Loading...
1807 Amdmt 1: SW590140 --1877'� 1 f:"a TRANsmITTAL MEMORANDUM To: City Clerk y� FROM: Cynthia Lindsay, Finance Director � AT : January 17, 2017 : City Attorney : SW590140 The item(s)noted below is/are attached and forwarded to your office for the following action(s): ❑ Development Order ❑ Mayor's signature ❑ Final Plat(original mylars) ❑ Recording ❑ Letter of Credit ❑ Rendering ❑ Maintenance Bond ® Safe keeping (Vault) ❑ Ordinance ❑ ❑ Performance Bond ❑ Resolution ® State Revolving Fund Loan Agreement; SW590140 Amendment#1 Once completed,please: ❑ Return original ❑ Return copy El Special Instructions: Please advise if you have any questions regarding the above. Thank you! AMENDMENT 1 TO LOAN AGREEMENT SW590140 CITY OF SANFORD This amendment is executed by the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (Department) and the CITY OF SANFORD,FLORIDA, (the"Local Government")existing as a local governmental agency under the laws of the State of Florida. WITNESSETH: WHEREAS,the Department and the Local Government entered into a Clean Water State Revolving Fund Financial Assistance Agreement,Number SW590140, authorizing a funding amount of$2,538,190 excluding Capitalized Interest; and WHEREAS,the Local Government has requested advance funding. NOW,THEREFORE,the parties hereto agree as follows: 1. Section 4.08 of the Agreement is deleted and replaced as follows: 4.08. LOAN DISBURSEMENTS Under the provisions of 216.181,Florida Statutes,this Agreement allows for funds to be advanced to the Local Government for allowable costs. Disbursements shall be made directly to the Local Government only by the State Chief Financial Officer and only when the requests for such disbursements are accompanied by a Department certification that such withdrawals are proper expenditures. Requests by the Local Government for disbursements of the preconstruction funds shall be made using the Department's disbursement request form. Up to twenty percent of the allowance shall be disbursed after a Loan Agreement is signed. Up to fifty percent of the allowance shall be disbursed after the planning documentation has been completed and accepted. The remainder of the allowance shall be disbursed after all procurement contracts are executed and shall be adjusted to reflect as-bid costs. The Department may disburse the entire estimated allowance amount after acceptance of the plans and specifications or completion of the request for proposals, if the Local Government agrees to an allowance adjustment once all contracts have been bid. Disbursements for Construction Related Costs shall occur only as a result of an amendment to this Agreement. The following allowance amounts will be disbursed at the specified milestone events unless the allowances are reduced pursuant to Section 10.06: Milestone Event Amount Loan Agreement executed $ 177,638 Department completion of environmental review 444,095 (requires completion of facilities planning) Department acceptance of plans and specifications 266,457 Total $ 888,190 1 2. Section 4.09 is added to the Agreement as follows: 4.09. ADVANCE PAYMENT. In accordance with Section 216.181(16)(b),Florida Statutes,the Department, upon written request from the Local Government,the Advance Payment Justification Form and written approval from the State's Chief Financial Officer, if applicable,may provide an advance to the Local Government. The Local Government must temporarily invest the advanced funds, and return any interest.income to the Department, within thirty (30) days of each calendar quarter, or apply said interest income against the Department's obligation to pay, if applicable, under this Agreement. Interest earned must be returned to the Department within the timeframe identified above or invoices must be received within the same timeframe that shows the offset of the interest earned. Unused funds, and interest accrued on any unused portion of advanced funds that have not been remitted to the Department, shall be returned to the Department within sixty (60)days of Agreement completion. The parties hereto acknowledge that the State's Chief Financial Officer may identify additional requirements,which must be met in order for advance payment to be authorized. If the State's Chief Financial Officer imposes additional requirements,the Local Government shall be notified, in writing,by the Department regarding the additional requirements. Prior to releasing any advanced funds,the Local Government shall be required to provide a written acknowledgement to the Department of the Local Government's acceptance of the terms imposed by the State's Chief Financial Officer for release of the funds. If advance payment is authorized,the Local Government shall be responsible for submitting the information requested in the Interest Earned Memorandum to the Department quarterly. 3. Section 8.10 is added to the Agreement as follows: 8.10. PUBLIC RECORDS ACCESS. (1) The Local Government shall comply with Florida Public Records law under Chapter 119,F.S. Records made or received in conjunction with this Agreement are public records under Florida law, as defined in Section 119.011(12), F.S. The Local Government shall keep and maintain public records required by the Department to perform the services under this Agreement. (2) This Agreement may be unilaterally canceled by. the Department for refusal by the Local Government to either provide to the Department upon request, or to allow inspection and copying of all public records made or received by the Local Government in conjunction with this Agreement and subject to disclosure under Chapter 119,F.S., and Section 24(a),Article I, Florida Constitution. 