HomeMy WebLinkAboutResolution - 2018-R0436 - Loan Agreement With Txdot - Loop 88 Improvement Project. - 12/06/2018Resolution No. 2018- R o43_6
D_ecember_ 1, 2018
Item No. 6 1 1
RESOLUTION NO. 2018-RO436
A RESOLUTION OF THE CITY OF LUBBOCK, TEXAS AUTHORIZING
THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT WITH
THE TEXAS DEPARTMENT OF TRANSPORTATION IN CONNECTION
WITH THE STATE LOOP 88 IMPROVEMENT PROJECT
WHEREAS, the Texas Transportation Commission, acting by and through the Texas
Department of Transportation ("Department") is constructing a highway improvement project on
a portion of existing FM 1585, designated as State Loop 88 (the "Project"), but will require the
City of Lubbock, Texas (the "City") to participate in the Project by way of paying the costs
related to right-of-way acquisition and utility relocation necessary for the Project (the "City's
Contribution to the Project"); and
WHEREAS, the City passed a Resolution on March 23, 2017, authorizing submission of
an application to the Department for the approval of a loan from the State Infrastructure Bank
account in the State Highway Fund (the "SIB") in an amount not to exceed $7,250,000; and
WHEREAS, the Texas Transportation Commission, by Minute Order dated March 29,
2018, granted final approval of the application from the City to borrow an amount not to exceed
$7,250,000 from the SIB, and authorized the Executive Director of the Department or his
designee to enter into a loan agreement with the City to finance the City's Contribution to the
Project; and
WHEREAS, the City deems it proper and in the best interests of the City and its residents
to authorize the execution and delivery of a loan agreement with the SIB in an amount not to
exceed $7,250,000 to be used to pay the costs of the City's Contribution to the Project; and
. WHEREAS, the City recognizes the benefit to its residents and all who will use and
depend on the Project upon its completion.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF LUBBOCK, TEXAS THAT:
Section 1. The City hereby finds and determines that it is in the best interests of the
City and its residents to enter in a loan agreement with the SIB to obtain a low interest loan in an
amount not to exceed $7,250,000 (the "SIB Loan Agreement") to finance the costs of the City's
Contribution to the Project.
Section 2. The City hereby authorizes the Mayor and/or the City Manager to execute
and deliver the SIB Loan Agreement to obtain a low interest loan in an amount not to exceed
$7,250,000, and to execute and deliver all certificates and documents as are determined to be
necessary or appropriate in connection therewith. The Mayor, the City Manager and their
designees are further authorized to take all such other actions as they determine to be necessary
or appropriate for the execution and delivery of the SIB Loan Agreement.
4165-7032-2968.3
Section 3. A copy of the SIB Loan Agreement in substantially final form is attached
hereto as Exhibit "A" and made a part hereof for all purposes.
Section 4. The City hereby finds and determines that it is in the best interests of the
City and its residents to secure the repayment of all amounts due in respect of the loan made
pursuant to the SIB Loan Agreement from the levy of an ad valorem tax. As required by Article
XI, Section 7 of the Texas Constitution and as is more particularly set forth in the SIB Loan
Agreement, there shall be levied and there is hereby levied for the current year and for each
succeeding year hereafter while any of the principal amount of the loan made pursuant to the SIB
Loan Agreement or any interest thereon is outstanding and unpaid, an ad valorem tax on each
one hundred dollars valuation of taxable property within the City, at a rate sufficient, within the
limit prescribed by law, to pay the debt service requirements on the loan made pursuant to the
SIB Loan Agreement, being (i) the interest on the principal amount of the loan made pursuant to
the SIB Loan Agreement, and (ii) a sinking fund for their redemption at maturity or a sinking
fund of two percent (2%) per annum (whichever amount is greater), when due and payable, full
allowance being made for delinquencies and costs of collection.
Section 5. This Resolution may be relied upon by the appropriate officials at the
Department and establishes compliance by the City with the requirements of Texas law.
