1894 FDEP DW590191o`ag Depa"tom@�� Florida Department of
Environmental Protection
Marjory Stoneman Douglas Building
w 3900 Commonwealth Boulevard
"o Tallahassee, Florida 32399-3000
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FEDERAL EXPRESS DELIVERY - SIGNATURE REQUIRED
Mr. William M. Marcous
Utility Manager
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
Re: DW590191 — City of Sanford
Treatment Plant Rehabilitation
Dear Mr. Marcous:
C�
Rick Scott
Governor
Carlos Lopez-Cantera
Lt. Governor
Noah Valenstein
Secretary
We are pleased to provide State Revolving Fund financial assistance for your planning and
design treatment plant rehabilitation project. One original of the fully executed loan agreement
is enclosed. To draw money under the agreement, please call Carleen Pruyn at (850)245-2932
for assistance in completing a disbursement request. Please note that the Special Conditions
listed in Section 10.08 of the Agreement must be provided before any funds can be released.
Sincerely,
Angela echt, Program Administrator
State Revolving Fund Management
AK/rs
Enclosure
cc: Norton N. Bonaparte, Jr. — City of Sanford
www, dep. state. fl. us
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
CITY OF SANFORD, FLORIDA
DRINKING WATER STATE REVOLVING FUND
PLANNING AND DESIGN LOAN AGREEMENT
DW590191
Florida Department of Environmental Protection
State Revolving Fund Program
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard, MS 3505
Tallahassee, Florida 32399-3000
DRINKING WATER STATE REVOLVING FUND PLANNING AND/OR DESIGN LOAN
AGREEMENT
CONTENTS PAGE
ARTICLE I - DEFINITIONS
1.01. WORDS AND TERMS.
1.02. CORRELATIVE WORDS.
ARTICLE 11 - WARRANTIES, REPRESENTATIONS AND COVENANTS
2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS.
2.02. LEGAL AUTHORIZATION.
2.03. AUDIT AND MONITORING REQUIREMENTS.
ARTICLE III - LOAN REPAYMENT ACCOUNT
3.01. LOAN DEBT SERVICE ACCOUNT.
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS.
3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS.
3.04. ASSETS HELD IN TRUST.
ARTICLE IV - PROJECT INFORMATION
4.01. PROJECT CHANGES.
4.02. TITLE TO PROJECT SITE.
4.03. PROHIBITION AGAINST ENCUMBRANCES.
4.04. COMPLETION MONEYS.
4.05. CLOSE-OUT.
4.06. LOAN DISBURSEMENTS.
ARTICLE V - RATES AND USE OF THE WATER AND SEWER SYSTEMS
5.01. RATE COVERAGE.
5.02. NO FREE SERVICE.
5.03. MANDATORY CONNECTIONS.
5.04. NO COMPETING SERVICE.
5.05. MAINTENANCE OF THE WATER AND SEWER SYSTEMS.
5.06. ADDITIONS AND MODIFICATIONS.
5.07. COLLECTION OF REVENUES.
ARTICLE VI - DEFAULTS AND REMEDIES
6.01. EVENTS OF DEFAULT.
6.02. REMEDIES.
6.03. DELAY AND WAIVER.
ARTICLE VII - THE PLEDGED REVENUES
7.01. SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT.
7.02. ADDITIONAL DEBT OBLIGATIONS.
ARTICLE VIII - GENERAL PROVISIONS
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
I: znl
CITY OF SANFORD, FLORIDA
DRINKING WATER STATE REVOLVING FUND
PLANNING AND DESIGN LOAN AGREEMENT
DW590191
Florida Department of Environmental Protection
State Revolving Fund Program
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard, MS 3505
Tallahassee, Florida 32399-3000
DRINKING WATER STATE REVOLVING FUND PLANNING AND/OR DESIGN LOAN
AGREEMENT
CONTENTS PAGE
8.01. DISCHARGE OF OBLIGATIONS.
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8.02. PROJECT RECORDS AND STATEMENTS.
14
8.03. ACCESS TO PROJECT SITE.
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8.04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT.
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8.05. AMENDMENT OF AGREEMENT.
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8.06. ABANDONMENT OF AGREEMENT BY PROJECT SPONSOR.
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8.07. SEVERABILITY CLAUSE.
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8.08. USE AS MATCHING FUNDS.
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8.09. PUBLIC RECORDS ACCESS.
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8.10. SCRUTINIZED COMPANIES.
