33.Costs for upgrading and widening State Highway 24
CITY COUNCIL AGENDA ITEM BRIEFING SHEET
Submittal Date: Originating Department: Presented By: Agenda Item No.:
02/24/2012
Council Date: Paris Econ Development Steve Gilbert, Executive Director 33.
02/27/2012
RECOMMENDED MOTION:
First reading of Ordinance declaring City support for funding a portion of the right-of-way acquisition
costs and utility relocation costs for upgrading and widening a 10.4 mile segment of State Highway 24
from City of Cooper to Delta-Hunt County line in an amount of $1,450,000.00
POLICY ISSUES):
Economic Development
BACKGROUND:
For over thirty years, the City of Paris, Texas and Lamar County, Texas and other members of the
Sulphur River Regional Mobility Authority (formerly the Northeast Texas Mobility Authority) have
urged the Texas Legislature, Texas Department of Transportation (TXDOT) and the Texas
Transportation Commission to upgrade and widen State Highway 24 from a 2-lane undivided highway
to a 4-lane divided highway from Interstate 30 Exit 101 to US 271 at the Paris city limits.
The only remaining stretch of State Highway 24 which has not been upgraded to a 4-lane divided
highway is the 10.4 mile segment from Cooper to the Delta/Hunt county line. TXDOT has now come
forward with approximately $33,000,000.00 of state and federal highway funding to complete this
project, but will require local participation from SURRMA and the governmental entities that make up
SURRMA to pay for right-of-way acquisition costs and utility relocation costs associated with the
Project in the estimated amount of $5,377,269.00.
In order to fund the majority of the local participation costs for this Project, SURRMA is taking out a
20-year low interest loan from the State Infrastructure Bank in the amount of $4,500,000.00. SURRMA
is requesting the City of Paris to commit to funding one-third of this amount along with Lamar County
and Paris Economic Development Corporation.
BOARD/COMMISSION RECOMMENDATION:
EXHIBITS:
Ordinance
ACTION: BUDGET INFO:
❑ Financial Report ❑ Minute Order Expense $ 1,450,000.00
❑ Department Report ❑ Resolution Budgeted Amt. $ -0-
❑ Presentation ® Ordinance YTD Actual $ -0-
❑ Public Hearing ❑ Other Acct. Name
Acct. Number
FISCAL NOTES:
REVIEWED AND APPROVED BY:
❑ Administration ❑ City Clerk ❑ Community Development ❑ EMS/IT ❑ Finance ❑ Fire
❑ Municipal Court ❑ Legal ❑ Library ❑ Police ❑ Eng./Public Works ❑ Utilities
City of Paris 229 Revised 2/04/08
DRAFT 2/21/2012
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS,
TEXAS DECLARING SUPPORT FOR FUNDING A PORTION OF THE
RIGHT-OF-WAY ACQUISITION COSTS AND UTILITY RELOCATION
COSTS FOR UPGRADING AND WIDENING STATE HIGHWAY 24 FROM
THE CITY OF COOPER, TEXAS SOUTHWEST TO THE DELTA-HUNT
COUNTY LINE IN AN AMOUNT ANTICIPATED TO BE $1,450,000;
MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE
SUBJECT; AND DECLARING AN EFFECTIVE DATE
WHEREAS, the expansion and improvement of the transportation infrastructure leading
to the City of Paris, Lamar County, Texas from the Interstate 30 corridor is vital to the economic
development of the City of Paris, City of Cooper, Lamar County, Delta County, and the Paris
Economic Development Corporation as well as to the safety of the traveling public; and
WHEREAS, for over 30 years, community leaders from the City of Paris, City of Cooper,
Lamar County, Delta County, the Paris Economic Development Corporation, and the North East
Texas Regional Mobility Authority have urged the Texas Legislature, Texas Department of
Transportation ("TXDOT"), and the Texas Transportation Commission to upgrade and widen
State Highway 24 from a 2-lane highway to a 4-lane divided highway from Interstate 30 to the
Paris city limits; and
WHEREAS, the only stretch of State Highway 24 that has not been upgraded to a 4-lane
divided highway is the remaining 10.4 mile gap from the City of Cooper, Texas southwest to the
Delta-Hunt County line; and
WHEREAS, in 2001 the Texas Legislature enacted legislation to create Regional
Mobility Authorities to focus transportation needs and available funding for transportation
projects on a regional basis; and
WHEREAS, in 2002 the counties of Delta, Hunt, Lamar, and Hopkins formed the North
East Texas Regional Mobility Authority ("NETMOB") to focus on transportation needs in the
