HomeMy WebLinkAbout15-1463 06-23-2015 RESOLUTION NO. 15-1463
A RESOLUTION approving and authorizing the execution of a Loan Forgiveness
Agreement between the Texas Water Development Board and the City of
Euless, Texas and an Escrow Agreement relating thereto.
WHEREAS, the Texas Water Development Board (the "TWDB") adopted Resolution No.
14-95 on November 6, 2014 (the "TWDB Resolution") making a commitment to provide financial
assistance to the City of Euless, Texas (the "City") in the amount of $5,493,050 from the
Drinking Water State Revolving Fund to finance waterworks system improvements; and
WHEREAS, in connection with such commitment, the TWDB determined that the City
qualifies for a subsidy as a disadvantaged community and agreed, pursuant to the TWDB
Resolution, to provide a loan in the amount of $4,685,000 to the City (evidenced by the
issuance of the $4,685,000 "City of Euless, Texas, Waterworks and Sewer System Revenue
Bonds, Series 2015A" authorized pursuant to an ordinance adopted on the date hereof) and
further agrees that $808,050 will be forgiven upon execution of a Loan Forgiveness Agreement;
and
WHEREAS, the City Council hereby finds and determines that (1) the Loan Forgiveness
Agreement between the City and the TWDB substantially in the form and content of Exhibit A
attached hereto and (2) the Escrow Agreement substantially in the form and content of Exhibit
B attached hereto should be approved and authorized to be executed; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS:
Section 1. The form of Loan Forgiveness Agreement between the TWDB and the
City of Euless attached hereto as Exhibit A and incorporated herein for all purposes is hereby
approved for and on behalf of the City as to form and content, and such agreement in
substantially the form and substance attached hereto, together with such changes or revisions
as the Mayor and/or City Secretary may deem necessary to accomplish the financing
contemplated, is hereby authorized to be executed by the Mayor for and on behalf of the City
and as the act and deed of this Council; and such Loan Forgiveness Agreement as executed by
said officials shall be deemed approved by the City Council and constitute the agreement herein
approved.
Section 2. Upon receipt, the loan forgiveness proceeds shall be deposited in an
account to be maintained by BOKF, NA dba Bank of Texas (the "Escrow Agent") and held in
escrow pending written authorization to release said moneys. The Escrow Agreement between
the Escrow Agent and the City attached hereto as Exhibit B and incorporated herein for all
purposes is hereby approved for and on behalf of the City as to form and content, and such
agreement in substantially the form and substance attached hereto, together with such changes
or revisions as the Mayor and/or City Secretary may deem necessary to accomplish the
financing contemplated, is hereby authorized to be executed by the Mayor for and on behalf of
the City and as the act and deed of this City Council; and such Escrow Agreement as executed
by said officials shall be deemed approved by this City Council and constitute the Escrow
Agreement herein approved.
Section 3. The City Council hereby authorizes the execution and delivery of any and
all other documents related to the Loan Forgiveness Agreement including any required
documents, instruments or certificates related to obtaining the Loan Forgiveness.
60524447.1/11504931
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PASSED AND ADOPTED, this June 23, 2015.
CITY OF EULESS, TEXAS
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60524447.1/11504931
EXHIBIT A
LOAN FORGIVENESS AGREEMENT
BETWEEN THE TEXAS WATER DEVELOPMENT BOARD
AND THE CITY OF EULESS
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Loan Forgiveness Agreement
Drinking Water State Revolving Fund
TEXAS WATER DEVELOPMENT BOARD
AND
CITY OF EULESS
TARRANT COUNTY, TEXAS
TWDB COMMITMENT NO. LF1000353
TWDB PROJECT NO. 62647 (IUP FISCAL YEAR 2014)
TWDB RESOLUTION NO. 14-95
CFDA#66.468
TWDB Contract No.LF1000353
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CITY OF EULESS
TWDB COMMITMENT NO. LF1000353
TWDB PROJECT NO. 62647
TWDB RESOLUTION NO. 14-95
LOAN FORGIVENESS AGREEMENT
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 3
ARTICLE II. AUTHORITY AND RECITALS 5
ARTICLE III. LEGAL REQUIREMENTS 6
ARTICLE IV. CONSTRUCTION 8
ARTICLE V. SPECIAL COVENANTS AND REPRESENTATIONS 8
ARTICLE VI. NON-PERFORMANCE AND REMEDIES 10
ARTICLE VII. GENERAL TERMS AND CONDITIONS 12
EXHIBITS
TWDB Resolution No. 14-95 EXHIBIT A
City of Euless's Resolution EXHIBIT B
List of Federal Laws and Authorities(Cross-Cutters) ....EXHIBIT C
Davis-Bacon Contract and Subcontract Provisions EXHIBIT D
Project Schedule EXHIBIT E
Project Budget ...EXHIBIT F
Escrow Agreement EXHIBIT G
TWDB Contract No.LF1000353
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THE STATE OF TEXAS § TWDB Contract No. LF1000353
COUNTY OF TRAVIS §
LOAN FORGIVENESS AGREEMENT
BETWEEN THE
TEXAS WATER DEVELOPMENT BOARD
AND THE
CITY OF EULESS
WHEREAS, the City of Euless, located in Tarrant County, Texas (City) has filed an
application with the Texas Water Development Board (TWDB) for a loan in the amount of
$5,493,050 from the Drinking Water State Revolving Fund (DWSRF) to finance water system
improvements identified as Project No. 62647; and
WHEREAS, on November 6, 2014, the TWDB determined that the City qualifies for a
subsidy because it meets Green Project requirements pursuant to 31 Texas Administrative Code
(TAC) § 371.17 and the criteria set forth in the 2014 DWSRF Intended Use Plan (IUP) and
agreed, pursuant to the TWDB Resolution to provide a loan in the amount of$5,493,050 to the
City and further agreed that$808,050 will be forgiven; and
WHEREAS, the TWDB and the City are the Parties to this Agreement.
NOW, THEREFORE, the Parties mutually agree to adhere to the terms of this Agreement
and to administer the Loan Forgiveness Funds provided through this Agreement in conformance
with all applicable state and federal laws and regulations, the TWDB Resolution, and all terms
and conditions set forth herein.
ARTICLE I. DEFINITIONS
The following terms, as used in this Agreement, have the meanings assigned below:
Agreement means this Loan Forgiveness Agreement and the attached exhibits.
CFR means the Code of Federal Regulations.
Construction Account means an account dedicated to the payment of Project costs, as defined by
31 TAC § 371.1(17) and required by the TWDB Resolution.
Disadvantaged Community means an area that meets the requirements of a disadvantaged
community as defined in 31 TAC § 371.1(24) and the criteria identified in the 2014 DWSRF
IUP.
DWSRF means the Drinking Water State Revolving Fund, a program of financial assistance
administered by the TWDB for water projects pursuant to the Safe Drinking Water Act, 42
TWDB Contract No.LF1000353
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U.S.C. §§ 300f et seq.; applicable federal regulations; Texas Water Code, Chapter 15, §§ 15.601
— 15.618; and 31 TAC Chapter 371.
Eligible Expenses means the expenses allowed by TWDB program requirements and authorized
by the TWDB in the approved Project Budget.
EPA means the U.S. Environmental Protection Agency.
Escrow Account means an account established by the City that will be used to manage the Loan
Forgiveness Funds in accordance with an escrow agreement acceptable to the Executive
Administrator, which is attached hereto as EXHIBIT G, until such time as the Executive
Administrator authorizes the release of the Loan Forgiveness Funds to the Construction Account.
Executive Administrator means the Executive Administrator of the TWDB or designated
representative.
Force Majeure means a failure or delay in a Party's performance under this Agreement that is
caused by acts of God, war, strike, fires, explosions, or other causes that are beyond the
reasonable control of either Party and that by exercise of due foresight such Party could not
reasonably have been expected to avoid, and which, by the exercise of all reasonable due
diligence, such Party is unable to overcome.
Green Project means a project or portion of a project that meets the EPA criteria for inclusion in
the Green Project Reserve, including green infrastructure, water or energy efficiency
improvements or other environmentally innovative activities.
Green Project Reserve means the equivalent amount of the EPA capitalization grant that is
reserved for projects that meet the EPA's criteria for green projects.
IUP means the Intended Use Plan, State Fiscal Year 2014, approved by the TWDB and the EPA
in which the Project was prioritized for funding.
Loan means the total amount of financial assistance from the TWDB under numbers L1000338
and LF1000353 in $5,493,050 from the DWSRF to finance the Project.
Loan Forgiveness Funds means the portion of the Loan that is forgiven identified as LF1000353,
in an amount not to exceed $808,050.
Obligations means the $4,685,000 City of Euless, Texas Waterworks and Sewer System
Revenue Bonds, Series 2015A, together with all authorizing documents, which evidence the
portion of the Loan that is not forgiven, identified as L1000338.
Outlay Report means the TWDB form regarding the total amount of costs incurred by the City
relating to the Project for the specified period.
Parties or Party means the TWDB and the City and their authorized successors and assignees.
TWDB Contract No.LF1000353
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Project means the project for which the TWDB is providing financial assistance under this
Agreement and as further described in the TWDB Resolution and identified as Project No.
62647.
State means the State of Texas.
TAC means the Texas Administrative Code.
TWDB means the Texas Water Development Board.
TWDB Resolution means TWDB Resolution No. 14-95, dated November 6, 2014, approving the
application for financial assistance filed by the City and authorizing the execution of this
Agreement.
ARTICLE II. AUTHORITY AND RECITALS
2.01. AUTHORITY. This Agreement is authorized and required by the Safe Drinking Water
Act, 42 U.S.C. §§ 300f et seq., and is also governed by terms of the IUP; Texas Water Code,
Chapter 6; Texas Water Code; Chapter 15, §§ 15.601 — 15.618; 31 TAC Chapter 371; and the
TWDB Resolution.
2.02. RECITALS. The Parties agree that the following representations are true and correct
and form the basis of this Agreement:
A. The TWDB may provide financial assistance in the form of a subsidy, such as loan
forgiveness, for all or a portion of the Project costs in an amount which the TWDB has
determined to be eligible.
B. On November 6, 2014, the TWDB considered an Application filed by the City for
financial assistance from the DWSRF program. Based on the representations made by
the City in that Application, the TWDB adopted the TWDB Resolution in which the
TWDB:
1. determined that the City qualifies for loan forgiveness and is eligible for financial
assistance; and
2. made a commitment to provide financial assistance in the form of a loan in an
amount not to exceed $5,493,050 for the construction of the Project and to
provide a subsidy in the form of loan forgiveness to the City in an amount not to
exceed $808,050 as Loan Forgiveness Funds without the expectation of
repayment.
C. The TWDB and the City enter this Agreement to memorialize and set forth the terms and
conditions for the Loan Forgiveness Funds in an amount not to exceed $808,050. The
Executive Administrator is authorized to execute this Agreement on behalf of the TWDB
TWDB Contract No.LF1000353
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pursuant to the TWDB Resolution, which is attached to this Agreement as EXHIBIT A.
