«OFFICIAL STATEMENT DATED JUNE 20, 2013 NEW ISSUE NOT RATED In the opinion of Bond Counsel, interest on the Bonds will be excludable from gross income ...»
Regulatory Requirements (a) The Public Improvements shall be designed, constructed and installed, using the City’s construction, bidding, and contract documents, in accordance with and subject to compliance with commercially accepted construction practices, applicable City policies, rules and ordinances, and any other Regulatory Requirements, including valid requirements that are uniformly applicable within the City and promulgated by the City, except as otherwise provided in the Development Agreement; provided, however the Parties hereby agree that the Owner shall not be required to (i) issue solicitations for Professional Services (as defined by state procurement law), or (ii) solicit and publish invitations for bids for the construction of the Public Improvements that would require the minority-owned and women-owned business enterprise procurement program found in Chapter 2-9, City Code, as amended, and Chapters 212 and 252, Texas Local Government Code (as amended) to be followed for Public Improvements in which a bid solicitation packet has already been issued and advertised, or already retained by the Owner and under contract prior to the Effective Date. For those Public Improvements (if any) for which the City does not have bid specifications, Owner and the City shall work together in good faith to develop bid specifications.
(b) The Director agrees to cooperate with the Owner to the extent reasonably possible F-10 without detriment to proper engineering review, comment, and revision on the review and approval of the engineering, design, plans, and specifications of all Public Improvements submitted by the Owner.
Additional Requirements for Public Improvements Funded with Progress Payments The following additional requirements shall be applicable to Public Improvements funded
in accordance with the procedures set forth in Section 4.02:
(a) Prior to the later to occur of (i) the Effective Date, or (ii) commencing construction of any such Public Improvements, the Project Engineer shall review all plans and specifications, construction contract and related materials for the applicable Public Improvement, and shall certify to the Owner, City, Underwriter, Financial Advisor and Trustee that the amount of funding under the PID Bonds (as specified in the Assessment Plan and Indenture) together with funds contributed by Owner, including but not limited to the Initial Owner Contribution and/or fiscal security referenced in Section 3.04 above (or a combination of both) is sufficient to fund the full cost of design and construction of the applicable Public Improvements (but excluding any Construction Management Fees or contingencies as set forth in the Assessment Plan).
(b) The Construction Manager will maintain an ongoing monthly updated accounting of funds disbursed, work progress and remaining funding needed to complete each applicable Public Improvement. Such accounting to include a reconciliation of any unadvanced amounts out of the segregated accounts in the Project Fund under the applicable Indenture as compared to the remaining costs to complete each applicable Public Improvement. The Construction Manager will provide such monthly reports to the Owner, the City’s Director, the Underwriter, the Financial Advisor and the Trustee.
(c) All change orders or costs increases for applicable Public Improvements must be approved by the Owner, Construction Manager and the Director, to the extent any such change order is in excess of $100,000.00. The Construction Manager shall provide copies of all approved change orders to the Financial Advisor, Underwriter and Trustee within ten (10) days after approval.
(d) Each construction contract for applicable Public Improvements shall include a provision requiring 10% retainage to be disbursed only upon completion and acceptance by the City of applicable Public Improvement, subject however to early disbursement for subcontractors whose work has been completed.
Section 3.09. Redemption Agreement
Concurrent with the closing on the initial PID Bonds for Improvement Area #1 and thereafter concurrently with any future issuances of PID Bonds, the Owners will execute an Agreement Regarding Conveyance of Right of Redemption (the “Redemption Agreement”) in substantially the same form as Exhibit “I” attached hereto with the City and the Trustee pursuant to which Owner will convey to the Trustee, for the benefit of the owner of the PID Bonds, the right to
Overall Requirements (a) The City shall not be obligated to provide funds for any Public Improvement except from the proceeds of the PID Bonds and Special Assessment Revenues. The City makes no warranty, either express or implied, that the proceeds of the PID Bonds available for the payment of the Actual Cost of the Public Improvements to be constructed for or acquired by the City or County will be sufficient for the construction or acquisition of all of those particular Public Improvements. The Parties anticipate that the cost to construct the Public Improvements may be greater than the proceeds of the PID Bonds available for Public Improvements.
(b) Owner may enter into agreements with one or more real estate owners or builders (commercial or residential) to sell or develop a portion of the Property and/or to construct certain Public Improvements (each such Owner, a “Co-Owner”). The Owner may submit Actual Costs paid for by a Co-Owner and obtain reimbursement of such Actual Costs on behalf of and to be paid to such Co-Owner. Costs owed to subcontractors (for which no evidence of payment exists) shall be paid by Trustee to the subcontractors.
(c) Upon written acceptance of a Public Improvement, and subject to any applicable maintenance-bond period, the City or County (as applicable) shall be responsible for all operation and maintenance of such Public Improvement, including all costs thereof and relating thereto.
(d) The Parties hereby acknowledge and agree that Public Improvements that are intended to be funded by progress payments through PID Bonds (i.e. PID Bonds are sold and then Public Improvements are funded by draws out of PID Bond proceeds) will be governed by Section 4.02 of this Agreement. Public Improvements that have already been completed and paid for by the Owner prior to the issuance of PID Bonds will be governed by Section 4.03 of this Agreement.