four county area and to advocate these transportation projects to TXDOT and the Texas
Transportation Commission; and
WHEREAS, upgrading and widening State Highway 24 from a two-lane highway to a
four-lane divided highway between Interstate 30 and the city limits of the City of Paris, Texas
has been a top priority project for the NETMOB and the Sulphur River Regional Mobility
Authority (as successor entity to NETMOB); and
WHEREAS, TXDOT has now pledged Thirty Million Dollars ($33,207,000) of funding
to complete the final 10.4 mile stretch of State Highway 24 from the City of Cooper, Texas
southwest to the Delta-Hunt County line, but will require approximately Four Million Five
Hundred Thousand Dollars ($4,500,000.00) of local participation for the project to pay for right-
of-way acquisition and utility relocation and the cash contribution of $877,269 from the
95447415.2
1 . 230
Commissioners Court of Delta County, Texas, for a total local participation contribution of
$5,377,269; and
WHEREAS, the Sulphur River Regional Mobility Authority ("SuRRMA") has also
requested the City of Paris, Texas ($1,450,000), Lamar County, Texas ($1,450,000), the City of
Cooper, Texas ($150,000), and the Paris Economic Development Corporation ($1,450,000) to
provide the financial support in the total $4,500,000 local participation match for the State
Highway 24 widening project; and
WHEREAS, many business and industry leaders in the City of Paris, City of Cooper,
Lamar County, Delta County, and the Paris Economic Development Corporation areas have
contacted their local elected officials about how important the completion of the State Highway
24 widening project is to the continued growth and success of their businesses in the City of
Paris, City of Cooper, Lamar County, Delta County, and the Paris Economic Development
Corporation; and
WHEREAS, the City Council of the City of Paris, Texas, has determined that the upgrade
and widening of the final 10.4 mile stretch of State Highway 24 from City of Cooper, Texas
southwest to the Hunt-Delta County line is of vital importance to the growth and retention of
business and industry in the City of Paris, Texas, Lamar County, Texas and to the growth and
retention of primary jobs at these local businesses and industry in the City of Paris, Texas, Lamar
County, Texas; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF PARIS, TEXAS THAT:
Section 1. The City Council of the City of Paris, Texas (the "City"), hereby pledges
its financial support to SuRRMA concerning the State Highway 24 widening project from the
City of Cooper, Texas southwest to the Delta-Hunt county line in a present value dollar amount
not to exceed One Million Four Hundred Fifty Thousand Dollars ($1,450,000.00) payable over
an amortized loan period subject to loan agreement finalization between the TXDOT State
Infrastructure Bank and SuRRMA.
Section 2. This pledge of financial support by the City is contingent upon TXDOT
entering into an agreement to construct the State Highway 24 widening project and receipt of
signed and duly authorized financial commitments from the other local public entities
participating in the State Highway 24 widening project.
Section 3. The City hereby recognizes its pecuniary obligation set forth in the
TXDOT State Infrastructure Bank Loan Agreement (Exhibit A hereto), the Interlocal
Cooperative Agreement (Exhibit B hereto) by and among the City of Paris, Texas, Paris
Economic Development Corporation, the City of Cooper, Texas, Lamar County, Texas, and
Delta County, Texas, and its potential additional pecuniary liability set forth in the TXDOT
Ordinance that is attached hereto in substantially final form as Exhibit C.
Section 4. This Ordinance may be relied upon by the appropriate officials at the
Office of the Attorney General for the State of Texas and establishes compliance by the City
with the requirements of Texas law.
95447415.2 -2-
231
Section 5. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 6. All ordinances, orders and resolutions, or parts thereof, which are in
conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of
such conflict, and the provisions of this Ordinance shall be and remain controlling as to the
matters resolved herein.
Section 7. This Ordinance shall be construed and enforced in accordance ,with the
laws of the State of Texas and the United States of America.