Section 6. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City.
Section 7. All orders and resolutions, or parts thereof, which are in conflict or
inconsistent with any provision of this Resolution are hereby repealed to the extent of such
conflict, and the provisions of this Resolution shall be and remain controlling as to the matters
resolved herein.
Section 8. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 9. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
hereby declares that this Resolution would have been enacted without such invalid provision.
Section 10. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 11. This Resolution shall be effective from and after the date of passage.
[Signalure page.lbllows.]
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EXHIBIT A
SIB LOAN AGREEMENT
A-1
4165-7032-2968.3
ADOPTED THIS 17th day of December , 2018, by the City Council of the City of
Lubbock, Texas.
CITY OF LUBB0CK, TEXAS
DANIEL M. POPE, MAYOR
ATTEST:
- 14 e -z-,- 'R---1
Re ecca Garza, City Secre UY
APPROVED AS TO CONTENT:
D. Blu Kostelic , Chief Financial Officer
APPROVED AS TO FORM:
--cx-
Jerry V. i4le, Jr., Bond Counsel
4165-7032-2968.3
Resolution No. 2018-R0436
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs #1502-01-029; 1502-01-036
STATE INFRASTRUCTURE BANK
LOAN AGREEMENT
This State Infrastructure Bank Loan Agreement (Agreement) is made by and between
the Texas Transportation Commission acting by and through the Texas Department of
Transportation (Department), an agency of the State of Texas, and the City of Lubbock
(Borrower), a political subdivision of the State of Texas, located in Lubbock County, Texas,
acting by and through its governing body.
WITNESSETH
WHEREAS, the Secretary of Transportation of the United States Department of
Transportation is authorized by the National Highway System Designation Act (Section 350
of Public Law 104-59) to enter into cooperative agreements with certain states, including
Texas, to establish a state infrastructure bank 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, the Texas Legislature established the State Infrastructure Bank (SIB) as
an account in the State Highway Fund to be administered by the Texas Transportation
Commission (Transportation Code, Chapter 222, Subchapter D); and
WHEREAS, the Texas Transportation Commission has adopted rules to implement
the SIB program, including eligibility criteria for financial assistance (Title 43, Texas
Administrative Code (TAC), Part 1, Chapter 6); and
WHEREAS, the Department is constructing a highway improvement project on a
portion of existing FM 1585 designated as State Loop 88 through Minute Order 115000 on
July 27, 2017 in Lubbock County, Texas identified as CSJ # 1502-01-029; 1502-01-036
(Project), but will require the Borrower's participation in the Project to pay for costs of right-
of-way acquisition and utility relocation necessary for the Project; and
WHEREAS, the Borrower is a governmental entity in Texas and is authorized by law
to finance costs of right-of-way acquisition and the relocation of utility lines necessary for
construction of the Project; and
WHEREAS, the Department and the Borrower have entered into an "Agreement to
Contribute Right of Way Funds" dated November 7, 2017 (the "Agreement to Contribute
ROW Funds") under which the Borrower agreed to contribute to the State funding
participation as defined in 43 TAC §15.55 for the cost of acquiring the right of way and
relocating utilities necessary for the Project; and
WHEREAS, in accordance with 43 Texas Administrative Code (TAC) §6.23, the
Borrower submitted an application to the Department seeking to borrow Seven Million Two
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SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs # 1502-01-029,1502-01-036
Hundred Fifty Thousand Dollars ($7,250,000) from the SIB to meet pay for costs associated
with right-of-way acquisition and the relocation of utility lines necessary for the Project; and
WHEREAS, in accordance with 43 TAC §6.32(c)(2): (1) the Project is consistent with
the Statewide Long -Range Transportation Plan; (2) the Project is not in a Clean Air Act non -
