use its best efforts to operate or cause to be operated the System properly and in
an efficient manner, consistent with Prudent Utility Practice, and shall use its best efforts to maintain,
preserve, reconstruct and keep the same or cause the same to be so maintained, preserved, reconstructed
and kept, with the appurtenances and every part and parcel thereof, in good repair, working order and
condition, and shall from time to time make, or use its best efforts to cause to be made, all necessary and
proper repairs, replacement and renewals so that at all times the operation of the System may be properly
and advantageously conducted.
(d) Title. It has or will obtain lawful title, whether such title is in fee or lesser interest, to the lands,
buildings, structures and facilities constituting the System, that it warrants that it will defend the title to all the
aforesaid lands, buildings, structures and facilities, and every part thereof, for the benefit of the owners of
the Priority Bonds and Subordinate Lien Bonds, against the claims and demands of all persons whomsoever,
Ordinance -1 wpd -37- -
that it is lawfully qualified to pledge the Pledged Revenues to the payment of the Priority Bonds and
Subordinate Lien Bonds in the manner prescribed herein, and has lawfully exercised such rights.
(e) Liens. It will from time to time and before the same become delinquent pay and discharge all
taxes, assessments and governmental charges, if any, which shall be lawfully imposed upon it, or the System;
it will pay all lawful claims for rents, royalties, labor, materials and supplies which if unpaid might by law
become alien or charge thereon, the lien of which would be prior to or interfere with the liens hereof, so that
the priority of the liens granted hereunder shall be fully preserved in the manner provided herein, and it will
not create or suffer to be created any mechanic's, laborer's, materialman's or other lien or charge which
might or could be prior to the liens hereof, or do or suffer any matter or thing whereby the liens hereof might
or could be impaired; provided however, that no such tax, assessment or charge, and that no such claims
which might be used as the basis of a mechanic's, laborer's, materialman's or other lien or charge, shall be
required to be paid so long as the validity of the same shall be contested in good faith by the City.
(f) No Free Service. No free service or service otherwise than in accordance with the established
rate schedule shall be furnished, directly or indirectly, by the System to any person, firm, corporation or
other entity. No part of the salary of any official or employee of the City or his replacement shall be paid
from Pledged Revenues unless and only to the extent the duties and performances of such official or
employee or his replacement appertain directly to the System. To the extent the City receives the services
of the System, such services shall be accounted for according to the established rate schedule.
(g) Further Encumbrance. It will not additionally encumber the Pledged Revenues in any manner,
except as permitted in this Ordinance in connection with Priority Bonds and Subordinate Lien Bonds, unless
said encumbrance is made junior and subordinate in all respects to the liens, pledges, covenants and
agreements of this Ordinance; but the right of the City to issue obligations payable from a subordinate lien
on the Pledged Revenues is specifically recognized and retained.
(h) Sale, Lease or Disposal of Property. No part of the System shall be sold, leased, mortgaged,
demolished, removed or otherwise disposed of, except as follows:
(1) To the extent permitted by law, the City may sell or exchange at any time and from time
to time any property or facilities constituting part of the System only if (a) it shall determine such
property or facilities are not useful in the operation of the System, or (b) the proceeds of such sale
are $250,000 or less, or it shall have received a certificate of the Engineer of Record and the City
Manager stating, in the opinion of the signers, that the fair market value of the property or facilities
exchanged is $250,000 or less, or (c) if such proceeds or fair market value exceeds $250,000 it
shall have received a certificate of the Engineer of Record and the City Manager stating, in the
opinion of the signers, that the sale or exchange of such property or facilities will not impair the
ability of the City to comply during the current or any future year with the provisions of clause (k)
of this Section. The proceeds of any such sale or exchange not used to acquire other property
necessary or desirable for the safe or efficient operation of the System shall forthwith, at the option
Ordinance -3. wpd -38-
ofthe City (i) be used to redeem or purchase Priority Bonds or any Subordinate Lien Bonds, or (ii)
otherwise be used to provide for the payment of Priority Bonds or any Subordinate Lien Bonds; and
(2) To the extent permitted by law, the City may lease or make contracts or grant licenses
for the operation of, or make arrangements for the use of, or grant easements or other rights with
respect to, any part of the System, provided that any such lease, contract, license, arrangement,
easement or right (i) does not impede the operation by the City of the System and (ii) does not in
any manner impair or adversely affect the rights or security of the owners of the Priority Bonds or
any Subordinate Lien Bonds under this Ordinance; and provided, further, that if the depreciated cost
of the property to be covered by any such lease, contract, license, arrangement, easement or other
right is in excess of $500,000, the City shall have received a certificate of the Engineer of Record
and the City Manager that the action of the City with respect thereto does not result in a breach of
the conditions under this clause (2). Any payments received by the City under or in connection with
any such lease, contract, license, arrangement, easement or right in respect of the System or any part
thereof shall constitute Gross Revenues.