(e) The procedures set forth in Section 4.02 and 4.03 below shall apply to all Certifications for Payment regardless of which account within the Project Fund the actual funds are being paid from.
Progress Payments for Public Improvements (a) With respect to those Public Improvements not funded pursuant to Section 4.03 below, Owner shall deliver and the City shall accept the given Public Improvements in accordance with the terms hereafter. The net PID Bond Proceeds from the issuance of the PID Bonds and the Initial Owner Contribution will be held by the Trustee in various segregated accounts under the Project Fund. Those sums held in the various segregated accounts will be advanced to the Owner by the Trustee to fund the costs of design, construction, City inspection and administrative costs, and other soft costs (as more particularly specified herein and in the F-12 Assessment Plan) upon receipt of a completed Certification for Payment. Payments will be made to Owner, or subcontractor (as provided in Section 4.01(b)) periodically as design and construction progresses. Reimbursement from PID Bond proceeds for Owner Expended Funds (defined below in this section) expended by Owner for Public Improvements between September 30, 2009 and June 20, 2013 will be included within the first bond draw under the PID Bonds issued for Improvement Area # 1 and shall include the costs described in the Initial Reimbursement Payment (defined below in this section). The procedures for such progress payments are contained in this Section 4.02 and the Initial Indenture. Such payments shall be made by Trustee on a monthly basis and within five (5) business days of the Trustee’s receipt of the completed Certification for Payment from the City Treasurer. The Director or its designee shall deliver to the City Treasurer his/her concurrence to pay pursuant to a completed Certification for Payment within fifteen (15) calendar days after its receipt of the required submittal items pursuant to either subpart (b) or (c) below, as applicable and the Finance Director shall then have up to ten (10) calendar days to forward the executed Certification for Payment to the Trustee for payment. If the City disapproves any Certification for Payment, the City shall provide a written explanation of the reasons for such disapproval so that if the Certification for Payment is revised in accordance with City’s comments, the Certification for Payment can be approved. Notwithstanding anything to the contrary contained herein, if the monthly reconciliation provided by the Construction Manager pursuant to Section 3.08(b) above for a particular Public Improvement shows there are not enough funds in the segregated account to fund the remaining design and construction costs of that Public Improvement after taking into consideration any contingencies, the Director shall not be obligated to authorize payments of funds exceeding the balance in the segregated account until such time as Owner provides evidence satisfactory to the Director that Owner has or will provide funds in an amount sufficient to fully fund the remaining design and construction costs of that Public Improvement.
(b) Payments shall be made by the Trustee based on the Actual Cost of the design and/or construction completed and the receipt of a completed Certification for Payment. The City is not obligated to authorize a construction payment until such time that the City (or County, as applicable) has approved the plans and specifications for the applicable Public Improvement (if such approval is required pursuant to this Agreement). The items required for a construction
payment are as follows:
(i) A Certification for Payment executed by the Project Engineer and Construction Manager specifying the amount of work that has been performed and the cost thereof;
F-13 The City and the Owner hereby agree that as Payment Requests are made by Owner, processed by the City, and paid by the Trustee, any proceeds of PID Bonds for Improvement Area # 1 contained in the Bond Improvement Account within the Project Fund shall first be used to fund Payment Requests. Once funds in the Bond Improvement Account within the Project Fund have been depleted, then funds contained in the Landowner Improvement Account within the Project Fund shall be used to fund any additional Payment Requests. If any funds remain in the Landowner Improvement Account after the completion of the Public Improvements for Improvement Area #1, then the City shall promptly direct the Trustee to deliver to the Owner the remaining balance in the Landowner Improvement Account within thirty (30) days of the City’s written direction.
(c) In addition to the submitted items required in 4.02(b) above, in order to obtain the final payment for a Public Improvement funded by the PID Bonds pursuant to this Section 4.02,
the following are required:
(i) The Owner shall have provided to the City an assignment of the warranties and guaranties, if applicable, for such Public Improvement;
(ii) Before the final Certification for Payment is submitted to the City, the Project Engineer shall conduct a review for the City to confirm that such Public Improvement was constructed in accordance with the plans therefor and the Project Engineer will verify and approve the Actual Cost of such Public Improvement specified in such Certification for Payment.
Upon confirmation by the Project Engineer to the Director and the submission of the final Certification for Payment indicating that such Public Improvement has been constructed in accordance with the plans therefor, and verification and approval of the Actual Cost of such Public Improvement, the Director shall within fifteen (15) calendar days thereafter accept such Public Improvement and the Director shall sign the Certification for Payment and forward the same to the City Treasurer. The City Treasurer shall then have up to ten (10) calendar days to forward the executed Certification for Payment to the Trustee for payment.
(d) It is hereby acknowledged by the City and Owner, that the following categories of Public Improvements are intended to be accepted by the City: water, wastewater and water quality infrastructure and all other categories of Public Improvements are intended to be accepted by the County. Therefore, with respect to Public Improvements that are to be accepted by the County, the terms, conditions and procedures set forth in Section 4.02(a) – (c) shall apply
except as set forth below: