Fort Walton Beach Council agenda — 01-08-13--regular — reading text

court of competent jurisdiction, cause the appointment of a receiver to manage the Water and Sewer Systems, establish and collect fees and charges, and apply the revenues to the reduction of the obligations under this Agreement. 5) By certifying to the Auditor General and the Chief Financial Officer delinquency on Loan repayments, the Department may provide for the payment to the Trustee of the delinquent amount plus a penalty from any unobligated funds due to the Local Borrower under any revenue or tax sharing fund established by the State, except as otherwise provided by the State Constitution. A penalty may be imposed in an amount not to exceed an interest rate of 18 percent per annum on the amount due in addition to charging the cost to handle and process the debt. 6) By notifying financial market credit rating agencies and potential creditors. 7) By suing for payment of amounts due, or becoming due, with interest on overdue payments together with all costs of collection, including attorneys' fees. 8) By accelerating the repayment schedule or increasing the Financing Rate on the unpaid principal of the Loan to as much as 1. 667 times the Financing Rate for a default under Subsection 6. 01( 1). 6. 03. DELAY AND WAIVER. No delay or omission by the Corporation or the Department to exercise any right or power accruing upon event of default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised as often as may be deemed expedient. No waiver or any default under this Agreement shall extend to or affect any subsequent event of default, whether of the same or different provision of this Agreement, or shall impair consequent rights or remedies. ARTICLE VII - THE PLEDGED REVENUES 7. 01. SUPERIORITY OF THE PLEDGE TO THE CORPORATION. From and after the effective date of this Agreement, the Corporation shall have a lien on the Pledged Revenues, which along with any other Corporation State Revolving Fund liens on the Pledged Revenues, on equal priority, will be prior and superior to any other lien, pledge or 22 Packet Pg. 114  14.2. b assignment with the following exception. All obligations of the Local Borrower under this Agreement shall be junior, inferior, and subordinate in all respects in right of payment and security to the Senior Revenue Obligations defined in Section 1. 01 of this Agreement and to any additional senior obligations issued with the Department' s consent pursuant to Section 7. 02. Any of the Pledged Revenues may be released from the lien on such Pledged Revenues in favor of the Corporation if the Department makes a determination, based upon facts deemed sufficient by the Department, that the remaining Pledged Revenues will, in each Fiscal Year, equal or exceed 1. 15 times the debt service coming due in each Fiscal Year under the terms of this Agreement. 7. 02. ADDITIONAL DEBT OBLIGATIONS. The Local Borrower may issue additional debt obligations on a parity with, or senior to, the lien of the Corporation on the Pledged Revenues provided the Department' s written consent is obtained. Such consent shall be granted if the local Borrower demonstrates at the time of such issuance that the Pledged Revenues, which may take into account reasonable projections of growth of the Water and Sewer Systems and revenue increases, plus revenues to be pledged to the additional proposed debt obligations will, during the period of time Semiannual Loan Payments are to be made under this Agreement, equal or exceed 1. 15 times the annual combined debt service requirements of this Agreement and the obligations proposed to be issued by the Local Borrower and will satisfy the coverage requirements of all other debt obligations secured by the Pledged Revenues. However, no such consent is required with respect to issuance of Senior Revenue Obligations as defined in Section 1. 01. ARTICLE VIII - GENERAL PROVISIONS 8. 01. DISCHARGE OF OBLIGATIONS All payments required to be made under this Agreement shall be cumulative and any deficiencies in any Fiscal Year shall be added to the payments due in the succeeding Fiscal Year and all Fiscal Years thereafter until fully paid. Payments shall continue to be secured by this Agreement until all of the payments required shall be fully paid to the Corporation. If at any time the Local Borrower shall have paid, or shall have made provision for the timely payment of, the entire principal amount of the Loan, and as applicable, Loan Service Fee, interest, and Grant Allocation Assessment charges, the pledge of, and lien on, the Pledged Revenues to the Corporation shall be no longer in effect. Deposit of sufficient cash or Defeasance Obligations may be made to effect defeasance of this Loan. However, the deposit shall be made in irrevocable trust with a banking institution or trust company for the sole benefit of the Corporation or its assignees and shall be subject to approval by the Corporation. There shall be no penalty imposed by the Corporation for early retirement of this Loan. 8. 