HomeMy WebLinkAboutPR 22163: FLOOD INFRASTRUCTURE FUND GRANT AND ESCROW APPROVALS City of
Ort rlltx��
Texas
www.PortArthurTx.gov
INTEROFFICE MEMORANDUM
Date: September 20. 2021
To: The Honorable Mayor and City Council
Through: Ron Burton, City Manager
From: Kandy Daniel, Interim Finance Director
RE: P.R. 22163 —Flood Infrastructure Fund Grant and Escrow approvals
Introduction: Request approval of the necessary documents related to a Flood Infrastructure
Grant with the Texas Water Development Board in the amount of$455,000.
Background: The Texas Water Development Board (TWDB)made a commitment to provide
financial assistance in the form of a grant in the amount of$455,000 to finance a drainage
study for the City of Port Arthur. The total cost of the project is $1,350,000. The City's share
of the project is $895,000.
Budget Impact: Outlay requests will be sent to the TWDB on a reimbursement basis and
funds will be released to the City from the Escrow Account at BOKF,National Association.
Funds are available for the City's share of the project in the Capital Project, account number
307-21-055-8515-00-10-000, Project DR1P05.
Recommendation: The attached Proposed Resolution No. 22163 provide approval of the
necessary documents related to a Flood Infrastructure Grant with the Texas Water
Development Board in the amount of$455,000. We recommend that the City Council approve
it as presented.
"Remember,we are here to serve the Citizens of Port Arthur"
P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743
P.R. No. 22163
9/22/21 dm/kd
RESOLUTION NO.
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR,
TEXAS APPROVING A GRANT AGREEMENT WITH THE TEXAS WATER
DEVELOPMENT BOARD AND AUTHORIZING THE CITY MANAGER AS
THE DESIGNATED REPRESENTATIVE OF THE CITY TO EXECUTE A
GRANT AGREEMENT; AND APPROVING OTHER MATTERS RELATED
THERETO
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
CITY OF PORT ARTHUR §
WHEREAS, the Texas Water Development Board (the "TWDB") has made a commitment to
provide financial assistance in the form of a grant agreement in the amount of$455,000 from the Flood
Infrastructure Fund (the"Grant") to the City of Port Arthur, Texas (the"City") to finance the planning
of a flood project identified as Project No. 40099; and
WHEREAS, the City Council of the City desires to appoint the City Manager, Ronald Burton,
or any successor as City Manager of the City, as the representative of the City (the "Authorized
Representative") who is authorized to enter into an agreement related to the Grant (the "Grant
Agreement")with the TWDB on behalf of the City; and
WHEREAS, the meeting at which this Resolution is being considered is open to the public as
required by law, and the public notice of the time, place and purpose of said meeting was given as
required by Chapter 551, Texas Government Code.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PORT ARTHUR,TEXAS:
1. Authorized Representative. That the City Manager of the City is hereby appointed as the
Authorized Representative of the City.
2. Approval of Grant Agreement. That the Grant Agreement between the TWDB and the
City in substantially the form presented to City Council is approved, and the Authorized Representative
is authorized to execute the Grant Agreement on behalf of the City(Exhibit"A").
3. Approval of Escrow Agreement. That the Escrow Agreement between the TWDB and
the City in substantially the form presented to City Council is approved, and the Authorized
Representative is authorized to execute the Escrow Agreement on behalf of the City(Exhibit"B").
4. Effective Date. This Resolution shall become effective immediately after its adoption.
READ, ADOPTED,AND APPROVED,this day of September, 2021 AD,at a Regular
Meeting of the City Council of the City of Port Arthur,Texas by the following vote: AYES:
Mayor: ,
Councilmembers: ,
NOES: .
Thurman"Bill"Bartie,Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED AS TO FORM:
/ / __/4...i.
al Tizeno, y Attp
APPROVED FOR ADMINISTRATION:
Ron Burton, City Manager
AVAILABILITY OF FUNDS:
ekc.A..._,...A . neA_A___,,.._,./3
Kandy Dani , Interim Finance Director
CERTIFICATE FOR RESOLUTION
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
I, the undersigned officer of the City Council of the City of Port Arthur, Texas, hereby certify as
follows:
1. The City Council of the City of Port Arthur,Texas,convened in a regular meeting on the day
of September, 2021 in person, in accordance with the Texas Government Code, within said City, and the
roll was called of the duly constituted officers and members of said City Council,to wit:
Thurman Bartie Mayor
Donald Frank Mayor Pro Tern, Councilmember,
Position 8
Ingrid Holmes Councilmember,District 1
Cal J.Jones Councilmember,District 2
Thomas Kinlaw,III Councilmember,District 3
Kenneth Marks Councilmember,District 4
Charlotte Moses Councilmember,Position 7
and all of said persons were present,except the following absentee(s): ,thus constituting
a quorum.Whereupon, among other business,the following was transacted at said meeting: a written
RESOLUTION BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR,TEXAS
APPROVING A GRANT AGREEMENT WITH THE TEXAS WATER
DEVELOPMENT BOARD AND AUTHORIZING THE CITY MANAGER AS THE
DESIGNATED REPRESENTATIVE OF THE CITY TO EXECUTE A GRANT
AGREEMENT; AND APPROVING OTHER MATTERS RELATED THERETO
was duly introduced for the consideration of said City Council and read in full.It was then duly moved and
seconded that said resolution be adopted; and, after due discussion, said motion, carrying with it the
adoption of said resolution,prevailed and carried by the following vote:
7 Member(s)shown present above voted"Aye."
0 Member(s)shown present above voted"No."
2. A true, full and correct copy of the aforesaid resolution adopted at the meeting described
in the above and foregoing paragraph is attached to and follows this certificate;that said resolution has been
duly recorded in said City Council's minutes of said meeting; that the above and foregoing paragraph is a
true, full and correct excerpt from said City Council's minutes of said meeting pertaining to the adoption
of said resolution; that the persons named in the above and foregoing paragraph are the duly chosen,
qualified and acting officers and members of said City Council as indicated therein;that each of the officers
and members of said City Council was duly and sufficiently notified officially and personally,in advance,of the date,
hour, place and purpose of the aforesaid meeting, and that said resolution would be introduced and considered for
adoption at said meeting,and each of said officers and members consented,in advance,to the holding of said meeting
for such purpose;that said meeting was open to the public as required by law;and that public notice of the date,hour,
place and subject of said meeting was given as required by Chapter 551,Texas Government Code.
SIGNED AND SEALED this day of September,2021.
City Secretary
City of Port Arthur,Texas
Signature Page to Resolution Approving Grant Agreement
#150939026_v1
EXHIBIT"A"
Signature Page to Resolution Approving Grant Agreement
#150939026_v1
„9gVSLpp+�2�
Grant Agreement
Flood Infrastructure Fund
TEXAS WATER DEVELOPMENT BOARD
AND
CITY OF PORT ARTHUR
JEFFERSON COUNTY, TEXAS
TWDB COMMITMENT NO. G1001312
TWDB PROJECT NO.40099
TWDB RESOLUTION NO. 21-068
CITY OF PORT ARTHUR
TWDB COMMITMENT NO. G1001312
TWDB PROJECT NO.40099
TWDB RESOLUTION NO. 21-068
GRANT AGREEMENT
TABLE OF CONTENTS
ARTICLE I.DEFINITIONS 3
ARTICLE II.AUTHORITY AND RECITALS 4
ARTICLE III.LEGAL REQUIREMENTS 5
ARTICLE IV.PLANNING 7
ARTICLE V.SPECIAL COVENANTS AND REPRESENTATIONS 7
ARTICLE VI.NON-PERFORMANCE AND REMEDIES 9
ARTICLE VII.GENERAL TERMS AND CONDITIONS 11
EXHIBITS
TWDB Resolution No.21-068 EXHIBIT A
City of Port Arthur's Resolution EXHIBIT B
Project Schedule EXHIBIT C
Project Budget EXHIBIT D
Escrow Agreement EXHIBIT E
TWDB Commitment No.G1001312
Page 2 of 17
I/6/2020
THE STATE OF TEXAS § TWDB Commitment No. G1001312
COUNTY OF TRAVIS §
GRANT AGREEMENT
BETWEEN THE
TEXAS WATER DEVELOPMENT BOARD
AND THE
CITY OF PORT ARTHUR
WHEREAS, the City of Port Arthur (City), located in Jefferson County, has filed an
application with the Texas Water Development Board (TWDB) for financial assistance from
the Flood Infrastructure Fund to finance a flood project identified as Project No.40099; and
WHEREAS, on June 4, 2021 the TWDB determined that the City qualifies for financial
assistance pursuant to Texas Water Code § 15.534 and the applicable Flood Intended Use
Plan (FIUP) and agreed pursuant to the TWDB Resolution to provide a grant in the amount
of$455,000 to the City;
WHEREAS, the City will provide a local share of$895,300 that may be in the form of
in-kind services; 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 Grant Funds provided through this Agreement in
conformance with all applicable state and federal laws and regulations, the TWDB
Resolution, TWDB guidance, 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 Grant Agreement and the attached exhibits.
Construction Account means an account dedicated to the payment of Project costs,as defined
by 31 TAC § 363.2(8) and required by the TWDB Resolution.
Eligible Expenses means the expenses allowed by TWDB program requirements and
authorized by the TWDB in the approved Project Budget. Expenses incurred prior to March
12, 2020, are not Eligible Expenses.
Escrow Account means an account established by the City that will be used to manage the
Grant Funds in accordance with an escrow agreement acceptable to the Executive
Administrator, which is attached hereto as EXHIBIT E, until the Executive Administrator
authorizes the release of the Grant Funds to the Construction Account.
TWDB Commitment No.G1001312
Page 3 of 17
l/6/2020
Executive Administrator means the Executive Administrator of the TWDB or a 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 that, by the exercise of all reasonable due
diligence, such Party is unable to overcome.
Grant Funds means the amount of financial assistance from the TWDB under Commitment
Number G1001312 in the amount of$455,000 to finance the Project.