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ARTICLE IX - RESERVED 16
ARTICLE X - DETAILS OF FINANCING
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10.01. PRINCIPAL AMOUNT OF LOAN.
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10.02. LOAN SERVICE FEE.
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10.03. INTEREST RATE.
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10.04. LOAN TERM.
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10.05. REPAYMENT SCHEDULE.
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10.06. PROJECT COSTS.
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10.07. SCHEDULE.
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10.08. SPECIAL CONDITION.
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ARTICLE XI - EXECUTION OF AGREEMENT 20
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DRINKING WATER STATE REVOLVING FUND
PLANNING AND DESIGN LOAN AGREEMENT
DW590191
THIS AGREEMENT is executed by the STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION (Department) and the CITY OF SANFORD, FLORIDA,
(Project Sponsor) existing as a local governmental entity under the laws of the State of Florida.
Collectively, the Department and the Project Sponsor shall be referred to as "Parties" or
individually as "Party".
RECITALS
Pursuant to Section 403.8532, Florida Statutes, the Department is authorized to make loans to
finance the Planning and Design of public water systems; and
The Project Sponsor has applied for financing of Planning and Design Activities, and the
Department has determined that all requirements for a Loan have been met.
In consideration of the Department loaning money to the Project Sponsor, in the principal
amount and pursuant to the covenants set forth below, it is agreed as follows:
ARTICLE I - DEFINITIONS
1.01. WORDS AND TERMS.
Words and terms used herein shall have the meanings set forth below:
(1) "Agreement" or "Loan Agreement" shall mean this agreement.
(2) "Authorized Representative" shall mean the official of the Project Sponsor
authorized by ordinance or resolution to sign documents associated with the Loan.
(3) "Capitalized Interest" shall mean the interest accruing on Loan proceeds from the
time of disbursement until six months before the first Semiannual Loan Payment is due.
Capitalized Interest is financed as part of the Loan principal.
(4) "Construction Related Costs" shall mean costs for allowable construction,
equipment, materials, demolition, land, contingency, and technical services after construction bid
opening, and Capitalized Interest associated with the foregoing costs.
(5) "Depository" shall mean a bank or trust company, having a combined capital and
unimpaired surplus of not less than $50 million, authorized to transact commercial banking or
savings and loan business in the State of Florida and insured by the Federal Deposit Insurance
Corporation.
1
(6) "Design Activities" shall mean the design of work defined in the approved planning
document that will result in plans and specifications, ready for permitting and bidding, for an
eligible construction project.
(7) "Final Amendment" shall mean the final agreement executed between the parties
that establishes the final teens for the Loan such as the final Loan amount, the interest rate, Loan
Service Fee, amortization schedule and Semiannual Loan Payment amount.
(8) "Gross Revenues" shall mean all income or earnings received by the Project Sponsor
from the ownership or operation of its Water and Sewer Systems, including investment income,
all as calculated in accordance with generally accepted accounting principles. Gross Revenues
shall not include proceeds from the sale or other disposition of any part of the Water or Sewer
System, condemnation awards or proceeds of insurance, except use and occupancy or business
interruption insurance, received with respect to the Water or Sewer System.
(9) "Loan" shall mean the amount of money to be loaned pursuant to this Agreement
and subsequent amendments.
(10) "Loan Application" shall mean the completed form which provides all information
required to support obtaining loan financial assistance from the Department.
(11) "Loan Debt Service Account" shall mean an account, or a separately identified
component of a pooled cash or liquid account, with a Depository established by the Project
Sponsor for the purpose of accumulating Monthly Loan Deposits and making Semiannual Loan
Payments.
(12) "Loan Service Fee" shall mean an origination fee which shall be paid to the
Department by the Project Sponsor.
(13) "Local Governmental Entity" means a county, municipality, or special district.
(14) "Monthly Loan Deposit" shall mean the monthly deposit to be made by the Project
Sponsor to the Loan Debt Service Account.
(15) "Operation and Maintenance Expense" shall mean the costs of operating and
maintaining the Water and Sewer Systems determined pursuant to generally accepted accounting
principles, exclusive of interest on any debt payable from Gross Revenues, depreciation, and any
other items not requiring the expenditure of cash.
(16) "Parity Debt" shall mean any debt obligations issued that are on an equal
commercial lien position with this Loan.
(17) "Planning Activities" shall mean the planning, specialized studies or administrative
work necessary for the Project Sponsor to qualify for Drinking Water State Revolving Fund
financing for construction of drinking water facilities.
(18) "Pledged Revenues" shall mean the specific revenues pledged as security for
repayment of the Loan and shall be the Gross Revenues derived yearly from the operation of the
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Water and Sewer Systems after payment of the Operation and Maintenance Expense and the
satisfaction of all yearly payment obligations on account of the Senior Revenue Obligations and
any senior or parity obligations issued pursuant to Section 7.02 of this Agreement.
(19) "Project" shall mean the construction of the Treatment Plant facilities planned and
designed through these Planning and Design Activities. This Project is a Capitalization Grant
Project as defined in Chapter 62-552, Florida Administrative Code.
(20) "Semiannual Loan Payment" shall mean the payment due from the Project Sponsor
to the Department at six-month intervals.
(21) "Senior Revenue Obligations" shall mean the following debt obligations:
(a) City of Sanford, Florida, Utility System Revenue Note, Series 2010, issued in the
amount of $14,720,000, pursuant to Resolution No. 1944, as supplemented by Resolution No.
2178; and
(b) Any refunding bonds issued to refund the obligations identified above provided such
bonds shall not increase annual debt service during the repayment period of this Loan.
(22) "Sewer System" shall mean all facilities owned by the Project Sponsor for
collection, transmission, treatment and reuse of wastewater and its residuals.
(23) "Water System" shall mean all facilities owned by the Project Sponsor for supplying
and distributing water for residential, commercial, industrial, and governmental use.
1.02. CORRELATIVE WORDS.
Words of the masculine gender shall be understood to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall
include the plural and the word "person" shall include corporations and associations, including
public entities, as well as natural persons.
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS
2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS.
The Project Sponsor warrants, represents and covenants that:
(1) The Project Sponsor has full power and authority to enter into this Agreement and to
comply with the provisions hereof.
(2) The Project Sponsor currently is not the subject of bankruptcy, insolvency, or
reorganization proceedings and is not in default of, or otherwise subject to, any agreement or any
law, administrative regulation, judgment, decree, note, resolution, charter or ordinance which
would currently restrain or enjoin it from entering into, or complying with, this Agreement.
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(3) There is no material action, suit, proceeding, inquiry or investigation, at law or in
equity, before any court or public body, pending or, to the best of the Project Sponsor's
knowledge, threatened, which seeks to restrain or enjoin the Project Sponsor from entering into
or complying with this Agreement.
(4) The Project Sponsor knows of no reason why any future required permits or
approvals associated with the Project are not obtainable.
(5) The Project Sponsor shall undertake the Project on its own responsibility, to the
extent permitted by law.
(6) To the extent permitted by law, the Project Sponsor shall release and hold harmless
the State, its officers, members, and employees from any claim arising in connection with the
Project Sponsor's actions or omissions in its planning, engineering, administrative, and
construction activities financed by this Loan or its operation of the Project.
(7) All Project Sponsor representations to the Department, pursuant to the Loan
Application and Agreement, were true and accurate as of the date such representations were
made. The financial information delivered by the Project Sponsor to the Department was current
and correct as of the date such information was delivered. The Project Sponsor shall comply
with Chapter 62-552, Florida Administrative Code, and all applicable State and Federal laws,
rules, and regulations which are identified in the Loan Application or Agreement. To the extent
that any assurance, representation, or covenant requires a future action, the Project Sponsor shall
take such action to comply with this agreement.
(8) The Project Sponsor shall maintain records using Generally Accepted Governmental
Accounting Standards established by the Governmental Accounting Standards Board. As part of
its bookkeeping system, the Project Sponsor shall keep accounts of the Water and Sewer
Systems separate from all other accounts and it shall keep accurate records of all revenues,
expenses, and expenditures relating to the Water and Sewer Systems, and of the Pledged
Revenues, Loan disbursement receipts, and Loan Debt Service Account.
(9) In the event the anticipated Pledged Revenues are shown by the Project Sponsor's
annual budget to be insufficient to make the Semiannual Loan Payments for such Fiscal Year
when due, the Project Sponsor shall include in such budget other legally available non -ad
valorem funds which will be sufficient, together with the Pledged Revenues, to make the
Semiannual Loan Payments. Such other legally available non -ad valorem funds shall be
budgeted in the regular annual governmental budget and designated for the purpose provided by
this Subsection, and the Project Sponsor shall collect such funds for application as provided
herein. The Project Sponsor shall notify the Department immediately in writing of any such
budgeting of other legally available non -ad valorem funds. Nothing in this covenant shall be
construed as creating a pledge, lien, or charge upon any such other legally available non -ad
valorem funds; requiring the Project Sponsor to levy or appropriate ad valorem tax revenues; or
preventing the Project Sponsor from pledging to the payment of any bonds or other obligations
all or any part of such other legally available non -ad valorem funds.