The City is authorized to execute this Agreement through its authorized representative
designated in a resolution duly adopted by the governing body of the City, a copy of
which is attached hereto as EXHIBIT B.
D. Nothing in this Agreement supersedes or affects any provisions of the Obligations
relating to the Loan amount not forgiven.
ARTICLE III. LEGAL REQUIREMENTS
3.01. APPLICABLE LAWS. In consideration of the performance of the mutual agreements
set forth in this Agreement, the City, by and through its designated and authorized
representatives, agrees to plan, design, and/or construct the Project in compliance with the
following:
A. the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq., and the EPA regulations at 40
CFR Part 35;
B. all federal laws and regulations identified on EXHIBIT C;
C. Texas Water Code; Chapter 15, §§ 15.601 — 15.618;
D. 30 TAC Chapter 290; and
E. 31 TAC Chapter 371.
3.02. LABOR STATUTES AND REGULATIONS. The City agrees to comply with the
following statutes and regulations, and shall execute the certifications required by the TWDB
related to same. Further, the City shall ensure that each contract for work on the Project shall
also contain the following requirements:
A. Equal Employment Opportunity. The City shall comply with Executive Order 11246 of
September 24, 1965, entitled `Equal Employment Opportunity," as amended by
Executive Order 11375 of October 13, 1967, and U.S. Department of Labor regulations at
41 CFR Chapter 60, relating to Office of Federal Contract Compliance, EEO. The City
shall include this provision in any contract or subcontract in excess of $10,000 as
required by 40 CFR § 31.36.
B. Davis-Bacon Act Wage Rates. The City, its contractors and its subcontractors, for the
Project that is funded in whole or in part with Loan Forgiveness Funds, shall pay all
laborers and mechanics at rates not less than those prevailing on similar projects in the
same locality, as determined by the U.S. Secretary of Labor's Wage and Hour Division,
in conformance with the Davis—Bacon Act, 40 U.S.C. §§ 3141 - 3148, 29 CFR Part 5,
relating to Labor Standards Provisions Applicable to Contracts Covering Federally
Financed and Assisted Construction, and 29 CFR Part 3, relating to Contractors and
Subcontractors on Public Work Financed in Whole or in Part by Loans or Grants from
TWDB Contract No.LF1000353
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the United States. All contracts and subcontracts for the construction of the Project
carried out in whole or in part with assistance made available as stated herein shall insert
in full in any contract in excess of $2,000 the contracts clauses as attached hereto as
EXHIBIT D.
C. Contract Work Hours and Safety Standards Act. The City shall ensure that its contractors
and subcontractors comply with the Contract Work Hours and Safety Standards Act, 40
U.S.C. §§ 3701 - 3708 and 29 CFR Part 5.
3.03. NO LOBBYING. The City agrees to comply with 40 CFR Part 34, relating to New
Restrictions on Lobbying. The City understands and agrees that none of the Loan Forgiveness
Funds provided under this Agreement shall be expended to pay any person for influencing or
attempting to influence an officer or employee of any federal entity, or a Member of Congress,
with regard to the awarding of any federal contract, federal grant, federal loan, or the extension,
continuation, renewal, amendment or modification of any federal contract, loan, or grant. The
City shall require that all contracts in excess of $100,000 for work implementing the Project
contain the following statement: IN ACCORDANCE WITH THE BYRD ANTI-LOBBYING
AMENDMENT, ANY RECIPIENT WHO MAKES A PROHIBITED EXPENDITURE UNDER
TITLE 40 CFR PART 34 OR FAILS TO FILE THE REQUIRED CERTIFICATION OR
LOBBYING FORMS SHALL BE SUBJECT TO A CIVIL PENALTY OF NOT LESS THAN
$10,000 AND NOT MORE THAN $100,000 FOR EACH SUCH EXPENDITURE.
3.04. IRON AND STEEL. The City will abide by all applicable construction contract
requirements related to the use of iron and steel products produced in the United States as
required by the 2014 Federal Appropriations Act, related EPA SRF Policy Guidelines and the
TWDB American Iron and Steel Guidance, unless the City has requested and obtained a waiver
from EPA pertaining to the Project. This section applies in a manner consistent with United
States obligations under international agreements. If the City is a signatory to such an
agreement, then the City is under the obligation to determine its applicability and requirements
and document the actions taken to comply for the TWDB.
3.05. PROCUREMENT. The City shall comply with the following when procuring goods
and services for work on the Project according to the requirements in this section.
A. Debarred and Suspended Vendors. Prior to selecting any contractor, the City shall ensure
that the contractor is not listed on the federal Excluded Parties List System and is not
suspended or disbarred by either the State or the federal government. See the following
websites for lists of suspended and debarred federal and State vendors: www.sam.gov
and www.window.state.tx.us/procurement/prog/vendor performance/debarred.
B. State Procurement Requirements. All purchases for goods, services or commodities
made with funds provided under this Agreement shall comply with State and local
procurement and contracting laws.
C. Disadvantaged Business Enterprises. The City agrees to comply with 40 CFR Part 33,
relating to Participation by Disadvantaged Business Enterprises in United States
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Environmental Protection Agency Programs.
3.06. FINANCIAL, MANAGERIAL AND TECHNICAL CAPABILITIES. The City
covenants to maintain its technical, financial, and managerial capability to ensure compliance
with the Safe Drinking Water Act § 300-j12.
ARTICLE IV. CONSTRUCTION
4.01. PROJECT REQUIREMENTS. The City shall comply with the following
requirements:
A. Plans and Specifications. The City shall construct the Project in accordance with the
plans and specifications as sealed by a State licensed engineer and as approved by the
Executive Administrator in compliance with 31 TAC §§ 371.60-371.62.
B. Changes to Plans and Specifications. The City shall not make or implement any changes
to the scope of the Executive Administrator's approved Project or to the specifications for
the Project including, but not limited to, changes to the Green Project Reserve portion of
the Project without the written approval of the Executive Administrator.
C. Project Schedule. The City shall adhere to the TWDB approved Project schedule,
attached as EXHIBIT E, and shall timely and expeditiously use loan proceeds and
complete the Project. The City shall not exceed or revise the Project schedule except
upon written approval from the TWDB. The City shall not delay the Project completion
date except by Amendment to this Agreement.
D. Project Budget. The City shall be solely responsible for all costs that exceed the TWDB
approved Project budget, attached as EXHIBIT F. The City shall notify the Executive
Administrator immediately when it appears that the Project budget may not be sufficient
to complete the Project. The City shall not exceed the Project budget except by
Amendment to this Agreement.
E. Environmental Compliance. The City shall comply with all environmental conditions
and shall implement environmental mitigation measures as required through TWDB
environmental review under 31 TAC Chapter 371, Subchapter E.
4.02. PROGRESS REPORTS. The Executive Administrator may request reports on the
progress of the Project at any time. The reports shall contain information as directed by the
Executive Administrator and shall be submitted periodically as requested. The City shall
respond as requested and a failure to respond may result in withholding the release of funds from
the Escrow Account.
ARTICLE V. SPECIAL COVENANTS AND REPRESENTATIONS
5.01. CONDITIONS FOR DISBURSEMENT OF LOAN FORGIVENESS FUNDS. No
Loan Forgiveness Funds shall be deposited into the Escrow Account or released until the
TWDB Contract No.LF1000353
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applicable requirements and conditions in the TWDB Resolution and 31 TAC § 371.72, relating
to Disbursement of Funds, are met. Construction funds shall not be released unless the City has
complied with 31 TAC Chapter 371, Subchapter E, relating to Environmental Reviews and
Determinations, and 31 TAC Chapter 371, §§ 371.60 — 371.62, relating to Engineering Review
and Approval. If other conditions affect the release of funds, the Parties agree to negotiate in
good faith regarding any new or different terms or conditions that become applicable to the
release of Loan Forgiveness Funds.
5.02. DELIVERY OF LOAN FORGIVENESS FUNDS. The TWDB shall deposit the Loan
Forgiveness Funds in an approved Escrow Account to be released to the City's Construction
Account at the direction of the Executive Administrator.
A. Outlay Reports and Invoices. The City shall submit the following documentation:
1. TWDB Outlay Report forms identifying:
a. the total amount of expenses incurred by the City for the period covered
by the Outlay Report; and
b. invoices, receipts or other documentation satisfactory in form and in
substance to the TWDB sufficient to establish the requested amount as an
eligible expense incurred by the City.
2. Outlay Report forms are due to TWDB monthly during the construction phase of
the Project until the completion of the Project.
B. Release from Escrow Account. The Executive Administrator shall authorize the release
of Loan Forgiveness Funds from Escrow when Outlay Reports have been approved by
the TWDB.
5.03. INELIGIBLE EXPENSES. The City must use Loan Forgiveness Funds for Eligible
Expenses. The City must return any Loan Forgiveness Funds that are used for expenses that
cannot be verified as eligible or that are ineligible. The amount of Loan Forgiveness Funds used
for any ineligible or unverified expenses shall be credited against verified Eligible Expenses. If
the total amount of Eligible Expenses is insufficient to fully offset the amount of improperly
expended Loan Forgiveness Funds, the City must use other funds to fully repay the TWDB.
5.04. FINAL ACCOUNTING. The City shall provide a final accounting of funds expended
on the Project pursuant to 31 TAC § 371.85 and return any remaining Loan Forgiveness Funds in
a manner determined by the Executive Administrator.
5.05. LEGAL STATUS. The City must notify the Executive Administrator prior to taking any
actions to alter its legal status in any manner, such as by conversion to a conservation and
reclamation district or a sale-transfer-merger with another retail public utility.
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5.06. WATER CONSERVATION AND DROUGHT CONTINGENCY PLAN. If
applicable, the City shall adopt and implement a water conservation and drought contingency
plan that complies with Texas Water Code §§ 11.1271 and 11.1272 and 31 TAC §§ 363.15 and
371.34.
5.07. WATER AUDIT. If the City is a retail public utility as defined in Texas Water Code §
13.002 and the City provides potable water, then the City annually shall perform and file a water
audit computing the City's most recent annual system water loss with the TWDB. The first
water audit shall be submitted by May 1St following the passage of one year after the effective
date of this Agreement and then by May 1St every year thereafter during the term of this
Agreement. The City agrees to comply with 31 TAC § 358.6 relating to water audits.
5.08. REGISTRATION REQUIREMENT. Pursuant to the Federal Funding Accountability
and Transparency Act of 2006, Pub. L. 109-282, as amended by Pub. L. 110-252, the City shall
obtain a Data Universal Numbering System (DUNS) Number and shall maintain registration in
the System for Award Management(SAM).
5.09. ANNUAL FINANCIAL AUDIT. During the Term of this Agreement, the City shall
submit an annual audit of the general purpose financial statements prepared in accordance with
Generally Accepted Accounting Principles (GAAP) by a certified public accountant or licensed
public accountant. Audits shall be submitted to the TWDB no later than 180 days after the close
of the City's fiscal year.