2 (3)IF THE LOCAL GOVERNMENT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE LOCAL GOVERNMENT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE DEPARTMENT'S CUSTODIAN OF PUBLIC RECORDS AT (850) 245-2118, by email at ombudsmanna den.state.fims, or at the mailing address below: Department of Environmental Protection ATTN: Office of Ombudsman and Public Services Public Records Request 3900 Commonwealth Blvd, MS 49 Tallahassee, FL 32399 4. Section 8.11 is added to the Agreement as follows: 8.11. TERMINATION FALSE CERTIFICATION, SCRUTINIZED COMPANIES, BOYCOTTING. The Local Government certifies that it and any of its affiliates are not scrutinized companies as identified in Section 287.135,F.S. In addition,the Local Government agrees to observe the requirements of Section 287.135,F.S.,for applicable sub-agreements entered into for the performance of work under this Agreement. Pursuant to Section 287.135,F.S.,the Department may immediately terminate this Agreement for cause if the Local Government, its affiliates, or its subcontractors are found to have submitted a false certification; or if the Local Government, its affiliates, or its subcontractors are placed on any applicable scrutinized companies list or engaged in prohibited contracting activity during the term of the agreement. As provided in Subsection 287.135(8),F.S., if federal law ceases to authorize these contracting prohibitions then they shall become inoperative. 5. All other terms and provisions of the Loan Agreement shall remain in effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 3 6 This Amendment 1 to Loan Agreement SW590140 may be executed in two or more counterparts, any of which shall be regarded as an original and all of which constitute but one and the same instrument. IN WITNESS WHEREOF,the Department has caused this Agreement to be executed on its behalf by the Secretary or Designee and the Local Government has caused this Agreement to be executed on its behalf by its Authorized Representative and by its affixed seal. The effective date of this Agreement shall be as set forth below by the Department. for CITY OF SAN ORD Ma t) Attest: Approved as to form and legal sufficiency: City Clerk City Attorney SEAL for STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION x WAIG Secretary or Designee Date 4 Resolution No. 2459 A Resolution of the City of Sanford, Florida relating to the State Revolving Fund loan program for the funding of water pollution control facilities (Project Number SW59014); making legislative and administrative findings; providing for legal authority; approving and authorizing the execution and implementation of a loan application and loan agreement, as well as other implementing documents, with the Florida Department of Environmental Protection; providing for the availability and establishment of pledged revenues; providing for powers of the City Mayor, City Manager, City Clerk and City Attorney; providing for conflicts; providing for severability and providing an effective date. Whereas, provisions of the Florida Statutes provide for loans to local government agencies to finance the planning and the construction of water pollution control facilities; and Whereas, the administrative rules set forth in the Florida Administrative Code require specific authorization for municipalities to apply for loans to establish pledged revenues, that loan applicants must designate authorized representatives for certain purposes; that loan applicants must provide assurances of compliance with loan program requirements; and that successful loan applicants must enter into a loan agreement with the Department of Environmental Protection; and Whereas, the State Revolving Fund loan priority list designates a City of Sanford project, Project Number SW59014 (hereinafter the "Project"), as eligible for available funding; and Whereas, the City of Sanford, Florida, intends to enter into a loan agreement with the Florida Department of Environmental Protection under the applicable and controlling statutory provisions and rules and other applicable law pertaining to State Revolving Fund for financing of the Project; and Whereas, the timing requirements relative to-the funding opportunity available to the City of Sanford, as set forth in this Resolution, are critical and compressed; and Whereas, the City of Sanford has enjoyed a consistently positive relationship with the Florida Department of Environmental Protection with regard to a number of projects and activities benefitting the public and the Department has, in conjunction with the loan funding set forth herein, offered to provide the City with significant loan funding for the Project; and Whereas, the City Commission of the City of Sanford has complied with all procedural and substantive requirements of controlling law in adopting this Resolution. I I P a g e Now, Therefore Be It Resolved By The City Commission Of The City Of Sanford, Florida, As Follows: Section 1. Findings. The foregoing recitals (whereas clauses) are incorporated herein by reference and adopted as legislative and administrative findings in support of the matters set forth in this Resolution and made a part hereof. Section 2. Legal Authority. The City of Sanford, Florida is authorized to apply for a loan to finance the project under applicable and controlling law to