Section 8. If any provision of this Ordinance or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Ordinance and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Ordinance would have been enacted without such invalid
provision.
Section 9. It is officially found, determined, and declared that the meeting at which
this Ordinance 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 Ordinance, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 10. This Ordinance shall be effective from and after the date of passage.
[The remainder of this page intentionally left blank. ]
95447415.2 -3-
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PASSED AND APPROVED this day of , 2012.
CITY OF PARIS, TEXAS
Mayor
ATTEST:
City Secretary
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233
Finance SIB #
Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
THE STATE OF TEXAS § DRAFT 2/20/12
COUNTY OF LAMAR §
STATE INFRASTRUCTURE BANK (SIB)
LOAN AGREEMENT
THIS STATE INFRASTRUCTURE BANK LOAN AGREEMENT (THIS "AGREEMENT")
MADE BY and between the State of Texas, acting by and through the Texas Department
of Transportation, hereinafter called the "Department" or "State," and the Sulphur River
Regional Mobility Authority, hereinafter called the "Authority," which is a political
subdivision of the State of Texas and which is located in Delta, Hunt, and Lamar Counties.
WITNESSETH
WHEREAS, the Secretary of Transportation of the United States Department of
Transportation is authorized by 23 USC Section 610 to enter into cooperative agreements
with the 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, the Texas Legislature established a 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 JAC), Part 1, Chapter 6); and
WHEREAS, the Authority is authorized by law to construct, maintain, and finance a
highway improvement project; and
WHEREAS, the State and the Authority together are developing a project widening
the remaining 10.4 mile portion of State Highway 24 from a 2-lane highway to a 4-lane
divided highway from the Hunt-Delta County line to the City of Cooper, Texas related
rights-of-way and infrastructure improvements, as described in further detail in Article 2 of
this Agreement (the "Project"); the Project is on the state highway system and is included
in the 2011-2014 Transportation Improvement Program; and
WHEREAS, the Authority and the State will enter into an agreement to complete the
10.4 miles of four lane road with the Authority to fund the portion of right of way and utility
relocation, subject solely to funding from Lamar County, Delta County, City of Paris, City of
Cooper, and the Paris Economic Development Corporation, and the State shall fund the
preconstruction, engineering, construction management, construction, and maintenance
of the Project; and
WHEREAS, TXDOT has pledged Thirty Three Million Two Hundred Seven
Thousand Dollars ($33,207,000) of funding to complete the final 10.4 mile stretch of State
Highway 24 from the City of Cooper, Texas southwest to the Delta/Hunt County line, but
95447991.8 Page 1 of 14 EX H I BIT'11K
Finance SIB #
Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
will require approximately up to Five Million Three Hundred Seventy Seven Thousand Two
Hundred Sixty Nine Dollars ($5,377,269.00) of local participation for the Project to pay for
right-of-way acquisition and utility relocation; of which the Authority and interlocal parties
have Eight Hundred Seventy Seven Thousand Two Hundred Sixty Nine Dollars
($877,269.00) pledged or on deposit with TXDOT relating to the Project; and
WHEREAS, the Project Financial Action Plan is attached hereto as Exhibit A and
incorporated by reference hereto for all purposes; and
WHEREAS, in accordance with 43 TAC §6.23, the Authority submitted an
application to the State seeking to borrow not to exceed Four Million Five Hundred
Thousand Dollars ($4,500,000.00) from the SIB to fund the portion of the costs of the
Project it has agreed to pay; and
WHEREAS, the Authority has entered into an Interlocal Cooperative Agreement
(the "Interlocal Cooperative Agreement") with Delta County, Lamar County, City of Paris,
City of Cooper, and the Paris Economic Development Corporation and the Department is a
third party beneficiary of this Interlocal Cooperative Agreement relating to the Project; 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 Department's environmental rules in 43 TAC ch. 2, has been
conducted as part of the Department's environmental assessment of the Project; the
approval was issued on ; and
WHEREAS, in accordance with 43 TAC §6.32(e), the Department has reviewed,
analyzed, and found the application to be in compliance with the requirements of 43 TAC
Chapter 6; and
WHEREAS, the Authority's Board of Directors, adopted a resolution dated
, 2012 attached hereto (the "Resolution") and made a part of this
Agreement as Exhibit B. The Resolution authorizes the Authority to enter into a financial
assistance agreement with the State for a loan in the amount of not to exceed Four Million
Five Hundred Thousand Dollars ($4,500,000.00) for the Project; and
WHEREAS, the Texas Transportation Commission, in Minute Order No.
