SECTION 53.3. Content of Transcripts

(a) Transcript Requirements. Each transcript shall include the following, as applicable:

(1) Initial Public Securities. The initial public securities executed in accordance with applicable law;

(2) Authorizing Document. The authorizing ordinance, order or resolution and, as applicable, indenture of trust for the proposed public securities, including the following:

(A) citation to the legal authority for the issuance of the proposed public securities;

(B) the terms of the proposed public securities, including the title, numbering, denominations, date, persons authorized to sign, method of signing, principal and interest payment dates, redemption terms, if any, place of payment and registration and form of paying agent and registrar agreement, and substantially final form of the public securities; provided, however, that to the extent specific terms of the public securities have been lawfully delegated to a representative or committee for determination, those terms shall be set forth in the pricing certificate;

(C) citation to the legal authority for the issuer to construct or acquire the proposed improvements or services, to pledge the specified payment source, and, as applicable, to contract with other parties for payment of principal and interest and other payments relating to the proposed public securities;

(D) identification of a specified revenue source and/or a levy of a tax, which shall be pledged in amounts sufficient, within any applicable limitation, to pay the annual debt service requirements of the proposed public securities for the current year and each succeeding year during which the proposed public securities are outstanding. Cities and counties issuing public securities supported in whole or in part by ad valorem taxes constitutionally must provide for an annual levy sufficient to collect a sinking fund of not less than 2% of the principal amount of the proposed public securities regardless of the year in which the first principal payment is due;

(E) a reasonably complete and detailed description of the improvements, services, or projects being financed and the intended use of the proceeds, including whether any of the proceeds are being used to pay capitalized interest or fund a reserve fund;

(F) a recitation of the following:

(i) the manner of the sale, whether negotiated or competitively bid,

(ii) the identification of the purchaser,

(iii) the purchase price, including any discount or premium, and

(iv) the finding that the terms of the sale were in the issuer's best interest, and additionally, if competitively bid, that the sale was awarded based on the lowest net effective interest rate, or other applicable standard as permitted by law;

(G) for proposed public securities with a floating, variable, or adjustable interest rate, a provision limiting the maximum rate of interest to:

(i) a net effective interest rate not to exceed the maximum interest rate provided for and calculated in accordance with Chapter 1204 of the Government Code; or

(ii) such other limit applicable to the securities and/or the issuer;

(H) incorporation of the provisions of Title 6 of the Property Code (Unclaimed Property) regarding the disposition and reporting of unclaimed principal and interest payments, specifically requiring compliance with the reporting requirements of Chapter 74 of the Property Code;

(I) provisions to account for the use of surplus public securities proceeds, premiums, and interest earnings on public securities proceeds;

(J) if issuing public securities under voted authorization, recitation of amounts previously issued under such voted authorization and the amount of voted authorization remaining after the issuance of the proposed public securities; provided, however, that if a determination of the amount of the public securities to be issued has been lawfully delegated, the amount of remaining voted authorization shall be stated in the pricing certificate; and

(K) approval of the form of contracts included in the transaction, as applicable;

(3) Pricing Certificate. A pricing certificate, when appropriate to facilitate a lawful delegation of specific terms of proposed public securities to an identified representative of the issuer. The certificate shall be signed by the representative(s) identified in the authorizing ordinance, order, or resolution, and shall reflect compliance with any parameters established therein;

(4) General Certificate. A general certificate, signed by a senior executive officer or an elected or appointed official of the issuer, and the official custodian of records of the issuer, and, if appropriate, any other officers or authorized representatives of the issuer, which certificate includes the following:

(A) for all public securities, a debt retirement schedule that:

(i) is current as of the date of the sale of the proposed public securities;

(ii) includes the combined debt service requirements of the proposed public securities and all other outstanding indebtedness payable in whole or in part from the same source regardless of lien priority, including any additional series of public securities being issued at the same time as the proposed public securities,

(iii) calculates interest as follows:

(I) at the actual interest rates sold, if known;

(II) in the case of future interest for variable rate debt, at the lesser of the maximum interest rate permissible under the ordinance, order, resolution or trust indenture authorizing the debt, or the maximum rate under applicable state law; or

(III) in the case of commercial paper, in accordance with §1371.057(c) of the Government Code;

(iv) for outstanding indebtedness or proposed public securities payable from a combination of ad valorem taxes and another pledged source, includes the debt service requirements as though such indebtedness were payable solely from ad valorem taxes, unless it is shown that such indebtedness can be and is paid, or with respect to proposed public securities, is intended to be paid, from the other pledged sources;

(v) for cities and counties constitutionally required to levy taxes sufficient to collect an annual 2% sinking fund for principal, reflects the annual 2% sinking fund amount in the debt service requirements even if no principal is due in a given year; and

(vi) for indebtedness with a related interest rate management agreement, as that term is defined in Chapter 1371 of the Government Code, taking into account the effect of the agreement on the interest rate(s) of the indebtedness in calculating the debt service requirements;

(B) for all proposed revenue and combination limited tax and revenue public securities:

(i) a history of the pledged revenue collections during the most recent three year period or, if revenues are being relied upon to show coverage, a revenue projection in the event a revenue history is unavailable or insufficient to provide debt service coverage. A revenue projection must include an explanation of the circumstances, such as a recent increase in the applicable rates, fees, or charges, that support a projected increase in revenues;

