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MDD Resolution No. 13 RESOLUTION NO.13 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT AUTHORIZING THE GENERAL MANAGER TO MAKE APPLICATION TO THE TEXAS DEPARTMENT OF TRANSPORTATION-STATE INFRASTRUCTURE BANK(SIB)LOAN PROGRAM FOR FINANCIAL ASSISTANCE IN THE AMOUNT OF TWO MILLION FIVE HUNDRED THOUSAND AND N01100 DOLLARS($2,500,000.00)FOR LOCAL FUNDING OF A PORTION OF THE CONSTRUCTION COST OF THE SPUR 330 PROJECT FROM FAIRWAY TO INTERSTATE 10;AUTHORIZING THE REPRESENTATIVE TO ACCEPT OR AFFIRM ANY LOAN THAT MAY RESULT THEREFROM;AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT: Section 1:That the General Manager of the Baytown Municipal Development District is hereby authorized to make application to Texas Department of Transportation-State Infrastructure Bank(SIB)Loan Program for financial assistance in the amount of TWO MILLION FIVE HUNDRED THOUSAND AND N01100 DOLLARS($2,500,000.00)for local funding of a portion of the construction cost of the Spur 330 Project from Fairway to Interstate 10. Section 2:That the General Manager is hereby designated as the authorized representative for all purposes under the application. Section 3:That the General Manager of the Baytown Municipal Development District is hereby authorized to accept or affirm any loan that may result from the above application. Section 4:This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Municipal Development District. INTRODUCED,READ and PASSED by the affirmative vote of the Board of Directors of the Baytown Municipal Development District this the 6`b day of November,2001. /J,C. PETE C.ALFARO,President ATTEST: /A GARY W.S4iTH,Assistant Secretary APPROVED AS TO FORM: cf7it'�ACIO RAMIREZ,S..eneral Counsel c:klh280\council\MDD\ResolutionsWpplication4SI13LoartProgtam ■ } S2002-001-01 (FIN) City of Baytown (HOU) THE STATE OF TEXAS § COUNTY OF TRAVIS § STATE INFRASTRUCTURE BANK (SIB) LOAN AGREEMENT THIS AGREEMENT IS MADE BY and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the "State," and the City of Baytown, hereinafter called the "City", a political subdivision of the State of Texas authorized by law to construct, maintain, or finance a highway improvement project, and acting herein by and through its City Council. WITNESSETH WHEREAS, Section 350 of the National Highway System Designation Act of 1995 (Public Law No. 104-59) authorizes states to establish a State Infrastructure Bank ("SIB")for the purpose of making loans and providing other financial assistance to public and private entities, so as to encourage public and private investment in transportation facilities, expand the availability of funding for transportation projects, and reduce State costs; and WHEREAS, pursuant to this legislation, Transportation Code, Chapter 222, Subchapter D, created a SIB within the Texas Department of Transportation; and WHEREAS, pursuant to that subchapter, the Texas Transportation Commission has adopted administrative rules implementing the subchapter and establishing eligibility criteria for an entity applying for financial assistance from the SIB, codified as Title 43, Texas Administrative Code (TAC), Part 1, Chapter 6; and WHEREAS, in accordance with 43 TAC §6.23, the City has submitted an application to borrow two million five hundred thousand dollars ($2,500,000.00)from the SIB to pay for the matching funds for the State Highway Construction project on Spur 330; and WHEREAS, the planned projects reconstruction of Spur 330 will complete the controlled access freeway from I 10 to SH 146 and will thus complete an important trade and hurricane evacuation route. The proposed improvements will alleviate congestion, promote safer travel, and thereby improve the efficiency of the state transportation system. The highway is on the state highway system, and is included in the Statewide Transportation Improvement Program and is consistent with the Texas Transportation Plan; and WHEREAS, in accordance with 43 TAC §6.32(d)(1), a study of the social, economical, and environmental impact of the project, consistent with the National Environmental Policy Act (42 U.S.C. §4321 et seq.), and Title 23, U.S.C. §109(h); and in compliance with the requirements of the department's environmental rules as stated in Chapter 2, Subchapter C of 43 TAC, was conducted as part of the department's environmental assessment of the project. All necessary social, economic, and environmental studies have been completed and no further coordination is required. The project will provide for all reasonable and feasible measures to avoid, minimize, or mitigate for adverse environmental impacts; and Page 1 of 6 S2002-001-01 (FIN) City of Baytown (HOU) WHEREAS, in accordance with 43 TAC §6.32(e), the Texas Department of Transportation has reviewed, analyzed, and found the