HomeMy WebLinkAboutAugusta Canal Authority For Improvement of the Augusta Canal
Augusta Richmond GA
DOCUMENT NAME: A l-L,\ ~ C,O-i'Cl \ Au...-I;:'nor \ +)1
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DOCUMENT TYPE: ~"e.\'Y)e-i~
YEAR: Ot1
BOX NUMBER: 23
FILE NUMBER: \13Co. Co
NUMBER OF PAGES: -9
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INTERGOVERNMENTAL AGREEMENT BETWEEN AUGUST A, GEORGIA AND
THE AUGUSTA. CANAL AUTHORITY FOR IMPROVEMENT
OF THE AUGUSTA CANAL
THIS INTERGO~ENTAL AGREEMENT (the "Agreement"), made and entered
into as of the / ij day of , 2004, by and between AUGUSTA, GEORGIA, acting by and
through the Augusta,Richmon County Commission (hereinafter sometimes referred to as the
"Consolidated Government") and the AUGUSTA CANAL AUTHORITY (hereinafter sometimes
referred to as the "Authority");
WIT N E SSE T H:
WHEREAS, there has heretofore been created as a body corporate and politic and deemed to
be a political subdivision of the State of Georgia and a public corporation, the Augusta Canal
Authority pursuant to the "Augusta Canal Authority Act" (Georgia Laws 1989, p. 4750 et seq., as
amended), and the Authority is now legally existing and operating and its members have entered
upon their duties; and -. ,'.
WHEREAS, the Authority was created for the general purpose "to promote the revitalization
and development of the City of Augusta through the creation in the project areas of parks, recreation
areas, and all other facilities useful or desirable in connection therewith. The creation of such areas is
intended to develop and promote for the public good and general welfare trade, tourism, commerce,
industry and employment opportunities and to promote the general welfare of this state by creating a
climate favorable to the location of new industry, trade, commerce and the development of existing
industry, trade, commerce, and tourism opportunities with the City of Augusta"; and
WHEREAS, the Authority was created for the further purpose "of promoting and expanding
for the public good and welfare the public facilities of said areas, including the construction of streets,
roadways, and parks and for the purposes of acquiring, constructing, adding to, extending, improving,
equipping, maintaining any and all facilities useful or desirable in connection therewith, acquiring the
necessary property therefor, both real and personal, with the right to contract for the use of or to
lease or sell any or all of such facilities, including real property, and to do any and all things-deemed
by the authority necessary, convenient, or desirable for and incident to the efficient and proper
development, revitalization, modernization, and operation thereof'; and
WHEREAS, a "Project" is defined by the Augusta Canal Authority Act as "any undertaking
of the authority in connection with the revitalization and development of the City of Augusta within
a project area, and shall be declared to include the creation of parks and recreation areas; building to
be constructed and used for the housing of exhibits. exhibition purposes, amusement or educational
purposes, or any combination of the above; public parking areas and public parking buildings;
causeways, tunnels, viaducts, bridges, and other crossings; thoroughfares, parkways, and any avenue
of traffic; ;and all other buildings, structures, or facilities useful arid desirable in connection
therewith, extension and improvements of such facilities, and the acquisition of the necessary
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property therefor, both real and personal, in order to accomplish the essential public purpose for
which the authority is created"; and
WHEREAS, after careful study and investigation, the Consolidated Government and the
Authority have determined that it is in their best interest to implement certain work in the Augusta
Third Level Canal which shall generally consist of all channel improvements, bridges, culverts, gates
and appurtenance works as outlined in the "Augusta Canal Third Level Improvement Study"
prepared for Augusta by Cranston, Robertson & Whitehurst, P.C. dated May, 1999, for that portion
of the Third Level Canal located between the first railroad trestle south/southeast of 7'h
Street!Twiggs Street and 12'h Street, which Study is attached hereto as Exhibit A. This work shall
also include additional excavation work necessary to achieve the canal profile generally as set forth in
the 1999 Plan. The work shall include clearing the Augusta Canal of vegetation, brush and trash
from 12th Street to approximately 460 ft. south/southeast of7th Street!Twiggs Street and restoring it
("Civil Work Project"). The Civil Work Project is more fully described in the Remediation,