Outlay Report means TWDB form regarding the total amount of costs incurred relating to
the Project for the specified period.
Parties or Party means TWDB and the City and their authorized successors and assignees.
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.40099.
State means the State of Texas.
Surplus Funds means those grant funds remaining after the City has submitted final
accounting to the Executive Administrator pursuant to 31 TAC § 363.42(a)(2)(C), including
interest earned.
TAC means the Texas Administrative Code.
TWDB means the Texas Water Development Board.
TWDB Resolution means TWDB Resolution No. 21-068, dated June 3, 2021, approving the
application for financial assistance filed by the City and authorizing the execution of this
Agreement.
ARTICLE II. AUTHORITY AND RECITALS
2.1. AUTHORITY. This Agreement is authorized by Texas Water Code Chapter 15,
Subchapter I and is also governed by Texas Water Code, Chapter 6; 31 TAC Chapter 363,
Subchapters A and D; and the TWDB Resolution.
2.2. RECITALS. The Parties agree that the following representations are true and correct
and form the basis of this Agreement:
TWDB Commitment No.G1001312
Page 4 of 17
I/6/2020
A. The TWDB may provide financial assistance in the form of a grant for all or a portion
of the Project costs in an amount that the TWDB has determined to be eligible.
B. On June 3, 2021, TWDB considered an application filed by the City for financial
assistance for a flood project. 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 a grant and is eligible for financial
assistance; and
2. made a commitment to provide financial assistance consisting of a grant in the
amount of 455,000 for the planning of the Project.
C. The TWDB and the City enter this Agreement to memorialize and set forth the terms
and conditions for the Grant Funds. The Executive Administrator is authorized to
execute this Agreement on behalf of TWDB pursuant to 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. If the City signs this Agreement with a false statement or it is subsequently
determined that the City has violated any of the representations, guarantees,
warranties, certifications, or affirmations included in the Agreement, the City will be
in default under the Agreement and TWDB may terminate or void the Agreement.
E. The City and TWDB act in their individual capacities and not as agents, employees,
partners,joint ventures,or associates of one another. The employees or agents of one
party will not be deemed or construed to be the employees or agents of the other
party for any purposes whatsoever.
F. The City represents and warrants that the provision of financial assistance under this
Agreement will not constitute an actual or potential conflict of interest or reasonably
create an appearance of impropriety. The City also represents that if any existing or
potential conflict arises during the term of this contract, it will immediately notify
TWDB.
ARTICLE III. LEGAL REQUIREMENTS
3.1. 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 the Project in compliance with the following:
A. all federal laws and regulations that may be applicable to the Project;
TWDB Commitment No.G1001312
Page Sof17
I/6/2020
B. Texas Water Code Chapter 15, Subchapter I;and
C. 31 TAC Chapter 363.
3.2. PROCUREMENT.The City must engage in competitive procurements for work on the
Project. All purchases for goods, services, or commodities made with funds provided under
this Agreement will comply with State and local procurement and contracting laws.
3.3. IRON AND STEEL. The City will abide by all applicable construction contract
requirements related to the use of iron and steel products and manufactured goods
produced in the United States,as required by Texas Water Government Code, Chapter 2252,
Subchapter G.
3.4 NATIONAL FLOOD INSURANCE PROGRAM. The appropriate entities within the
PLANNING/PROJECT AREA must currently enforce and continue to enforce floodplain
management standards at least equivalent to National Flood Insurance Program minimum
standards and may exceed the National Flood Insurance Program minimum standards.
3.5 TERRORIST WATCH LIST. The City certifies that it will not enter into a contract with
any contractor or subcontractor that is listed on the federal government's terrorism watch
list as described in Executive Order 13224.
3.6 FOREIGN TERRORIST ORGANIZATION. The City certifies that it will not enter into
a contract with any contractor or subcontractor that is engaged in business with Iran, Sudan,
or a foreign terrorist organization, as prohibited by Texas Government Code § 2252.152.
3.7 HUMAN TRAFFICKING PROHIBITION. Under Texas Government Code§ 2155.0061,
the City certifies that the City is not ineligible to receive the specified Agreement and
acknowledges that this Agreement may be terminated and payment withheld if this
certification is inaccurate.
3.8 PRIOR DISASTER RELIEF. Texas Government Code §§ 2155.006 and 2261.053
prohibit state agencies from accepting a response or awarding a contract that includes
proposed financial participation by a person who, in the past five years, has been convicted
of violating a federal law or assessed a penalty in connection with a contract involving relief
for Hurricane Rita, Hurricane Katrina,or any other disaster,as defined by Texas Government
Code § 418.004, occurring after September 24, 2005. Under Texas Government Code §§
2155.006 and 2261.053,the City certifies that the individual or business entity named in this
Agreement is not ineligible to receive the specified Agreement and acknowledges that this
Agreement may be terminated and payment withheld if this certification is inaccurate.
3.9 LOBBYING PROHIBITION.The City represents and warrants that TWDB's payments
to the City and the City's receipt of appropriated or other funds under the contract are not
prohibited by Texas Government Code§§ 556.005 or 556.0055, related to the prohibition on
payment of state funds to a lobbyist or for lobbying activities.