application to be in compliance with the requirements of 43 TAC, Chapter 6; and WHEREAS, the Baytown City Council, passed a City Resolution dated November 6, 2001, attached hereto and made a part of this financial assistance agreement as Exhibit A. The City Resolution authorizes the City to enter into a financial assistance agreement with the State for a loan in the amount of two million five hundred thousand dollars ($2,500,000.00) to finance the local funding of a portion of the construction cost of the Spur 330 Project from Fairway Drive to Interstate 10; and WHEREAS, the Texas Transportation Commission, in Minute Order No. 108848, dated March 28, 2002, attached hereto and made a part of this financial assistance agreement as Exhibit B. The State Resolution granted final approval of an application from the City to borrow two million five hundred thousand dollars ($2,500,000.00) from the SIB, which was approved by the Baytown City Council, and authorized the Executive Director of the Texas Department of Transportation to enter into a financial assistance agreement with the City for its share of the project to reconstruct Spur 330 from Fairway Drive to Interstate 10. This reconstruction will provide for the construction of six main lanes. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, to be kept and performed by all parties as hereinafter set forth, the State and the City do hereby mutually agree as follows: AGREEMENT Article 1. Financial Assistance A. The State will lend the City the amount of two million five hundred thousand dollars ($2,500,000.00)to finance the actual project cost for the reconstruction of Spur 330 from Fairway Drive to Interstate 10 as described in Article 2 of this Agreement. After final execution of this Agreement and within thirty (30) days of a written notification by the City to the State to transfer the SIB funds, the State will transfer the amount of two million five hundred thousand dollars ($2,500,000.00)from the SIB to the Houston District for deposit into Fund 927, a Project Account to fund the necessary project funding costs as described in this Agreement. The date the loan proceeds are deposited into the Houston District's Fund 927 is hereinafter referred to as the "Deposit Date." B. The City hereby covenants and agrees that the loan will be secured by the city's municipal management district tax to guarantee repayment of the financial assistance to the SIB, and that the State has a contractual right to and pledge of such revenue to guarantee repayment. The financial assistance is to be repaid over a period of eight (8) years at 4.40% interest per annum. Interest on the original amount of the loan shall accrue from the Deposit Date at the rate of 4.40% simple interest per annum, and, if not paid, shall compound at the rate of 4.40% per annum annually on the Deposit Date of each succeeding year. The compounded outstanding balance from time to time of the loan is hereinafter referred to as the "Outstanding Balance". Payment of the principal and interest on the Outstanding Balance of the loan shall commence one year from the Deposit Date, hereinafter referred to as the ("Initial Payment Date"). Principal and interest on the loan shall continue with payments being made on each succeeding year on the Initial Payment Date (each "Payment Date"), thereafter for seven (7) annual installments until the final Payment Date on the eighth (8th) year after the Initial Payment Date (such date being Page 2 of 6 S2002-001-01 (FIN) City of Baytown (HOU) referred to as the "Maturity Date")when the Outstanding Balance shall be due and payable. C. All work performed in connection with the relocation of utilities shall be in accordance with all applicable policies of the State. All draws from the Project Account for costs related to the proposed project shall be in accordance with a requisition prepared by and/or approved by the City, and all such requisitions, and project costs shall be subject to the review and approval of the State. D. The State will prepare and make a part of this financial assistance agreement as an attachment, Exhibit C, a principal and interest repayment schedule for the loan. Exhibit C is based upon the Deposit Date determined pursuant to Paragraph A of this Article, the Initial Payment Date, and the annual Payment Dates in each succeeding year as described in Article 1, Paragraph B. The principal and interest repayment schedule shall provide for payment of the loan amount of two million five hundred thousand dollars ($2,500,000.00) over an eight (8) year repayment period, and is subject to revision pursuant to the terms and conditions of this Agreement. The City shall make payments in accordance with the principal and interest repayment schedule attached herein as Exhibit C. E. The City shall establish in its depository