attainment area; (3) the Project will improve the efficiency of the state's transportation
systems; (4) the Project will expand the availability of funding for transportation Projects or
reduce direct state costs; and (5) the application shows that the Project and the applicant
are likely to have sufficient revenues to ensure repayment of the financial assistance; and
WHEREAS, as part of the Department's environmental assessment of the Project,
the Project was cleared pursuant to a Finding of No Significant Impact by the Department
on February 27, 2018; and
WHEREAS, the Borrower passed a Resolution on March 23, 2017, authorizing
submission of a SIB loan application in the amount of up to Seven Million Two Hundred Fifty
Thousand Dollars ($7,250,000), attached hereto as Exhibit A; and
WHEREAS, in accordance with 43 TAC §6.32, the Department reviewed, analyzed,
and found the application to be in compliance with the requirements of 43 TAC Chapter 6;
and
WHEREAS, the Texas Transportation Commission, in Minute Order No. 115183
dated March 29, 2018, granted final approval of the application from the Borrower to borrow
up to Seven Million Two Hundred Fifty Thousand Dollars ($7,250,000) from the SIB, and
authorized the Executive Director of the Department or his designee to enter into a financial
assistance agreement with the Borrower to finance the costs associated with right-of-way
acquisition and the relocation of utilities necessary for construction of the Project, attached
hereto as Exhibit B; and
WHEREAS, the Borrower passed a Resolution on March 23, 2017 authorizing the
Borrower's authorized representative to enter into this Agreement for a loan in the amount
of Seven Million Two Hundred Fifty Thousand Dollars ($7,250,000), attached hereto as
Exhibit C; and
WHEREAS, the Department has determined that the money in the SIB to be used to
make the loan is "secondary funds" and "financial assistance from other than general
obligation bond proceeds," as those terms are used in 43 TAC Chapter 6; and
WHEREAS, the Borrower will repay the loan with funds other than federal funds.
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NOW, THEREFORE, the Department and the Borrower agree as follows:
AGREEMENT
Article 1. Financial Assistance.
A. SIB Loan. The Department, on behalf of the Commission, will make a loan to the
Borrower in the amount of up to Seven Million Two Hundred Fifty Thousand Dollars
($7,250,000) from the SIB (SIB Loan) to be used by the Borrower solely to pay for costs
associated with right-of-way acquisition and the relocation of utilities necessary for the
Project.
B. SIB Loan Disbursement. On the "Loan Draw" date shown on the Amortization
Schedule, hereto attached as Exhibit D, the Department will transfer the amount of Seven
Million Two Hundred Fifty Thousand Dollars ($7,250,000) from the SIB (SIB Loan Proceeds)
to the Borrower for deposit in the Borrower's depository bank, Wells Fargo Bank located in
Lubbock, Texas, into an account established by the Borrower with its depository bank or
investment pool as prescribed by state law (Project Account). The Borrower shall use the
SIB Loan Proceeds for payment of the Borrower's actual costs of right-of-way acquisition
and utility relocation necessary for the Project. The Borrower shall not use the SIB Loan
Proceeds for any purpose other than that described in this Agreement.
The investment of any SIB Loan Proceeds shall be handled in a manner that complies with
the Public Funds Investment Act, Texas Government Code, Chapter 2256. The SIB Loan
Proceeds shall be adequately collateralized in a manner that complies with the Public Funds
Collateral Act, Texas Government Code, Chapter 2257, The depository bank or investment
pool shall not commingle funds in the Project Account with any other funds held by the
depository bank or investment pool. If, during the course of this Agreement, the Borrower
wishes to change its depository bank or investment pool, the Borrower shall obtain the
Department's approval prior to the transfer of any remaining SIB Loan Proceeds or any other
funds into an equivalent account in the new depository bank or investment pool, subject to
the same security and fund segregation requirements described in this Agreement.