dated , 2012 granted preliminary approval, and in Minute Order No.
dated 2012 (Exhibit C), granted final approval of an application from the
Authority to borrow not to exceed Four Million Five Hundred Thousand Dollars
($4,500,000.00) from the SIB, and authorized the Executive Director of the Department to
enter into a financial assistance agreement with the Authority for the Project; and
WHEREAS, 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.
NOW, THEREFORE, the State and the Authority agree as follows:
AGREEMENT
95447991.8 Page 2 3 5
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Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
Article 1. Financial Assistance
A. The State will lend the Authority the amount of not to exceed Four Million Five
Hundred Thousand Dollars ($4,500,000.00) (the "SIB Loan"), to finance the actual costs of
the Project described in Article 2 of this Agreement located within the boundaries of the
Authority.
B. On 2012 (or on a subsequent business day if so requested by the
Authority in writing after execution of this Agreement), the State will transfer the amount of
not to exceed Four Million Five Hundred Thousand Dollars ($4,500,000.00) from the SIB to
the Authority for deposit in Authority's depository bank (Liberty National Bank of Paris,
Texas located in Paris, Texas). The Department hereby expressly recognizes that it has
received $132,144.00 from the Commissioners Court of Delta County, $745,125.00 from
Federal Funds and such deposits may only lawfully be used to pay the Project costs
related to rights of way acquisition and utility relocation. The Authority shall deposit such
additional funds into a Project Account established by the Authority with the depository
bank to fund the necessary Project costs described in this Agreement. The depository
bank shall not commingle funds in the Project Account with any other funds held by the
bank. If, during the course of this Agreement, the Authority changes its depository bank,
the Authority shall cause the transfer of any remaining SIB Loan proceeds into an
equivalent account in the new depository bank, subject to the same security and fund
segregation requirements described in this paragraph. The date the SIB Loan proceeds
are deposited into the Project Account is referred to as the "Deposit Date." If the Deposit
Date is not , 2012, the State shall revise Exhibit D attached hereto to reflect
the revised Deposit Date and the revised interest and principal payment amounts and due
dates resulting from such revision of the Deposit Date.
C. The payment of principal of, and interest on, the SIB Loan is an obligation of the
Authority's general fund, subject to annual appropriation of funds for payment of the SIB
Loan and pursuant, for funding of its obligations under this Agreement, to the provisions of
the Interlocal Cooperative Agreement.
D. The SIB Loan is to be repaid over a period not to exceed twenty (20) years, with a
final maturity date of February 1, 2033, in accordance with the amortization table attached
to this Agreement as Exhibit D. Principal due on the SIB Loan shall be due on February 1,
2013, and each February 1 thereafter including the final principal payment date as shown
on Exhibit D attached hereto (each a "Principal Payment Date"), and in the amounts (each
a "Principal Payment") as shown on Exhibit D attached hereto.
The SIB Loan shall bear interest from the Deposit Date, at the rate of % per annum
(the "Loan Rate"), such interest to be calculated on the basis of a 360-day year composed
of 12 30-day months (each an "Interest Payment"). Interest Payments will be due on
February 1, 2013, and each February 1 and August 1 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. Funds from the Project Account shall only be drawn upon by the Authority to pay
costs related to the Project as described in this Agreement. All work performed in
connection with the relocation of utilities shall be in accordance with all applicable policies
95447991.8 `Page
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Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
of the State. All draws from the Project Account for costs related to the Project shall be in
accordance with a requisition prepared by or approved by the Authority, and all such
requisitions and Project costs shall be subject to the review and approval of the State.
F. The Authority shall establish at its depository bank a SIB Loan Debt Service
Account. Interest Payments due on the SIB Loan and each Principal Payment due on the
SIB Loan shall be deposited into this account by the Authority prior to each Payment Date
as provided in the Interlocal Cooperative Agreement. On or before each Payment Date,
the Authority shall cause its depository bank to transfer from the SIB Loan Debt Service
Account to the State, the applicable Interest Payment and/or Principal Payment as set
forth in this Agreement.