Restoration and Indemnification Agreement, by and among the Consolidated Government and
Atlanta Gas Light Company dated February 25, 2004 ("Remediation Agreement"), and the
Construction Contract between and among the Consolidated Government, Atlanta Gas Light
Company and Williams Environmental Services, Inc., dated February 25, 2004 ("Construction
Contract"); and
WHEREAS, the AuthOrity has agreed to accept an assignment of the Consolidated
Government's interests in the Construction Contract and to perform all of the Consolidated
Government's responsibilities under the Construction Contract; and
WHEREAS, in order to fund the Civil Work Project, the Authority will issue up to
$8,000,000 in aggregate principal amount ofits Augusta Canal Authority Revenue Note, Series 2004
(th~ "Series 2004 Note") pursuant to a resolution adopted by the Authority on April 2 7, 2004 (the
"Resolution") and a Loan Agreement, dated as of May 1, 2004 (the "Loan Agreement") , between the
Authority and Bank of America, N.A. as lender (the "Lender"); and
WHEREAS, the Series 2004 Note will be secured by the revenues and proceeds derived from
the Consolidated Government by the Authority pursuant to this Agreement;
NOW, THEREFORE, in consideration of the premises and the benefits, covenants and
undertakings hereinafter set forth, the adequacy of which is acknowledged by each party, it is agreed
by the Consolidated Government and the Authority, each acting by and through its duly authorized
officers, pursuant to proceedings duly adopted and properly passed, as follows:
Section 1. This Agreement shall become effective as of the date of the issuance and delivery
of the Series 2004 Note and shall continue in full force and effect from said date until such time as
the Series 2004 Note and any additional notes or obligations hereafter issued, which are secured pari
passu with the Series 2004 Note, as to principal, interest and premium, if any, have been paid or
provision has been duly made therefor, but in no event shall this Agreement continue in force and
effect for more than 40 years from the date hereof.
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Section 2. [Intentionally Omitted].
Section 3. The Authority covenants and agrees that:
(a) The Series 2004 Note shall be issued under and shall be secured by the Loan
Agreement. An executed copy of the Loan Agreement has been delivered to the
Consolidated Government.
(b) It shall cause the Civil Work to be constructed in accordance with the terms
of the Construction Contract and all moneys of the Authority derived under this Agreement,
shall be received, pledged, held, invested, reinvested and disbursed in the manner set forth in
the Loan Agreement, all for the benefit of the owners of the Series 2004 Note.
(c) [Intentionally Omitted].
(d) It shall cause to be prepared in each fiscal year an annual budget for each
ensuing fiscal year's debt service requirements and the cost of construction for the Civil Work
Project. Such budget shall be prepared in reasonable detail. Such budget shall be submitted
to the Consolidated Government for its review and approval on or prior to the 30th day
subsequent to the close of each fiscal year of the Authority. Failure of the AuthOrity to make
such budget available shall not release the Consolidated Government from its obligations
hereunder, but the Consolidated Government shall have such remedies as may be available at
law to require the Authority to produce such documents in reasonable detail and in a timely
manner. Within 180 days following the close of each fiscal year of the Authority, the
Authority shall cause an audit to be made of its books, records, bank accounts, receipts and
revenues by a firm of certified public accountants. The Authority shall furnish copies of said
audit to the Consolidated Government as soon as practicable after receipt of same from said
firm of certified public accountants.
(e) All payments made under the provlSiOns of paragraphs (a) and (b) of
Section 4 hereof shall be paid by the Consolidated Government directly to the Lender. Such
payments shall not be commingled with any other funds of the Authority and such moneys so
received shall forthwith be used and applied to the payment of principal, interest, premium (if
any) and any other amounts then due on the Series 2004 Note or any other amounts then
due under the Loan Agreement or any other Loan Documents as such term is defined in the
Loan Agreement.
(f) It shall permit an inspection and audit of all of its books and records by the
Consolidated Government at any reasonable time or times at the Consolidated Government's
expense.
(g) A certified copy of the Resolution has been delivered to the Consolidated
Government.