C. Security Provisions.
(1) Pledge of Tax Revenues. The Borrower hereby covenants and agrees to
secure and repay the SIB Loan and accrued interest hereon pursuant to the terms of this
Agreement from the Borrower's ad valorem tax revenues, and that the Department has a
contractual right to and pledge of such revenues to guarantee repayment. The Borrower
hereby agrees that during each year while the SIB Loan is outstanding and unpaid, it shall
and hereby does levy an ad valorem tax on each one hundred dollars valuation of taxable
property within the city limits of the Borrower, at a rate sufficient, within the limit prescribed
by law, to pay the amounts due on the SIB Loan, being (i) the interest on the SIB Loan, and
(ii) a sinking fund for their redemption at maturity or a sinking fund of two percent per annum
(whichever amount is the greater), when due and payable, full allowance being made for
delinquencies and costs of collection.
(a) The ad valorem tax thus levied shall be assessed and collected each
year against all property appearing on the tax rolls of the Borrower most recently
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approved in accordance with law, and the money thus collected shall be deposited
as collected to the SIB Interest and Sinking Fund established in Article I, Section F of
this Agreement.
(b) Said ad valorem taxes, the collections therefrom and all amounts on
deposit in or required to be deposited in the Interest and Sinking Fund are hereby
pledged to the payment of principal and interest on the SIB Loan when and as due
and payable.
(c) The amount of taxes to be provided annually for the payment of
principal of and interest on the SIB Loan shall be determined and accomplished in
the following manner:
(i) The Borrower's annual budget shall reflect (a) the amount of
principal and interest on the SIB Loan to become due in the next succeeding
Fiscal Year of the Borrower, and (b) the amount of Pledged Revenues or other
lawfully available funds estimated and budgeted to be available for the
payment of the principal of and interest on the SIB Loan during the next
succeeding Fiscal Year of the Borrower.
(ii) The amount required to be provided in the succeeding Fiscal
Year of the Borrower from ad valorem taxes shall be the amount, if any, by
which the principal and interest to be paid on the SIB Loan in the next
succeeding Fiscal Year of the Borrower exceeds the sum of (a) the amount of
Pledged Revenues shown to be on deposit in the Interest and Sinking Fund
(after giving effect to any payments required to be made during the remainder
of the then current Fiscal Year) at the time the annual budget is prepared, and
(b) the Pledged Revenues or other lawfully available funds shown to be
budgeted and available (subject to the requirements of any Prior Lien
Obligations) for payment of said debt service requirements.
(iii) Following the final approval of the annual budget of the
Borrower, the governing body of the Borrower shall levy an ad valorem tax at
a rate sufficient to produce taxes in the amount determined in paragraph (ii)
above, to be utilized for purposes of paying the principal of and interest on the
SIB Loan in the next succeeding Fiscal Year of the Borrower.
D. Loan Repayment. The SIB Loan is to be repaid over a period of no more than fifteen
(15) years, in accordance with the amortization schedule attached to this Agreement as
Exhibit D. Principal due on the SIB Loan shall be due annually on each principal payment
date as shown on Exhibit D (each a "Principal Payment Date"), and in the amounts (each a
"Principal Payment") as shown on Exhibit D.
The SIB Loan shall bear interest from the initial "Loan Draw" date as shown on Exhibit D at
the rate of 2.70% per annum (the "Loan Rate"), such interest to be calculated on the basis
of a 360-day year composed of twelve (12) 30-day months (each an "Interest Payment").
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Interest Payments will be due semi-annually beginning on February 15 and August 15, 2019,
and on each February 15 and August 15 thereafter in the years as shown on Exhibit D
attached hereto (each an "Interest Payment Date"). The Principal Payment Dates and the
Interest Payment Dates are collectively referred to as "Payment Dates." If a Payment Date
is not on a business day, the Interest Payment and/or Principal Payment due shall be made
on the next following business day.
E. Draw of Funds from Project Account. SIB Loan funds in the Project Account shall
only be drawn upon by the Borrower and used for Project costs as described in this
Agreement. All draws from the Project Account for such costs related to the Project shall
be in accordance with a requisition prepared by or approved by the Borrower, and all such
requisitions and Project costs shall be subject to the review and approval of the Department.