5.10. INVESTMENT AND COLLATERALIZATION OF PUBLIC FUNDS. Loan
proceeds are public funds and, as such, these proceeds shall be held at a designated state
depository institution or other properly chartered and authorized institution in accordance with
the Public Funds Investment Act, Government Code, Chapter 2256, and the Public Funds
Collateral Act, Government Code, Chapter 2257.
5.11. SPECIAL CONDITIONS. The City must comply with the standard emergency
discovery conditions for threatened and endangered species and cultural resources, as more fully
specified in the final environmental finding of the Executive Administrator.
ARTICLE VI. NON-PERFORMANCE AND REMEDIES
6.01. STOP WORK ORDERS.
A. Stop Work Order (SWO). The Executive Administrator may issue a written SWO to the
City at any time for failure to comply with any provision of this Agreement. The SWO
shall provide the City with notice of the facts supporting the determination to issue the
SWO. The SWO may require cessation of work immediately or at a definite future date.
The SWO shall provide the City with a specified time to cure.
B. City's Response. The City shall provide a written response to the SWO and shall provide
the Executive Administrator with a detailed plan to address and cure the conditions
causing the SWO. The City shall provide the response within five business days from its
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receipt of the SWO.
C. Executive Administrator's Reply. The Executive Administrator may accept, reject or
amend the City's plan and shall provide notice of such action to the City within five
business days of receipt of the plan. The Executive Administrator may issue an amended
SWO that allows resumption of work contingent upon the City's execution of the plan to
cure. The Executive Administrator may modify the City's plan to cure only in a manner
consistent with the terms and conditions of this Agreement.
D. City's Option. The City shall notify the Executive Administrator within five business
days whether it accepts the amended plan. If the City does not accept the amended plan,
the Executive Administrator may terminate this Agreement. Upon successful completion
of the plan to cure the conditions causing the SWO, the City shall continue work to
complete all obligations under this Agreement.
6.02. TERMINATION. The TWDB may terminate this Agreement in writing at any time.
Upon receipt of a notice of termination, the City shall immediately discontinue all work in
connection with the performance of this Agreement and shall promptly cancel all existing orders
or other financial commitments chargeable to funding provided pursuant to this Agreement,
provided, however, that any costs for Eligible Expenses incurred prior to the receipt of such
written notice by the City shall be payable from the funding provided pursuant to this
Agreement.
Within thirty days of the notice of termination, the City shall submit a statement showing in
detail the work performed, all payments received by the City, and all payments made by or due
from the City to any contractor prior to the date of termination.
6.03. SURVIVAL OF TERMS AND CONDITIONS.
A. Termination or expiration of this Agreement for any reason shall not release either Party
from any liabilities or obligations set forth in this Agreement that:
1. the Parties have expressly agreed shall survive any such termination or expiration,
if any; or
2. by their nature, would be intended to be applicable following any such
termination or expiration.
B. The Parties expressly agree that the following terms and conditions survive the
termination or expiration of this Agreement.
1. Article V, Sections 5.03, 5.04, 5.05, 5.07 and 5.08.
2. Article VII, General Terms and Conditions.
TWDB Contract No.LF1000353
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6.04. REAL ESTATE. If the City purchases real estate for the Project with Loan Forgiveness
Funds and any of the real estate or portion of the real estate is not used for the Project, the City
shall repay to the TWDB the full amount of the Loan Forgiveness Funds for purchase of the real
estate that is not used for the Project. Such amount shall be due and payable within 90 days after
termination or expiration of this Agreement.
6.05. REMEDIES.
A. The City shall have all remedies available in law or equity.
B. The TWDB shall have all remedies available in law or equity, including remedies available under Tex:
ARTICLE VII. GENERAL TERMS AND CONDITIONS
7.01. INSURANCE AND INDEMNIFICATION.
A. The City shall at all times keep insured with a responsible insurance company or
companies such portions of the Project as are customarily insured by political
subdivisions in the State that operate like properties in similar locations under similar
circumstances. The City shall insure against risks, accidents, casualties or loss in an
amount that is customarily carried by such municipalities and political subdivisions and is
at least sufficient to protect the TWDB's interest in the Project.
B. The City is solely responsible for liability resulting from acts or omissions of the City, its
employees, contractors, or agents. The City shall indemnify and hold the TWDB and the
State harmless, to the extent that the City may do so in accordance with State law.
C. Loan Forgiveness proceeds shall not be used by the City when sampling, testing,
removing or disposing of contaminated soils and/or media at the project site. The City
agrees to indemnify, hold harmless and protect the TWDB from any and all claims,
causes of action or damages to the person or property of third parties arising from the
sampling, analysis, transport, storage, treatment and disposition of any contaminated
sewage sludge, contaminated sediments and/or contaminated media that may be
generated by the City, its contractors, consultants, agents, officials and employees as a
result of activities relating to the project to the extent permitted by law.
7.02. PERMITS. The City shall be responsible for timely filing applications for all licenses,
permits, registrations and other authorizations that the City has identified in the application for
financial assistance as required for the construction of the Project. The City shall submit copies
of all of these final licenses, permits, registrations and other authorizations issued by local, state
and federal agencies to the TWDB within thirty (30) days of receipt from the issuing agency.
7.03. RECORDS. The City shall comply with all terms and conditions relating to records of
the Project as follows:
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A. Duty to Maintain Records. The City shall maintain financial accounting records relating
to the Project in accordance with Generally Accepted Accounting Principles. The City
shall also require its contractors to maintain financial accounting records consistent with
Generally Accepted Accounting Principles and with State laws applicable to government
accounting. All accounting and other financial documentation shall be accurate, current,
and shall reflect recordation of the transactions at or about the time the transactions
occurred;
1. Single Audit Act, 31 U.S.C. §§ 7501 - 7507. The City shall comply with the
Single Audit Act and with Office of Management and Budget (OMB) Circular A-
133, ensuring an audit is conducted in accordance with OMB Circulars.
2. Green Projects. If all or part of the Project is designated as a Green Project, then
the City shall maintain separate tracking of the expenses related to that Project or
portion of the Project that has been designated as an approved Green Project.
B. Duty to Retain Records. The City shall retain all financial records and supporting
documents and any other documents pertinent to the Project in accordance with the
requirements of 31 TAC § 371.86, relating to Records Retention. The TWDB requires the
City to retain all records related to this Agreement for a period of three (3) years after the
Obligations are paid in full (for all others).
C. Public Records. The City understands and agrees that all documents relating to this
Agreement are subject to the Public Information Act, Texas Government Code, Chapter
552, and that such documents may not be withheld from public disclosure, except in
accordance with law and with the rulings of the Texas Attorney General. The City is
required to make any information created or exchanged pursuant to this Agreement, and
not otherwise excepted from disclosure under the Texas Public Information Act, available
in a format that is accessible by the public at no additional charge. The City shall
promptly respond to a request by the TWDB for copies of any of the City's records
related to this Agreement; and
D. Access to Records.
1. State Auditor. By executing this Agreement, the City accepts the authority of the
Texas State Auditor's Office to conduct audits and investigations in connection
with all Loan Forgiveness Funds received pursuant to this Agreement. The City
shall comply with directives from the Texas State Auditor and shall cooperate in
any such investigation or audit. The City agrees to provide the Texas State
Auditor with access to any information the Texas State Auditor considers relevant
to the investigation or audit. The City also agrees to include a provision in any
contract or subcontract related to this Agreement that requires the contractor and
the subcontractor to submit to audits and investigations by the Texas State
Auditor's Office in connection with all Loan Forgiveness Funds received pursuant
to the contract or subcontract.
TWDB Contract No.LF1000353
Page 13 of 15
OGC-002 04/30/14
2. TWDB, EPA, and Comptroller General of the United States. The City agrees that
the TWDB, the EPA, and the Comptroller General of the United States shall have
full access to any books, documents, papers, and records which are related to the
funds expended under this Agreement and that further these federal entities may
audit, examine, copy excerpts, and make transcriptions of any such books,
documents, papers, and records. The standards of administration, property
management, audit procedures, procurement and financial management, and the
records and facilities of the City and its contractors are subject to audit and
inspection by the TWDB and by the EPA and by any other authorized state or
federal entity. All books, documents, papers, and records of the City related to
this Agreement shall be made available for audit, examination, excerption, and
transcription by the staff of the TWDB within a reasonable time after a request
from the TWDB. The City understands and agrees that the EPA's Regional
Administrator may, after a thirty day written notice, review any records the
Regional Administrator deems necessary to determine compliance with all
requirements concerning the Loan Forgiveness Funds provided under this
Agreement.
7.04. UPDATING INFORMATION. The City shall provide the TWDB with updated
information, reports, statements and certifications as requested by the Executive Administrator
relating to the financial condition of the City or the Project and the use of Loan Forgiveness
Funds. The City shall promptly notify the TWDB of any material change in the activities,
prospects or conditions of the City relating to the Project, or its ability to observe and perform its
duties, covenants, obligations and agreements under this Loan Forgiveness Agreement.
7.05. FORCE MAJEURE. Unless otherwise provided, neither the City nor the TWDB nor
any agency of the State shall be liable to the other for any delay in or failure of performance of a
requirement contained in this Agreement caused by Force Majeure. The existence of such
causes of delay or failure shall extend the period of performance until after the causes of delay or
failure have been removed provided the non-performing Party exercises all reasonable due
diligence to perform. Each Party must inform the other in writing with proof of receipt within
five (5) business days of the existence of such Force Majeure or otherwise waive this right as a
defense.
7.06. NON-ASSIGNABILITY. The terms and conditions of the financial assistance provided
by this Agreement may not be assigned, transferred, or subcontracted in any manner without the
express written consent of the TWDB.
7.07. ENTIRE AGREEMENT AND AMENDMENT. This Agreement, which incorporates
all attached Exhibits, constitutes the entire agreement between the Parties. This Agreement may
be amended only in writing signed by the Parties. The changes allowed under Section 4.01 do
not require an amendment to this Agreement unless a change to the Project Schedule, EXHIBIT
E or the Project Budget, EXHIBIT F, results in a different project completion date or total
budget amount.
TWDB Contract No.LF1000353
Page 14 of 15
OGC-002 04/30/14
7.08. NO WAIVER. The failure of any Party to insist upon the strict performance of any of
the terms, provisions, or conditions of this Agreement shall not be construed as a waiver or
relinquishment for the future of the strict performance of any such term, provision, or condition
or any other term, provision, or condition.
7.09. NO DEBT CREATED. Each Party agrees and understands that, by this Agreement, the
State, acting through the TWDB, is not lending its credit or in any manner creating a debt on
behalf of the State. To the extent that the City is not securing the Obligations with ad valorem
taxes, each Party agrees and understands that, pursuant to this Agreement, the City is not lending
its credit or in any other manner creating a debt on behalf of the City.