TWDB Commitment No.G1001312
Page 6 of 17
1/6/2020
ARTICLE IV. PLANNING
4.1. PROTECT REQUIREMENTS.The City must comply with the following requirements.
A. Plans and Specifications. The City will 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§ 363.41.
B. Changes to Plans and Specifications.The City will not make or implement any changes
to the scope of the Executive Administrator's approved Project or to the specifications
for the Project without the written approval of the Executive Administrator.
C. Project Schedule. The City will adhere to the TWDB approved Project schedule,
attached as EXHIBIT C.The City must not exceed or revise the Project schedule except
upon written approval from the TWDB. The City must not delay the Project
completion date except by amendment to this Agreement.
D. Project Budget.The City will be solely responsible for all costs that exceed the TWDB
approved Project Budget,attached as EXHIBIT D.The City must notify the Executive
Administrator immediately of all changes to the Project Budget, including when it
appears that the Project Budget may not be sufficient to complete the Project.
E. Personnel. The City must assign only qualified personnel to perform the services
required to execute the Project as required under this Agreement. The City is
responsible for ensuring that any contractor or subcontractor also assigns only
qualified personnel. Qualified personnel are persons who are properly licensed to
perform the work and who have sufficient knowledge,skill,and ability to perform the
tasks and services required herein according to the standards of performance and
care for their trade or profession.
F. Professional Standards. The City must provide the services and deliverables in
accordance with applicable professional standards. The City represents and warrants
that it is authorized to acquire contractors and/or subcontractors with the requisite
qualifications, experience, personnel and other resources to perform in the manner
required by this Agreement.
4.2. PROGRESS REPORTS. The City must submit status reports on the progress of the
project as requested by the Executive Administrator. The Executive Administrator may
withhold authorization to release funds from escrow or adjust the amount of funds to be
released from escrow based on the status reports and the projected needs for the project.
ARTICLE V. SPECIAL COVENANTS AND REPRESENTATIONS
5.1. CONDITIONS FOR DISBURSEMENT OF GRANT FUNDS. No Grant Funds will be
TWDB Commitment No.G1001312
Page 7 of 17
1/6/2020
deposited into the Escrow Account or released until the applicable requirements and
conditions in the TWDB Resolution and 31 TAC § 363.43, relating to Release of Funds, are
met.
5.2. DELIVERY OF GRANT FUNDS. The TWDB will deposit the Grant 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 must submit TWDB Outlay Report forms
identifying:
1. the total amount of expenses incurred by the City for the period covered by
the Outlay Report; and
2. identification and description of the City's share of the total costs for the billing
period, if applicable; and
3. 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.
B. Release of Funds. The Executive Administrator will authorize the release of Grant
Funds from escrow when Outlay Reports have been approved by the TWDB.
5.3. ELIGIBLE EXPENSES. The City must use Grant Funds for Eligible Expenses. The City
must return any Grant Funds that are used for expenses that cannot be verified as eligible or
that are ineligible.The amount of Grant Funds used for any ineligible or unverified expenses
will be credited against verified Eligible Expenses. If the total amount of Eligible Expenses is
insufficient to fully offset the amount of improperly expended Grant Funds,the City must use
other funds to fully repay the TWDB. This Section 5.3, Eligible Expenses, survives the
termination or expiration of this Agreement.
5.4. FINAL ACCOUNTING. The City will provide a final accounting of funds expended on
the Project pursuant to 31 TAC § 363.42 and return any Surplus Funds from the grant. This
Section 5.4, Final Accounting, survives the termination or expiration of this Agreement.
5.5. 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 must perform and file a
water audit computing the City's most recent annual system water loss with the TWDB. The
first water audit must 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.
This Section 5.5,Water Audit, survives the termination or expiration of this Agreement.
TWDB Commitment No.G1001312
Page 8 of 17
I/6/2020
5.6. ANNUAL FINANCIAL AUDIT. During the Term of this Agreement, the City must
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 will be submitted to the TWDB no later than 180 days
after the close of the City's fiscal year.
5.7. INVESTMENT AND COLLATERALIZATION OF PUBLIC FUNDS. Grant proceeds are
public funds and, as such, these proceeds must 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.
5.8. SPECIAL CONDITIONS.
A. The City must demonstrate its required local share of $895,300, which may be
provided through in-kind services with prior approval by the Executive Administrator; and
B. Prior to release of funds for each Project phase or portion of a Project phase, the City
must deposit into the City's construction account the City's share of funds, based on the
Board-approve grant percentage, necessary to complete the upcoming phase(s) or portion
of the phase of the Project,as approve by the Executive Administrator.
ARTICLE VI. INTELLECTUAL PROPERTY
6.1. OWNERSHIP OF WORKS. It is agreed that all works developed by the City and any
subcontractors using funds provided under this Agreement or otherwise rendered in or
related to the performance in whole or part of this Agreement, including but not limited to
reports, drafts of reports, material, data, drawings, studies,analyses, notes, plans, computer
programs and codes, or other work products, whether final or intermediate, are the joint
property of the TWDB and the City. The City hereby conveys co-ownership of such works to
TWDB as they are created in whole or part. If present conveyance is ineffective under
applicable law, the City agrees to convey a co-ownership interest of such works to TWDB
after creation and to provide written documentation of such conveyance upon request by
TWDB. The TWDB and the City each have full and unrestricted rights to use such works with
no compensation obligation.