bank a SIB Loan Debt Service Fund. Pledged revenue of the City as described in Article 1, Paragraph B shall be deposited into this fund by the City prior to each "Annual Loan Payment". The City shall make one or more deposits to the credit of the SIB Loan Debt Service Fund during this twelve month period until the balance of such fund equals the Annual Loan Payment attached herein as Exhibit C. On or before the Initial Payment Date as established in this Agreement and on or before each succeeding Payment Date thereafter, through the Maturity Date, the City shall cause its depository bank to transfer to the State the applicable Annual Loan Payment as set forth in the attached Exhibit C. F. The repayment of all or any portion of the Outstanding Balance of the loan shall not entitle the City to any subsequent advances from the State, nor shall the State have any obligation to advance to or for the benefit of the City any amount in excess of the loan proceeds. G. There shall be no penalty imposed by the State upon the City for any or partial early repayment of this SIB loan as outlined in the attached Exhibit C. Article 2. Project Description The State will provide SIB financial assistance to the City for its share of actual project costs of the reconstruction of the Spur 330 Project from Fairway Drive to Interstate 10. Article 3. Project Responsibilities A. The City is responsible for funding its share of all project costs as outlined in Article 1 of this Agreement, in compliance with all applicable federal, state, and local laws, regulations, policies, and ordinances. The State has certain review and approval rights and responsibilities related to the project as prescribed by this Agreement, including ensuring that the completion of the project is performed in compliance with all applicable laws, regulations, and policies. B. The State shall prepare all plans and specifications for the project in compliance with the current editions of the design and construction manuals of the Texas Department of Transportation, and the Standard Specifications for the Construction and Maintenance of Highways, Streets, and Bridges (the "Standard Specifications"), as they may apply. All Page 3 of 6 S2002-001-01 (FIN) City of Baytown (HOU) construction plans shall be signed and dated by a professional engineer licensed by the State of Texas. C. The actions and decisions regarding the project made by the State shall not be contestable by the City. Article 4. Project Accounting The State shall account for all actual costs associated with the project using generally accepted state and federal accounting procedures. The State will make its accounting records available at reasonable times for inspection during the project and upon its completion. At the completion of the project, the State shall use generally accepted accounting procedures to determine the actual cost of the project. Excess funds will be applied to reduce the loan balance at the time of the final accounting, and the State shall provide the City with a revised principal and interest repayment schedule. Article 5. Project Termination Should the project described in this Agreement be terminated for any reason, the City shall return any unexpended portion of the loan amount to the State, which shall recalculate the principal and interest repayment schedule attached herein as Exhibit C. The City is responsible for repaying expended amounts and the interest thereon as if the project had been completed. Article 6. Default on Loan Payment A. Should the City not repay the loan as set forth in Article 1 as stated above, the State shall declare the City in default. If the City fails to remit to the State the payments the City owes pursuant to this Agreement, the State will take no further action nor resume its obligations under this Agreement until such payments are no longer in default. The City shall also be responsible for reimbursing the State for all costs or other losses of funds resulting from any default or failure to perform by the City. The State shall provide the City with a revised principal and interest repayment schedule after the City cures any default for a loan payment. B. The City acknowledges and agrees that the State has no adequate remedy at law to enforce this Agreement and therefore equitable relief (including mandatory injunctions requiring the City to perform its obligations hereunder)will be appropriate upon a default by the City under this Agreement. Article 7. Indemnification The City agrees that it is solely responsible for all losses, costs, expenses, penalties, claims, and liabilities due to activities of the City and its agents, employees, officers, or contractors performed under this Agreement, and which result from an error, omission, or negligent act of the City or any agent, employee, official, or