7.10. LAW AND VENUE. The validity, operation, and performance of this Agreement shall
be governed and controlled by the laws of the State of Texas and applicable federal regulations,
and the terms and conditions of this Agreement shall be construed and interpreted in accordance
with the laws of the State. The Parties understand and agree that this Agreement is for the
provision of financial assistance for the construction of the Project and as such all or part of the
performance of the terms and obligations of the Agreement will be performed in Tarrant County,
Texas. Notwithstanding the location of the Project, the Parties understand and agree that any
proceeding brought for any breach of this Agreement involving the TWDB shall be in Travis
County, Texas. This section does not waive the sovereign immunity of the State or the TWDB.
7.11. NOTICES. All notices, notifications, or requests required or permitted by this
Agreement shall be in writing and shall be transmitted by personal delivery or transmitted by
United States certified mail, return receipt requested, postage prepaid, to the addresses of the
Parties shown below. Notice shall be effective when received by the Party to whom notice is
sent:
Texas Water Development Board City of Euless
Attn: Executive Administrator Attn: City Manager
1700 N. Congress Ave., 6th Floor 201 N. Ector Drive
Austin, Texas 78701-1496 Euless, Texas 76039-3595
7.12. TERM. This Agreement is effective on the date signed by the Executive Administrator.
The Agreement shall expire upon the successful completion of the Project and Final Accounting
in accordance with Section 5.04 of this Agreement.
TEXAS WATER DEVELOPMENT BOARD CITY OF EULESS
Kevin Patteson Loretta Getchell
Executive Administrator City Manager
Date Date
TWDB Contract No.LF1000353
Page 15 of 15
OGC-002 04/30/14
EXHIBIT A
TWDB Resolution No. 14-95
TWDB Contract No.LF1000353
Exhibit A,Page 1 of 9
ONENI A RESOLUTION OF THE TEXAS WATER DEVELOPMENT BOARD
APPROVING AN APPLICATION FOR FINANCIAL ASSISTANCE IN THE AMOUNT OF
$5,493,050 TO CITY OF EULESS
FROM THE DRINKING WATER STATE REVOLVING FUND
THROUGH THE PROPOSED PURCHASE OF
$4,685,000 CITY OF EULESS WATERWORKS AND SEWER SYSTEM REVENUE
BONDS, PROPOSED SERIES 2015
AND
$808,050 IN LOAN FORGIVENESS
(14-95)
WHEREAS, the City of Euless, located in Tarrant County, Texas (City) has filed an
application for financial assistance in the amount of$5,493,050 from the Drinking Water State
Revolving Fund (DWSRF) to finance the construction of certain water system improvements
identified as Project No. 62647; and
WHEREAS, the City seeks financial assistance from the Texas Water Development
Board (TWDB) through the TWDB's proposed purchase of $4,685,000 City of Euless
Waterworks and Sewer System Revenue Bonds, Proposed Series 2015 (together with all
authorizing documents, "Obligations"), and the execution of a Loan Forgiveness Agreement in
an amount of $808,050, all as is more specifically set forth in the application and in
''mn' recommendations of the TWDB's staff; and
WHEREAS, the City has offered a pledge of net revenues as sufficient security for the
repayment of the Obligations; and
WHEREAS, the TWDB hereby finds:
1. that the revenue and/or taxes pledged by the City will be sufficient to meet all the
Obligations assumed by the City, in accordance with Texas Water Code § 15.607;
2. that the application and assistance applied for meet the requirements of the Safe Drinking
Water Act, 42 U.S.C. §§ 300f et seq. as well as state law, in accordance with Texas
Water Code § 15.607;
3. that the City has adopted and implemented a water conservation program for the more
efficient use of water that will meet reasonably anticipated local needs and conditions and
that incorporates practices, techniques or technology prescribed by the Texas Water Code
and TWDB's rules;
4. the needs to be addressed by this project will be addressed in a manner that is consistent
with the State Water Plan;
5. due to-the interregional conflict between the Regional Water Planning Regions C and D,
Region C currently does not have a Board approved Regional Water Plan;
TWDB Contract No.LF1000353
Exhibit A,Page 2 of 9
6. that the TWDB has made a timely and concerted effort to solicit projects that address
green infrastructure, water, or energy efficiency improvements and other environmentally
innovative activities and has determined that the entire Project, or a portion of the Project
satisfies the EPA's criteria for Green Projects;
7. that the Executive Administrator issued a Categorical Exclusion on August 8, 2014, such
findings being subject to the standard emergency discovery conditions for threatened and
endangered species and cultural resources in the Project contract documents. The TWDB
concurs with the environmental finding issued by the Executive Administrator; and
8. that the conditions, as described above, warrant a waiver of the requirements that the
TWDB determine that the needs to be addressed by the project will be addressed in a
manner that is consistent with the State Water Plan, and with the approved Regional
Water Plan that includes the area that will benefit from the proposed project.
NOW, THEREFORE, based on these findings, the TWDB resolves as follows:
1. for the reasons stated above and pursuant to Texas Water Code § 16.053(k), the TWDB
hereby finds that current conditions warrant a waiver of the requirements of Texas Water
Code§ 16.053(j).
2. a commitment is made by the TWDB to the City of Euless for financial assistance in the
amount of $5,500,000 from the Drinking Water State Revolving Fund through the „^
TWDB's proposed purchase of$4,685,000 City of Euless Waterworks and Sewer System
Revenue Bonds, Proposed Series 2015, and the execution of a Loan Forgiveness
Agreement in the amount of$808,050. This commitment will expire on November 30,
2015.
Such commitment is conditioned as follows:
Standard Conditions
1. this commitment is contingent on a future sale of bonds by the TWDB or on the
availability of funds on hand;
2. this commitment is contingent upon the issuance of a written approving opinion of the
Attorney General of the State of Texas stating that all of the requirements of the laws
under which said Obligations were issued have been complied with; that said Obligations
were issued in conformity with the Constitution and laws of the State of Texas; and that
said Obligations are valid and binding obligations of the City;
3. this commitment is contingent upon the City's compliance with all applicable
requirements contained in 31 TAC Chapter 371;
4. the Obligations must provide that the Obligations can be called for early redemption only
in inverse order of maturity, and on any date beginning on or after the first interest
2
TWDB Contract No.LF1000353
Exhibit A,Page 3 of 9
payment date which is 10 years from the dated date of the Obligations, at a redemption
price of par, together with accrued interest to the date fixed for redemption;
5. the City, or an obligated person for whom financial or operating data is presented to the
TWDB in the application for financial assistance either individually or in combination
with other issuers of the City's Obligations or obligated persons, will, at a minimum,
regardless of the amount of the Obligations, covenant to comply with requirements for
continuing disclosure on an ongoing basis substantially in the manner required by
Securities and Exchange Commission (SEC) in 17 CFR § 240.15c2-12 (Rule 15c2-12)
and determined as if the TWDB were a Participating Underwriter within the meaning of
such rule, such continuing disclosure undertaking being for the benefit of the TWDB and
the beneficial owners of the City's Obligations, if the TWDB sells or otherwise transfers
such Obligations, and the beneficial owners of the TWDB's bonds if the City is an
obligated person with respect to such bonds under SEC Rule 15c2-12;
6. the Obligations must contain a provision requiring the City to levy a tax and/or maintain
and collect sufficient rates and charges to produce system revenues in an amount
necessary to meet the debt service requirements of all outstanding obligations and to
maintain the funds established and required by the Obligations;
7. the Obligations must include a provision requiring the City to use any loan proceeds from
the Obligations that are determined to be surplus funds remaining after completion of the
project for the following purposes as approved by the Executive Administrator: (1) to
redeem, in inverse annual order, the Obligations owned by the TWDB; (2) deposit into
the Interest and Sinking Fund or other debt service account for the payment of interest or
principal on the Obligations owned by the TWDB; or (3) eligible project costs as
authorized by the Executive Administrator;
8. the Obligations must contain a provision that the TWDB may exercise all remedies
available to it in law or equity, and any provision of the Obligations that restricts or limits
the TWDB's full exercise of these remedies shall be of no force and effect;
9. loan proceeds are public funds and, as such, the Obligations must include a provision
requiring that these proceeds shall be held at a designated state depository institution or
other properly chartered and authorized institution in accordance with the Public Funds
Investment Act, Government Code, Chapter 2256, and the Public Funds Collateral Act,
Government Code, Chapter 2257;
10. loan proceeds shall not be used by the City when sampling, testing, removing or
disposing of contaminated soils and/or media at the project site. The Obligations shall
include an environmental indemnification provision wherein the City agrees to
indemnify, hold harmless and protect the TWDB from any and all claims, causes of
action or damages to the person or property of third parties arising from the sampling,
analysis, transport, storage, treatment and disposition of any contaminated sewage sludge,
contaminated sediments and/or contaminated media that may be generated by the City, its
contractors, consultants, agents, officials and employees as a result of activities relating
to the project to the extent permitted by law;
3
TWDB Contract No.LF1000353
Exhibit A,Page 4 of 9
11. prior to closing, the City shall submit documentation evidencing the adoption and ^•,
implementation of sufficient system rates and charges or, if applicable, the levy of an
interest and sinking tax rate sufficient for the repayment of all system debt service
requirements;
12. prior to closing, and if not previously provided with the application, the City shall submit
executed contracts for engineering and, if applicable, financial advisor and bond counsel
contracts, for the project that are satisfactory to the Executive Administrator. Fees to be
reimbursed under the contracts must be reasonable in relation to the services performed,
reflected in the contract, and acceptable to the Executive Administrator;
13. prior to closing, when any portion of the financial assistance is to be held in escrow or in
trust, the City shall execute an escrow or trust agreement, approved as to form and
substance by the Executive Administrator, and shall submit that executed agreement to
the TWDB;
14. the Executive Administrator may require that the City execute a separate financing
agreement in form and substance acceptable to the Executive Administrator;
15. the TWDB retains the option to purchase the Obligations in separate lots and/or on an
installment basis, with delivery of the purchase price for each installment to be paid
against delivery of the relevant installment of Obligations as approved by the Executive ^�
Administrator;
Conditions Related To Tax-Exempt Status
16. the City's bond counsel must prepare a written opinion that states that the interest on the
Obligations is excludable from gross income or is exempt from federal income taxation.