(i) Books. Records and Accounts. The City shall keep proper books, records and accounts
separate and apart from all other records and accounts, in which complete and correct entries shall be made
of all transactions relating to the System and the City shall cause said books and accounts to be audited
annually as of the close of each Fiscal Year by the Accountant.
0) Insurance. (1) It shall cause to be insured such parts of the System as would usually be insured
by corporations operating like properties, with a responsible insurance company or companies, against risks,
accidents or casualties against which and to the extent insurance is usually carried by corporations operating
Eke properties, including, to the extent reasonably obtainable, fire and extended coverage insurance,
insurance against damage by floods, and use and occupancy insurance. Public liability and property damage
insurance shall also be carried unless the City Attorney of the City gives a written opinion to the effect that
the City is not liable for claims which would be protected by such insurance. At any time while any
contractor engaged in construction work shall be fully responsible therefor, the City shall not be required
to cant' insurance on the work being constructed if the contractor is required to carry appropriate insurance.
All such policies shall be open to the inspection of the bondholders and their representatives at all reasonable
times.
(2) The annual audit hereinafter required shall contain a section commenting on whether or not the
City has complied with the requirements of this Section with respect to the maintenance of insurance, and
listing all policies carried, and whether or not all insurance premiums upon the insurance policies to which
reference is hereinbefore made have been paid.
(k) Rate Covenant. The City will fix, establish, maintain and collect such rates, charges and fees
for the use and availability of the System at all times as are necessary to produce Gross Revenues and other
Pledged Revenues equal to the greater of amounts sufficient (a) (1) to pay all current Operating Expenses
Ordinance- 3.wpd -39-
of the System, and (2) to produce Net Revenues for each Year at least equal to the sum of (i) 1.25 times
the Average Annual Principal and Interest Requirements of all then outstanding Priority Bonds and (ii) 1.10
times the Average Annual Principal and Interest Requirements of all then outstanding Subordinate Lien
Bonds; or (b) to pay the sum of (i) all current Operating Expenses, (ii) the Average Annual Principal and
Interest Requirements on the then outstanding Priority Bonds and Subordinate Lien Bonds, (iii) required
deposits to the Reserve Fund required for the Priority Bonds and Subordinate Lien Bonds, and (iv) amounts
required to pay all other obligations of the System reasonably anticipated to be paid from Gross Revenues
during the current Year. Average Annual Principal and Interest Requirements as used in this clause (k) shall
exclude debt service on any Priority Bonds or Subordinate Lien Bonds if capitalized interest for such bonds
has been provided for at least the next twelve months.
(1) Audits. After the close of each year while any Priority Bonds or any Subordinate Lien Bonds
are outstanding, an audit will be made of the books and accounts relating to the System and the Pledged
Revenues by the Accountant. As soon as practicable after the close of each such year, and when said audit
has been completed and made available to the City, a copy of such audit for the preceding year shall be
mailed to the Municipal Advisory Council of Texas and to any holder of 5% or more in aggregate principal
amount of the then outstanding Priority Bonds and Subordinate Lien Bonds who shall so request in writing.
Such annual audit reports shall be open to the inspection of the registered owners of the PriorityBonds or
any Subordinate Lien Bonds and their agents and representatives at all reasonable times.
(m) Governmental Agencies. It will comply with all of the terms and conditions of any and all
franchises, permits and authorizations applicable to or necessary with respect to the System, and which have
been obtained from any governmental agency; and the City has or will obtain and keep in full force and effect
all franchises, permits, authorization and other requirements applicable to or necessary with respect to the
acquisition, construction, equipment, operation and maintenance of the System.
(n) No Competition. To the extent it legally may, it will not grant any franchise or permit for the
acquisition, construction or operation of any competing facilities which might be used as a substitute for the
System's facilities, and, to the extent that it legally may, the City will prohibit any such competing facilities.
(o) Rishts of Inspection The Engineer of Record or any registered owner of $100,000 in aggregate
principal amount of the Priority Bonds or Subordinate Lien Bonds then outstanding shall have the right at
all reasonable times to inspect the System and all records, accounts and data of the City relating thereto, and
upon request the City shall furnish to the Engineer of Record or such registered owner, as the case may be,
such financial statements, reports and other information relating to the City and the System as the Engineer
of Record or such registered owner may from time to time reasonably request.
