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R-00-08-10-10D2 - 8/10/2000WHEREAS, the Board of Directors of the Round Rock Transportation System Development Corporation ( "RRTSDC ") wishes to enter into a State Infrastructure Bank Loan Agreement with the State of Texas for the SH 45 frontage road project, and WHEREAS, the City Council wishes to approve of such action, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, TEXAS, That the City Council hereby approves the action of the Round Rock Transportation System Development Corporation in entering into a State Infrastructure Bank Loan Agreement with the State of Texas for the SH 45 frontage road project. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. ATTEST: RESOLVED this loth day of Au E LAND, City Secretary K,\ WPDOCS \RESOLUTI \R00910D2.WPD /sc RESOLUTION NO. R- 00- 08- 10 -10D2 RT A. STLUKA, 1r., Mayor City of Round Rock, Texas cc5\ THE STATE OF TEXAS § COUNTY OF TRAVIS § STATE INFRASTRUCTURE BANK (SIB) LOAN AGREEMENT S00008(FIN) City of Rock Round (AUS) COPf This State Infrastructure Bank Loan Agreement ( "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 Round Rock Transportation System Development Corporation (the "Corporation "), a public instrumentality and non - profit industrial development corporation created pursuant to the Development Corporation Act of 1979, Article 5190.6, §4B, Vemon's Annotated Texas Civil Statues, as amended, (the "Act ") and acting by and through its Board of Directors. 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, the Corporation is authorized to promote economic development within the City of Round Rock, Texas (the "City") and the State of Texas in order to eliminate unemployment and underemployment, and to promote and encourage employment and the public welfare of, for, and on behalf of the City, and for streets, roads, drainage, and other related transportation systems improvements, including the payment and maintenance and operating expenses associated with such authorized projects in accordance with §4B of the Act; and WHEREAS, in accordance with 43 TAC §6.23, the Corporation has submitted an application to borrow $16,000,000 from the SIB, to pay for the acquisition of Right of Way and the relocation of utilities required for the expansion of SH 45 within the project limits; and Page 1 of 9 S00008 (FIN) City of Rock Round (AUS) WHEREAS, the Texas Turnpike Authority, a division of the Texas Department of Transportation, has identified the construction of the portions of Loop 1 and SH 45 which create the "L" project in Travis and Williamson Counties as their highest priority projects; and WHEREAS, the construction of SH 45 will improve the flow and safety of north -south traffic by linking US 183 to IH 35 with an east -west route. The project will have a positive impact in the City and the surrounding region, as the improvements will increase mobility and access consistent with the transportation plan for the region; 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 resulting in a finding of no significant impact; and 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 Board of Directors of the Corporation, passed Resolution R -00 -03 dated March 9, 2000, attached hereto and made a part of this Agreement as Exhibit A -1, authorizing the Corporation to borrow $16,000,000 from the SIB, which was approved by the Round Rock City Council with Resolution R- 00- 03- 09 -10C2 dated March 9, 2000 attached hereto and made a part of this Agreement as Exhibit A -2, and authorized the Executive Director of the Texas Department of Transportation to enter this Agreement with the Corporation. The proposed acquisition of Right of Way and the relocation of utilities is located along SH 45; and WHEREAS, the Texas Transportation Commission, in Minute Order No. 108265, dated July 27, 2000, attached hereto and made a part of this Agreement as Exhibit B, granted preliminary approval of an application from the Corporation to borrow $16,000,000 from the SIB, which was approved by the Round Rock City Council, and authorized the Executive Director of the Texas Department of Transportation to enter into this agreement with the Corporation. The proposed acquisition of Right of Way and the relocation of utilities is located along SH 45; and 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 Corporation do hereby mutually agree as follows: Article 1. Definitions AGREEMENT When used herein, the following words and phrases shall have the meanings set forth below: Page 2 of 9 "Parity Obligations" means any bonds, notes, warrants, certificates of obligation or other debt obligations which the Corporation reserves the right to issue or enter into, as the case may be, in the future which obligations are equally and ratably secured by a first lien on and pledge of the Pledged Revenues. "Pledged Revenues" shall mean the Sales Tax plus any interest earnings thereon less any amounts due or owing to the Comptroller of Public Accounts of the State of Texas as charges for collection or retention by the Comptroller for refunds and to redeem dishonored checks and drafts, to the extent such charges and retention are authorized or required by law. "Sales Tax" shall