Bond counsel may rely on covenants and representations of the City when rendering this
opinion;
17. the City's bond counsel opinion must also state that the Obligations are not "private
activity bonds." Bond counsel may rely on covenants and representations of the City
when rendering this opinion;
18. the Obligations must include a provision prohibiting the City from using the proceeds of
this loan in a manner that would cause the Obligations to become "private activity bonds"
within the meaning of§ 141 of the Internal Revenue Code of 1986, as amended (Code)
and the Treasury Regulations promulgated thereunder(Regulations);
19. the Obligations must provide that no portion of the proceeds of the loan will be used,
directly or indirectly, in a manner that would cause the Obligations to be "arbitrage
bonds" within the meaning of§ 148(a) of the Code and Regulations, including to acquire OMR
or to replace funds which were used, directly or indirectly, to acquire Nonpurpose
Investments (as defined in the Code and Regulations) which produce a yield materially
4
TWDB Contract No.LF1000353
Exhibit A,Page 5 of 9
higher than the yield on the TWDB's bonds that are issued to provide financing for the
loan (Source Series Bonds), other than Nonpurpose Investments acquired with:
a. proceeds of the TWDB's Source Series Bonds invested for a reasonable
temporary period of up to three (3) years after the issue date of the Source Series
Bonds until such proceeds are needed for the facilities to be financed;
b. amounts invested in a bona fide debt service fund, within the meaning of§ 1.148-
1(b) of the Regulations; and
c. amounts deposited in any reasonably required reserve or replacement fund to the
extent such amounts do not exceed the least of maximum annual debt service on
the Obligations, 125% of average annual debt service on the Obligations, or 10
percent of the stated principal amount (or, in the case of a discount, the issue
price) of the Obligations;
20. the Obligations must include a provision requiring the City take all necessary steps to
comply with the requirement that certain amounts earned on the investment of gross
proceeds of the Obligations be rebated to the federal government in order to satisfy the
requirements of§ 148 of the Code. The Obligations must provide that the City will:
a. account for all Gross Proceeds, as defined in the Code and Regulations, (including
'"'' all receipts, expenditures and investments thereof) on its books of account
separately and apart from all other funds (and receipts, expenditures and
investments thereof) and retain all records of such accounting for at least six years
after the final Computation Date. The City may, however, to the extent permitted
by law, commingle Gross Proceeds of its Loan with other money of the City,
provided that the City separately accounts for each receipt and expenditure of
such Gross Proceeds and the obligations acquired therewith;
b. calculate the Rebate Amount, as defined in the Code and Regulations, with
respect to its Loan, not less frequently than each Computation Date, in accordance
with rules set forth in § 148(f) of the Code, § 1.148-3 of the Regulations, and the
rulings thereunder. The City shall maintain a copy of such calculations for at least
six years after the final Computation Date;
c. as additional consideration for the making of the Loan, and in order to induce the
making of the Loan by measures designed to ensure the excludability of the
interest on the TWDB's Source Series Bonds from the gross income of the
owners thereof for federal income tax purposes, pay to the United States the
amount described in paragraph (b) above within 30 days after each Computation
Date;
d. exercise reasonable diligence to assure that no errors are made in the calculations
required by paragraph (b) and, if such error is made, to discover and promptly to
correct such error within a reasonable amount of time thereafter, including
5
TWDB Contract No.LF1000353
Exhibit A,Page 6 of 9
payment to the United States of any interest and any penalty required by the
Regulations; r""
21. the Obligations must include a provision prohibiting the City from taking any action that
would cause the interest on the Obligations to be includable in gross income for federal
income tax purposes;
22. the Obligations must provide that the City will not cause or permit the Obligations to be
treated as "federally guaranteed" obligations within the meaning of§ 149(b) of the Code;
23. the transcript must include a No Arbitrage Certificate or similar Federal Tax Certificate
setting forth the City's reasonable expectations regarding the use, expenditure and
investment of the proceeds of the Obligations;
24. the transcript must include evidence that the information reporting requirements of §
149(e) of the Code will be satisfied. This requirement may be satisfied by filing an IRS
Form 8038 with the Internal Revenue Service. In addition, the applicable completed IRS
Form 8038 or other evidence that the information reporting requirements of § 149(e)
have been satisfied must be provided to the Executive Administrator within fourteen (14)
days of closing. The Executive Administrator may withhold the release of funds for
failure to comply;
25. the Obligations must provide that neither the City nor a related party thereto will acquire
any of the TWDB's Source Series Bonds in an amount related to the amount of the
Obligations to be acquired from the City by the TWDB;
State Revolving Fund Conditions
26. the City shall submit outlay reports with sufficient documentation on costs on a quarterly
or monthly basis in accordance with TWDB outlay report guidelines;
27. the Obligations must include a provision stating that all laborers and mechanics employed
by contractors and subcontractors for projects shall be paid wages at rates not less than
those prevailing on projects of a similar character in the locality in accordance with the
Davis-Bacon Act, and the U.S. Department of Labor's implementing regulations. The
City, all contractors, and all sub-contractors shall ensure that all project contracts
mandate compliance with Davis-Bacon. All contracts and subcontracts for the
construction of the project carried out in whole or in part with financial assistance made
available as provided herein shall insert in full in any contract in excess of$2,000 the
contracts clauses as provided by the TWDB;
28. the Obligations must include a provision stating that the City shall provide the TWDB
with all information required to be reported in accordance with the Federal Funding
Accountability and Transparency Act of 2006, Pub. L. 109-282, as amended by Pub. L.
110-252. The City shall obtain a Data Universal Numbering System (DUNS) Number
6
TWDB Contract No.LF1000353
Exhibit A,Page 7 of 9
and shall register with System for Award Management (SAM), and maintain current
registration at all times during which the Obligations are outstanding;
29. the Obligations shall provide that all loan proceeds will be timely and expeditiously used,
as required by 40 CFR § 35.3135(d), and also shall provide that the City will adhere to
the approved project schedule;
30. The Obligations and Loan Forgiveness Agreement must contain a covenant that the City
will abide by all applicable construction contract requirements related to the use of iron
and steel products produced in the United States, as required by the 2014 Federal
Appropriations Act and related State Revolving Fund Policy Guidelines;
Drinking Water State Revolving Fund Conditions
31. prior to or at closing, the City shall pay a 2.25% origination fee to the TWDB calculated
pursuant to 31 TAC Chapter 371;
32. prior to closing, the Texas Commission on Environmental Quality, must make a
determination, the form and substance of which is satisfactory to the Executive
Administrator, that the City has demonstrated the necessary financial, managerial, and
technical capabilities to proceed with the project or projects to be funded with the
proceeds of these Obligations;
33. prior to release of funds for professional consultants including, but not limited to, the
engineer, financial advisor, and bond counsel, as appropriate, the City must provide
documentation that it has met all applicable state procurement requirements as well as all
federal procurement requirements under the Disadvantaged Business--Enterprises
program;
Pledge Conditions for the Loan
34. the Obligations must contain a provision providing that the amount to be-accumulated-
and maintained in the reserve fund shall be increased to an amount equal to not less than
the average annual principal and interest requirements of all bonds payable from and
secured by a first lien on and pledge of the net revenues of the system (after giving effect
to the issuance of the additional bonds). The additional amount to be accumulated in the
reserve fund shall be deposited in not more than five years and one month from the date
of the passage of the ordinance authorizing the issuance of the additional bonds;
35. if the City has existing revenue obligations with the same pledge of security as the
proposed Obligations that will remain outstanding after any loan(s) made by the TWDB
pursuant to this commitment, the lien or liens securing the Obligations issued to the
TWDB shall be at least on a parity with lien or liens securing such outstanding
obligations;
36. the Obligations must contain a provision providing that the net revenues of the system for
7
TWDB Contract No.LF1000353
Exhibit A,Page 8 of 9
the twelve-month period for the fiscal year next preceding the month of the adoption of
PORNO
the ordinance authorizing the issuance of any additional bonds, as shown by a report of a
certified public accountant or licensed public accountant, are equal to at least one and
one-fourth times the average annual principal and interest requirements of all bonds
which will be secured by a first lien on and pledge of the net revenues of the system, and
which will be outstanding upon the issuance of the additional bonds. 1
PROVIDED, however, the commitment is subject to the following special conditions:
Special Conditions:
37.. prior to closing,the City shall execute a Loan Forgiveness Agreement in a form and
substance acceptable to the Executive Administrator;
38. the Loan Forgiveness Agreement must include a provision stating that the City shall
return any loan forgiveness funds that are determined to be surplus funds in a manner
determined by the Executive Administrator; and
39. the City must comply with the standard emergency discovery conditions for threatened
and endangered species,and cultural resources, as more fully specified in the final
environmental finding of the Executive Administrator.
APPROVED and ordered of record this 6th day of November,2014.
TEXAS WATER DEVELOPMENT BOARD
Carlos Rubinstein, Ch"airman
DATE SIGNED: //— 6 -/4/4
ATTEST:
./7<C
Kevin Patteson
Executive Administrator
MORN
8
TWDB Contract No.LF1000353
Exhibit A,Page 9 of 9
EXHIBIT B
City of Euless's Resolution
TWDB Contract No.LF1000353
Exhibit B,Page 1 of 5
RESOLUTION NO.
A RESOLUTION approving and authorizing the execution of a Loan Forgiveness
Agreement between the Texas Water Development Board and the City of
Euless, Texas and an Escrow Agreement relating thereto.
WHEREAS, the Texas Water Development Board (the "TWDB") adopted Resolution No.
14-95 on November 6, 2014 (the "TWDB Resolution") making a commitment to provide financial
assistance to the City of Euless, Texas (the "City") in the amount of $5,493,050 from the
Drinking Water State Revolving Fund to finance waterworks system improvements; and
WHEREAS, in connection with such commitment, the TWDB determined that the City
qualifies for a subsidy as a disadvantaged community and agreed, pursuant to the TWDB
Resolution, to provide a loan in the amount of $4,685,000 to the City (evidenced by the
issuance of the $4,685,000 "City of Euless, Texas, Waterworks and Sewer System Revenue
Bonds, Series 2015A" authorized pursuant to an ordinance adopted on the date hereof) and
further agrees that $808,050 will be forgiven upon execution of a Loan Forgiveness Agreement;
and
WHEREAS, the City Council hereby finds and determines that (1) the Loan Forgiveness
Agreement between the City and the TWDB substantially in the form and content of Exhibit A
attached hereto and (2) the Escrow Agreement substantially in the form and content of Exhibit
B attached hereto should be approved and authorized to be executed; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS:
Section 1. The form of Loan Forgiveness Agreement between the TWDB and the
City of Euless attached hereto as Exhibit A and incorporated herein for all purposes is hereby
approved for and on behalf of the City as to form and content, and such agreement in
substantially the form and substance attached hereto, together with such changes or revisions
as the Mayor and/or City Secretary may deem necessary to accomplish the financing
contemplated, is hereby authorized to be executed by the Mayor for and on behalf of the City
and as the act and deed of this Council; and such Loan Forgiveness Agreement as executed by
said officials shall be deemed approved by the City Council and constitute the agreement herein
approved.
Section 2. Upon receipt, the loan forgiveness proceeds shall be deposited in an
account to be maintained by BOKF, NA dba Bank of Texas (the "Escrow Agent") and held in
escrow pending written authorization to release said moneys. The Escrow Agreement between
the Escrow Agent and the City attached hereto as Exhibit B and incorporated herein for all
purposes is hereby approved for and on behalf of the City as to form and content, and such
agreement in substantially the form and substance attached hereto, together with such changes
or revisions as the Mayor and/or City Secretary may deem necessary to accomplish the
financing contemplated, is hereby authorized to be executed by the Mayor for and on behalf of
the City and as the act and deed of this City Council; and such Escrow Agreement as executed •
by said officials shall be deemed approved by this City Council and constitute the Escrow
Agreement herein approved.
Section 3. The City Council hereby authorizes the execution and delivery of any and
all other documents related to the Loan Forgiveness Agreement including any required
documents, instruments or certificates related to obtaining the Loan Forgiveness.