Section 24. AMENDMENT OF ORDINANCE. (a) That the registered owners of Priority Bonds
and Subordinate Lien Bonds aggregating in principal amount 51 % of the aggregate principal amount of the
Priority Bonds and Subordinate Lien Bonds then outstanding shall have the right from time to time to
approve any amendment to this Ordinance which may be deemed necessary or desirable by the City,
Ordinance -3. wpd -40-
provided, however, that without the consent of the registered owners of all of the Priority Bonds and
Subordinate Lien Bonds at the time outstanding, nothing herein contained shall permit or be construed to
permit the amendment of the terms and conditions in this Ordinance or in the Priority Bonds or Subordinate
Lien Bonds so as to:
(1) Make any change in the maturity of any of the outstanding Priority Bonds or
Subordinate Lien Bonds;
(2) Reduce the rate of interest borne by any of the outstanding Priority Bonds or
Subordinate Lien Bonds;
(3) Reduce the amount of the principal payable on the outstanding Priority Bonds or
Subordinate Lien Bonds;
(4) Modify the terms of payment of principal of, premium, if any, or interest on the
outstanding Priority Bonds or Subordinate Lien Bonds, or impose any conditions with respect to
such payment;
(5) Affect the rights of the registered owners of less than all of the Priority Bonds and
Subordinate Lien Bonds then outstanding;
(6) Amend this clause (a) of this Section; or
(7) Change the minimum percentage of the principal amount of Priority Bonds and
Subordinate Lien Bonds necessary for consent to any amendment;
unless such amendment or amendments be approved by the registered owners of all of the Priority Bonds
and Subordinate Lien Bonds then outstanding.
(b) That if at any time the City shall desire to amend the Ordinance under this Section, the City shall
cause notice of the proposed amendment to be published in a financial newspaper or journal published in
The City of New York, New York, and a newspapers of general circulation in the City, once during each
calendar week for at least two successive calendar weeks. Such notice shall briefly set forth the nature of
the proposed amendment and shall state that a copy thereof is on file at the principal office of the Paying
Agent/Registrar for inspection by all holders of Priority Bonds and Subordinate Lien Bonds. Such
publication is not required, however, if notice in writing is given to each registered owner of Priority Bonds
and Subordinate Lien Bonds.
(c) That whenever at any time not less than thirty days, and within one year, from the date of the
first publication of said notice or other service of written notice the City shall receive an instrument or
instruments executed by the registered owners of at least 51 % in aggregate principal amount of the Priority
Ordinance -3. wpd -41-
Bonds and Subordinate Lien Bonds then outstanding, which instrument or instruments shall refer to the
proposed amendment described in said notice and which specifically consent to and approve such
amendment in substantially the form of the copy thereof on file with the Paying Agent/Registrar, the City
Council may pass the amendatory ordinance in substantially the same form.
(d) That upon the passage of any amendatory ordinance pursuant to the provisions of this Section,
this Ordinance shall be deemed to be amended in accordance with such amendatory ordinance, and the
respective rights, duties and obligations under this Ordinance of the City and all the registered owners of then
outstanding Priority Bonds and Subordinate Lien Bonds and all future Subordinate Lien Bonds and Priority
Bonds shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such
amendments.
(e) That any consent given by the registered owner of a Priority Bond or Subordinate Lien Bond
pursuant to the provisions of this Section shall be irrevocable for a period of six months from the date of the
first publication of the notice provided for in this Section, and shall be conclusive and binding upon all future
registered owners of the same Priority Bond or Subordinate Lien Bond during such period. Such consent
may be revoked at any time after six months from the date of the first publication of such notice by the
registered owner who gave such consent, or by a successor in title, by filing notice thereof with the Paying
Agent/Registrar and the City, but such revocation shall not be effective if the registered owners of 51% in
aggregate principal amount of the then outstanding Priority Bonds and Subordinate Lien Bonds as in this
Section defined have, prior to the attempted revocation, consented to and approved the amendment.
(f) The foregoing provisions of this Section notwithstanding, the City by action of the City Council
may amend this Ordinance for any one or more of the following purposes:
(1) To add to the covenants and agreements of the City in this Ordinance contained, other
covenants and agreements thereafter to be observed, grant additional rights or remedies to the
registered owners of the Priority Bonds or Subordinate Lien Bonds or to surrender, restrict or limit
any right or power herein reserved to or conferred upon the City;
(2) To make such provisions for the purpose of curing any ambiguity, or curing, correcting
or supplementing any defective provision contained in this Ordinance, or in regard to clarifying
matters or questions arising under this Ordinance, as are necessary or desirable and not contrary
to or inconsistent with this Ordinance and which shall not adversely affect the interests of the
registered owners of the Priority Bonds or Subordinate Lien Bonds then outstanding;
(3) To modify any of the provisions of this Ordinance in any other respect whatever,
provided that (i) such modification shall be, and be expressed to be, effective only after all Priority
Bonds and Subordinate Lien Bonds outstanding at the date of the adoption of such modification
shall cease to be outstanding, and (ii) such modification shall be specifically referred to in the text
Ordinance -3. wpd '42_
of all Priority Bonds and Subordinate Lien Bonds issued after the date of the adoption of such
modification.