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Section 4. The Consolidated Government represents, covenants and agrees that:
(a) Interest payments on the Series 2004 Note are due semi~annually on April 1 sr
and October IS! of each year (the "Interest Payment Dates") with the first Interest Payment
Date being October 1, 2004. Interest payments due on the Interest Payment Dates up to and
including April 1, 2006, shall be paid by the Authority out of the proceeds of the Note and
Loan Agreement. Thereafter, the Consolidated Government shall pay to the Lender at least
3 days prior to each Interest Payment Date until the principal of and interest on the Series
2004 Note shall have been paid in full or provision duly made therefor, a sum equal to the
accrued and unpaid interest coming due on the next Interest Payment Date. Said payments
shall be made as provided in paragraph (e) of Section 3 hereof directly to the Lender under
the Loan Agreement for the account of the Authority and applied as set forth in paragraph
(e) of Section 3 hereof.
(b) The Consolidated Government shall, in addition to the payments made as
required to comply with paragraph (a) above, pay to the Authority at least 3 days prior to
April! in each year beginning April 1, 2007 (the "Principal Payment Dates") until the
principal of the Series 2004 Note shall have been paid in full or until provision has been duly
made therefor a sum which will be sufficient to pay the principal installment on the Series
2004 Note coming due on the next ensuing Principal Payment Date. Such payments, under
this paragraph (b) shall be made directly to the Lender for the account of the Authority. In
addition, the Consolidated Government shall make payments to the Lender for the account
of the Authority of any other amounts which become due and owing from the Authority to
the Lender under the Series 2004 Note, the Loan Agreement or the Loan Documents (as
such term is defined in the Loan Agreement) and as when such amounts become due.
(c) The Consolidated Government shall make the payments required to be made
pursuant to paragraphs (a) and (b) of this Section first from its general funds or out of any
other funds lawfully available to it for such purpose, and to the extent that such funds are not
so available to it, then it shall levy an annual tax beginning with the year 2004 and from year
to year thereafter on all taxable property located within the boundaries of the Consolidated
Government, as now existent and within any extension of said boundaries, at such rate or
rates (within the limitation prescribed by the Constitution of the State of Georgia) as may be
necessary to provide moneys sufficient to fulfill its obligations under paragraphs (a) and (b) of
this Section. The Consolidated GovenUl1ent represents that the limitations provided by the
Constitution and the laws of the State of Georgia with respect to the Consolidated
Government's authority to levy an annual tax as contemplated hereby are not expected to
limit the Consolidated Government's ability to make the payments set forth in this
Agreement.
(d) Its obligation to make the payments set forth in paragraphs (a) and (b) of this
Section at the times and in the manner specified shall be absolute and unconditional and
such payments shall not be abated or reduced because of damage to or destruction of the
Civil Work Project, in whole or in part, failure of proper operation and maintenance of the
Civil Work Project or for any reason whatsoever. Furthermore, it will not exercise any right
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of set-off or any other right with respect to such payment nor will it withhold any such
payment for any claimed breach of this Agreement by the Authority. This provision is made
expressly for the benefit of the owners, from time to time, of the Series 2004 Note and shall
not affect the obligation of the Authority to perform under the provisions of this Agreement
or otherwise, nor shall this provision otherwise affect the remedies available to the
Consolidated Government on account of any such claimed breach. The Consolidated
Government expressly acknowledges and agrees that the owners of the Series 2004 Note do
not and shall not assume any of the obligations of the Authority under this Agreement.
(e) In order to assure that the Authority will meet the debt service requirements
on the Series 2004 Note and to assure the payments by the Consolidated Government
required to comply with the provision of paragraphs (a) and (b) of this Section, there be and
there is hereby created a lien on all revenues received by the Consolidated Government from
any annual tax levied under and pursuant to the provisions of paragraph (c) of this Section,
which lien is superior to any that can hereafter be made, except that this lien may be
extended to cover any additional parity notes with the Series 2004 Note that hereafter may
be issued.
(f) The Consolidated Govenunent is a political subdivision of the State of
Georgia duly organized and existing under the laws of the State of Georgia.