60524447.1/11504931
TWDB Contract No.LF1000353
Exhibit B,Page 2 of 5
PASSED AND ADOPTED, this June 23, 2015.
CITY OF EULESS, TEXAS
Mayor
ATTEST:
City Secretary
(City Seal)
60524447.1/11504931
TWDB Contract No.LF1000353
Exhibit B,Page 3 of 5
EXHIBIT C
List of Federal Laws and Authorities (Cross-Cutters)
The basic rules for complying with cross-cutting federal authorities are set-out in the CWSRF regulations at 40
C.F.R. § 35.3145 and in the DWSRF regulations at 40 C.F.R. § 35.3575. A list of and link to these authorities
is provided below and also available from the Environmental Protection Agency(EPA)at:
http://water.epa.gov/grants_funding/dwsrf/xcuts.cfm. A handbook on the applicability of the cross-cutting
federal authorities is available from EPA at
http://www.epa.gov/owm/cwfinance/cwsrf/enhance/DocFi les/Other%20Docs/CrosscutterHan dbook.pdf.
Environmental Authorities
• Archeological and Historic Preservation Act of 1974,Pub.L. 86-523, as amended
• Clean Air Act,Pub.L. 84-159, as amended
• Coastal Barrier Resources Act, Pub.L. 97-348
• Coastal Zone Management Act,Pub. L. 92-583, as amended
• Endangered Species Act,Pub. L. 93-205, as amended
• Environmental Justice,Executive Order 12898
• Floodplain Management,Executive Order 11988 as amended by Executive Order 12148
• Protection of Wetlands,Executive Order 11990
• Farmland Protection Policy Act, Pub. L. 97-98
• Fish and Wildlife Coordination Act,Pub.L. 85-624, as amended
• National Historic Preservation Act of 1966,PL 89-665, as amended
• Safe Drinking Water Act,Pub.L. 93-523, as amended
• Wild and Scenic Rivers Act,Pub.L. 90-542, as amended
Economic and Miscellaneous Authorities
• Demonstration Cities and Metropolitan Development Act of 1966, Pub. L. 89-754, as amended,
Executive Order 12372
• Procurement Prohibitions under Section 306 of the Clean Air Act and Section 508 of the Clean Water
Act, including Executive Order 11738, Administration of the Clean Air Act and the Federal Water
Pollution Control Act with Respect to Federal Contracts,Grants, or Loans
• Uniform Relocation and Real Property Acquisition Policies Act,Pub.L. 91-646, as amended
• Debarment and Suspension,Executive Order 12549
Social Policy Authorities
• Age Discrimination Act of 1975, Pub. L. 94-135
• Title VI of the Civil Rights Act of 1964,Pub.L. 88-352 (2)
• Section 13 of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 (the
Clean Water Act)
• Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112 (including Executive Orders 11914 and
11250)
• The Drug-Free Workplace Act of 1988, Pub. L. 100-690 (applies only to the capitalization grant
recipient)
• Equal Employment Opportunity,Executive Order 11246
• Women's and Minority Business Enterprise,Executive Orders 11625, 12138 and 12432
• Section 129 of the Small Business Administration Reauthorization and Amendment Act of 1988, Pub.
L. 100-590
• Anti-Lobbying Provisions(40 CFR Part 30) [applies only to capitalization grant recipients]
The Civil Rights Act and related anti-discrimination statutes apply to all the operations of the SRF
program.
TWDB Contract No.LF1000353
Exhibit C,Page 1 of 1
EXHIBIT D
Davis-Bacon Contract and Subcontract Provisions
(a)GENERAL CONTRACT AND SUBCONTRACT PROVISIONS.
The subrecipient(s) shall insert in full in any contract in excess of $2,000 which is entered into for the actual
construction, alteration and/or repair, including painting and decorating, of a public building or public work, or
building or work financed in whole or in part from Federal funds or in accordance with guarantees of a Federal
agency or financed from funds obtained by pledge of any contract of a Federal agency to make a loan, grant or
annual contribution (except where a different meaning is expressly indicated), and which is subject to the labor
standards provisions of any of the acts listed in § 5.1,the following clauses:
(1)Minimum Wages
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not
less often than once a week, and without subsequent deduction or rebate on any account (except such payroll
deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part
3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment
computed at rates not less than those contained in the wage determination of the Secretary of Labor which is
attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist
between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-
Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to
the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made or costs incurred for more
than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular
weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and
mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the
classification of work actually performed, without regard to skill, except as provided in § 5.5(a)(4). Laborers or
mechanics performing work in more than one classification may be compensated at the rate specified for each
classification for the time actually worked therein: Provided, that the employer's payroll records accurately set forth
the time spent in each classification in which work is performed. The wage determination (including any additional
classification and wage rates conformed under paragraph(a)(1)(ii)of this section)and the Davis-Bacon poster(WH-
1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
Subrecipients may obtain wage determinations from the U.S. Department of Labor's web site, www.dol.gov.
(ii)(A) The subrecipient(s), on behalf of EPA, shall require that any class of laborers or mechanics, including
helpers, which is not listed in the wage determination and which is to be employed under the contract shall be
classified in conformance with the wage determination. The State award official shall approve a request for an
additional classification and wage rate and fringe benefits therefore only when the following'criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage
determination; and
(2)The classification is utilized in the area by the construction industry;and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage
rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the subrecipient(s) agree on the classification and wage rate (including the amount designated
for fringe benefits where appropriate), documentation of the action taken and the request, including the local wage
TWDB Contract No.LF1000353
Exhibit D,Page 1 of 7
determination shall be sent by the subrecipient(s) to the State award official. The State award official will transmit
the request, to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, Washington, DC 20210 and to the EPA DB Regional Coordinator concurrently. The
Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification
request within 30 days of receipt and so advise the State award official or will notify the State award official within
the 30-day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or their
representatives, and the subrecipient(s) do not agree on the proposed classification and wage rate (including the
amount designated for fringe benefits, where appropriate), the award official shall refer the request and the local
wage determination,including the views of all interested parties and the recommendation of the State award official,
to the Administrator for determination. The request shall be sent to the EPA DB Regional Coordinator concurrently.
The Administrator, or an authorized representative, will issue a determination within 30 days of receipt of the
request and so advise the contracting officer or will notify the contracting officer within the 30-day period that
additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii)(B) or
(C)of this section, shall be paid to all workers performing work in the classification under this contract from the first
day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a
fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the
wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part
of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide
fringe benefits under a plan or program, Provided,That the Secretary of Labor has found, upon the written request
of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may
require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or
program.
(2)Withholding
The subrecipient(s), shall upon written request of the EPA Award Official or an authorized representative of the
Department of Labor, withhold or cause to be withheld from the contractor under this contract or any other Federal
contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing
wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as
may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed
by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to
pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the
work, all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor,
sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment,
advance,or guarantee of funds until such violations have ceased.
(3)Payrolls and basic records
(i)Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and
preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such
records shall contain the name, address, and social security number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe
benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and
weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has
found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs
reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-
Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is
TWDB Contract No.LF1000353
Exhibit D,Page 2 of 7
enforceable,that the plan or program is financially responsible,and that the plan or program has been communicated
in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost
incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the
registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all
payrolls to the subrecipient, that is, the entity that receives the sub-grant or loan from the State capitalization grant
recipient. Such documentation shall be available on request of the State recipient or EPA. As to each payroll copy
received,the subrecipient shall provide written confirmation in a form satisfactory to the State indicating whether or
not the project is in compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies
for the specified week. The payrolls shall set out accurately and completely all of the information required to be
maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be
included on the weekly payrolls. Instead the payrolls shall only need to include an individually identifying number
for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll
information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the
Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The
prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and
subcontractors shall maintain the full social security number and current address of each covered worker, and shall
provide them upon request to the subrecipient(s)for transmission to the State or EPA if requested by EPA, the State,
the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit
of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to
require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records,
without weekly submission to the subrecipient(s).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract
and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under § 5.5 (a)(3)(ii) of
Regulations, 29 CFR part 5, the appropriate information is being maintained under§ 5.5 (a)(3)(i) of Regulations, 29
CFR part 5,and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during
the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that
no deductions have been made either directly or indirectly from the full wages earned, other than permissible
deductions as set forth in Regulations,29 CFR part 3;
(3)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as specified in the applicable wage determination incorporated
into the contract.
(C)The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-
347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph
(a)(3)(ii)(B)of this section.
(D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or
criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section
available for inspection, copying, or transcription by authorized representatives of the State,EPA or the Department
of Labor, and shall permit such representatives to interview employees during working hours on the job. If the
contractor or subcontractor fails to submit the required records or to make them available, the Federal agency or
State may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary
to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the
TWDB Contract No.LF1000353
Exhibit D,Page 3 of 7
required records upon request or to make such records available may be grounds for debarment action pursuant to 29
CFR 5.12.
(4)Apprentices and trainees
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they
performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program
registered with the U.S. Department of Labor,Employment and Training Administration, Office of Apprenticeship
Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a
person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but who has been certified by the Office of
Apprenticeship Training,Employer and Labor Services or a State Apprenticeship Agency(where appropriate)to be
eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job
site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force
under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or
otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination
for the classification of work actually performed. In addition, any apprentice performing work on the job site in
excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed.Where a contractor is performing construction on a project in a
locality other than that in which its program is registered, the ratios and wage rates(expressed in percentages of the
journeyman's hourly rate)specified in the contractor's or subcontractor's registered program shall be observed.Every
apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of
progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits,apprentices must be paid the full amount of fringe benefits
listed on the wage determination for the applicable classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that
determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor
will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually registered in a
program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor,
Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater
than permitted under the plan approved by the Employment and Training Administration.Every trainee must be paid
at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a
percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid
fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention
fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the
Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the
corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for
apprentices.Any employee listed on the payroll at a trainee rate who is not registered and participating in a training
plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate
on the wage determination for the classification of work actually performed. In addition,any trainee performing
work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work actually performed. In the event the Employment and
Training Administration withdraws approval of a training program, the contractor will no longer be permitted to
utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is
approved.
(iii)Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be
in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29
CFR part 30.
TWDB Contract No.LF1000353
Exhibit D,Page 4 of 7
(5)Compliance with Copeland Act requirements
The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this
contract.
(6)Subcontracts.
The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through
(10) and such other clauses as the EPA determines may by appropriate, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for
the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
(7)Contract termination; debarment.
A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as
a contractor and a subcontractor as provided in 29 CFR 5.12.
(8)Compliance with Davis-Bacon and Related Act requirements.
All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3,and 5 are herein
incorporated by reference in this contract.
(9)Disputes concerning labor standards.
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of
Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the
contractor (or any of its subcontractors) and Subrecipient(s), State, EPA, the U.S. Department of Labor, or the
employees or their representatives.
(10)Certification of eligibility.