6.2. SUBCONTRACTORS. The City must include terms and conditions in all contracts or
other engagement agreements with any subcontractors as are necessary to secure these
rights and protections and must require that subcontractors include similar such terms and
conditions in any contracts or other engagements with their subcontractors.
ARTICLE VII. NON-PERFORMANCE,TERMINATION,AND REMEDIES
7.1. STOP WORK ORDERS.
TWDB Commitment No.G1001312
Page 9 of 17
1/6/2020
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 will 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 will provide the City with a specified time to cure.
B. City's Response. The City must provide a written response to the SWO and will
provide the Executive Administrator with a detailed plan to address and cure the
conditions causing the SWO. The City must provide the response within five business
days from its receipt of the SWO.
C. Executive Administrator's Reply. The Executive Administrator may accept, reject, or
amend the City's plan and will 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 must 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 will continue
work to complete all obligations under this Agreement.
7.2. TERMINATION.The TWDB may terminate this Agreement,in whole or in part,at any
time, without penalty to the TWDB. Upon receipt of a written notice of termination, the City
will immediately discontinue all work in connection with the performance of this Agreement
and will 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 will be payable from
the funding provided pursuant to this Agreement.
Within thirty (30) days of the notice of termination, the City must 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.
7.3. SURVIVAL OF TERMS AND CONDITIONS. Termination or expiration of this
Agreement for any reason does not release either Party from any liabilities or obligations set
forth in this Agreement that:
1. the Parties have expressly agreed will 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.
TWDB Commitment No.G1001312
Page 10 of 17
1/6/2020
7.4. REAL ESTATE. If the City purchases real estate for the Project with Grant Funds and
any of the real estate or portion of the real estate is not used for the Project, the City will
repay to the TWDB the full amount of the Grant Funds for purchase of the real estate that is
not used for the Project. Such amount will be due and payable within 90 days after
termination or expiration of this Agreement.
7.5. REMEDIES.
A. The City will have all remedies available in law or equity.
B. The TWDB must have all remedies available in law or equity, including remedies
available under Texas Water Code §§ 6.114 and 6.115.
C. Notwithstanding the availability of all remedies listed above, pursuant to 31 TAC
§ 363.406(d), if TWDB determines non-performance of the terms of this Agreement,
TWDB may require repayment of all or part of the funds provided by grant assistance
or impose sanctions such as prohibition of further board financial assistance.
D. This Section 7.5 survives the termination or expiration of this Agreement.
ARTICLE VIII. GENERAL TERMS AND CONDITIONS
8.1 NEPOTISM. The City must comply with Texas Government Code Chapter 573 by
ensuring that no officer, employee or member of the City's governing body votes or confirm
the employment of any person related within the second degree of affinity or the third
degree of consanguinity to any member of the governing body or to any other officer or
employee authorized to employ or supervise such person. This prohibition does not prohibit
the employment of a person who has been continuously employed for a period of two years
prior to the election or appointment of the officer, employee or governing body member
related to such person in the prohibited degree.
8.2. OPEN MEETINGS. The City must comply with Texas Government Code Chapter 551,
which requires all regular, special or called meetings of governmental bodies to be open to
the public, except as otherwise provided by law.
8.3. EXCESS OBLIGATIONS PROHIBITED/NO DEBT AGAINST THE STATE. This
Agreement is subject to termination or cancellation without penalty to TWDB, either in
whole or in part, subject to the availability of state funds.
8.4. INSURANCE AND INDEMNIFICATION.
A. The City must 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
TWDB Commitment No.G1001312
Page 11 of 17
1/6/2020
similar circumstances. The City will 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 will indemnify and hold the TWDB and
the State harmless to the extent that the City may do so in accordance with State law.
C. Grant Funds for the Project must 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.
8.5. PERMITS. The City will 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 planning of the Project.The City will 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.
8.6. RECORDS.The City will comply with all terms and conditions relating to records of
the Project as follows:
A. Duty to Maintain Records.The City will maintain financial accounting records relating
to the Project in accordance with Generally Accepted Accounting Principles. The City
must also require its contractors to maintain financial accounting records consistent
with Generally Acceptable Accounting Principles and with State laws applicable to
government accounting. All accounting and other financial documentation will be
accurate,current,and will reflect recordation of the transactions at or about the time
the transactions occurred;
B. Duty to Retain Records. The City will retain all financial records and supporting
documents and any other documents pertinent to the Project in accordance with the
requirements of applicable State law relating to retention and access to records. The
TWDB requires the City to retain all records related to this Agreement for a period of
three (3) years after Project completion;
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,
TWDB Commitment No.G1001312
Page 12 of 17
1/6/2020
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 must 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 Grant Funds received pursuant to this Agreement.The City
must comply with directives from the Texas State Auditor and will 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 Grant
Funds received pursuant to the contract or subcontract.