mean the one -half of one percent sales and use tax levied by the City within the boundaries of the City as they now or hereafter exist, together with any increases in the aforesaid rate if provided and authorized by the laws of the State of Texas, including specifically the Act and collected for the benefit of the Corporation, all in accordance with the Act, including particularly Section 4B thereof. `Subordinate Lien Obligation" means any bonds, notes, warrants, certificates of obligation or other debt obligations which the Corporation reserves the right to issue or enter into, as the case may be, in the future which obligations are equally and ratably secured by a lien on the Pledged Revenues which lien is subordinate and inferior to the lien on and pledge of the Pledged Revenues that are or will be pledged to the payment of any Parity Obligations and the obligations under this Agreement. Article 2. Financial Assistance A. The State will lend the Corporation the amount of $16,000,000 to finance the actual project cost for the acquisition of Right of Way and the relocation of utilities as described in Article 3 of this Agreement. After final execution of this Agreement and within thirty (30) days of a written notification by the Corporation to the State to transfer the SIB funds, the State will transfer the amount of $16,000,000 from the SIB to the Corporation for deposit in the Corporation's depository bank (currently Chase Bank), into a Project Account to fund the necessary project funding costs as described in this Agreement. The Project Account shall be secured by the Corporation pursuant to its depository agreement. If, during the course of this Agreement, the Corporation changes its depository bank, the Corporation shall cause the transfer of any remaining loan proceeds into an equivalent account in the new depository bank, subject to the same security requirements prescribed in this paragraph. The date the loan proceeds are deposited into the Project Account is hereinafter referred to as the "Deposit Date." B. The amounts payable by the Corporation under this Agreement are a special obligation of the Corporation and shall be secured by and payable from a lien on and pledge of the Pledged Revenues, such pledge however, being junior and subordinate to the lien and pledge securing the payment of Parity Obligations and prior in right and claim to the lien on and pledge of the Page 3 of 9 S00008 (FIN) City of Rock Round (AUS) Page 4 of 9 S00008 (FIN) City of Rock Round (AUS) Pledged Revenues securing the payment of any Subordinate Lien Obligations. The Pledged Revenues are further pledged to the establishment and maintenance of the Debt Service Fund as hereinafter provided. Obligations under this Agreement are and will be secured by and payable only from the Pledged Revenues and are not secured by or payable from a mortgage or deed of trust on any real, personal or mixed properties constituting the project under this Agreement. Neither the State of Texas, the City, nor any political corporation, subdivision or agency of the state of Texas, nor any member of the Board of Directors of the Corporation, either individually or collectively, shall be obligated to pay the principal of or the interest on the amounts payable under this Agreement. The State shall not have the right to demand payment of the amounts payable under this Agreement from any tax proceeds in excess of the Sales Tax levied for the benefit of the Corporation by the City pursuant to Section 4B of the Act, or from any other source than the Pledged Revenues. The financial assistance is to be repaid over a period of fifteen (15) years at 4.6% interest per annum. Interest on the original amount of the loan shall accrue from the Deposit Date at the rate of 4.6% simple interest per annum, and, if not paid, shall compound to the extent authorized by law, at the rate of 4.6% 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 a "Payment Date "), thereafter for fourteen (14) annual installments until the final Payment Date of the fifteenth (15th) year after the Initial Payment Date (such date being referred to as the "Maturity Date ") when the Outstanding Balance shall be due and payable. C. Funds from the Project Account shall only be drawn upon by the Corporation to pay costs related to the project funding costs as described in this Agreement. All work performed in connection with the relocation of utility lines 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 the Corporation, 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 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 2, Paragraph B. The principal and interest repayment schedule shall provide for payment of the loan amount of $16,000,000 over a fifteen (15) year repayment period, and is subject to revision pursuant to the terms and conditions of this Agreement. The Corporation shall make payments in accordance with the principal and interest repayment schedule attached herein as Exhibit C. E. For the sole purpose of paying the principal of and interest on the amounts due under this Agreement, as the same come due, there shall be created and established in the books of the Corporation, a separate fund entitled the "Round Rock Transportation System Development Corporation Sales Tax Revenue Obligations Debt Service Fund" (the "Debt Service Fund. ") S00008 (FIN) City of Rock Round (AUS) Monies in said fund shall be maintained at an official depository bank of the City. Pledged Revenues shall be deposited into the Debt Service Fund prior to each "Annual Loan Payment." 