(i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who
has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of
section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government
contract by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii)The penalty for making false statements is prescribed in the U.S.Criminal Code, 18 U.S.C. 1001.
b. CONTRACT PROVISIONS FOR CONTRACTS IN EXCESS OF$100,000
Contract Work Hours and Safety Standards Act. The subrecipient shall insert the following clauses set forth in
paragraphs (a)(1), (2), (3), and (4) of this section in full in any contract in an amount in excess of$100,000 and
subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be
inserted in addition to the clauses required by Item 3, above or 29 CFR 4.6. As used in this paragraph, the terms
laborers and mechanics include watchmen and guards.
(1)Overtime requirements
No contractor or subcontractor contracting for any part of the contract work which may require or involve the
employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in
which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or
TWDB Contract No.LF1000353
Exhibit D,Page 5 of 7
mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
(2)Violation; liability for unpaid wages;liquidated damages.
In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any
subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work done under contract for the District of
Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall
be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in
violation of the clause set forth in paragraph(b)(1)of this section,in the sum of$10 for each calendar day on which
such individual was required or permitted to work in excess of the standard workweek of forty hours without
payment of the overtime wages required by the clause set forth in paragraph(b)(1)of this section.
(3)Withholding for unpaid wages and liquidated damages
The subrecipient,upon written request of the EPA Award Official or an authorized representative of the Department
of Labor, shall withhold or cause to be withheld, from any moneys payable on account of work performed by the
contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or
any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by
the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such
contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph
(b)(2)of this section.
(4)Subcontracts
The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph(b)(1) through (4)
of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts.
The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the
clauses set forth in paragraphs(b)(1)through(4)of this section.
(c)MAINTENANCE OF RECORDS
In addition to the clauses contained in Section (a), above, in any contract subject only to the Contract Work Hours
and Safety Standards-Act and not to any of the other statutes cited in 29 CFR 5.1, the Subrecipient shall insert a
clause requiring that the contractor or subcontractor shall maintain payrolls and basic payroll records during the
course of the work and shall preserve them for a period of three years from the completion of the contract for all
laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the
name and address of each such employee, social security number, correct classifications,hourly rates of wages paid,
daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the Subrecipient shall
insert in any such contract a clause providing that the records to be maintained under this paragraph shall be made
available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of
the (write the name of agency) and the Department of Labor, and the contractor or subcontractor will permit such
representatives to interview employees during working hours on the job.
(d) COMPLIANCE VERIFICATION
(1) The subrecipient shall periodically interview a sufficient number of employees entitled to DB prevailing wages
(covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates. As provided
in 29 CFR 5.6(a)(6),all interviews must be conducted in confidence.The subrecipient must use Standard Form 1445
(SF 1445) or equivalent documentation to memorialize the interviews. Copies of the SF 1445 are available from
EPA on request.
TWDB Contract No.LF1000353
Exhibit D,Page 6 of 7
(2) The subrecipient shall establish and follow an interview schedule based on its assessment of the risks of
noncompliance with DB posed by contractors or subcontractors and the duration of the contract or subcontract.'
Subrecipients must conduct more frequent interviews if the initial interviews or other information indicated that
there is a risk that thecontractor or subcontractor is not complying with DB. Subrecipients shall immediately
conduct interviews in response to an alleged violation of the prevailing wage requirements. All interviews shall be
conducted in confidence.
(3) The subrecipient shall periodically conduct spot checks of a representative sample of weekly payroll data to
verify that contractors or subcontractors are paying the appropriate wage rates. The subrecipient shall establish and
follow a spot check schedule based on its assessment of the risks of noncompliance with DB posed by contractors or
subcontractors and the duration of the contract or subcontract.At a minimum,if practicable, the subrecipient should
spot check payroll data within two weeks of each contractor or subcontractor's submission of its initial payroll data
and two weeks prior to the completion date the contract or subcontract. Subrecipients must conduct more frequent
spot checks if the initial spot check or other information indicates that there is a risk that the contractor or
subcontractor is not complying with DB. In addition,during the examinations the subrecipient shall verify evidence
of fringe benefit plans and payments thereunder by contractors and subcontractors who claim credit for fringe
benefit contributions.
(4) The subrecipient shall periodically review contractors and subcontractors use of apprentices and trainees to
verify registration and certification with respect to apprenticeship and training programs approved by either the U.S
Department of Labor or a state, as appropriate, and that contractors and subcontractors are not using
disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be conducted in accordance
with the schedules for spot checks and interviews described in Item 5(b)and(c)above.
(5) Subrecipients must immediately report potential violations of the DB prevailing wage requirements to the EPA
DB contact listed above and to the appropriate DOL Wage and Hour District Office listed at
http://www.dol.gov/esa/contacts/whd/america2.htm.
The provision that read"At a minimum,the subrecipient should conduct interviews with a representative group of
covered employees within two weeks of each contractor or subcontractor's submission of its initial weekly payroll
data and two weeks prior to the estimated completion date for the contract or subcontract"was issued a waiver in
EPA Class Deviation memo dated November 16,2012.
TWDB Contract No.LF1000353
Exhibit D,Page 7 of 7
EXHIBIT E
Project Schedule
Project Task Schedule Date
Engineering Feasibility Report Completion (End of Planning Phase) 6/15/2015
Design Phase Complete 6/15/2015
Start of Construction 9/1/2015
Construction Completion 9/1/2016
TWDB Contract No.LF1000353
Exhibit E,Page 1 of 1
EXHIBIT F
Project Budget
Budget Items
9 TWDB Funds Total
Construction
Construction $5,000,000.00 $5,000,000.00
Construction Contract $0.00 $0.00
Subtotal for Construction $5,000,000.00 $5,000,000.00
Fiscal Services -r-
Loan Origination Fee $103,093.00 $103,093 00
Subtotal for Fiscal Services $103,093.00 $103,093.00
Contingency — f
Contingency $389,957.00 $389,957.00
Subtotal for Contingency $389,957.00 $389,957.00
Total $5,493,050.00 $5,493,050.00
TWDB Contract No.LF1000353
Exhibit F,Page 1 of 1
EXHIBIT G
Escrow Agreement
TWDB Contract No.LF1000353
Exhibit G,Page 1 of 7
EXHIBIT B
ESCROW AGREEMENT
60524447.1/11504931 B-1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of June 23, 2015, made by and between the
City of Euless, Texas, a political subdivision of the State of Texas in Tarrant County (the "City"),
acting by and through the Mayor and City Secretary and BOKF, NA dba Bank of Texas, a
banking association duly organized and existing under the laws of the United States of America
(the "Bank"), as Escrow Agent (the "Escrow Agent") together with any successor in such
capacity:
WITNESSETH:
WHEREAS, pursuant to a Loan Forgiveness Agreement dated as of June 23, 2015 (the
"Loan Forgiveness Agreement"), the City accepted certain contractual obligations (the
"Obligations") to obtain financial assistance from the Texas Water Development Board
("TWDB") for the purpose of funding the construction of improvements and extensions to the
City's waterworks system (the "Project"); and
WHEREAS, the Escrow Agent is a state or national bank designated by the Texas
Comptroller as a state depository institution in accordance with Texas Government Code,
Chapter 404, Subchapter C, or is a designated custodian of collateral in accordance with Texas
Government Code, Chapter 404, Subchapter D and is otherwise qualified and empowered to
enter into this Agreement, and hereby acknowledges its acceptance of the terms and provisions
hereof; and
WHEREAS, a condition of the Obligations is the deposit of the proceeds of the
Obligations (Proceeds) in escrow subject to being withdrawn only with the approval of the
Executive Administrator or another designated representative; provided, however, the Proceeds
can be transferred to different investments so long as all parties hereto consent to such transfer;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and in
consideration of the amount of fees to be paid by the City to the Escrow Agent, as set forth on
EXHIBIT A, the receipt of which is hereby acknowledged, and in order to secure the delivery of
the Obligations, the parties hereto mutually undertake, promise and agree for themselves, their
respective representatives and successors, as follows:
SECTION 1: ESCROW ACCOUNT. Upon the delivery of the Obligations described
above, the Proceeds identified under TWDB Commitment Number LF1000353 shall be
deposited to the credit of a special escrow account or escrow subaccount (the "Escrow
Account") maintained at the Escrow Agent on behalf of the City and the TWDB and shall not be
commingled with any other accounts or with any other proceeds or funds. The Proceeds
received by the Escrow Agent under this Agreement shall not be considered as a banking
deposit by the City, and the Escrow Agent shall have no right to title with respect thereto except
as Escrow Agent under the terms of this Agreement.
The Escrow Account shall be entitled "CITY OF EULESS, TEXAS WATERWORKS AND
SEWER SYSTEM REVENUE BONDS, SERIES 2015A LOAN FORGIVENESS TEXAS WATER
DEVELOPMENT BOARD LF1000353 ESCROW ACCOUNT" and shall not be subject to
warrants, drafts or checks drawn by the City but shall be disbursed or withdrawn to pay the
costs of the project for which the Obligations were issued or other purposes in accordance with
the Loan Forgiveness Agreement and solely upon written authorization from the Executive
Administrator, or his/her designated representative. The Escrow Agent shall provide to the City
and to the TWDB the Escrow Account bank statements upon request.
60524591.1/11504931
SECTION 2: COLLATERAL. All cash deposited to the credit of such Escrow Account
and any accrued interest in excess of the amounts insured by the FDIC and remaining
uninvested under the terms of this Agreement shall be continuously secured by a valid pledge of
direct obligations of the United States of America or other collateral meeting the requirements of
the Public Funds Collateral Act, Texas Government Code, Chapter 2257, as amended.
SECTION 3: INVESTMENTS. While the Proceeds are held in escrow, the Escrow
Agent shall only invest escrowed Proceeds in investments that are authorized by the Public
Funds Investment Act, Texas Government Code, Chapter 2256 ("PFIA"). It is the City's
responsibility to direct the Escrow Agent to invest all public funds in a manner that is consistent
not only with the PFIA but also with its own written investment policy.
SECTION 4: DISBURSEMENTS. The Escrow Agent shall not honor any disbursement
from the Escrow Account, or any portion thereof, unless and until it has been supplied with
written approval and consent by the Executive Administrator or his/her designated
representative. However, no written approval and consent by the Executive Administrator shall
be required if the disbursement involves transferring Proceeds from one investment to another
within the Escrow Account provided that all such investments are consistent with the PFIA
requirements.
SECTION 5: UNEXPENDED FUNDS. Any Proceeds remaining unexpended in the
Escrow Account after completion of the Project and after the final accounting has been
submitted to and approved by the TWDB shall be disposed of pursuant to the provisions of the
Loan Forgiveness Agreement. The City shall deliver a copy of such TWDB approval of the final
accounting to the Escrow Agent together with instructions concerning the disbursement of
unexpended Proceeds hereunder. The Escrow Agent shall have no obligation to ensure that
such unexpended Proceeds are used as required by the provisions of the Loan Forgiveness
Agreement, that being the sole obligation of the City.
SECTION 6: CERTIFICATIONS. The Escrow Agent shall be authorized to accept and
rely upon the certifications and documents furnished to the Escrow Agent by the City and shall
not be liable for the payment of any funds made in reliance in good faith upon such certifications
or other documents or approvals, as herein recited.