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(10) Each year, beginning three months before the first Semiannual Loan Payment and
ending with the year during which the final Loan repayment is made, the Project Sponsor's
Authorized Representative or its chief financial officer shall submit, pursuant to the schedule
established in Section 10.07, a certification that: (a) Pledged Revenue collections satisfy the rate
coverage requirement; (b) the Loan Debt Service Account contains the funds required; (c)
insurance in effect for the facilities generating the Pledged Revenues adequately covers the
customary risks to the extent that such insurance is available; and (d) the revenue generation
system is in conformance with subparagraph 62-552.700(2)(i)3,F.A.C.
(11) Pursuant to Section 216.347 of the Florida Statutes, the Project Sponsor shall not use
this Loan proceeds for the purpose of lobbying the Florida Legislature, the Judicial Branch, or a
State agency.
(12) The Project Sponsor agrees to complete the Planning and Design Activities, in
accordance with the schedule set forth in Section 10.07. Delays incident to strikes, riots, acts of
God, and other events beyond the reasonable control of the Project Sponsor are excepted.
However, there shall be no resulting diminution or delay in the Semiannual Loan Payment or the
Monthly Loan Deposit.
(13) The Project Sponsor covenants that this Agreement is entered into for the purpose of
completing planning and engineering activities in order to construct facilities which will, in all
events serve a public purpose.
2.02. LEGAL AUTHORIZATION.
Upon signing this Agreement, the Project Sponsor's legal counsel hereby expresses the
opinion, subject to laws affecting the rights of creditors generally, that:
(1) This Agreement has been duly authorized by the Project Sponsor and shall constitute
a valid and legal obligation of the Project Sponsor enforceable in accordance with its terms upon
execution by both parties; and
(2) This Agreement identifies the revenues pledged for repayment of the Loan, and the
pledge is valid and enforceable.
2.03. AUDIT AND MONITORING REQUIREMENTS.
The Project Sponsor agrees to the following audit and monitoring requirements.
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(1) The financial assistance authorized pursuant to this Loan Agreement consists of the
following:
State Resources Awarded to the Project Sponsor Pursuant to this Agreement Consist of the
Following:
State
CSFA Title or
State
Program
CSFA
Fund Source
Funding
Appropriation
Number
Funding Source
Number
Description
Amount
Category
Original
Drinking Water
Drinking
Agreement
Revolving Loan
37.076
Water Facility
$584,950
140129
TF
Construction
(2) Audits.
(a) In the event that the Project Sponsor expends a total amount of state financial
assistance equal to or in excess of $750,000 in any fiscal year of such Project Sponsor, the
Project Sponsor must have a State single or project -specific audit for such fiscal year in
accordance with Section 215.97, Florida Statutes; applicable rules of the Department of Financial
Services; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit
organizations), Rules of the Auditor General. In determining the state financial assistance
expended in its fiscal year, the Project Sponsor shall consider all sources of state financial
assistance, including state financial assistance received from the Department, other state
agencies, and other nonstate entities. State financial assistance does not include Federal direct or
pass-through awards and resources received by a nonstate entity for Federal program matching
requirements.
(b) In connection with the audit requirements addressed in the preceding paragraph (a);
the Project Sponsor shall ensure that the audit complies with the requirements of Section
215.97(7), Florida Statutes. This includes submission of a financial reporting package as defined
by Section 215.97(2), Florida Statutes, and Chapters 10.550 (local governmental entities) or
10.650 (nonprofit and for-profit organizations), Rules of the Auditor General.
(c) If the Project Sponsor expends less than $750,000 in state financial assistance in its
fiscal year, an audit conducted in accordance with the provisions of Section 215.97, Florida
Statutes, is not required. The Project Sponsor shall inform the Department of findings and
recommendations pertaining to the State Revolving Fund in audits conducted by the Project
Sponsor in which the $750,000 threshold has not been met. In the event that the Project Sponsor
expends less than $750,000 in state financial assistance in its fiscal year, and elects to have an
audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, the cost of
the audit must be paid from the non -state entity's resources (i.e., the cost of such an audit must
be paid from the Project Sponsor's resources obtained from other than State entities).
(d) The Project Sponsor is hereby advised that the Florida Single Audit Act
Requirements may further apply to lower tier transactions that may be a result of this Agreement.
For information regarding the Florida Catalog of State Financial Assistance (CSFA), a Project
Sponsor should access the Florida Single Audit Act website located at htips:Hgpps.fldfs.com/fsaa
for assistance. In addition to the above websites, the following websites may be accessed for
information: Legislature's Website at http://www.leg.state.fl.us/Welcome/index.cfin, State of
Florida's website at http://www.myflorida.com/, Department of Financial Services' Website at
http://www.fldfs.com/ and the Auditor General's Website at http://www.myflorida.com/audgen.
(3) Report Submission.
(a) Copies of financial reporting packages shall be submitted by or on behalf of the
Project Sponsor directly to each of the following:
(i) The Department at one of the following addresses:
By Mail:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General
3900 Commonwealth Boulevard, MS 40
Tallahassee, Florida 32399-3123
Electronically:
FDEP SingleAudit@dep. state. fl.us
(ii) The Auditor General's Office at the following address:
State of Florida Auditor General
Room 401, Claude Pepper Building
111 West Madison Street
Tallahassee, Florida 32399-1450
(iii) Copies of reports or management letters shall be submitted by or on behalf of the
Project Sponsor directly to the Department at either of the following address:
By Mail:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General
3900 Commonwealth Boulevard, MS 40
Tallahassee, Florida 32399-3123
Electronically:
FDEP SingleAuditndep. state. fl.us
(a) Any reports, management letters, or other information required to be submitted to
the Department pursuant to this Agreement shall be submitted timely in accordance with Florida
Statutes, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit
organizations), Rules of the Auditor General, as applicable.
(b) Project Sponsors, when submitting financial reporting packages to the Department
for audits done in accordance with Chapters 10.550 (local governmental entities) or 10.650
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(nonprofit and for-profit organizations), Rules of the Auditor General, should indicate the date
that the reporting package was delivered to the Project Sponsor in correspondence accompanying
the reporting package.
(4) Record Retention.
The Project Sponsor shall retain sufficient records demonstrating its compliance with the
terms of this Agreement for a period of five years from the date the audit report is issued, and
shall allow the Department, or its designee, Chief Financial Officer, or Auditor General access to
such records upon request. The Project Sponsor shall ensure that audit working papers are made
available to the Department, or its designee, Chief Financial Officer, or Auditor General upon
request for a period of five years from the date the audit report is issued, unless extended in
writing by the Department.
(5) Monitoring.
In addition to reviews of audits conducted in accordance with Section 215.97, F.S., as
revised monitoring procedures may include, but not be limited to, on-site visits by Department
staff and/or other procedures. By entering into this Agreement, the Project Sponsor agrees to
comply and cooperate with any monitoring procedures/processes deemed appropriate by the
Department. In the event the Department determines that a limited scope audit of the Project
Sponsor is appropriate, the Project Sponsor agrees to comply with any additional instructions
provided by the Department to the Project Sponsor regarding such audit. The Project Sponsor
further agrees to comply and cooperate with any inspections, reviews, investigations, or audits
deemed necessary by the Chief Financial Officer or Auditor General.
ARTICLE III - LOAN REPAYMENT ACCOUNT
3.01. LOAN DEBT SERVICE ACCOUNT.
The Project Sponsor shall establish a Loan Debt Service Account with a Depository and
begin making Monthly Loan Deposits no later than the date set forth for such action in
Section 10.07 of this Agreement.
Beginning six months prior to each Semiannual Loan Payment, the Project Sponsor shall
make six Monthly Loan Deposits. The first five deposits each shall be at least equal to one-sixth
of the Semiannual Loan Payment. The sixth Monthly Loan Deposit shall be at least equal to the
amount required to make the total on deposit in the Loan Debt Service Account equal to the
Semiannual Loan Payment amount, taking into consideration investment earnings credited to the
account pursuant to Section 3.02.
Any month in which the Project Sponsor fails to make a required Monthly Loan Deposit,
the Project Sponsor's chief financial officer shall notify the Department of such failure. In
addition, the Project Sponsor agrees to budget, by amendment if necessary, payment to the
Department from other legally available non -ad valorem funds all sums becoming due before the
same become delinquent. This requirement shall not be construed to give superiority to the
Department's claim on any revenues over prior claims of general creditors of the Project
Sponsor, nor shall it be construed to give the Department the power to require the Project
Sponsor to levy and collect any revenues other than Pledged Revenues.