F. Interest and Sinkinq Fund. The Borrower shall establish at its depository bank or
investment pool a SIB Loan Interest and Sinking Fund. Interest Payments due on the SIB
Loan and each Principal Payment due on the SIB Loan shall be deposited into this Interest
and Sinking Fund by the Borrower prior to each Payment Date. On or before each Payment
Date, the Borrower shall cause its depository bank or investment pool to transfer from the
SIB Loan Interest and Sinking Fund to the Department, the applicable Interest Payment
and/or Principal Payment as set forth in this Agreement.
G. Advances. The repayment of all or any portion of the SIB Loan shall not entitle the
Borrower to any subsequent advances from the Department, nor shall the Department have
any obligation to advance to or for the benefit of the Borrower any amount in excess of the
SIB Loan. All costs of the Borrower's portion of the acquisition of right-of-way for the Project
in excess of the par amount of the SIB Loan shall be the responsibility of the Borrower.
H. Prepayment.
(1) Voluntary Prepayment. Principal due on the SIB Loan and interest accrued at
the Loan Rate through and including the date of prepayment may be prepaid by the Borrower
without penalty, in whole or in part, on any business day.
(2) Mandatory Prepayment. Should the Project or this Agreement be terminated
for any reason or should any amounts of disbursed SIB Loan Proceeds not be applied to
pay Project costs, the Borrower shall immediately return any unexpended portion of the SIB
Loan Proceeds or any misapplied SIB Loan Proceeds to the Department as a prepayment.
(3) Application of Prepayments. Upon receipt of a prepayment from the Borrower
of a portion (and not the whole) of the outstanding principal amount of the SIB Loan, the
Department shall apply such prepayment first to the outstanding Principal Payments, in
inverse order of Principal Payment Date.
(4) Re -amortization. Upon either voluntary or mandatory prepayment, the
remaining principal due on the SIB Loan will be re -amortized over the term of the SIB Loan
and Exhibit D will be revised by the Department to reflect the remaining Principal Payments
and the revised Interest Payments due, and such revised Exhibit D shall be submitted to
the Borrower to be attached to and become an integral part of this Agreement.
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City of Lubbock - (Lubbock District)
CSJs # 1502-01-029,1502-01-036
I. Late Payment. Payments not received by the applicable Payment Date will bear
interest at the Loan Rate (with overdue interest as well as overdue principal bearing interest)
until paid. Such additional interest shall be calculated by the Department on the basis of a
360-day year composed of twelve (12) 30-day months. The parties may prepare a revised
Exhibit D (amortization schedule) showing the increase in interest due resulting from late
payment, default, or pursuant to other terms and conditions of this Agreement.
J. Payment with Federal Funds. The Borrower hereby covenants and agrees that
federal funds will not be used to make payments due on the SIB Loan.
Article 2. Use of SIB Loan for Project Costs
The Department is developing the Project. The Borrower is responsible funding its portion
of Project costs by contributing to the State funding participation as defined in 43 TAC §15.55
for the cost of acquiring the right of way and relocating utilities necessary for the construction
of the Project. The Borrower may use the SIB Loan only for the funding participation provided
by the Borrower under the Agreement to Contribute ROW Funds.
Article 3. Project Responsibilities
A. The SIB Loan Proceeds are "secondary funds" and "financial assistance from other
than general obligation bond proceeds," as those terms are used in 43 TAC Chapter 6.
However, if any federal funds will be used to pay for, or reimburse costs of the Project, with
respect to work on the Project, the Borrower and the Department are required to comply with
the requirements of the United States Code, Title 23, for federal -aid highways. The Borrower
and the Department must conduct all right-of-way or other land acquisitions, relocations, and
utility adjustments in accordance with the United States Code, Title 42 — The Public Health
and Welfare, Chapter 61 — Uniform Relocation Assistance and Real Property Acquisition
Policies for Federal and Federally Assisted Programs (the "Uniform Act") and the regulations
issued thereunder.