2. TWDB. The City agrees that 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 any other authorized state or federal entity.
All books,documents,papers,and records of the City related to this Agreement
will be made available for audit,examination,excerption,and transcription by
the TWDB within a reasonable time after a request from the TWDB.
E. Proprietary and Confidential Information. The City warrants and represents that any
information that is proprietary or confidential and is received by the City from TWDB
will not be disclosed to any third party without the written consent of TWDB, whose
consent will not be unreasonably withheld.
8.7. UPDATING INFORMATION.The City must provide 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 Grant Funds. The City will
promptly notify 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,and
agreements under this Grant Agreement.
8.8. FORCE MAJEURE. Unless otherwise provided,neither the City nor the TWDB nor any
agency of the State will 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 will extend the period of performance until after the causes of delay
TWDB Commitment No.G1001312
Page 13 of 17
1/6/2020
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.
8.9. 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 TWDB.
8.10. 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
4.1 do not require an amendment to this Agreement unless a change to the Project Schedule,
EXHIBIT C, or the Project Budget, EXHIBIT D, results in a different project completion date
or total budget amount.
8.11. NO WAIVER. The failure of any Party to insist upon the strict performance of any of
the terms, provisions, or conditions of this Agreement will 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.
8.12. LAW AND VENUE. The validity, operation, and performance of this Agreement will
be governed and controlled by the laws of the State of Texas and applicable federal
regulations, and the terms and conditions of this Agreement will 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 planning, design,
acquisition and construction of the Project, as applicable, and as such all or part of the
performance of the terms and obligations of the Agreement will be performed in Jefferson
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 will be in
Travis County,Texas. This section does not waive the sovereign immunity of the State or the
TWDB.
8.13. NOTICES. All notices, notifications, or requests required or permitted by this
Agreement will be in writing and will be transmitted by (1) email and or (2) 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.
Email:
Nancy.Richards@twdb.texas.gov
TWDB Commitment No.G1001312
Page 14 of 17
1/6/2020
Personal delivery to mail:
Texas Water Development Board City of Port Arthur
Attn: Executive Administrator Attn: Director of Public Works
1700 N. Congress Ave., 6th Floor 444 4th Street
Austin, Texas 78711-3231 Port Arthur, Texas 77640
8.14. TERM.This Agreement is effective on the date signed by the Executive Administrator.
The Agreement will expire upon successful completion of the Project and Final Accounting
in accordance with Section 5.4 of this Agreement.
8.15. SURVIVAL OF TERMS AND CONDITIONS. This Article VIII, General Terms and
Conditions, survives the termination or expiration of this Agreement.
[Remainder of Page Intentionally Left Blank]
TWDB Commitment No.G1001312
Page 15 of 17
1/6/2020
IN WITNESS WHEREOF,the parties have caused this CONTRACT to be duly executed in
multiple counterparts,each of which shall be deemed to be an original.
CITY OF PORT ARTHUR
By:
Name: Ronald Burton
Title: City Manager
Date:
TWDB Commitment No.G1001312
Page 16 of 17
1/6/2020
TEXAS WATER DEVELOPMENT BOARD
By:
Name: Jeff Walker
Title: Executive Administrator
Date:
TWDB Commitment No.G1001312
Page 17 of 17
1/6/2020
EXHIBIT A
TWDB Resolution No. 21-068
TWDB Commitment No.G1001312
Exhibit A,Page 1 of 5
EXHIBIT B
City of Port Arthur Resolution
TWDB Commitment No. G1001312
Exhibit B,Page 1 of
EXHIBIT C
Project Schedule
TWDB Commitment No.G1001312
Exhibit C,Page 1 of 2
EXHIBIT D
Project Budget
TWDB Commitment No.G1001312
Exhibit D,Page 1 of 2
EXHIBIT E
Escrow Agreement
TWDB Commitment No.G1001312
Exhibit E,Page 1 of XX
EXHIBIT"B"
Signature Page to Resolution Approving Grant Agreement
#150939026_v1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (Agreement), made by and between City of Port Arthur, Texas
(City),a political subdivision of the State of Texas in Jefferson County,Texas and BOKF, National
Association, as Escrow Agent together with any successor in such capacity;
WITNESSETH:
WHEREAS, pursuant a Grant Agreement, pursuant to which the City will accept certain
contractual obligations (Obligations) to obtain financial assistance from the Texas Water
Development Board (TWDB) for the purpose of funding a project identified as Project No.
40099 -Master Drainage Plan and Policy Guide Development; 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(S). Upon the delivery of the Obligations described above, the
Proceeds identified under TWDB Commitment Number G1001312 shall be deposited to the
credit of a special escrow account(s). Escrow Account(s) 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(s) shall be entitled "City of Port Arthur, Grant Agreement, Texas Water
Development Board Commitment No. G1001312 Escrow Account" and shall not be subject to
warrants,drafts or checks drawn by the City of Port Arthur but shall be disbursed or withdrawn
to pay the costs of the Project for which the Obligations were issued or other purposes in
LGL-006 10/01/13
accordance with the Grant 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(s) bank statements upon request.