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 Corporation shall cause its depository bank to transfer to the State the applicable Annual Loan Payment as set forth in the attached Exhibit C. The State shall provide the Corporation written notice of wiring instructions and amounts due on each Annual Loan Payment Date. F. The repayment of all or any portion of the Outstanding Balance of the loan shall not entitle the Corporation to any subsequent advances from the State, nor shall the State have any obligation to advance to or for the benefit of the Corporation any amount in excess of the loan proceeds. All costs in excess of the loan amount shall be the responsibility of the Corporation. G. There shall be no penalty imposed by the State upon the Corporation for any early repayment in whole or in part from time to time, of this SIB loan as outlined in the attached Exhibit C. H. The Corporation shall have the right and power at any time and from time to time and in one or more series or issues, to authorize, issue and deliver additional obligations payable from and secured by a lien on and pledge of the Pledged Revenues; (i) prior in right and claim to the lien and pledge of the Pledged Revenues securing the payment of obligations under this Agreement, (ii) equally and ratably on a parity with obligations under this Agreement and (iii) subordinate to the obligations under this Agreement. Article 3. Project Description The State will provide SIB financial assistance to the Corporation for actual project costs for the acquisition of Right of Way and the relocation of utilities within the City limits along SH 45. Article 4. Project Responsibilities A. The Corporation 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. B. All plans and specifications for the project shall be 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 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 Corporation. Page 5 of 9 S00008 (FIN) City of Rock Round (AUS) D. The City and the Corporation 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 activities required to execute the work, inspect the work, or aid otherwise in the prompt pursuit of the work. The City and the Corporation 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 City and the Corporation which are pertinent to the acquisition of the right -of -way 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 5 of this Agreement. Article 5. Project Accounting The Corporation shall account for all actual costs associated with the project using generally accepted state and federal accounting procedures. The Corporation will make its accounting records available at reasonable times to the State 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 Corporation with a revised principal and interest repayment schedule. If additional funds are needed, the Corporation is responsible for any amount due for additional funds. Article 6. Project Termination Should the project described in this Agreement be terminated for any reason, the Corporation 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 Corporation is responsible for repaying expended amounts and the interest thereon as if the project had been completed. Article 7. Default on Loan Payment A. Should the Corporation not repay the loan as set forth in Article 2 as stated above, the State shall declare the Corporation in default. If the Corporation fails to remit to the State the payments the Corporation 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 Corporation 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 Corporation. The State shall provide the Corporation with a revised principal and interest repayment schedule after the Corporation cures any default for a loan payment. B. There is no right to acceleration of the amounts payable under this Agreement. The Corporation 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 Corporation to perform its obligations hereunder) will be appropriate upon a default by the Corporation under this Agreement. Page 6 of 9 Article 8. Indemnification The Corporation agrees that it is solely responsible for all losses, costs, expenses, penalties, claims, and liabilities due to activities of the Corporation and its agents, employees, officers, or contractors performed under this Agreement, and which result from an error, omission, or negligent act of the Corporation or any agent, employee, official, or contractor of the Corporation. Notwithstanding anything in this Agreement to the contrary, this provision shall survive any termination of this Agreement. Article 9. 