(g) The foregoing provisions of this Section notwithstanding, no waiver, modification, amendment,
or supplement to this Ordinance may become effective except upon obtaining the prior written consent of
the Insurer.
(h) A copy of any modification or amendment to this Ordinance shall be sent to S &P and to
Moody's at least ten (10) days prior to the effective date thereof.
Section 25. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED BONDS. (a)
That in the event any outstanding Bond is damaged, mutilated, lost, stolen, or destroyed, the Paying
Agent/Registrar shall cause to be printed, executed, and delivered, a new bond of the same principal
amount, maturity, and interest rate, as the damaged, mutilated, lost, stolen, or destroyed Bond, in
replacement for such Bond in the manner hereinafter provided.
(b) Application for replacement of damaged, mutilated, lost, stolen, or destroyed Bonds shall be
made to the Paying Agent/Registrar. In every case of loss, theft, or destruction of a Bond, the applicant for
a replacement bond shall famish to the City and to the Paying Agent/Registrar such security or indemnity
as may be required by them to save each of them harmless from any loss or damage with respect thereto.
Also, in every case of loss, theft, or destruction of a Bond, the applicant shall furnish to the City and to the
Paying Agent/Registrar evidence to their satisfaction of the loss, theft, or destruction of such Bond, as the
case may be. In every case of damage or mutilation of a Bond, the applicant shall surrender to the Paying
Agent/Registrar for cancellation the Bond so damaged or mutilated.
(c) Notwithstanding the foregoing provisions of this Section, in the event any such Bond shall have
matured, and no default has occurred which is then continuing in the payment of the principal of, redemption
premium, if any, or interest on the Bond, the City may authorize the payment of the same (without surrender
thereofexcept in the case of a damaged or mutilated Bond) instead of issuing a replacement Bond, provided
security or indemnity is furnished as above provided in this Section.
(d) Prior to the issuance of any replacement bond, the Paying Agent/Registrar shall charge the
owner of such Bond with all legal, printing, and other expenses in connection therewith. Every replacement
bond issued pursuant to the provisions of this Section by virtue of the fact that any Bond is lost, stolen, or
destroyed shall constitute a contractual obligation of the City whether or not the lost, stolen, or destroyed
Bond shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this
Ordinance equally and proportionately with any and all other Bonds duly issued under this Ordinance.
(e) In accordance with Chapter 1206, Government Code, this Section of this Ordinance shall
constitute authority for the issuance of any such replacement bond without necessity of further action by the
governing body of the City or any other body or person, and the duty of the replacement of suchbonds is
Ordinance -1 wpd -43-
hereby authorized and imposed upon the Paying Agent/Registrar, and the Paying Agent/Registrar shall
authenticate and deliver such bonds in the form and manner and with the effect, as provided in Section 5(d)
of this Ordinance for Bonds issued in exchange for other Bonds.
Section 26. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE
BONDS. The City covenants to take any action necessary to assure, or refrain from any action which
would adversely affect, the treatment of the Bonds as obligations described in section 103 of the Code, the
interest on which is not includable in the "gross income" of the holder for purposes of federal income
taxation. In furtherance thereof, the City covenants as follows:
(a) to take any action to assure that no more than 10 percent of the proceeds of the Bonds or the
projects financed therewith (less amounts deposited to a reserve fund, if any) are used for any "private
business use," as defined in section 141(b)(6) of the Code or, if more than 10 percent of the proceeds or
the projects financed therewith are so used, 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;
(b) to take any action to assure that in the event that the "private business use" described in
subsection (a) hereof exceeds 5 percent of the proceeds of the Bonds or the proceeds 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" which is "related" and not "disproportionate," within the meaning of section 141(b)(3)
of the Code, to the governmental use;
(c) to take any action to assure that no amount which is greater than the lesser of $5,000,000, or
5 percent of the proceeds of the Bonds (less amounts deposited into a 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;
(d) to refrain from taking any action which would otherwise result in the Bonds being treated as
"private activity bonds" within the meaning of section 141(b) of the Code;
(e) 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;
(f) to refrain from using any portion of the proceeds of the Bonds, directly or indirectly, to acquire
or to replace funds which were used, directly or indirectly, to acquire investment property (as defined in
section 148(b)(2) of the Code) which produces a materially higher yield over the term of the Bonds, other
than investment property acquired with:
Ordinance -3. wpd -44-
(1) proceeds of the Bonds invested for a reasonable temporary period of 3 years or less
or, in the case of a refunding bond, for a period of 30 days or less until such proceeds are needed
for the purpose for which the bonds are issued,
(2) amounts invested in a bona fide debt service fund, within the meaning of section 1.148-
1(b) of the Treasury Regulations, and
(3) amounts deposited in any reasonably Required Amount or replacement fund to the
extent such amounts do not exceed 10 percent of the proceeds of the Bonds;
(g) to otherwise restrict the use of the proceeds of the Bonds or amounts treated as proceeds of
the Bonds, as may be necessary, so that the Bonds do not otherwise contravene the requirements of section
148 of the Code (relating to arbitrage) and, to the extent applicable, section 149(d) of the Code (relating
to advance refundings); and
(h) 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.