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS.
Moneys on deposit in the Loan Debt Service Account shall be invested pursuant to the
laws of the State of Florida. Such moneys may be pooled for investment purposes. The maturity
or redemption date of investments shall be not later than the date upon which such moneys may
be needed to make Semiannual Loan Payments. The investment earnings shall be credited to the
Loan Debt Service Account and applied toward the Monthly Loan Deposit requirements.
3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS.
The withdrawal of moneys from the Loan Debt Service Account shall be for the sole
purpose of making the Semiannual Loan Payment or for discharging the Project Sponsor's
obligations pursuant to Section 8.01.
3.04. ASSETS HELD IN TRUST.
The assets in all accounts created under this Loan Agreement shall be held in trust for the
purposes provided herein and used only for the purposes and in the manner prescribed in this
Agreement; and, pending such use, said assets shall be subject to a lien and charge in favor of the
Department.
ARTICLE IV - PROJECT INFORMATION
4.01. PROJECT CHANGES.
After the Department's environmental review has been completed, the Project Sponsor
shall promptly notify the Department, in writing, of any Project change that would require a
modification to the environmental information document.
4.02. TITLE TO PROJECT SITE.
No later than the date established by Section 10.07, the Project Sponsor shall have an
interest in real property sufficient for the construction and location of any facility planned and
designed through Preconstruction Activities free and clear of liens and encumbrances which
would impair the usefulness of such sites for the intended use. If a limited site title certification
is accepted at that date, the Department shall establish a date for submittal of a clear site title
certification by amendment.
4.03. PROHIBITION AGAINST ENCUMBRANCES.
The Project Sponsor is prohibited from selling, leasing, or disposing of any part of the
Water or Sewer System which would materially reduce operational integrity or Gross Revenues
so long as this Agreement, including any amendment thereto, is in effect unless the written
consent of the Department is first secured.
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4.04. COMPLETION MONEYS.
In addition to the proceeds of this or subsequent Loans, the Local Government covenants
that it has obtained, or will obtain, sufficient moneys from other sources to complete the
Planning and Design Activities.
4.05. CLOSE-OUT.
The Department shall conduct a final inspection of the Planning and Design Activities
records. Following the inspection, deadlines for submitting additional disbursement requests, if
any, shall be established, along with deadlines for uncompleted Loan requirements, if any.
Deadlines shall be incorporated into the Loan Agreement by amendment. After the Department
establishes the final costs to be financed by the Loan, the itemized costs will be adjusted by
amendment. The Loan principal shall be reduced by any excess over the amount required to pay
all approved costs. As a result of such adjustment, the Semiannual Loan Payment shall be
reduced accordingly, as addressed in Section 10.05.
4.06. LOAN DISBURSEMENTS.
Disbursements shall be made directly to the Local Government only by the State Chief
Financial Officer for reimbursement of allowable invoiced costs and only when the requests for
such disbursements are accompanied by a Department certification that such withdrawals are
proper expenditures. In addition to the invoices for costs incurred, proof of payment will be
required. Requests by the Local Government for disbursements of the Planning and Design
funds shall be made using the Department's disbursement request form. A planning document
defining the scope of the Project to be funded must have been accepted before any Design funds
can be disbursed. The Department reserves the right to retain 25% of the funds until plans and
specifications have been accepted by the Department.
ARTICLE V - RATES AND USE OF THE WATER AND SEWER SYSTEMS
5.01. RATE COVERAGE.
The Project Sponsor shall maintain rates and charges for the services furnished by the
Water and Sewer Systems which will be sufficient to provide, in each Fiscal Year, Pledged
Revenues equal to or exceeding 1.15 times the sum of the Semiannual Loan Payments due in
such Fiscal Year. In addition, the Project Sponsor shall satisfy the coverage requirements of all
Senior Revenue and Parity Debt obligations.
5.02. NO FREE SERVICE.
The Project Sponsor shall not permit connections to, or furnish any services afforded by,
the Water or Sewer System without making a charge therefore based on the Project Sponsor's
uniform schedule of rates, fees, and charges.
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5.03. MANDATORY CONNECTIONS.
The Project Sponsor shall adopt, as necessary, and enforce requirements, consistent with
applicable laws, for the owner, tenant or occupant of each building located on a lot or parcel of
land which is served, or may reasonably be served, by the Sewer System to connect such
building to the Sewer System.