G. The repayment of all or any portion of the SIB Loan shall not entitle the Authority to
any subsequent advances from the State, nor shall the State have any obligation to
advance to or for the benefit of the Authority any amount in excess of the SIB Loan. All
costs of the Project in excess of the SIB Loan shall be the responsibility of the Authority
and as set forth in the Interlocal Cooperative Agreement.
H. Principal due on the SIB Loan may be prepaid by the Authority without penalty, in
whole or in part, on any Payment Date, or if such Payment Date is not a business day, on
the next following business day. Any prepayment of principal made pursuant to this
Paragraph H or pursuant to Article 3, Paragraph F or Article 4, Paragraph C hereof (each
such Paragraph regarding the return of proceeds not expended), must be made on a
Payment Date or if such Payment Date is not a business day, on the next following
business day. Upon receipt of a prepayment of a portion (and not the whole) of the
outstanding principal amount of the SIB Loan from the Authority:
(1) the State shall apply such prepayment to the outstanding Principal Payments, in
inverse order of Principal Payment Date,
(2) Exhibit D will be revised by the State to reflect the remaining Principal Payments and
the revised Interest Payments due, whether upon prepayment or in the event that not all of
the Authority's committed $4,500,000 is required to pay the Authority's costs of the Project;
and
(3) such revised Exhibit D shall be submitted to the Authority to be attached to and
become an integral part of this Agreement.
1. 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 State on the basis of a 360-day year
composed of 12 30-day months. The State may prepare a revised Exhibit D (amortization
table) showing the increase in interest due resulting from late payment, termination or
misappropriation under Article 5 hereof, default under Article 6 hereof, or pursuant to other
terms and conditions of this Agreement.
J. If after the effective date of this Agreement, the Deposit Date is revised as provided
in paragraph B of this Article, the State will prepare a revised Exhibit D (amortization table)
showing changes in the Payment Dates and amounts due thereon under this Agreement.
If by [October 10], the Authority has failed to submit notification to the State under
95447991.8 Pa9 f 14
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Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
paragraph B of this article requesting the transfer of the SIB Loan proceeds to the
Authority, then this Agreement shall be terminated pursuant to Article 5 hereof and shall be
null and void.
Article 2. Project Description
The State and the Authority together are developing a State highway project widening the
remaining 10.4 mile portion of State Highway 24 from a 2-lane highway to a 4-lane divided
highway from the Hunt-Delta County line to the City of Cooper, Texas. The Project is
estimated to cost $38,584,269.00 which the Authority will be responsible for the right of
way acquisition and utility relocation and the State is responsible for the total construction
and maintenance cost of the Project.
Article 3. Project Responsibilities
A. The SIB loan proceeds are secondary funds (as that term is used in 43 TAC Chapter 6)
derived from the federally-authorized state infrastructure bank program. With respect
to its work on the Project, the Authority is required to comply with the requirements with
United State Code, Title 23, for federal aid highways. The Authority 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 there under.
B. The Authority is responsible for contracting for and funding all Project costs as outlined
in Article 2 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.
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.
D. The actions and decisions regarding the Project made by the State shall not be
contestable by the Authority.
E. The Authority shall provide the State and the Federal Highway Administration, or their
authorized representatives, with right of entry or access to all properties or locations
necessary to perform the work for the Project, inspect the work, or otherwise aid in the
prompt pursuit of the work. The Authority shall also provide the State, 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 Authority which are pertinent to the
acquisition of the right-of-way, relocation of utilities, or to its financing as described in
this Agreement, in order to make audits, examinations, excerpts, and transcripts, or to
complete the Project accounting described in Article 4 of this Agreement.
95447991.8 Paget 9 tY
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Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
F. In the event the Authority shall not have allocated all proceeds of the SIB Loan by the
third anniversary of the Deposit Date, the Authority shall cause the Authority's
depository bank to return the unexpended portion of the SIB Loan to the Department,
and the State shall revise and replace Exhibit D to show the revised amortization
schedule and the reduced principal amount of the SIB Loan outstanding.
Article 4. Project Accounting; Filing of Reports; Retention of Records
A. The Authority shall account for all actual costs associated with the Project using
generally accepted accounting principles in the United States, as promulgated by
the Governmental Accounting Standards Board, the Financial Accounting
Standards Board, or pursuant to applicable federal or State laws or regulations.
The Authority will make its accounting records available at reasonable times to the
State for inspection during the Project and upon its completion.
B. On each Principal Payment Date, the Authority shall provide to the State (one copy
to the applicable District Office and one copy to the Department's Finance Division)
the following: (1) an accounting of the SIB Loan proceeds expended ("Annual
Expenditure Report"); and (2) a copy of a resolution by the Authority's Board of
Directors or other written confirmation of the annual appropriation of funds to make
the Principal Payments and Interest Payments due under this Agreement during the
next following 12 months. The Authority will provide the Annual Expenditure Report
and proof of availability of funds on each Principal Payment Date and at any other
time as may be requested by the Department.
C. At the completion of the Project, the State shall use generally accepted accounting
procedures to determine the actual cost of the Project. If a portion of the proceeds
of the SIB Loan are not needed for the Project then the Authority will return such
funds to the State. The State will apply such return of funds to reduce the
outstanding Principal Payments at the time of the final accounting, and the State
shall provide the Authority with a revised Exhibit D, all as more fully described in
Article 1, Paragraph H hereof. The Authority shall hold all Project records,
accounts, and supporting documentation open for State and federal audits until
Project completion, and upon Project completion, the Authority shall forward to the
Department, upon the request of the Department, all or a portion of the Project files
and reports.
D. The State Auditor may conduct an audit or investigation of the Authority with
respect to the funds received from the State directly under this Agreement or of
the payments received by third parties from the Authority using the SIB Loan
proceeds. Acceptance of funds directly under this Agreement or indirectly
through payments using loan proceeds acts as acceptance of the authority of
the State Auditor, under the direction of the legislative 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.
E. The Authority shall retain all original Project files, records, accounts, and
supporting documents until the later of the date that: (1) the Project is
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Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
completed; (2) the SIB Loan has been paid in full; or (3) the retention period
required by State and federal law ends.
F. All information submitted by the Authority to the Electronic Municipal Market
Access System of the Municipal Securities Rulemaking Board with respect to
Authority bonds and other similar obligations payable from the same revenues
that the Authority will use to pay the SIB Loan must be submitted to the
Department. Such information may be submitted to the Department by hard
copy or by notification to the Department of the Authority's posting with EMMA,
together with the applicable CUSIP number/s.
Article 5. Project Termination; Misapplication of SIB Loan
Should the Project described in this Agreement be terminated for any reason or any
amounts of disbursed SIB Loan proceeds not be applied to pay Project costs, the Authority
shall return any unexpended portion of the SIB Loan to the State, whereupon the State
shall recalculate the SIB Loan amount and the principal and interest repayment schedule
attached as Exhibit D. The Authority is responsible for repaying the reduced or changed
SIB Loan amount and the interest thereon as if the Project had been completed.
Article 6. Defaults
A. The Authority shall be in default if it fails to repay the SIB Loan (the Principal Payments
and the Interest Payments) as set forth in Article 1 above or otherwise fails to comply
with the terms of this Agreement. The State shall not be obligated to take further action
nor resume its obligations under this Agreement until the Authority is no longer in
default. The Authority shall, pursuant to the provisions of the Interlocal Agreement,
reimburse the State for all costs or other losses of funds resulting from any default or
failure to perform by the Authority.
B. The Authority agrees that in the event of a default under this Agreement the State may,
by all legal and equitable means, require the Authority and any appropriate official of
the Authority (acting solely in its official capacity) to remedy any default under, and
carry out the provisions of, this Agreement, including specifically the use and filing of
mandamus proceedings in any court of competent jurisdiction in Travis County, Texas.
Article 7. Authority Solely Responsible
The Authority agrees that it is solely responsible for all losses, costs, expenses, penalties,
claims, and liabilities due to activities of the Authority and its agents, employees, officers,
or contractors performed under this Agreement, and which result from an error, omission,
or negligent act of the Authority or any agent, employee, official, or contractor of Authority.
Notwithstanding anything in this Agreement to the contrary, this provision shall survive any
termination of this Agreement.
Article 8. 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 Article
5 of this Agreement;
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Sulphur River Regional Mobility Authority (Delta, Hunt, and Lamar Counties)
B. If the State is unable to advance the proceeds of the SIB Loan to the Authority within
the period prescribed in Article 1, Paragraph J of this Agreement, the State shall
terminate this Agreement and provide written notice thereof to the Authority;
C. If the Authority is in default on a Principal Payment or Interest Payment required under
this Agreement, the State may declare this Agreement to be terminated, or may
exercise any of the rights granted the State in Article 6 of this Agreement; but the
payment obligations of the Authority shall survive any such termination and shall
continue in effect until discharged and satisfied;
D. Upon repayment in full by the Authority of the SIB Loan, and compliance by the
Authority with all other requirements of this Agreement, the State shall execute and
deliver to the Authority 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: Local Government:
Texas Department of Transportation Sulphur River Regional Mobility
Attn: Chief Financial Officer Authority (SuRRMA)
SIB Administration 1125 Bonham Street
125 East 11 th Street Paris, Texas 75460
Austin, TX 78701-2483 Chairman, Board of Directors
All notices shall be deemed so delivered or deposited 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 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. 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 12. Successors and Assigns
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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 13. 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 State and the Authority.
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. Interlocal Cooperative Agreement; Department Third Party Beneficiary
Status
The Department recognizes and agrees that the SIB Loan can only be repaid by the
Authority and/or the Project may only be completed based upon the cash contributions
from certain Participants (as defined in the Interlocal Cooperative Agreement) and/or the
obligation of certain Participations to make the annual debt service payments for the
benefit of the SIB Loan as set forth in the Interlocal Cooperative Agreement. As such, the
Department is recognized as a third party beneficiary of the Interlocal Cooperative
Agreement and may legally pursue any remedy against any of the Participants and/or the
Authority to enforce the Department's rights, duties, and obligations set forth in this
Agreement.
Article 16. 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 Authority, as applicable, is fully authorized to bind that entity
to the terms of this Agreement.
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IN WITNESS WHEREOF, the State and the Authority have executed triplicate
counterparts of this agreement.
Sulphur River Regional Mobility Authority
By: Date:
Chairman, Board of Directors
ATTEST:
By: Date:
Secretary, Board of Directors
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
Chief Financial Officer
Texas Department of Transportation
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EXHIBIT A
Project Financial Action Plan
Highway 24 4-1-ane Widening
Date: February 8, 2012
Summary of Project Costs (Estimates)
Pre-Construction (Soft) Costs
Engineering Services: $1,100,000. (12 months)
Maps, Plats & Deeds Services 322,000. (12-14 months)
ROW Land Acquisition Services 850,000. (see below)
ROW Land Acquisition 3,155,000. (16-18 months)
Utility Relocation 1,455,000. (concurrent with ROW
acquisition +6 months)
SuRRMA 50,000. Legal services
SuRRMA 102,000. Engineering & Consultant
SuRRMA 200,000. Administration services
Subtotal $7,234,000.
Reserves for SuRRMA's Risks
ROW (Acreage) $ 77,914. 10% reserves
ROW (Improvements) 214,620. 9% reserves
Utilities Adjustments 72,734. 5% reserves
Engineering Consultant 50,000. Work Authorization #5
Subtotal $ 415,269.
Construction Costs
TXDOT Estimate $30,935,000.
Grand Total All Costs $38,584,269.
Summary of Funding Sources (Estimates)
TXDOT (Proposed Prop. 12) $30,935,000
TXDOT (Other Sources) 2,272,000
Total TXDOT $33,207,000
Federal Earmarks $745,125
Delta County Tobacco Settlements $132,144
Total Funds Available $34,084,269
Total Funds Needed $ 4,500,000. SIB Loan Request $4.5 M
Total Funds for TX HWY 24 $38,584,269.
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EXHIBIT B
AUTHORITY'S BOARD OF DIRECTORS' RESOLUTION
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EXHIBIT C
TEXAS TRANSPORTATION COMMISSION MINUTE ORDER
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EXHIBIT D
SIB LOAN AGREEMENT
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