(g) The execution and delivery by the Consolidated Government of and the
performance by the Consolidated Government of its obligations hereunder have been duly
authorized by all requisite action on the part of the Consolidated Government and do not
and will not:
(i) violate any provisions of any law or any judgment, order or ruling of any
court or governmental agency, or
(ii) be in conflict with, result in a breach of, or constitute, with notice or lapse
of time of both, a default under any indenture, agreement or other instrument to
which the Consolidated Gove~nment is party or by which the Consolidated
Government or any of its property is bound or under its organizational documents.
(h) There is no pending or threatened actions or proceedings before any court or
administrative or governmental agency that may adversely effect the financial condition or
operations of the Consolidated Government or this Agreement other than those previously
disclosed by the Consolidated Government to the Authority and Lender in writing.
(i) This Agreement is the legal, valid and binding agreement of the Consolidated
Government enforceable against the Consolidated Government in accordance with its tern1S.
(j) The Consolidated Government has furnished to the Authority and to Lender,
as the assignee of the Authority, financial statements dated J\.LIIL 2.0 , Z-~3 ,
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(the "Financial Statements") which Financial Statements are true and correct in all material
respects and were prepared in accordance with generally accepted accounting principals
consistently applied and followed throughout the periods involved. Such Financial
Statements fairly and accurately present the financial condition of the Consolidated
Government as of the date indicated. Since the date of the latest Financial Statements
referred to above, there has been no material adverse change in the financial condition,
business, operations or prospects of the Consolidated Government and there exists no
material contingent liability or obligation assert able against the Consolidated Government
that is not identified and disclosed in the Financial Statement.
(k) During the term of this Agreement, the Consolidated Government shall
furnish to the Authority within 180 days after the end of the Consolidated Government's,
fiscal year, a copy of the Consolidated Government's annual audited financial statements for
such fiscal year, which the Authority will provide to the Lender. These Financial Statements
will be prepared in accordance with generally accepted accounting principals applied on a
consistent basis in a form and content acceptable to the Authority and the Lender, as the
assignee of the Authority, and by an independent certified public accountant acceptable to
the Authority and the Lender, as assignee of the Authority.
Section 5. Simultaneously, with the execution and delivery of this Agreement, the
Consolidated Government shall assign to the Authority its interest in the Construction Contract and
the Authority shall accept such assignment and carry out the Consolidated Government's obligations
under the Construction Contract.
Section 6. The parties mutually covenant and agree that:
(a) As a part of the undertaking herein provided for, the Authority will be under
the limited obligation to pay the principal and interest on of the Series 2004 Note and any
other amounts due under the Note, Loan Agreement and Loan Documents, only out of the
revenues and proceeds to be derived under the provisions of this Agreement, which revenues
and proceeds shall be irrevocably pledged to the payment of the principal of and interest on
the Series 2004 Note and any other amounts due under the Note, Loan Agreement and Loan
Documents as same become due and payable, either at maturity or by proceedings for
prepayment, to the extent and in the manner to be provided in the Loan Agreement and
Note.
(b) This Agreement has been made for the benefit of the owners from time to
time of the Series 2004 Note and may not be changed, amended, cancelled or terminated in
any way which would adversely affect the rights or interests of such noteholders without their
consent. Without limiting the generality of the foregoing, the owners of the Series 2004
Note shall be deemed third party beneficiaries of this Agreement with the right to enforce the
Consolidated Government's obligations to make payments under this Agreement.
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(c) This Agreement shall be pledged, assigned and set over to the Lender for the
benefit of the owners from time to time of the Series 2004 Note, and the Consolidated
Government shall make all payments required to be made pursuant to the provisions of
paragraphs (a) and (b) of Section 4 hereof directly to the Lender for the account of the
Authority as herein provided.
(d) Moneys received by the Lender derived from the payments required to be
made to comply with paragraphs (a) and (b) of Section 4 hereof in excess of the amounts
then due will be used and applied to prepay any future payments due under the Series 2004
Note, the Loan Agreement and Loan Documents and if thereafter an excess still exists, such
excess shall be returned to the Consolidated Government.