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. It is the understanding of the City 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 which 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 which impose additional requirements which are
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 City Manager to execute any documents, certificates or reports required by the
Code and to make such elections, on behalf of the City, which may be permitted by the Code as are
consistent with the purpose for the issuance of the Bonds.
In order to facilitate compliance with the above covenant (h), a "Rebate Fund" is hereby established
by the City for the sole benefit of the United States of America, and such fund shall not be subject to the
Ordinance -1 wpd -45-
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.
Section 27. 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 purposes described in Section 1 of this Ordinance (the "Project ") on its books and
records by allocating proceeds to expenditures within 18 months of the later of the date that (1) the
expenditure is made, or (2) the Project is completed. The foregoing notwithstanding, the City shall not
expend sale proceeds or investment earnings thereon more than 60 days after the earlier of (1) the fifth
anniversary of the delivery of the Bonds, or (2) 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.
Section 28. DISPOSITION OF PROJECT. The City covenants that the property constituting the
Project will not be sold or otherwise disposed 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 status, for federal income tax purposes, of the Bonds or the
interest thereon. For purposes of the foregoing, the portion of the property comprising personal property
and disposed in the ordinary course shall not be treated as a transaction resulting in the receipt of cash or
other compensation. 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.
Section 29. CONSTRUCTION FUND. The City hereby creates and establishes and shall
maintain on the books of the City a separate fund to be entitled the "Series 2001 City of Wichita Falls Water
and Sewer System Construction Fund" for use by the City for payment of all lawful costs associated with
the acquisition and construction of the Capital Improvements and Capital Additions being financed with the
proceeds of the Bonds as hereinbefore provided. The City shall deposit the proceeds from the sale of the
Bonds into said Construction Fund.
Section 30. CUSTODY, APPROVAL, AND REGISTRATION OF BONDS; BOND
COUNSEL'S OPINION, AND CUSIP NUMBERS. The Mayor of the City is hereby authorized to have
control of the Bonds initially issued and delivered hereunder and all necessary records and proceedings
pertaining to the Bonds pending their delivery and their investigation, examination, and approval by the
Attorney General of the State of Texas, and their registration by the Comptroller of Public Accounts of the
State of Texas. Upon registration of the Bonds said Comptroller of Public Accounts (or a deputy
designated in writing to act for said Comptroller) shall manually sign the Comptroller's Registration
Certificate attached to such Bonds, and the seal of said Comptroller shall be impressed, or placed in
facsimile, on such Certificate. The approving legal opinion of the City's Bond Counsel, the assigned CUSIP
Ordinance -3. wpd -46-
numbers and the statement of insurance relating to any insurance policy issued with respect to the Bonds may
be printed on the Bonds issued and delivered under this Ordinance, but such information shall have no legal
effect, and shall be solely for the convenience and information of the registered owners of the Bonds.
Section3 l . APPROVAL OF PRELIMINARY OFFICIAL STATEMENT. The draft Preliminary
Official Statement relating to the Bonds submitted at this meeting is hereby approved and is deemed final,
except for such omissions as are permitted by Rule 15c2 -12 of the Securities and Exchange Commission
('Rule 15c2 -12 "). The Mayor is authorized to approve any changes in such document and to authorize its
distributionby the Underwriter to prospective purchasers of the Bonds. Within seven (7) business days after
the award of the sale of the Bonds, the Mayor shall cause a final official statement to be provided to the
Underwriter in compliance with Rule 15c2 -12.
Section 32. PAYING AGENT AGREEMENT. The City hereby appoints Wells Fargo Bank
Texas, N.A. as Paying Agent/Registrar for the Bonds authorized hereby. The City Manager of the City of
Wichita Falls is hereby authorized to execute and deliver on behalf of the City a Paying Agent/Registrar
Agreement, dated as of the date of delivery of the Bonds in substantially the form and substance presented
at this meeting.
Section 33. CONTINUING DISCLOSURE UNDERTAKING. (a) AnnualReports. The City
shall provide annually to each NRMSIR and any SID, within six months after the end of each Year, financial
information and operating data with respect to the City of the general type included in the final Official
Statement authorized by Section 31 of this Ordinance, being the information described in Exhibit A hereto.