SECTION 2: COLLATERAL.All cash deposited to the credit of such Escrow Account(s) 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.
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(s), 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(s) provided that all such investments are consistent with the PFIA
requirements.
SECTION 5: UNEXPENDED FUNDS. Any Proceeds remaining unexpended in the Escrow
Account(s) 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 Grant
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 Grant 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.
2
LGL-006 10/01/13
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
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
3
LGL-006 10/01/13
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(s) to the City.
SECTION 13: POINT OF CONTACT. The points of contact for the Escrow Agent and the TWDB
are as follows:
BOKF, National Association Executive Administrator
5956 Sherry Lane, Suite 1201 Texas Water Development Board
Dallas, TX 75225 1700 North Congress Avenue
Phone 972-892-9972 Austin, Texas 78701
Erin Fitzpatrick
efitzpatrick@bokf.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.
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(s). 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(s).
SECTION 19: ANTI-BOYCOTT VERIFICATION. The Escrow Agent represents that, to the
extent this Agreement constitutes a contract for goods or services within the meaning of
Section 2271.002 of the Texas Government Code, as amended, solely for purposes of
compliance with Chapter 2271 of the Texas Government Code,and subject to applicable federal
law, including without limitation 50 U.S.C. Section 4607, the Escrow Agent, nor any wholly
4
LGL-006 10/01/13
owned subsidiary,majority-owned subsidiary,parent company or affiliate of the Escrow Agent
(i) boycotts Israel or (ii) will boycott Israel through the term of this Agreement. The terms
"boycotts Israel" and "boycott Israel" as used in this paragraph mean refusing to deal with,
terminating business activities with,or otherwise taking any action that is intended to penalize,
inflict economic harm on,or limit commercial relations specifically with Israel,or with a person
or entity doing business in Israel or in an Israeli-controlled territory, but does not include an
action made for ordinary business purposes.
SECTION 20: IRAN, SUDAN AND FOREIGN TERRORIST ORGANIZATIONS. The Escrow
Agent represents that,to the extent this Agreement constitutes a governmental contract within
the meaning of Section 2252.151 of the Texas Government Code, as amended, solely for
purposes of compliance with Section 2252.152 of the Texas Government Code, and except to
the extent otherwise required by applicable federal law, the Escrow Agent, nor any wholly
owned subsidiary,majority-owned subsidiary,parent company or affiliate of the Escrow Agent
(i) engages in business with Iran or Sudan in violation of United States law, or any foreign
terrorist organization as described in Chapter 808 of the Texas Government Code, or
Subchapter F of Chapter 2252 of the Texas Government Code, or (ii) is a company listed by the
Texas Comptroller of Public Accounts under Sections 808.051, or 2252.153 of the Texas
Government Code. The term "foreign terrorist organization" in this paragraph means an
organization designated as a foreign terrorist organization by the United States secretary of
state as authorized by 8 U.S.C. Section 1189.
SECTION 21: ANTI-BOYCOTT OF ENERGY COMPANIES. To the extent this Agreement
constitutes a contract for goods or services for which a written verification is required under
Section 2274.002 (as added by Senate Bill 13 in the 87th Texas Legislature, Regular Session),
Texas Government Code, as amended, each of the Escrow Agent hereby verifies that it and its
parent company, wholly- or majority-owned subsidiaries, and other affiliates, if any, do not
boycott energy companies and will not boycott energy companies during the term of this
Agreement. The foregoing verification is made solely to enable the City to comply with such
Section and to the extent such Section does not contravene applicable Texas or Federal law or
the Texas Constitution. As used in the foregoing verification, "boycott energy companies," a
term defined in Section 2274.001(1),Texas Government Code (as enacted by such Senate Bill)
by reference to Section 809.001, Texas Government Code (also as enacted by such Senate
Bill),shall mean, without an ordinary business purpose, refusing to deal with, terminating
business activities with, or otherwise taking any action that is intended to penalize, inflict
economic harm on, or limit commercial relations with a company because the company (A)
engages in the exploration, production, utilization, transportation, sale, or manufacturing of
fossil fuel-based energy and does not commit or pledge to meet environmental standards
beyond applicable federal and state law; or (B) does business with a company described by(A)
above.
SECTION 22. ANTI-BOYCOTT FIREARM INDUSTRY: To the extent this Agreement
constitutes a contract for goods or services for which a written verification is required under
5
LGL-006 10/01/13
Section 2274.002 (as added by Senate Bill 19 in the 87th Texas Legislature, Regular Session),
Texas Government Code, as amended, each of the Escrow Agent hereby verifies that it and its
parent company, wholly- or majority-owned subsidiaries, and other affiliates, if any, do not
have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association and will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement. The foregoing verification is made solely to
enable the City to comply with such Section and to the extent such Section does not contravene
applicable Texas or Federal law or the Texas Constitution.