(e) It is expressly provided that should it be determined advisable to raise
additional funds at some later date or dates for the purpose of adding to, extending,
improving or equipping the Civil Work Project, the Authority may issue additional revenue
notes or obligations ranking as to lien on the revenues and proceeds of this Agreement
payable to the Authority pari passu with the Series 2004 Notes and a new Agreement or
supplemental agreement to this Agreement may be entered into between the parties hereto
to that effect, and the lien on revenues created hereunder as the security for the payment of
the Series 2004 Note will be extended and broadened to include the payment of the debt
service on each such issue or issues of parity notes or obligations.
(f) During the term of this Agreement, the Authority, its successors or assigns,
shall not conveyor give away, sell or in any wise alienate any portion of the Civil Work
Project without the written approval of the Consolidated Governni.ent.
(g) When the Series 2004 Note and any parity notes or obligations therewith shall
have been fully paid as to interest, principal and premium, if any, and all other obligations
owned by the Authority under the Loan Document shall have been paid or provision shall
have been duly made therefore, the Consolidated Government shall be relieved of any
obligations to make further payments hereunder.
(h) If any disagreement shall arise between the parties hereto with reference to
any of the terms, covenants and provisions of this Agreement, or with reference to any
matter connected with same, except as to the payments required to be made by the
Consolidated Government pursuant to the provisions of paragraphs (a) and (b) of Section 4
hereof, which shall be absolute and unconditional, such disagreement or disputeimme~iately
shall be submitted and decided by arbitrators. Each party shall appoint one arbitrator and the
two so appointed shall select three additional arbitrators and three of the five so chosen shall
control and their decision in the matter shall be binding on the parties thereto; provided,
however, that if the two arbitrators first chosen cannot agree on three additional arbitrators,
such three additional arbitrators shall be appointed by one of the judges of the Superior Court
of Richmond County by application of any of the parties thereto. The submission of such
disagreement or disputes to arbitration shall be a condition precedent to any action before
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any court oflaw or equity. It is further expressly provided, however, that each of the parties
hereto shall have the right to protect its rights and interests and to seek such remedies and.
relief as provided by law, it being the intent hereof, that this provision is primarily for the
benefit of the third party beneficiaries of this Agreement, ro,wit: the owners of the Series
2004 Note and any parity obligations therewith. Without limiting the generality of the
foregoing, and in addition ~o all other rights and remedies available to the Lender under this
Agreement, the Loan Agreement, at law or in equity, upon the occurrence of an event of
default by the Consolidated Government of its representations, covenants, agreements or
obligations under the Agreement, the Authority and its assignee the Lender, may:
(i) By mandamus or other suit, action or proceedings at law or in equity,
enforce the obligations of the Consolidated Government, and any of
their officers, agents and employees and require and compel the
Consolidated Government, or such officer, agent or employee to
perform and carry out its or his duties and obligations under this
Agreement to make payments as provided for herein;
(ii) By action or suit in equity enjoin any acts or things which may be
. unlawful or in violation of the rights of the Authority and its assignee
the Lender to receive payments under this Agreement;
(iii) Proceed with any right or remedy granted by the Constitution and
laws of the State of Georgia, as it may deem best, including any suit,
action or special proceeding in equity or at law for the specific
performance of the obligations of the Consolidated Government to
make payments hereunder. The rights herein specified are to be
cumulative to all other available rights, remedies, or powers and shall
not exclude any such rights, remedies or powers.
(i) Should any phrase, clause, sentence or paragraph of this contract be held to be
invalid, unconstitutional or unenforceable it shall in no wise affect the remaining provisions
of this contract, which said provisions shall remain in full force and effect, and if any
provision hereof shall be held invalid, unconstitutional or unenforceable as to the
Consolidated Government, it shall in no wise affect its application to the other.
IN WITNESS WHEREOF, the parties hereto, acting by and through their duly authorized
officers, pursuant to authorizing proceedings duly taken, have caused this contract to be executed in
several counterparts, each of which may be considered an original without the presentation of the
other, as of the day and year first above written.
AUGUSTA CANAL AUTHORITY
(SEAL)
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AUGUSTA, GEORGIA
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(SEAL)
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