Any financial statements so to be provided shall be (1) prepared in accordance with the accounting
principles described in Exhibit A hereto, or such other accounting principles as the City may be required to
employ from time to time pursuant to state law or regulation, and (2) audited, if the City commissions an
audit of such statements and the audit is completed within the period during which they must be provided.
If the audit of such financial statements is not complete within such period, then the City shall provide
unaudited financial statements by the required time, and will provide audited financial statements for the
applicable fiscal year to each NRMSIR and any SID, when and if the audit report on such statements
become available.
If the City changes its Year, it will notify each NRMSIR and any SID of the change (and of the date
of the new Year end) prior to the next date by which the City otherwise would be required to provide
financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may be set forth
in full in one or more documents or may be included by specific reference to any document (including an
official statement or other offering document, if it is available from the MSRB) that theretofore has been
provided to each NRMSIR and any SID or filed with the SEC.
Ordinance-3. wpd -47-
(b) Material Event Notices. The City shall notify any SID and either each NRMSIR or the MSRB,
in a timely manner, of any of the following events with respect to the Bonds, if such event is material within
the meaning of the federal securities laws:
A. Principal and interest payment delinquencies;
B. Non - payment related defaults;
C. Unscheduled draws on debt service reserves reflecting financial difficulties;
D. Unscheduled draws on credit enhancements reflecting financial difficulties;
E. Substitution of credit or liquidity providers, or their failure to perform;
F. Adverse tax opinions or events affecting the tax- exempt status of the Bonds;
G. Modifications to rights of holders of the Bonds;
H. Bond calls;
I. Defeasances;
J. Release, substitution, or sale of property securing repayment of the Bonds; and
K. Rating changes.
The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner, of any
failure by the City to provide financial information or operating data in accordance with subsection (a) of this
Section by the time required by such subsection.
(c) Limitations, Disclaimers, and Amendments. The City shall be obligated to observe and perform
the covenants specified in this Article for so long as, but only for so long as, the City remains an "obligated
person" with respect to the Bonds within the meaning of the Rule, except that the City in any event will give
notice of any deposit made in accordance with Section 20 that causes the Bonds no longer to be
outstanding.
The provisions of this Section are for the sole benefit of the holders and beneficial owners of the
Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right,
remedy, or claim hereunder to any other person. The City undertakes to provide only the financial
information, operating data, financial statements, and notices which it has expressly agreed to provide
pursuant to this Section and does not hereby undertake to provide any other information that may be
relevant or material to a complete presentation of the City's financial results, condition, or prospects or
hereby undertake to update any information provided in accordance with this Section or otherwise, except
as expressly provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT,
FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY,
WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS ARTICLE, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
Ordinance -3. wpd -48-
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Article shall comprise
a breach of or default under the Ordinance for purposes of any other provision of this Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the
City under federal and state securities laws.
The provisions of this Section may be amended by the City from time to time to adapt to changed
circumstances that arise from a change in legal requirements, a change in law, or a change in the identity,
nature, status, or type of operations of the City, 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 owners of a majority in aggregate
principal amount (or any greater amount 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 interest of the owners and beneficial owners of the Bonds. If the City so amends the
provisions of this Section, it shall include with any amended financial information or operating data next
provided in accordance with this Section an explanation, in narrative form, of the reason for the amendment
and of 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 a court of final jurisdiction enters 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.
Section 34. CLAIMS UPON THE INSURANCE POLICY AND PAYMENTS BY AND TO
THE INSURER. In the event that a municipal bond insurance policy is obtained pursuant to Section 35 the
following provisions, except to the extent that they are modified by the policy or a separate agreement with
the Bond Insurer, as defined in Section 35, will apply:
(a) If, on the business day prior to the related scheduled interest payment date or principal payment
date ( "Payment Date ") there is not on deposit with the Paying Agent/Registrar, after making all transfers and
deposits required under this Ordinance, moneys sufficient to pay the principal of and interest on the Bonds
due on such Payment Date, the Paying Agent/Registrar shall make a claim under the Insurance Policy and
give notice to the Insurer and to its designated agent (if any) (the "Insurer's Fiscal Agent ") by telephone or
telecopy of the amount of such deficiency, and the allocation of such deficiency between the amount required
to pay interest on the Bonds and the amount required to pay principal of the Bonds, confirmed in writing to
the Insurer and the Insurer's Fiscal Agent by 12:00 noon, New York City time, on such business day by
filling in the form of Notice of Claim and Certificate delivered with the Insurance Policy.