B. The Borrower is responsible for funding its portion of Project costs in compliance with
all applicable federal, state, and local laws, regulations, policies, and ordinances. The
Department has certain rights and responsibilities related to the Project, including ensuring
that the completion of the Project is performed in compliance with all applicable laws,
regulations, and policies.
C. All plans and specifications for the Project shall be in compliance with the current
editions of the design and construction manuals of the Department, and the Standard
Specifications for the Construction and Maintenance of Highways, Streets, and Bridges (the
"Standard Specifications"), as they may apply. All construction plans shall be signed and
dated by a professional engineer licensed by the State of Texas.
D. The actions and decisions regarding the Project made by the Department shall not
be contestable by the Borrower.
E. The Borrower shall provide the Department and the Federal Highway Administration,
or their authorized representatives, with right of entry or access to all properties or locations
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necessary to perform the work for the Project, inspect the work, or otherwise aid in the
prompt pursuit of the work.
F. The Borrower shall provide the Department, the Federal Highway Administration, the
Comptroller General of the United States, and the Texas State Auditor's Office, or their
authorized representatives, with right of access to any books, documents, papers, or other
records of the Borrower which are pertinent to the Project or its financing as described in
this Agreement, in order to make audits, examinations, excerpts, and transcripts, or to
complete the Project accounting described in this Agreement.
Article 4. Project Accounting; Filing of Reports; Retention of Records
A. The Borrower shall account for: (i) all actual costs associated with the Borrower's
right -of- way acquisition and relocation of utilities necessary for the Project, and (ii)
disbursements made to the Department including, without limitation, SIB Loan payments
associated with the Project using generally accepted accounting principles in the United
States, as promulgated by the Governmental Accounting Standards Board or the Financial
Accounting Standards Board, or pursuant to applicable federal or state laws or regulations.
The Borrower shall maintain its books and records in accordance with generally accepted
accounting principles in the United States, as promulgated by the Governmental Accounting
Standards Board or the Financial Accounting Standards Board, or pursuant to applicable
federal or state laws or regulations, and with all other applicable federal and state
requirements. The Borrower will make its accounting records available at reasonable times
to the Department for inspection during performance of the Borrower's obligations related to
the Project, upon its completion and until the SIB Loan has been paid in full to the
Department in accordance with this Agreement.
B. On each Principal Payment Date (until the next Principal Payment Date occurring
after the year in which all SIB Loan Proceeds are expended), the Borrower shall provide to
the Department (one copy to the Department's District Office and one copy to the
Department's SIB Administration Office) an accounting of the SIB Loan Proceeds expended
("Annual Expenditure Report"). The Borrower shall also, at the Borrower's cost, have a full
audit of its books and records performed annually by an independent certified public
accountant selected by the Borrower and reasonably acceptable to the Department. The
audit must be conducted in accordance with generally accepted auditing standards
promulgated by the Financial Accounting Standards Board, the Governmental Accounting
Standards Board, or the standards of the Office of Management and Budget Circular A-133,
Audits of States, Local Governments and Non-profit Organizations, as applicable, and with
all other applicable federal and state requirements. The Borrower shall cause the auditor to
provide a full copy of the audit report and any other management letters or auditor's
comments directly to the Department within a reasonable period of time after an audit report
and any related documents have been provided to the Borrower's governing body.
C. The State Auditor may conduct an audit or investigation of the Borrower with respect
to the funds received from the Department directly under this Agreement or of the payments
received by third parties from the Borrower using the SIB Loan Proceeds. Acceptance of
funds directly under this Agreement or indirectly through payments using SIB Loan Proceeds
acts as acceptance of the authority of the State Auditor, under the direction of the legislative
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audit committee, to conduct an audit or investigation in connection with those funds. An
entity that is the subject of an audit or investigation must provide the State Auditor with
access to any information the State Auditor considers relevant to the investigation or audit.