02. PROJECT RECORDS AND STATEMENTS. Books, records, reports, engineering documents, contract documents, and papers shall be available to the authorized representatives of the Corporation, the Department and the U. S. Environmental Protection Agency' s Inspector General for inspection at any reasonable time after 23 Packet Pg. 17S  14.2.b the Local Borrower has received a disbursement and until five years after the date that the Project -specific audit report, required under Subsection 2. 04( 4), is issued. 8. 03. ACCESS TO PROJECT SITE. The Local Borrower shall provide access to Project sites and administrative offices to authorized representatives of the Corporation and the Department at any reasonable time. The Local Borrower shall cause its engineers and contractors to cooperate during Project inspections, including making available working copies of plans and specifications and supplementary materials. 8. 04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT. The Local Borrower hereby expressly acknowledges that the Loan and all payments of principal and interest thereon, and all proceeds thereof, but excluding the Loan Service Fee, have been pledged and assigned to the Trustee under the Indenture as security for the payment of principal of, premium, if any, and interest on the Bonds and the Trustee shall be entitled to act hereunder, and by the execution of this Agreement the Local Borrower in all respects consents to such assignment. The Corporation, the Department and the Trustee may further assign all or any parts of their rights under this Agreement without the prior consent of the Local Borrower after written notification to the Local Borrower. The Local Borrower shall not assign its rights and obligations under this Agreement without the prior written consent of the Department. 8. 05, AMENDMENT OF AGREEMENT. This Agreement may be amended in writing, except that no amendment shall be permitted which is inconsistent with any applicable statutes, rules, regulations, executive orders, or written agreements between the Department and the U. S. Environmental Protection Agency. This Agreement may be amended after all construction contracts are executed to re- establish the Project cost, Loan amount, Project schedule, and Semiannual Loan Payment amount. A final amendment establishing the final Project costs and the Loan Service Fee based on actual Project costs shall be completed after the Department' s final inspection of the Project records. 8. 06. ANNULMENT OF AGREEMENT. The Corporation, in consultation with the Department, may unilaterally annul this Agreement if the Local Borrower has not drawn any of the Loan proceeds within twelve months after the effective date of this Agreement. If the Corporation unilaterally annuls this Agreement, the Corporation will provide written notification to the Local Borrower. 8. 07. SEVERABILITY CLAUSE. If any provision of this Agreement shall be held invalid or unenforceable, the remaining provisions shall be construed and enforced as if such invalid or unenforceable provision had not been contained herein. 24 Packet Pg. 118  14. 2. 6 8. 08. USE AS MATCHING FUNDS. The U. S. Environmental Protection Agency has provided a class deviation from the provisions of 40 CFR 35. 3125( b)( 1) to allow these second tier funds to be used as local matching requirements for most EPA grant funded treatment works projects, including special Appropriations Act projects. 8. 09. COMPLIANCE VERIFICATION. 1) The Local Borrower shall periodically interview 10% of the work force entitled to Davis -Bacon prevailing wages ( covered employees) to verify that contractors or subcontractors are paying the appropriate wage rates. As provided in 29 CFR 5. 6( a)( 5), all interviews must be conducted in confidence. The Local Borrower must use Standard Form 1445 or equivalent documentation to memorialize the interviews. Copies of the SF 1445 are available from EPA on request. 2) The Local Borrower 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 Local Borrower shall establish and follow a spot check schedule based on its assessment of the risks of noncompliance with Davis -Bacon posed by contractors or subcontractors and the duration of the contract or subcontract. Local Borrowers 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 Davis -Bacon. In addition, during the examinations the Local Borrower shall verify evidence of fringe benefit plans and payments thereunder by contractors and subcontractors who claim credit for fringe benefit contributions. 3) The Local Borrower 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 (DOL) 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 items ( 1) and ( 2) above. 4) Local Borrowers must immediately report potential violations of the Davis -Bacon prevailing wage requirements to the EPA Davis -Bacon contact Sheryl Parsons at Parsons ShervI@eoamail. epa. gov and to the appropriate DOL Wage and Hour District Office listed at htto' //www .dol. gov/ esa/contacts/ whd/america2. htm. ARTICLE IX - CONSTRUCTION CONTRACTS AND