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 6 of this Agreement; E. If the State is unable to advance the proceeds of the loan to the Corporation within the period prescribed in Article 2 of this Agreement, the Corporation may terminate this Agreement by written notice to the State; F. If the Corporation 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 7 of this Agreement; D. Upon repayment in full by the Corporation of this SIB loan, and compliance by the Corporation with all other requirements of this Agreement, the State shall execute and deliver to the Corporation 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 10. Notices S00008 (FIN) City of Rock Round (AUS) 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: Texas Department of Transportation Attention: Director, Finance Division 125 East l lth Street Austin, Texas 78701 Page 7 of 9 Corporation: Round Rock Transportation System Development Corp. 221 E. Main St. Round Rock, Texas 78664 With a copy to: City: City of Round Rock Attention: City Manager 221 E. Main Street Round Rock, Texas 78664 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 10. Article 12. Written Amendments S00008 (FIN) City of Rock Round (AUS) Article 11. 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. 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 13. 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. Article 14. 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 Corporation. Page 8 of 9 Article 15. 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. Robert A. Stluka, Jr. Board Chairman S00008 (FIN) City of Rock Round (AUS) 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 Corporation, as applicable, is fully authorized to bind that entity to the terms of this Agreement. IN WITNESS WHEREOF, the State and the Corporation have executed triplicate counterparts of this Agreement. ROUND ROCK TRANSPORTATION SYSTEM DEVELOPMENT CORPORATION By: a� " Date: 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. B Date: Charles W. Heald, P.E. Executive Director Texas Department of Transportation Page 9 of 9 Exhibit A -1 RESOLUTION NO. R -00 -03 WHEREAS, the Board of Directors of the Round Rock Transportation System Development Corporation ( "RRTSDC ") hereby finds and determines that there is an urgent need for the RRTSDC to construct improvements to the City of Round Rock's transportation system, and WHEREAS, such capital improvements cannot be reasonably financed unless financial assistance is obtained from the State Infrastructure Bank, and WHEREAS, the Board of Directors of the RRTSDC now desires to recommend to the Round Rock City Council that a request for financial assistance be made to the State Infrastructure Bank in an amount not to exceed $ 1(4py) , Now Therefore BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE ROUND ROCK TRANSPORTATION SYSTEM DEVELOPMENT CORPORATION, A recommendation is hereby made to the Round Rock City Council that a request for financial assistance be made to the State Infrastructure Bank in an amount not to exceed $ 1(0 to provide. for the costs of construction of 'improvements to the City of Round Rock's transportation system. The Board of Directors hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon,'all as required by the Operi Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. RESOLVED this 9th day of March, 2000. ROUND ROCK TRANSPORTATION SYSTEM DEVELOPMENT CORPORATION ( ( " = "' 1/ ROBE A: S TLUKA , JR., President ' ATTEST: GAY MANBECK, Secretary Exhibit A -2 RESOLUTION NO. R- 00- 03- 09 -10C2 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF ROUND ROCK ( "CITY ") REQUESTING FINANCIAL ASSISTANCE FROM THE STATE INFRASTRUCTURE BANK IN AN AMOUNT NOT TO EXCEED $ J( fin; AUTHORIZING THE FILING OF AN APPLICATION FOR FINAN ASSISTANCE; AND MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH. WHEREAS, the City Council of the City hereby finds and determines that there is an urgent need for the City to construct improvements to the City's transportation system, and WHEREAS, such capital improvements cannot be reasonably financed unless financial assistance is obtained from the State Infrastructure Bank, and WHEREAS, the City Council now desires to request financial assistance in an amount not to exceed $I( OQ()' Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, Section 1. An application to the State Infrastructure Bank is hereby approved and authorized to be filed - with the State Infrastructure Bank seeking financial assistance in an amount not to exceed $I &yXX),nnn to provide for the costs of construction of improvements to the City's transportation system. Section 2, The Mayor is hereby designated as the authorized representative of the City for purposes for furnishing such information and executing such documents as may be required in connection with the preparation and filing of such application for financial assistance and with complying with the Rules of the State Infrastructure Bank. Section 3. The following firms and individuals are hereby authorized and directed to aid and assist in the preparation and submission of such application and appear on behalf of and represent the City before any hearing held by the State Infrastructure Bank on such applications, to wit: The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. RESOLVED this 9th day of March, 2000. ATTEST: Mr. Garry Kimball First Southwest Company 98 San Jacinto Blvd., Suite 370 Austin, Texas 78701 LAND, City Secretary City of Round