include, but not be limited to, Article V11, Section 2 of the Constitution of the State of Florida and the provisions of Chapters 166 and 403, Florida Statutes, the City Charter of the City of Sanford and other applicable law. Section 3. Available Revenues/Assurances. (a). The identified pledged revenues derive from the City of Sanford stormwater utility fees and rates are established under the controlling legal authority of Chapter 102, Code of Ordinances of the City of Sanford, and the implementing resolutions and actions of the City Commission, as implemented by the City Manager, and designees, as well as other controlling legal authority. This legal authority provides the lawful authority for the establishment of utility rates and fees by the City. The City's pledge of pledged revenues is valid and enforceable in accordance with its terms. The City has the right to increase rates from which pledged revenues are to be collected to repay the Loan by adoption of an amendatory rate resolution, or resolutions, in accordance with Chapter 102, Code of Ordinances of the City of Sanford. The Stormwater utility fees are established by Article XIV, Chapter 102, Sections 102-565 and 102-669, Code of Ordinances of the City of Sanford, and the adoption of fee resolutions are controlled by Section 102-567(8), Code of Ordinances of the City of Sanford. (b). The State of Florida statutory authority for the City of Sanford's actions relating to the imposition and implementation of stormwater utility fees are set forth at Section 403.0893, Florida Statutes. Section 4. Authorized Representative Relative To Implementation Of Agreements/FDEP Assurances. (a). The City Manager, or written designee, is hereby designated as the authorized representative to provide the assurances and commitments required by the loan application, the funding of the Project and relative to the implementation of the Project as well as to execute any and all documents relating to the loan application. 2- 1 Page (b). In connection with implementation of the loan referenced in this Section, the City Manager is also delegated the authority to implement the provisions of this Resolution by any and all necessary acts that relate in any way to the matters set forth in this Resolution. (c). The City Manager is authorized to delegate responsibility to appropriate City staff to carry out technical, financial, and administrative activities associated with the loan agreement. Section 6. Authorized Representative To Execute Agreements With FDEP/Additional Delegations/Approval Of Agreements. (a). The Mayor, or written designee, is hereby designated as the authorized officer to execute the loan agreement with the Department of Environmental Protection which agreement will become a binding obligation in accordance with its terms when fully executed by both parties and which is hereby approved by the City Commission. (b). The City Manager, or written designee, is hereby granted plenary authority, to implement the agreements referenced in this Resolution and any and all associated documents, as needed. (c). The City Clerk, or written designee, is hereby granted plenary authority to attest to the agreement and documents referenced in this Resolution and any and all associated documents, as needed. (d). All agreements and documents referenced in this Resolution and any and all associated documents, shall be subject to legal review and approval by the City Attorney. Section 6. Conflicts. All resolutions or parts of resolutions in conflict with any of the provisions of this Resolution are hereby repealed. Section 7. Severability. If any Section or portions of a Section of this Resolution proves to be invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair the validity, force, or effect of any other Section or part of this Resolution. Section 8. Effective Date. This Resolution shall become effective immediately upon its passage and adoption. 3 1 P a g e Passed and adopted this 24th day of February, 2014. Attest.• Cynthia'Porter, City Clerk Jeff Trip or For use and reliance of the Sanford City Commission only. Approved as to form and legality. -Wiffiam' L. Colbert, City Attorney 41 Page -1 77— FINANcE DEPARTMENT TRANSMITTAL MEMORANDUMi To: City Clerk FROM: Cynthia Lindsay, Finance Director DATE: January 30, 2017 C c: City Attorney RE: SW590140 The item(s)noted below is/are attached and forwarded to your office for the following action(s): ❑ Development Order ❑ Mayor's signature ❑ Final Plat(original mylars) ❑ Recording ❑ Letter of Credit ❑ Rendering ❑ Maintenance Bond ® Safe keeping (Vault) ❑ Ordinance ❑ ❑ Performance Bond ❑ Resolution ® Mayfair County Club Lease Guaranty Once completed,please: ❑ Return original ❑ Return copy El Special Instructions: Please advise if you have any questions regarding the above. Thank you! LEASE GUARANTY IGC- Mayfair Country Club, LLC ("Lessee"), a direct or indirect owner, subsidiary or affiliate of City of Sanford, Florida ("Guarantor'), intends to enter into a leasing arrangement or agreement("Lease") with Summit Funding Group, Inc. or one of its direct or indirect subsidiaries or affiliates("Lessor'). Guarantor represents and warrants to Lessor that Guarantor has a substantial financial interest in Lessee and believes that the execution and delivery of the Lease is in the best interests of Guarantor and Lessee.As an inducement for Lessor to enter into the Lease, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor and Lessor enter into this Guaranty("Guaranty")on