5.04. NO COMPETING SERVICE.
The Project Sponsor shall not allow any person to provide any services which would
compete with the Water or Sewer System so as to adversely affect Gross Revenues.
5.05. MAINTENANCE OF THE WATER AND SEWER SYSTEMS.
The Project Sponsor shall operate and maintain the Water and Sewer Systems in a proper,
sound and economical manner and shall make all necessary repairs, renewals and replacements.
5.06. ADDITIONS AND MODIFICATIONS.
The Project Sponsor may make any additions, modifications or improvements to the
Water and Sewer Systems which it deems desirable and which do not materially reduce the
operational integrity of any part of the Water or Sewer System. All such renewals, replacements,
additions, modifications and improvements shall become part of the Water and Sewer Systems.
5.07. COLLECTION OF REVENUES.
The Project Sponsor shall use its best efforts to collect all rates, fees and other charges
due to it. The Project Sponsor shall establish liens on premises served by the Water or Sewer
System for the amount of all delinquent rates, fees and other charges where such action is
permitted by law. The Project Sponsor shall, to the full extent permitted by law, cause to
discontinue the services of the Water and Sewer Systems and use its best efforts to shut off water
service furnished to persons who are delinquent beyond customary grace periods in the payment
of Water and Sewer System rates, fees and other charges.
ARTICLE VI - DEFAULTS AND REMEDIES
6.01. EVENTS OF DEFAULT.
Upon the occurrence of any of the following events (the Events of Default) all obligations
on the part of Department to make any further disbursements hereunder shall, if Department
elects, terminate. The Department may, at its option, exercise any of its remedies set forth in this
Agreement, but Department may make any disbursements or parts of disbursements after the
happening of any Event of Default without thereby waiving the right to exercise such remedies
and without becoming liable to make any further disbursement:
(1) Failure to make any Monthly Loan Deposit or to make any installment of the
Semiannual Loan Payment when it is due and such failure shall continue for a period of 30 days.
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(2) Except as provided in Subsections 6.01(1) and 6.01(7), failure to comply with the
provisions of this Agreement or failure in the performance or observance of any of the covenants
or actions required by this Agreement and such failure shall continue for a period of 60 days
after written notice thereof to the Project Sponsor by the Department.
(3) Any warranty, representation or other statement by, or on behalf of, the Project
Sponsor contained in this Agreement or in any information furnished in compliance with, or in
reference to, this Agreement, which is false or misleading, or if Project Sponsor shall fail to
keep, observe or perform any of the terms, covenants, representations or warranties contained in
this Agreement, the Note, or any other document given in connection with the Loan (provided,
that with respect to non -monetary defaults, Department shall give written notice to Project
Sponsor, which shall have 30 days to cure any such default), or is unable or unwilling to meet its
obligations thereunder.
(4) An order or decree entered, with the acquiescence of the Project Sponsor, appointing
a receiver of any part of the Water or Sewer System or Gross Revenues thereof; or if such order
or decree, having been entered without the consent or acquiescence of the Project Sponsor, shall
not be vacated or discharged or stayed on appeal within 60 days after the entry thereof.
(5) Any proceeding instituted, with the acquiescence of the Project Sponsor, for the
purpose of effecting a composition between the Project Sponsor and its creditors or for the
purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or
hereafter enacted, if the claims of such creditors are payable from Gross Revenues of the Water
or Sewer System.
(6) Any bankruptcy, insolvency or other similar proceeding instituted by, or against, the
Project Sponsor under federal or state bankruptcy or insolvency law now or hereafter in effect
and, if instituted against the Project Sponsor, is not dismissed within 60 days after filing.
(7) Failure of the Project Sponsor to give immediate written notice of default to the
Department and such failure shall continue for a period of 30 days.
6.02. REMEDIES.
All rights, remedies, and powers conferred in this Agreement and the transaction
documents are cumulative and are not exclusive of any other rights or remedies, and they shall
be in addition to every other right, power, and remedy that Department may have, whether
specifically granted in this Agreement or any other transaction document, or existing at law, in
equity, or by statute. Any and all such rights and remedies may be exercised from time to time
and as often and in such order as Department may deem expedient. Upon any of the Events of
Default and subject to the rights of others having prior liens on the Pledged Revenues, the
Department may enforce its rights by, inter alia, any of the following remedies:
(1) By mandamus or other proceeding at law or in equity, cause to establish rates and
collect fees and charges for use of the Water and Sewer Systems, and to require the Project
Sponsor to fulfill this Agreement.