Rock, Texas Exhibit B TEXAS TRANSPORTATION COMMISSION WILLiAMSON County MINUTE ORDER Page 1 of 2 District AUSTIN 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. Pursuant to this legislation, Transportation Code, Chapter 222, Subchapter D, created a SIB within the Texas Department of Transportation (department). The provision of capital to the SIB will result in the reduction of burdens and demands on the limited funds available to the Texas Transportation Commission (commission) and an increase in the effectiveness and efficiency of the department by allowing the SIB to provide financial assistance to eligible transportation projects. Pursuant to Transportation Code, Chapter 222, Subchapter D, the commission has adopted administrative rules implementing that subchapter and establishing eligibility criteria for an entity applying for financial assistance from the SIB, codified as Title 43, Texas Administrative Code, Chapter 6. In accordance with 43 TAC §6.32, on April 27, 2000, in Minute Order 108180, the commission granted preliminary approval of an application from the City of Round Rock (city), acting through the Round Rock Transportation System Development Corporation, a Section 4B development corporation (corporation) created by the city, to borrow $16,000,000 from the SIB to pay for the acquisition of right of way and the relocation of utilities required by the construction of State Highway 45 within the city. The planned improvements will alleviate traffic congestion on existing roadways in the area, providing a safer alternative to the existing roadway system, and will provide an east -west thoroughfare linking Austin to the Cedar Park, Leander, Round Rock and Pflugerville areas, indicating there is a transportation need for and anticipated public benefit in the proposed project, and a resulting improvement in the efficiency of the state's transportation system. Pursuant to 43 TAC §6.32(c)(3), the department and the corporation have negotiated the terms of a financial assistance agreement, including a pledge of Section 4B corporation sales tax revenue to guarantee repayment of the financial assistance to the SIB, with the financial assistance to be repaid over a period of 15 years at 4.6 percent interest per annum. In accordance with 43 TAC §6.32(d), 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 in compliance with the requirements of the department's environmental rules, was conducted as part of the department's final environmental impact statement for the project, which was approved by the Federal Highway Administration. The Federal Highway Administration has also issued a record of decision approving the project's selected alternative. The project will have a positive impact in the city and the surrounding region, as the improvements will result in increased mobility and safety on the region's roadways. TEXAS TRANSPORTATION COMMISSION WILLiAMSON County MINUTE ORDER Page 2 of 2 District AUSTIN Submitted and reviewed by: Director, Finance Division The present and projected financial condition of the SIB is sufficient to cover this request. The proposed project and loan are in conformity with the purposes of the SIB, as it will expand the availability of funding for transportation projects and will reduce direct state costs. IT IS THEREFORE DETERMINED that the application for SIB financial assistance submitted by the City of Round Rock, acting through the Round Rock Transportation System Development Corporation, meets the requirements of 43 TAC §6.32(e) and, in accordance with that section, the commission grants approval of the application to borrow $16,000,000 from the State Infrastructure Bank, to be repaid over a period of 15 years at 4.6 percent interest per annum, and authorizes and directs the executive director to enter into a financial assistance agreement with the corporation. ,lo ; Recommended b (�1a.kJJttJu Executive02.65 JUL 27 Minute Date Number Passed DATE: August 4, 2000 SUBJECT: City Council Meeting — August 10, 2000 ITEM: 10.D.2. Consider a resolution approving the action of the Transportation System Development Corporation concerning the State Infrastructure Bank (SIB) Loan Agreement with the State of Texas for the SH 45 frontage road project. Staff Resource Person: David Kautz, Finance Director. THE STATE OF TEXAS § COUNTY OF TRAVIS § STATE INFRASTRUCTURE BANK (SIB) LOAN AGREEMENT WITNESSETII DRAFT: 08/07/00 This State Infrastructure Bank Loan Agreement ( "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 Round Rock Transportation System Development Corporation, (the "Corporation "), a public instrumentality and non -profit industrial development corporation created pursuant to the Development Corporation Act of 1979, Article 5190.6, §4B, Vemon's Annotated Texas Civil Statutes, as amended, (the "Act ") and acting by and through its Board of Directors. 