D. The Borrower shall retain all original Project files, records, accounts, and supporting
documents relating to the relocation of Borrower utilities needed for the Project until the later
of the date that: (1) the Project is completed; (2) the SIB Loan has been paid in full; or (3)
the retention period required by state and federal law ends. The Borrower shall retain, or
cause its auditor to retain, all work papers and reports relating to an audit performed
pursuant to this Agreement until the fourth (4th) anniversary of the date of the audit report,
unless the Department notifies the Borrower in writing of a later date for the end of the
retention period. During the retention period, the Borrower shall make audit work papers
available to the Department within thirty (30) days of the date that the Department requests
those papers.
E. All information submitted by the Borrower (annual financial/disclosure information and
notices) to the Electronic Municipal Market Access ("EMMA") System of the Municipal
Securities Rulemaking Board with respect to the Borrower's bonds and other similar
obligations payable from the same revenues as the SIB Loan must be submitted to the
Department, within thirty (30) days of posting to EMMA. Such information may be submitted
to the Department by hard copy or by notification to the Department of the Borrower's posting
with EMMA, together with the applicable CUSIP numbers.
F. The Borrower shall submit to the Department the following: (i) the Borrower's annual
operating and capital budgets, within 30 days of the date of adoption by the City Council of
the Borrower; and (ii) a copy of any amendment or supplement to the operating or capital
budget, within 30 days of the date of any amended or supplemental operating or capital
budget approved by the City Council of the Borrower. Copies of such budgets, amendments
or supplements shall be certified as correct by Borrower's City Manager or Finance Director.
Article 5. Default
A. The Borrower shall be in default if it fails to repay the SIB Loan (the Principal
Payments and the Interest Payments) or otherwise fails to comply with any term of this
Agreement. The Department shall not be obligated to take further action nor resume its
obligations under this Agreement until the Borrower is no longer in default. The Borrower
shall reimburse the Department for all costs or other losses of funds resulting from any
default or failure to perform by the Borrower.
B. The Borrower agrees that in the event of a default under this Agreement, the
Department may, by all legal and equitable means, require the Borrower and any appropriate
official of the Borrower (acting solely in his/her official capacity) to remedy any default under,
and carry out the provisions of, this Agreement, including specifically the use and filing of
mandamus proceedings. Venue for any legal proceedings shall be in Travis County, Texas.
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Article 6. Borrower Solely Responsible
The Borrower agrees that it is solely responsible for all losses, costs, expenses, penalties,
claims, and liabilities due to activities of the Borrower and its agents, employees, officers, or
contractors performed under this Agreement, and which result from an error, omission, or
negligent act of the Borrower or any agent, employee, official, or contractor of the Borrower.
Notwithstanding anything in this Agreement to the contrary, this provision shall survive any
termination of this Agreement.
Article 7. Termination
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 this
Agreement;
B. If the Department is unable to advance the SIB Loan Proceeds to the Borrower, the
Department shall terminate this Agreement and provide written notice thereof to the
Borrower;
C. If the Borrower is in default on a Principal Payment or Interest Payment required
under this Agreement, the Department may declare this Agreement to be terminated, or may
exercise any of the rights granted the Department in this Agreement; but the payment
obligations of the Borrower shall survive any such termination and shall continue in effect
until discharged and satisfied; and
D. Upon repayment in full by the Borrower of the SIB Loan, and compliance by the
Borrower with all other requirements of this Agreement, the Department shall execute and
deliver to the Borrower a letter or other notice of payment, provided that, upon the execution
and delivery of the written notice of payment by the Department, this Agreement shall
automatically terminate, except with respect to (i) 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 and (ii) any provision of this Agreement which is expressly provided to survive
termination.