contractor of the City. Notwithstanding anything in this Agreement to the contrary, this provision shall survive any termination of this Agreement. Article 8. Termination Including the provisions established herein, this Agreement may be terminated upon the occurrence of any of the following conditions: A. If both parties to this Agreement agree in writing to such termination; provided, however, that any such termination is specifically subject to the requirements of Article 5 of this Agreement; Page 4 of 6 S2002-001-01 (FIN) City of Baytown (HOU) B. If the State is unable to advance the proceeds of the loan to the City within the period prescribed in Article 1 of this Agreement, the City may terminate this Agreement by written notice to the State; C. If the City is in default on a loan payment required under this Agreement, the State may declare the Agreement to be terminated, or may exercise any of the rights granted the State in Article 6 of this Agreement; D. Upon repayment in full by the City of this SIB loan, and compliance by the City with all other requirements of this Agreement, the State shall execute and deliver to the City a certificate of payment, provided that, upon the execution and delivery of the certificate of payment by the State, this Agreement shall automatically terminate except with respect to any obligation of a party related to any losses, costs, expenses, penalties, claims, and liabilities due to the activities of a party, or any agent, employee, official, or contractor of a party, which obligations shall survive such termination. Article 9. Notices All notices to either party by the other party required under this Agreement will be delivered personally or sent by U.S. Mail, postage prepaid, addressed to such party at the following respective addresses: State: City: Texas Department of Transportation City of Baytown Attn: Director, Finance Division Office of the City Manager 125 East 11 th Street 2401 Market Austin TX 78701-2483 PO Box 424 (77522-0424) Baytown TX 77520 All notices shall be deemed so delivered or deposited in the mail, unless otherwise provided herein. A party hereto may change the above address by sending written notice of such change to the other party in the manner stated in Article 9. Article 10. Legal Construction In case one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Article 11. Written Amendments Any changes in the character, agreement, terms, or responsibilities of the parties must be enacted through a written amendment. No amendment to this Agreement shall be of any effect unless in writing and executed by both parties. Article 12. Successors and Assigns This Agreement shall bind, and shall be for the sole and exclusive benefit of, the respective parties and their legal successors, including, without limitation, any successor agency of a party. Other than as provided in the preceding sentence, each party is prohibited from assigning any of the rights or obligations conferred by this Agreement to any third party without the advance written approval of the other party. Any attempted assignment or other transfer of the rights or obligations of this Agreement without the consent of the other party shall be void and may be grounds for termination of this Agreement. Page 5 of 6 S2002-001-01 (FIN) Article 13. Relationship of the Parties City of Baytown (HOU) Nothing in this Agreement shall be deemed or construed by the parties, or any third party, as creating the relationship of principal and agent between the State and the City. Article 14. Interpretation No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party by any court or other governmental or judicial authority by reason of such party having or being deemed to have drafted, prepared, structured, or dictated such provision. Article 15. Signatory Authority Each party to this Agreement represents to the other that it is fully authorized to enter into this Agreement and to perform its obligations hereunder, and that no waiver, consent, approval, or authorization from any third party is required to be obtained or made in connection with the execution, delivery, or performance of this Agreement. Each signatory on behalf of the State and the City, as applicable, is fully authorized to bind that entity to the terms of this Agreement. IN WITNESS WHEREOF, the State and the City have executed triplicate counterparts of this agreement. CITY OF BAYTOWN By: Date: Pete C. Alfaro, Mayor City of Baytown ATTEST: By: Date: onte Mercer City Manager THE STATE OF TEXAS Executed for the purpose and effect of activating and/or carrying out the orders, established policies, or work programs heretofore approved and authorized by the Texas Transportation Commission. By: Date: James M. Bass, Director Finance Division Texas Department of Transportation Page 6 of 6