(ii) for a revenue projection based on an expanded system, a certificate of a licensed engineer or qualified consultant, as appropriate;

(iii) a copy of the current rate order or ordinance or adopted rate schedule of the issuer; and

(iv) a statement of the annual operating and maintenance expenses for the most recent year;

(C) for ad valorem tax public securities, certified statements of taxable values, and, if an issuer intends to rely on a collection rate greater than 90%, a certificate of the issuer's collection rates for the most recent three years;

(D) for general law city ad valorem tax public securities, certification of the type of general law city and the city's population;

(E) for home rule cities, certification of the date of the most recent amendment to the city charter and a certified copy of any charter amendment not previously submitted with a transcript;

(F) for issuers other than municipalities, citation to the statutory and, if applicable, constitutional provisions authorizing the issuer's creation and, if applicable, its taxing power;

(G) certification of incumbency, including the following:

(i) certification of the incumbency of each issuer's executive or administrative officer subscribing any document in the transcript; and

(ii) certifications of incumbency for city secretaries, county clerks, and other officers customarily certifying incumbencies, which certifications may be made by the presiding officer of the governing body of the issuer or, in his or her absence, any other member of the governing body; and

(H) at the discretion of the issuer, any other certifications required by this chapter;

(5) Purchase Agreement. For negotiated sales, executed original of any purchase agreement relating to the sale of the proposed public securities;

(6) Bid Form. For competitive sales, evidence of the winning bid form;

(7) Insurance. For financings for which insurance is obtained:

(A) a copy of the insurance commitment letter, executed by the insurer, if applicable;

(B) certified proceedings authorizing the insurance, which may be in the ordinance, order or resolution authorizing the public securities;

(C) if a statement of insurance is to be printed on the public securities, express authorization by the issuer in the ordinance, order or resolution authorizing the public securities or pricing certificate; and

(D) in the case of any agreement entered into with the insurer, if the agreement constitutes an authorized credit agreement pursuant to Chapter 1371 of the Government Code, submission of the proceedings authorizing the agreement;

(8) Offering Document. An official statement or other offering document; if a preliminary official statement is initially provided, a final official statement is to be provided prior to approval by the Office of the Attorney General;

(9) Affidavit of Publication. An affidavit of publication, executed by a representative of the newspaper, establishing that the newspaper meets the requirements under state law with a copy of a clipping of the published material attached;

(10) Paying Agent/Registrar Agreement. The paying agent/registrar agreement in substantially final form;

(11) Acknowledgment of Special Meeting. Acknowledgment of timely receipt of notice of a special meeting signed by each member of the issuer's governing body who failed to attend the meeting of the governing body at which a transcript document was approved;

(12) Certification of Official Actions. A certificate for each action taken by the governing body relating to the issuance of the proposed public securities, executed by the custodian of records of the governmental body, indicating presence of appropriate quorum, type of meeting (special, regular, or emergency), introduction and adoption of the action and the number of votes for, against, and abstaining. Such actions must be certified as true and correct copies of originals on file in the body's official minutes and all meetings at which such actions have been taken must be certified as having been held in full compliance with Chapter 551 of the Government Code;

(13) Signature Identification and No-Litigation Certificate. An undated signature identification and no-litigation certificate signed by the officers who executed the proposed public securities that complies with the following requirements:

(A) signatures shown on the certificate must substantially conform to the signatures on the proposed public securities;

(B) signatures must be certified as genuine by a bank or acknowledged by a notary public;

(C) certificate must include certification confirming that no litigation is pending or to the best of the knowledge of the issuer, threatened, against the issuer seeking to restrain or enjoin the issuance of the public securities, questioning the issuance or sale of the public securities or the authority or action of the governing body relating to the issuance or sale of the public securities, or the levy of taxes or collection of revenues or the pledge of taxes or revenues to the principal of and interest on the securities, as appropriate, or materially affecting the assessment or collection of taxes to pay the principal of and interest on the public securities, when appropriate; and that neither the corporate existence or boundaries of the issuer nor the right to hold office of any member of the governing body of the issuer or any other elected or appointed official of the issuer is being contested or otherwise questioned; and

(D) authorization for the Office of the Attorney General to insert the date of the approving opinion on the certificate must be provided, along with a representation that the issuer will notify the Office of the Attorney General by phone if it becomes aware of any changes with respect to any representation in the certificate or any transcript document to which the issuer is a party that occur between the date of the approving opinion and the date of closing;

(14) Reimbursement of Expenditures. If applicable, documentation evidencing intent to use the public security proceeds to reimburse the issuer for its prior expenditures;

(15) Bond Review Board Information. Bond Review Board information required by §1202.008 of the Government Code along with an additional copy of the official statement; and

(16) Election Proceedings. Certified election proceedings as provided in §53.14 of this subchapter.

(b) Execution of Documents. All certificates must be originally signed and, if required, sealed. All issuer contracts providing security or otherwise affecting the marketing or terms of public securities and governmental orders must either be originally signed and, if required, sealed, or legible copies certified to be true and correct copies.

Source Note: The provisions of this §53.3 adopted to be effective January 5, 2017, 41 TexReg 10543