the following terms and conditions: 1. Guaranty. Guarantor absolutely, irrevocably, continuously, and unconditionally guarantees to Lessor(i)the full and prompt payment of any and all amounts now and hereafter due from Lessee to Lessor under the Lease and the documents and agreements related thereto, and(ii)the full and prompt performance of, accuracy of, and compliance with all of the terms, conditions, representations,warranties, covenants, and obligations now and hereafter applicable to Lessee under the Lease and the documents and agreements related thereto, all without regard to the validity, enforceability, or regularity thereof, regardless of their kind or nature, and regardless of when or how such amounts or obligations become due, including, but not limited to, obligations owed at maturity, upon default, by acceleration, or otherwise (collectively referred to herein as the "Guaranteed Obligations"). Guarantor's obligations under this Guaranty are not subject to offset or counterclaim for any reason whatsoever, are absolute and unconditional, and will continue in full force and effect until terminated as set forth herein. This Guaranty is a continuing guaranty of payment and not of collection. Except as specifically set forth herein, Guarantor's obligations under this Guaranty will not be released, discharged, affected, modified, or impaired by any event or occurrence whatsoever. As used herein, "Lease" means the Lease as originally entered into and as modified, amended, extended, or renewed. The obligations of the Guarantor are limited to that which is permitted under controlling law. 2. Waiver. Guarantor waives in full notice of acceptance of this Guaranty, as well as any and all demands, presentments, notices of protest, and notices of any kind or nature, including, but not limited to, those of any action or non-action by Lessor, Lessee, or any other person or entity. Upon default by Lessee, Lessor may proceed directly and at once, without notice, against Guarantor to collect and recover the full amount of Guaranteed Obligations due under the Lease,without proceeding against Lessee or any other person or entity, foreclosing upon, selling, or otherwise disposing of the leased equipment, or collecting accrued rentals or other accrued payments. Guarantor waives the right to require Lessor to proceed against Lessee or to pursue any other remedy, and Guarantor waives the pleading of any statute of limitations as a defense. Guarantor assumes the responsibility for keeping itself informed of the financial condition of Lessee and any and all endorsers and other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment or nonperformance of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal. Lessor shall have no duty to advise Guarantor of information known to Lessor regarding such condition or any such circumstance. Lessor shall have full power to modify, amend, cancel, renew,or extend the Lease, and to grant consents and waivers of the terms and conditions thereof, without in any way diminishing, releasing, or discharging the liability of Guarantor hereunder. No payments made by or on behalf of Guarantor shall be deemed to discharge or diminish the continuing liability of Guarantor hereunder, unless and until written notice is given to Lessor that such payments are at the time thereof being made for the purpose of liquidating such liability. The obligations of the Guarantor are limited to that which is permitted under controlling law. 3. Representations and Warranties. Guarantor represents and warrants to Lessor that (i) Guarantor is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization, (ii) this Guaranty constitutes the legal, valid, and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as the enforcement thereof may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights generally, (iii)the execution and delivery of this Guaranty, and the performance of Guarantor's obligations hereunder, do not, directly or indirectly (with or without notice or lapse of time) (A) breach any provision of Guarantor's governing documents or any resolution adopted by the shareholders, members, partners, directors, or managers of Guarantor, (B) violate or contravene applicable law, (C) require the consent or approval of any person or entity, or (D) result in the creation or imposition of any lien or encumbrance on any property or asset of Guarantor, except in favor of Lessor, and(iv)there is no action or proceeding pending before any court or governmental entity that adversely and materially affects the condition(financial or otherwise) of Guarantor or any of its properties or assets. 4. Financial Statements. As soon as available, and no later than 90 days after the end of Guarantor's fiscal year, Guarantor shall provide or make available to Lessor Guarantor's financial statements for the preceding fiscal year, all as prepared in accordance with U.S. generally accepted accounting principles, or its international equivalent if applicable, and such additional information as Lessor may reasonably request. This obligation is limited to providing existing public records. 5. Termination. Guarantor's obligations under this Guaranty shall continue in full force and effect until payment and performance of the Guaranteed Obligations have been discharged in full and any and all leasing agreements and arrangements between Lessor and Lessee have been terminated. 