Ordinance -3. wpd -49-
(b) Upon payment of a claim under the Insurance Policy the Paying Agent/Registrar shall establish
a separate special purpose trust account for the benefit of each holder of the Bonds referred to herein as
the 'Policy Payments Account" and over which the Paying Agent/Registrar shall have exclusive control and
sole right of withdrawal. The Paying Agent/Registrar shall receive any amount paid under the Insurance
Policy in trust on behalf of the holders of the Bonds and shall deposit any such amount in the Policy
Payments Account and distribute such amount only for purpose of making the payments for which a claim
was made. Such amounts shall be disbursed by the Paying Agent/Registrar to the holders of the Bonds in
the same manner as principal and interest payments are to be made with respect to the Bonds under the
sections hereof regarding payment of the Bonds. It shall not be necessary for such payments to be made
by checks or wire transfers separate from the check or wire transfer used to pay debt service with other
funds available to make such payments.
(c) The Paying Agent/Registrar shall keep a complete and accurate record of all funds deposited
by the Insurer into the Policy Payments Account and the allocation of such funds to payment of interest on
and principal paid in respect of any Bond. The Insurer shall have the right to inspect such records at
reasonable times upon reasonable notice to the Paying Agent/Registrar.
(d) Funds held in the Policy Payments Account shall not be invested by the Paying Agent/Registrar
and may not be applied to satisfy any costs, expenses, or liabilities of the Paying AgenVRegistrar.
(e) Any funds remaining in the Policy Payments Account following a Payment Date shall promptly
be remitted to the Insurer.
(f) Amounts paid by the Insurer under the Insurance Policy shall not be deemed paid for purposes
of this Ordinance and shall remain outstanding and continue to be due and owing until paid by the City in
accordance with this Ordinance. The Insurer shall, to the extent it makes any payment of principal of or
interest on the Bonds, become subrogated to the rights of the recipients of such payments in accordance with
the terms of the Insurance Policy. This Ordinance shall not be discharged unless all amounts due or to
become due to the Insurer have been paid in full or duly provided for.
Section 35. APPROVAL OF INSURANCE. In connection with the sale of the Bonds, the
City Manager may obtain municipal bond insurance policies from one or more recognized municipal bond
insurance organizations (the 'Bond Insurers ") to guarantee the full and complete payment required to be
made by or on behalf of the City on those Bonds so designated in the Bond Purchase Agreement if the City
Manager finds that the acquisition of such policy or policies will result in the Bonds being sold on the most
favorable terms to the City. The City Manager is hereby authorized to sign a commitment letter with the
Bond Insurers and to pay the premium for the bond insurance policy or policies at the time of the delivery
of the Bonds to the Underwriter out of the proceeds of sale of the Bonds or from other legally available
funds and to execute such other documents and certificates as necessary in connection with the bond
insurance policy or policies as he may deem appropriate. Ifinsurance is obtained on any of the Bonds, the
Bonds shall bear an appropriate legend concerning insurance as provided by the Bond Insurer.
Ordinance -3. wpd -50-
In addition to the other requirements of this Ordinance, a copy of any report, notice, and
correspondence required to be given to any party by this Ordinance shall also be given to the Bond Insurer
at the address designated in writing to the City. In each case in which notice or other communication refers
to an event of default then a copy such notice or other communication shall also be sent to the attention of
the Insurer's General Counsel and shall be marked to indicate "URGENT MATERIAL ENCLOSED ".
Section 36. FURTHER PROCEDURES. The Mayor, the City Clerk and the City Manager of the
City, and all other officers, employees, and agents of the City, and each of them, shall be and they are
hereby expressly authorized, empowered, and directed from time to time and at any time to do and perform
all such acts and things and to execute, acknowledge, and deliver in the name and under the seal and on
behalf of the City all such instruments, whether or not herein mentioned, as may be necessary or desirable
in order to carry out the terms and provisions of this Ordinance, the Bonds, the Official Statement or the
Paying Agent/Registrar Agreement, including, without limitation, the execution, acknowledgment, and
delivery of any certificate required for the issuance of the Bonds as "additional bonds ". In addition, the
Mayor is authorized to approve any changes to this Ordinance necessary to comply with the Commitment
for Municipal Bond Insurance or to secure the approval of the Bonds by the Texas Attorney General. In
case any officer whose signature appears on any Bond or other certificate shall cease to be such officer
before the delivery of the Bonds, such signature shall nevertheless be valid and sufficient for all purposes the
same as if he or she had remained in office until such delivery. In addition, the findings and recitals made
in the preamble to this Ordinance are hereby incorporated herein and made a part of this Ordinance for all
purposes.
Section 37. 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 38. NO PERSONAL LIABILITY. No recourse shall be had for payment of the principal
of or interest on any Bonds or for any claim based thereon, or on this Ordinance, against any official or
employee of the City or any person executing any Bonds.