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, the Corporation is authorized to promote economic development within the City of Round Rock, Texas (the "City") and the State of Texas in order to eliminate unemployment and underemployment, and to promote and encourage employment and the public welfare of, for, and on behalf of the City, and for streets, roads, drainage, and other related transportation system improvements, including the payment and maintenance and operating expenses associated with such authorized projects in accordance with § 4B of the Act; and Cc \NPDOCS \ACITY \SN 45 \SIBLOav\cib 08_07 ..pd /olo 1 DRAFT: 08 /07 /00 WHEREAS, in accordance with 43 TAC §6.23, the Corporation has submitted an application to borrow $16,000,000 from the SIB, to pay for the acquisition of Right of Way and the relocation of utilities required for the expansion of SH 45 within the project limits.; and WHEREAS, the Texas Turnpike Authority, a division of the Texas Department of Transportation, has identified the construction of the portions of Loop 1 and SH 45 which create the "L" project in Travis and Williamson Counties as their highest priority projects; and WHEREAS, the construction of SH 45 will improve the flow and safety of north -south traffic by linking US 183 to IH 35 with an east -west route, and the project will have a positive impact in the City and the surrounding region, as the improvements will increase mobility and access consistent with the transportation plan for the region; 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 resulting in a finding of no significant impact; and 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, Board of Directors of the Corporation passed Resolution R- 00- 03 -10C2 dated March 9, 2000, attached hereto and made a part of this Agreement as Exhibit A, to borrow $16,000,000 from the SIB, which was approved by the Round Rock City Council, and authorized the Executive Director of the Texas Department of Transportation to enter this Agreement with the Corporation. The proposed acquisition ofRight of Way and the relocation of utilities is located along SH 45; and WHEREAS, the Texas Transportation Commission, in Minute Order No. , dated , 2000, attached hereto and made a part of this Agreement as Exhibit B, granted preliminary approval of an application from the Corporation to borrow $16,000,000 from the SIB, which was approved by the Round Rock City Council, and authorized the Executive Director of the Texas Department of Transportation to enter into this Agreement with the Corporation. The proposed acquisition of Right of Way and the relocation of utilities is located along SH 45; 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 Corporation do hereby mutually agree as follows: 2 DRAFT: 08/07/00 AGREEMENT Article 1. Definitions When used herein, the following words and phrases shall have the meanings set forth below: "Parity Obligations" means any bonds, notes, warrants, certificates of obligation or other debt obligations which the Corporation reserves the right to issue or enter into, as the case may be, in the future which obligations are equally and ratably secured by a first lien on and pledge of the Pledged Revenues. "Pledged Revenues" shall mean the Sales Tax plus any interest earnings thereon less any amounts due or owing to the Comptroller of Public Accounts of the State of Texas as charges for collection or retention by the Comptroller for refunds and to redeem dishonored checks and drafts, to the extent such charges and retention are authorized or required by law. "Sales Tax" shall mean the one -half of one percent sales and use tax levied by the City within the boundaries of the City as they now or hereafter exist, together with any increases in the aforesaid rate if provided and authorized by the laws of the State of Texas, including specifically the Act and collected for the benefit of the Corporation, all in accordance with the Act, including particularly Section 4B thereof. "Subordinate Lien Obligation" means any bonds, notes, warrants, certificates of obligation or other debt obligations which the Corporation reserves the right to issue or enter into, as the case may be, in the future which obligations are equally and ratably secured by a lien on the Pledged Revenues which lien is subordinate and inferior to the lien on and pledge of the Pledged Revenues that are or will be pledged to the payment of any Parity Obligations and the obligations under this Agreement. Article 2. Financial Assistance A. The State will lend the Corporation the amount of $16,000,000 to finance the actual project cost for the acquisition of Right of Way and the relocation of utilities as described in Article' 3 of this Agreement. After final execution of this Agreement and within thirty (30) days of a written notification by the Corporation to the State to transfer the SIB funds, the State will transfer the amount of $16,000,000 from the SIB to the Corporation for deposit in the Corporation's Project Account at its designated depository to fund the necessary project funding costs as described in this Agreement. The Project Account shall be secured by the Corporation pursuant to its depository agreement. If, during the course of this Agreement, the Corporation changes its designated depository, the Corporation shall cause the transfer of any remaining loan proceeds into an equivalent account in the new depository, subject to the same security requirements prescribed in this paragraph. The date the loan proceeds are deposited into the Project Account is