The terms used in Sections 19-22 are defined as follows:
(a) 'discriminate against a firearm entity or firearm trade association,' a term defined in
Section 2274.001(3),Texas Government Code(as enacted by such Senate Bill), (A) means,with
respect to the firearm entity or firearm trade association,to (i) refuse to engage in the trade of
any goods or services with the firearm entity or firearm trade association based solely on its
status as a firearm entity or firearm trade association, (ii) refrain from continuing an existing
business relationship with the firearm entity or firearm trade association based solely on its
status as a firearm entity or firearm trade association, or (iii) terminate an existing business
relationship with the firearm entity or firearm trade association based solely on its status as a
firearm entity or firearm trade association and (B) does not include (i) the established policies
of a merchant, retail seller, or platform that restrict or prohibit the listing or selling of
ammunition,firearms,or firearm accessories and (ii)a company's refusal to engage in the trade
of any goods or services, decision to refrain from continuing an existing business relationship,
or decision to terminate an existing business relationship (aa) to comply with federal, state, or
local law, policy,or regulations or a directive by a regulatory agency or (bb) for any traditional
business reason that is specific to the customer or potential customer and not based solely on
an entity's or association's status as a firearm entity or firearm trade association,
(b) `firearm entity,'a term defined in Section 2274.001(6),Texas Government Code(as enacted
by such Senate Bill), means a manufacturer, distributor, wholesaler, supplier, or retailer of
firearms (defined in Section 2274.001(4), Texas Government Code, as enacted by such Senate
Bill, as weapons that expel projectiles by the action of explosive or expanding gases), firearm
accessories (defined in Section 2274.001(5), Texas Government Code, as enacted by such
Senate Bill, as devices specifically designed or adapted to enable an individual to wear, carry,
store, or mount a firearm on the individual or on a conveyance and items used in conjunction
with or mounted on a firearm that are not essential to the basic function of the firearm,
including detachable firearm magazines), or ammunition (defined in Section 2274.001(1),
Texas Government Code, as enacted by such Senate Bill, as a loaded cartridge case, primer,
bullet,or propellant powder with or without a projectile) or a sport shooting range (defined in
Section 250.001, Texas Local Government Code, as a business establishment, private club, or
association that operates an area for the discharge or other use of firearms for silhouette,skeet,
trap, black powder,target, self-defense, or similar recreational shooting), and
6
LGL-006 10/01/13
(c) `firearm trade association,' a term defined in Section 2274.001(7),Texas Government Code
(as enacted by such Senate Bill), means any person, corporation, unincorporated association,
federation, business league, or business organization that (i) is not organized or operated for
profit (and none of the net earnings of which inures to the benefit of any private shareholder
or individual), (ii) has two or more firearm entities as members, and (iii) is exempt from
federal income taxation under Section 501(a), Internal Revenue Code of 1986, as an
organization described by Section 501(c) of that code; and
(d) the Escrow Agent understands `affiliate'to mean an entity that controls, is controlled by, or
is under common control with the Underwriter within the meaning of SEC Rule 405, 17 C.F.R.
§ 230.405, and exists to make a profit.
[Remainder of Page Intentionally Left Blank]
7
LGL-006 10/01/13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective upon
signature of both parties.
City of Port Arthur
By:
Authorized Representative
Date:
Address: 444 4th Street
Port Arthur,Texas 77640
(Seal)
BOKF, National Association,
as Escrow Agent
By:
Title:
Date:
Address: 5956 Sherry Lane, Suite 1201
Dallas,Texas 75225
(Bank Seal)
s
LGL-006 10/01/13
EXHIBIT A
Fee Schedule
9
LGL-006 10/01/13
BOK FINANCIAL
Services provided by BOKF, N.�1
City of Port Arthur, Texas
2021 Flood Infrastructure Construction Escrow
Project #40099 — Master Drainage Plan and Policy Guide Development
Texas Water Development Board
ESCROW AGENT
Schedule of Fees
Acceptance Fee: WAIVED
For review and coordination of documents and setup of accounts in preparation for closing.
One Time Escrow Account Setup/Administration Fee: WAIVED
For ordinary administrative services by Escrow Agent — includes daily routine account management; cash
transaction processing (including wire and check processing); disbursement of funds in accordance with the
agreement; and online access to trust account statements. This fee is due at the time of Escrow Agreement
funding/execution.
Fee is based on the following assumptions:
• Number of escrow accounts: Up to three(3) per series, or as needed
• Number of Withdrawals from the Escrow accounts: As needed
Charges for performing extraordinary or other services not contemplated at the time of the execution of the
transaction or not specifically covered elsewhere in this schedule will be determined by appraisal in the amounts
commensurate with the service provided.
Services not included in this Fee Schedule,but deemed necessary or desirable by you,may be subject to additional
charges based on a mutually agreed upon fee schedule.
Our proposal is subject in all aspects to review and acceptance of the final financing documents which sets forth
our duties and responsibilities.
If funds are invested outside the money market funds offered by BOK Financial, on additional fee may be assessed
on on annual basis to act as custodian.
Erin Fitzpatrick BOK Financial
Vice President Corporate Trust Services
Tel: 972.892.9972 5956 Sherry Lane,Suite 1201
efitzpatrick[a7bokf.com Dallas, TX 75225