Article 8. Notices
All notices to either party by the other party required under this Agreement will be (a)
delivered personally; (b) sent by recognized overnight courier service; or (c) sent by certified
U.S. Mail, return receipt requested, postage prepaid, addressed to such party at the
following respective addresses:
Page 9 of 12
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs # 1502-01-029,1502-01-036
Texas Transportation Commission: Borrower:
Texas Department of Transportation City of Lubbock
Attn: Project Finance, Debt & Strategic Attn: Finance Department
Contracts Division 1625 13th Street
SIB Administration Lubbock, TX 79401
125 East 11 th Street
Austin, TX 78701-2483
All notices shall be deemed so delivered on the first to occur of (i) receipt or (ii) three (3)
days following deposit in the mail, unless otherwise provided herein. A party may change
the above address by sending written notice of the change to the other party in the manner
stated in this Article.
Article 9. 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. In particular, but not by way of limitation, should all or any part of the pledge of
security in this Agreement for any reason be held invalid, illegal or unenforceable in any
respect, Borrower's obligations under this Agreement shall be treated as current expenses
of the Borrower subject to the annual appropriation of lawfully available funds by the
governing body of the Borrower for the payment of such obligations.
Article 10. Written Amendments
Any changes in the character, agreement, terms, or responsibilities of the parties under this
Agreement 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.
Notwithstanding the foregoing, revisions to Exhibit D that occur as contemplated in this
Agreement must be in writing, but are not required to be executed by either party.
Article 11. Successors and Assigns
Except as provided in the next following sentence, this Agreement shall bind, and shall be
for the sole and exclusive benefit of, the respective parties. 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.
Article 12. Relationship of the Parties
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 Department and the
Borrower.
Article 13. Interpretation
No provision of this Agreement shall be construed against or interpreted to the disadvantage
of either party hereto by any court or other governmental or judicial authority by reason of
Page 10 of 12
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs # 1502-01-029,1502-01-036
such party having or being deemed to have drafted, prepared, structured, or dictated such
provision.
Article 14. 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 Department and the Borrower, as applicable, is fully authorized to bind that
entity to the terms of this Agreement.
Article 15. Taxable Obligations
The SIB Loan is not a "state or local bonds" within the meaning of section 103(a) and (c) of
the Internal Revenue Code of 1986, as amended; therefore, the interest on the SIB Loan is
not excludable from the gross income of the holders thereof for federal income tax purposes.
IN WITNESS WHEREOF, the Department and the Borrower have executed duplicate
counterparts of this Agreement.
`SIGNATURE PAGE FOLLOWS***
Page 11 of 12
CITY OF LUBBOCK, TEXAS
L"11--
Daniel M. Pope, Mayor
ATTEST:
Re tcca Garza, City ecr to
APPROVED AS TO CONTENT:
D. u Koster h, Chief Financial Officer
APPROVED AS TO FORM:
Jerry V. e, Jr., Bond Counsel
TEXAS DEPARTMENT OF TRANSPORTATION
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs # 1502-01-029,1502-01-036
Date. December 17, 2018
Date: December 17, 2018
Date: /q DeC_ 20t i;
Date: 1-7 T)Ec Zvi i
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.
Date:
Benjamin Asher
Director, Project Finance, Debt & Strategic Contracts Division
Texas Department of Transportation
EXECUTION PAGE: SIB # 2017-002-01
Page 12 of 12
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs #1502-01-029; 1502-01-036
EXHIBIT A
BORROWER'S RESOLUTION(S) AUTHORIZING LOAN APPLICATION
Exhibit A
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs #1502-01-029; 1502-01-036
EXHIBIT B
TEXAS TRANSPORTATION COMMISSION MINUTE ORDER
Exhibit B
SIB # 2017-002-01
City of Lubbock - (Lubbock District)
CSJs #1502-01-029; 1502-01-036
EXHIBIT C
BORROWER'S RESOLUTION AUTHORIZING LOAN AGREEMENT
Exhibit C
EXHIBIT D
AMORTIZATION SCHEDULE