SECTION 7: LIABILITY OF ESCROW AGENT. To the extent permitted by law, the
Escrow Agent shall not be liable for any act done or step taken or omitted by it or any mistake of
fact or law, except for its negligence or default or failure in the performance of any obligation
imposed upon it hereunder. The Escrow Agent shall not be responsible in any manner for any
proceedings in connection with the Obligations or any recitation contained in the Obligations.
SECTION 8: RECORDS. The Escrow Agent will keep complete and correct books of
record and account relating to the receipts, disbursements, allocations and application of the
money deposited to the Escrow Account, and investments of the Escrow Account and all
proceeds thereof. The records shall be available for inspection and copying at reasonable
hours and under reasonable conditions by the City and the TWDB.
SECTION 9: MERGER/CONSOLIDATION. In the event that the Escrow Agent
merges or consolidates with another bank or sells or transfers substantially all of its assets or
corporate trust business, then the successor bank shall be the successor Escrow Agent without
the necessity of further action as long as the successor bank is a state or national bank
designated by the Texas Comptroller as a state depository institution in accordance with Texas
Government Code, Chapter 404, Subchapter C, or is a designated custodian of collateral in
60524591.1/11504931 2
accordance with Texas Government Code Chapter 404, Subchapter D. The Escrow Agent
must provide the TWDB with written notification within 30 days of acceptance of the merger,
consolidation, or transfer. If the merger, consolidation or other transfer has occurred between
state banks, the newly-created entity shall forward the certificate of merger or exchange issued
by the Texas Department of Banking as well as the statement filed with the pertinent chartering
authority, if applicable, to the TWDB within five business days following such merger,
consolidation or exchange.
SECTION 10: AMENDMENTS. This Agreement may be amended from time to time as
necessary with the written consent of the City and the TWDB, but no such amendments shall
increase the liabilities or responsibilities or diminish the rights of the Escrow Agent without its
consent.
SECTION 11: TERMINATION. In the event that this Agreement is terminated by either
the City or by the Escrow Agent, the Escrow Agent must report said termination in writing to the
TWDB within five business days of such termination. The City is responsible for ensuring that
the following criteria are satisfied in selecting the successor escrow agent and notifying the
TWDB of the change in escrow agents: (a) the successor escrow agent must be an FDIC-
insured state or national bank designated by the Texas Comptroller as a state depository;
(b) the successor escrow agent must be retained prior to or at the time of the termination; (c) an
escrow agreement must be executed by and between the City and the successor escrow agent
and must contain the same or substantially similar terms and conditions as are present in this
Agreement; and (d) the City must forward a copy of the executed escrow agreement with the
successor escrow agent within five business days of said termination. No funds shall be
released by the TWDB until it has received, reviewed and approved the escrow agreement with
the successor escrow agent. If the City has not appointed a successor escrow agent within
thirty (30) days of the notice of termination, the Escrow Agent may petition any court of
competent jurisdiction in Texas for the appointment of a successor escrow agent or for other
appropriate relief, and any such resulting appointment shall be binding upon the City. Whether
appointed by the City or a court, the successor escrow agent and escrow agreement must be
approved by the TWDB for the appointment to be effective. The Escrow Agent is responsible
for performance under this Agreement until a successor has been approved by the TWDB and
has signed an acceptable escrow agreement.
SECTION 12: EXPIRATION. This Agreement shall expire upon final transfer of the
funds in the Escrow Account to the City.
SECTION 13: POINT OF CONTACT. The points of contact for the Escrow Agent and
the TWDB are as follows:
BOKF, NA dba Bank of Texas Executive Administrator
5956 Sherry Lane, Suite 1201 Texas Water Development Board
Dallas, Texas 75225 1700 North Congress Avenue
Attention: Caresse Tankersley Austin, Texas 78701
Phone Number: 214-987-8886
Fax Number: 214-256-7517
Email Address: CTankersley@bankoftexas.com
SECTION 14: CHOICE OF LAW. This Agreement shall be governed exclusively by the
applicable laws of the State of Texas. Venue for disputes shall be in the District Court of Travis
County, Texas.
60524591.1/11504931 3
SECTION 15: ASSIGNABILITY. This Agreement shall not be assignable by the parties
hereto, in whole or in part, and any attempted assignment shall be void and of no force and
effect.
SECTION 16: ENTIRE AGREEMENT. This Agreement evidences the entire Escrow
Agreement between the Escrow Agent and the City and supersedes any other agreements,
whether oral or written, between the parties regarding the Proceeds or the Escrow Account. No
modification or amendment of this Agreement shall be valid unless the same is in writing and is
signed by the City and consented to by the Escrow Agent and the TWDB.
SECTION 17: VALIDITY OF PROVISIONS. If any term, covenant, condition or provision
of this Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby.
SECTION 18: COMPENSATION FOR ESCROW SERVICES. The Escrow Agent shall
be entitled to compensation for its services as stated in Exhibit A, which compensation shall be
paid by the City but may not be paid directly from the Escrow Account.
[remainder of page left blank intentionally]
60524591.1/11504931 4
1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CITY OF EULESS, TEXAS
By:
Mayor
Address: 201 North Ector Drive
Euless, Texas 76039
(City Seal)
City Secretary
BOKF, NA dba Bank of Texas
as Escrow Agent
By:
Title:
(Bank Seal)
Address: 5956 Sherry Lane, Suite 1201
Dallas, Texas 75225
ATTEST:
By:
Title:
60524591.1/11504931 [signature page to Escrow Agreement]
August 24, 2023
The Honorable Linda Martin
Mayor, City of Euless
201 N Ector Dr
Euless, Texas 76039-3595
Dear Mayor Martin:
Texas Water
Development Board
P.O. Box 13231, 1700 N. Congress Ave.
Austin, TX 78711-3231, www.twdb.texas.gov
Phone (512) 463-7847, Fax (512) 475-2053
Sent Via Email to:
mavor(�eulesstx.eov
iiewellPeulesstx.eov
rfaircloPeulesstx.Eov
This letter is to serve as initiation of the final accounting process as required under Texas
Water Development Board (TWDB) rules. The final accounting process identifies all
sources and authorized uses of project funds as well as any excess commitment or unused
funds from the project.
TWDB records indicate that the Certificate of Approval was issued on October 17, 2017 for
the following project with the City of Euless (City):
$4,685,000 Waterworks and Sewer System Revenue Bonds, Series 2015A
TWDB Project 62647; TWDB Commitment L1000338
$808,050 Loan Forgiveness Agreement between TWDB and the City of Euless
TWDB Project 62647; TWDB Commitment LF1000353
Please submit no later than September 14, 2023, a completed and certified Final Project
Source and Use of Funds Report for each commitment shown above. Prior to submitting
this report to the TWDB, please discuss any identified unused funds.
Please contact Financial Examiner, Isabella McClellan at Isabella.McclellanCttwdb.texas.gov
or (512) 475-1213, if you need more information as you complete the final accounting or
wish to discuss this matter further.
Sincerely,
Thomas
Higgins
Digitally signed by
Thomas Higgins
Date: 2023.08.24
12:25:14 -05'00'
Thomas Higgins
Senior Financial Examiner
Our Mission
Leading the state's efforts
in ensuring a secure
water future for Texas
Board Members
Brooke T. Paup, Chairwoman I George B. Peyton V, Board Member I L'Oreal Stepney, P.E., Board Member
Jeff Walker, Executive Administrator
The Honorable Linda Martin
August 24, 2023
Page 2
TH/im
Enclosures: Final Source and Use of Funds Reports - L1000338 and LF1000353
c /w enc.: Ross Fairclo, Financial Services Manager
Janina Jewell, Director of Finance
Texas Water
Development Board
TEXAS WATER DEVELOPMENT BOARD
FINAL PROJECT SOURCE AND USE OF FUNDS REPORT
Lender Agency:
Texas Water Development Board
1700 North Congress Avenue
P.O. Box 13231
Austin, TX 78711-3231
Loan ID Number(s): L1000338
Period Covered By Report: (From Project Inception)
SOURCES
A. Commitment Amount - Board Approved:
B. Commitment Amount - Not Released:
C. Commitment Amount - Net Amount Released (A - B):
D. Interest Income:
TOTAL SOURCES (C + D):
USES
E. Construction:
F. Engineering, and Related Services:
G. Legal, Fiscal and Administrative Costs:
H. Other (e.g. capitalized interest, I&S Fund deposit):
TOTAL USES (E + F + G + H):
EXCESS SOURCES (USES):
SURPLUS COMMITMENT (See B above; to be lapsed, if any):
I certify that, to the best of my knowledge and belief, that
costs and/or the uses of funds set forth here are allocable to
the project scope approved by the Texas Water Development
Board and are not otherwise prohibited by statute or
regulation, and that this project is in compliance with
applicable Single Audit requirements.
Recipient Name and Address:
The Honorable Linda Martin
Mayor, City of Euless
201 N Ector Dr
Euless, Texas 76039-3595
mayor@eulesstx.aov
Project ID Number(s): 62647
From: 8/5/2015-10/17/2017
$4,685,000.00
$0.00
$4,685,000.00
$11,156.25
$4,696,156.25
$3,936,827.09
$0.00
$103,093.00
$641,301.93
$4,681,222.02
$14,934.23
ign�ture and Title of Cert g Official
Date Signed <'/3//010)-3
Texas Water
Development Board
TEXAS WATER DEVELOPMENT BOARD
FINAL PROJECT SOURCE AND USE OF FUNDS REPORT
Lender Agency:
Texas Water Development Board
1700 North Congress Avenue
P.O. Box 13231
Austin, TX 78711-3231
Loan ID Number(s): LF1000353
Period Covered By Report: (From Project Inception)
SOURCES
A. Commitment Amount - Board Approved:
B. Commitment Amount - Not Released:
C. Commitment Amount - Net Amount Released (A - B):
D. Interest Income:
TOTAL SOURCES (C + D):
USES
E. Construction:
F. Engineering, and Related Services:
G. Legal, Fiscal and Administrative Costs:
H. Other (e.g. capitalized interest, I&S Fund deposit):
TOTAL USES (E + F + G + H):
EXCESS SOURCES (USES):
SURPLUS COMMITMENT (See B above; to be lapsed, if any):
I certify that, to the best of my knowledge and belief, that
costs and/or the uses of funds set forth here are allocable to
the project scope approved by the Texas Water Development
Board and are not otherwise prohibited by statute or
regulation, and that this project is in compliance with
applicable Single Audit requirements.
Recipient Name and Address:
The Honorable Linda Martin
Mayor, City of Euless
201 N Ector Dr
Euless, Texas 76039-3595
mavor@eulesstx.gov
Project ID Number(s): 62647
From: 8/5/2015-10/17/2017
$808,050.00
$0.00
$808,050.00
$659.94
$808,709.94
$807,200.00
$0.00
$0.00
$1,509.94
$808,709.94
$0.00
4
Surand Title of Certifyi
Date Signed
4 )
facial
2/8/�d' 4.3