hereinafter referred to as the "Deposit Date." B. The amounts payable by the Corporation under this Agreement are a special obligation of the Corporation and shall be secured by and payable from a lien on and pledge of the Pledged Revenues, such pledge however, being junior and subordinate to the lien and pledge securing the payment of Parity Obligations and prior in right and claim to the lien on and pledge of the Pledged Revenues securing the payment of any Subordinate Lien Obligations. The Pledged Revenues are further pledged to the establishment and maintenance of the Debt Service Fund as hereinafter provided. Obligations under this Agreement are and will be secured by and payable only from the Pledged Revenues and are not secured by or payable from a mortgage or deed of trust on any real, personal or mixed properties constituting the project under this Agreement. Neither the State of Texas, the City, nor any political corporation, subdivision or agency of the state of Texas, nor any member of the Board of Directors of the Corporation, either individually or collectively, shall be obligated to pay the principal of or the interest on the amounts payable under this Agreement. The State shall not have the right to demand payment of the amounts payable under this Agreement from any tax proceeds in excess of the Sales Tax levied for the benefit of the Corporation by the City pursuant to Section 4B of the Act, or from any other source than the Pledged Revenues. The financial assistance is to be repaid over a period of fifteen (15) years at 4.6% interest per annum. Interest on the original amount of the loan shall accrue from the Deposit Date at the rate of 4.6% simple interest per annum, and, if not paid, shall compound, to the extent authorized by law, at the rate of 4.6% 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 a "Payment Date "), thereafter for fourteen (14) annual installments until the final Payment Date of the fifteenth (15th) year after the Initial Payment Date (such date being referred to as the "Maturity Date ") when the Outstanding Balance shall be due and payable. C. Funds from the Project Account shall only be drawn upon by the Corporation to pay costs related to the project funding costs as described in this Agreement. 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 the Corporation, and all such requisitions, and project costs shall be subject to the review and approval of the State. 4 DRAFT: 08 /07 /00 DRAFT: 08/07/00 D. The State will prepare and make a part of this 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 2, Paragraph B. The principal and interest repayment schedule shall provide for payment of the loan amount of $16,000,000 over a fifteen (15) year repayment period, and is subject to revision pursuant to the terms and conditions of this Agreement. The Corporation shall make payments in accordance with the principal and interest repayment schedule attached herein as Exhibit C. F. . For the sole purpose of paying the principal of and interest on the amounts due under this Agreement, as the same come due, there shall be created and established in the books of the Corporation, a separate fund entitled the "Round Rock Transportation System Development Corporation Sales Tax Revenue Obligations Debt Service Fund" (the "Debt Service Fund. ") Monies in said fund shall be maintained at an official depository bank of the City. Pledged Revenues shall be deposited into the Debt Service Fund prior to each "Annual Loan Payment." 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 Corporation shall cause its depository bank to transfer to the State the applicable Annual Loan Payment as set forth in the attached Exhibit C. The State shall provide the Corporation written notice of wiring instructions and amounts due on each Annual Loan Payment Date. G. The repayment of all or any portion of the Outstanding Balance of the loan shall not entitle the Corporation to any subsequent advances from the State, nor shall the State have any obligation to advance to or for the benefit of the Corporation any amount in excess of the loan proceeds. All costs in excess of the loan amount shall be the responsibility of the Corporation. H. There shall be no penalty imposed by the State upon the Corporation for any early repayment in whole or in part from time to time, of this SIB loan as outlined in the attached Exhibit C. The Corporation shall have the right and power at any time and from time to time and in one or more series or issues, to authorize, issue and deliver additional obligations payable from and secured by a lien on and pledge of the Pledged Revenues; (i) prior in right and claim to the lien and pledge of the Pledged Revenues securing the payment of obligations under this Agreement, (ii) equally and ratably on a parity with obligations under this Agreement and (iii) subordinate to the obligations under this Agreement. 