Section 39. AMENDMENT OF OUTSTANDING ORDINANCES. As set forth in the
Preamble, by purchasing the Bonds the Underwriter will consent to the amendment of the Priority
Ordinances and the Subordinate Lien Ordinances in accordance with the amendment proceedings
simultaneously passed by the City Council.
Section 40. 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 Chapter 551, Texas Government Code.
Section 41. EMERGENCY. It is hereby officially found and determined: that a case of emergency
or urgent public necessity exists which requires the holding of the meeting at which this Ordinance is passed,
such emergency or urgent public necessity being that it is necessary to receive the proceeds from the sale
Ordinance -1 ivpd -51-
of the Bonds as soon as possible and without delay to allow the City to acquire and construct urgently
needed public improvements; and that said meeting was open to the public, and public notice of the time,
place, and purpose of said meeting was given, all as required by Texas Government Code, Chapter 551.
Section 42. IMMEDIATE EFFECT. This Ordinance shall take effect and be in force immediately
upon and after its passage in accordance with the provisions of the Charter of the City, and it is accordingly
so ordained.
Ordinance -3. wpd -52-
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
Pursuant to Section 33 of this Ordinance the City has undertaken to provide certain information of
the general type included in its Official Statement referred to below relating to the City of Wichita Falls,
Texas Water and Sewer System Priority Lien Revenue Bonds, Series 2001 and described as follows:
Annual Financial Statements and Operating Data
The financial information and operating data with respect to the City to be provided annually in
accordance with Section 33 are as specified (and included in Appendices or under the headings of the
Official Statement referred to) below:
All quantitative financial information and operating data with respect to the City of the
general type included in the final Official Statement under Tables 1 -19 in Appendix A and
in Appendix D.
Accounting Principles
The accounting principles referred to in Section 33 are the accounting principles described in the
notes to the audited financial statements appearing in Appendix C referred to in paragraph above.
Ordinance -3.wpd -53-
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CERTIFICATE FOR ORDINANCE CANVASSING ELECTION RETURNS
THE STATE OF TEXAS §
COUNTIES OF WICHITA AND ARCHER §
CITY OF WICHITA FALLS §
We, the undersigned officers of said City, hereby certify as follows:
1. The City Council of the City (the "Council ") convened in a SPECIAL MEETING ON
THE 23RD DAY OF JANUARY, 2001, at the designated meeting place, and the roll was called
of the duly constituted officers and members of said Council, to wit:
Jerry Lueck, Mayor William K. Altman, Council Member
Dan Shine, Mayor Pro Tem Johnny Burns, Council Member
Arthur Bea Williams, Council Member James Esther, Jr., Council Member
Harold Hawkins, Council Member
and all of said persons were present, except the following absentees: Jerry Lueck, Mayor,
thus constituting a quorum. Whereupon, among other business, the following was transacted at
said Meeting: a written
ORDINANCE CANVASSING ELECTION RETURNS
was duly introduced for the consideration of said Council. It was then duly moved and seconded
that said Ordinance be passed; and, after due discussion, said motion, carrying with it the passage
of said Ordinance, prevailed and carried by the following vote:
AYES: All members of the City Council shown present
above voted "Aye" except as shown below.
NOES: None
ABSTENTIONS: None
2. A true, full, and correct copy of the aforesaid Ordinance passed at the Meeting
described in the above and foregoing paragraph is attached to and follows this Certificate; said
Ordinance has been duly recorded in said Council's minutes of said Meeting; the above and
foregoing paragraph is a true, full, and correct excerpt from said Council's minutes of said
Meeting pertaining to the passage of said Ordinance; the persons named in the above and
foregoing paragraph are the duly chosen, qualified, and acting officers and members of said
Council as indicated therein; each of the officers and members of said Council was duly and
Canvass ordinance cert.doc
1
sufficiently notified officially and personally, in advance, of the time, place, and purpose of the
aforesaid Meeting, and that said Ordinance would be introduced and considered for passage at
said Meeting, and each of said officers and members consented, in advance, to the holding of
said Meeting for such purpose; and said Meeting was open to the public and public notice of the
time, place and purpose of said Meeting was given, all as required by Chapter 551, Texas
Government Code.
3. That the Mayor of said City has approved and hereby approves the aforesaid
Ordinance; that the Mayor and the City Secretary of said City have duly signed said Ordinance;
and that the Mayor and the City Secretary of said City hereby declare that their signing of this
Certificate shall constitute the signing of the attached and following copy of said Ordinance for
all purposes.
4. That the Ordinance has not been modified, amended, or repealed and is in full force
and effect on and as of the date hereof.
SIGNED AND SEALED this 23 day of January, 2001.
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City I lerk Mayor Pro Tem
[CITY SEAL]
APPROVED AS TO LEGAL FORM:
Gre Bach, City Attorney
Canvass ordinance cert.doc