6. Miscellaneous. (a) Guarantor represents and warrants to Lessor that Guarantor has had an opportunity to review all Agreement forms and other information requested by Guarantor. (b) Guarantor will pay all of the costs, expenses, and fees, including, but not limited to, all attorneys' fees, incurred by Lessor in enforcing or attempting to enforce this Guaranty, whether the same is enforced by suit or otherwise, and all amounts recoverable by law, including, but not limited to, interest on any unpaid amounts due under this Guaranty. (c) If a person or entity guarantees the Guaranteed Obligations pursuant to an agreement or arrangement substantially similar to this Guaranty, then the obligations of Guarantor and such other persons and entities shall be joint and several subject to the provisions of this document. (d) Any proceeding arising out of or relating to this Guaranty shall be brought in the courts of Hamilton County, Ohio or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of Ohio, and each party hereto irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, and agrees that all claims in respect of such proceeding shall be heard and determined only in any such court. (e) EACH PARTY HERETO WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT,TORT, OR OTHERWISE. (f) The rights and remedies of the parties to this Guaranty are cumulative and not alternative. No failure, delay, or single or partial exercise of any right, power, or privilege by any party under this Guaranty will operate as a waiver of such right, power, or privilege or will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (i)no claim or right arising out of this Guaranty can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party, (ii) no waiver that may be given by a party will be applicable except in the specific instance for which it is given, and (iii) no notice to or demand on one party will be deemed to be a waiver of any obligation of that party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Guaranty. (g) This Guaranty supersedes all prior agreements, whether written or oral, between or among the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. (h) This Guaranty may not be amended, supplemented, or otherwise modified except by a written agreement executed by the party to be charged with the amendment. (i) No party may assign any of its rights or delegate any of its obligations under this Guaranty without the prior written consent of the other party, except that Lessor may assign any of its rights and delegate any of its obligations under this Guaranty to any direct or indirect subsidiary or affiliate of Lessor and may collaterally assign its rights hereunder to any person or entity providing financing in connection with the Lease. Subject to the preceding sentence,this Guaranty will apply to, be binding in all respects upon, and inure to the benefit of the heirs, successors, and permitted assigns of the parties. Nothing expressed or referred to in this Guaranty will be construed to give any person or entity other than the parties to this Guaranty any legal or equitable right, remedy,or claim under or with respect to this Guaranty or any provision of this Guaranty,except such rights as shall inure to an heir,successor,or permitted assignee pursuant to this paragraph. 0) If any provision of this Guaranty is held invalid or unenforceable by any court of competent jurisdiction,the other provisions of this Guaranty will remain in full force and effect. Any provision of this Guaranty held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. (k) This Guaranty will be governed by and construed under the laws of the State of Ohio without regard to conflicts-of-laws principles that would require the application of any other law. (1) This Guaranty may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Guaranty and all of which,when taken together,will be deemed to constitute one and the same agreement. The exchange of copies of this Guaranty and of signature pages by fax or e-mail shall constitute effective execution and delivery of this Guaranty as to the parties and may be used in lieu of the original for all purposes. Signatures of the parties transmitted by fax or e- mail shall be deemed to be original signatures for all purposes. IN WITNESS WHEREOF, the unde I igned have executed this Guaranty effective as of the date first set forth below. Company Name Cityof Sanford,Florida Authorized Signature X Print Name Jeff Triplett Title Mayor Dated / ACKNOWLEDGED AND AGREED: SUMMIT VUNDINGPROUP, INC. Y Nam % A Titl G° Attest: Cynthia"Porter City Clerk 0� As approvedito legality only: iam L. Colbert / 0fj t f 1 �,)� CityyAttorney �/ '" '`� C INCUMBENCY CERTIFICATE 1210912016 The undersigned certifies as follows: I am a duly elected and qualified officer of City of Sanford,Florida(*Company"). In that capacity 1 am familiar with the Company's books and records. The following individuals named below hold the positions set forth next to their names. Additionally,said individuals have corporate authority to execute contracts and equipment lease agreements on behalf of the Company. 1 further certify that I am familiar with the signatures of said individuals and that the signatures set forth adjacent to names are the true and correct signatures of said individuals. NAME OFFICE SIGN,ATUR 1 Pi t 07NAME MaterJeffPRINTTITi E ' SIGN,HEEtE a. IN WITNESS WHEREOF, I have executed this Incumbency Certificate effective as of the date fi set f above. �' n � OFFtCERSIGN. By: {d Cynthia Porter oFFIcERewrrri,4 Name: y Title. City Clerk Corporate Seal