5 Article 3. Project Description DRAFT: 08/07/00 The State will provide SIB financial assistance to the Corporation for actual project costs for the acquisition of Right of Way and the relocation of utilities within the City limits along SH 45. Article 4. Project Responsibilities A. The Corporation 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. B. All plans and specifications for the project shall be 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 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 Corporation. D. The City and the Corporation 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 activities required to execute the work, inspect the work, or aid otherwise in the prompt pursuit of the work. The City and the Corporation 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 City and the Corporation which are pertinent to the acquisition of the right -of -way 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 5 of this Agreement. Article 5. Project Accounting The Corporation shall account for all actual costs associated with the project using generally accepted state and federal accounting procedures. The Corporation will make its accounting records available at reasonable times to the State for inspection during the project and upon 6 Article 6. Project Termination Article 7. Default on Loan Payment Article 8. Indemnification 7 DRAFT: 08/07/00 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 Corporation with a revised principal and interest repayment schedule. If additional funds are needed, the Corporation is responsible for any amount due for additional funds. Should the project described in this Agreement be terminated for any reason, the Corporation 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 Corporation is responsible for repaying expended amounts and the interest thereon as if the project had been completed. A. Should the Corporation not repay the loan as set forth in Article 2 as stated above, the State shall declare the Corporation in default. If the Corporation fails to remit to the State the payments currently owed by the Corporation 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 Corporation 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 Corporation. The State shall provide the Corporation with a revised principal and interest repayment schedule after the Corporation cures any default for a loan payment. B. There is no right to acceleration of the amounts payable under this Agreement. The Corporation 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 Corporation to perform its obligations hereunder) will be appropriate upon a default by the Corporation under this Agreement. The Corporation agrees that it is solely responsible for all losses, costs, expenses, penalties, claims, and liabilities due to activities of the Corporation and its agents, employees, officers, or contractors performed under this Agreement, and which result from an error, omission, or negligent act of the Corporation or any agent, employee, official, or contractor of the Corporation. Notwithstanding anything in this Agreement to the contrary, this provision shall survive any termination of this Agreement. Article 9. Termination DRAFT: 08/07/00 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 6 of this Agreement. B. If the State is unable to advance the proceeds of the loan to the Corporation within the period prescribed in Article 2 of this Agreement, the Corporation may terminate this Agreement by written notice to the State. C. If the Corporation 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 7 of this Agreement. D. Upon repayment in full by the Corporation of this SIB loan, and compliance by the Corporation with all other requirements of this Agreement, the State shall execute and deliver to the Corporation 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 ofaparty, which obligations shall survive such termination. Article 10. 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: Texas Department of Transportation Attention: Director, Finance Division 125 East 11th Street Austin, Texas 78701 Corporation: Round Rock Transportation System Development Corp. 221 E. Main St. Round Rock, Texas 78664 with a copy to: 8 City: City of Round Rock Attention: City Manager 221 E. Main St. Round Rock, Texas 78664 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 10. Article 11. 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 12. 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 13. 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 ofa 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. Article 14. 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 Corporation. 9 DRAFT: 08 /07 /00 Article 15. 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 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 Corporation, as applicable, is fully authorized to bind that entity to the terms of this Agreement. IN WITNESS WHEREOF, the State and the Corporation have executed triplicate counterparts of this Agreement. ROUND ROCK TRANSPORTATION SYSTEM DEVELOPMENT CORPORATION B Date: Robert A. Stluka, Jr. Board Chairman THE STATE OF TEXAS DRAFT: 08/07/00 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. B Date: Charles W. Heald, P.E. Executive Director Texas Department of Transportation 10 Exhibit A Copy of Corporation Resolution 11 DRAFT: 08/07/00 Exhibit B Texas Transportation Commission Minute Order 12 DRAFT: 08/07/00 Exhibit C Principal and Interest Repayment Schedule 13 DRAFT: 08/07/00