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(2) By action or suit in equity, require the Project Sponsor to account for all moneys
received from the Department or from the ownership of the Water and Sewer Systems and to
account for the receipt, use, application, or disposition of the Pledged Revenues.
(3) By action or suit in equity, enjoin any acts or things which may be unlawful or in
violation of the rights of the Department.
(4) By applying to a court of competent jurisdiction, cause to appoint 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 intercept the delinquent amount plus six percent,
expressed as an annual interest rate, penalty of the amount due to the Department from any
unobligated funds due to the Project Sponsor under any revenue or tax sharing fund established
by the State, except as otherwise provided by the State Constitution or State law. Penalty interest
shall accrue on any amount due and payable beginning on the 30th day following the date upon
which payment is due.
(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 interest rate on the unpaid
principal of the Loan to as much as 1.667 times the Loan interest rate for a default under
Subsection 6.01(1).
6.03. DELAY AND WAIVER.
No course of dealing between Department and Local Government, or any failure or delay
on the part of Department in exercising any rights or remedies hereunder, shall operate as a
waiver of any rights or remedies of Department, and no single or partial exercise of any rights or
remedies hereunder shall operate as a waiver or preclude the exercise of any other rights or
remedies hereunder. No delay or omission by the Department to exercise any right or power
accruing upon an 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 Events 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 DEPARTMENT.
From and after the effective date of this Agreement, the Department shall have a lien on
the Pledged Revenues, which along with any other Department State Revolving Fund liens on
the Pledged Revenues, on equal priority, will be prior and superior to any other lien, pledge or
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assignment with the following exception. All obligations of the Project Sponsor under this
Agreement shall be junior, inferior, and subordinate in all respects in right of payment and
security to the Senior Revenue Debt 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. The
Department may release its lien on such Pledged Revenues in favor of the Department if the
Department makes a determination in its sole discretion, 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 Project Sponsor may issue additional debt obligations on a parity with, or senior to,
the lien of the Department on the Pledged Revenues provided the Department's written consent
is obtained. Such consent may be granted if the Project Sponsor 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
Project Sponsor and will satisfy the coverage requirements of all other debt obligations secured
by the Pledged Revenues.
ARTICLE VIII - GENERAL PROVISIONS
8.01. DISCHARGE OF OBLIGATIONS.
All Semiannual Loan 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 year and all 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 Department. If at
any time the Project Sponsor shall have paid, or shall have made provision for the timely
payment of, the entire principal amount of the Loan and interest, the pledge of, and lien on, the
Pledged Revenues to the Department shall be no longer in effect. Deposit of sufficient cash,
securities, or investments, authorized by law from time to time, 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 Department. There shall be no penalty
imposed by the Department 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 Department and the U.S. Environmental
Protection Agency's Inspector General for inspection at any reasonable time after the Project
Sponsor has received a disbursement and until five years after the Final Amendment date.
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8.03. ACCESS TO PROJECT SITE.
The Project Sponsor shall provide access to offices and other sites where Planning and
Design Activities or Project work (if financed by this Loan) is ongoing, or has been perfonned,
to authorized representatives of the Department at any reasonable time. The Project Sponsor
shall cause its engineers and contractors to provide copies of relevant records and statements for
inspection.
8.04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT.
The Department may assign any part of its rights under this Agreement after notification
to the Project Sponsor. The Project Sponsor shall not assign rights created by this Agreement
without the 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 statutes, rules, regulations, executive orders, or written
agreements between the Department and the U.S. Environmental Protection Agency (EPA). A
Final Amendment establishing the final costs financed by this Loan and the actual Loan Service
Fee shall be completed after the Department's final inspection of relevant documents and
records.
8.06. ABANDONMENT OF AGREEMENT BY PROJECT SPONSOR.
The Project Sponsor must draw Loan proceeds within eighteen months after the effective
date of this Agreement, or by the date set in Section 10.07 to establish the Loan Debt Service
Account, whichever date occurs first. Failure by the Local Government to do so shall constitute
its abrogation and abandonment of the rights hereunder, and the Department may then, upon
written notification to the Local Government, terminate this Agreement.
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.
8.08. USE AS MATCHING FUNDS.
The EPA has provided a class deviation from the Provisions of 40 CFR 35.3125(b)(1) to
allow these funds to be used as local matching requirements for most EPA grant funded
treatment works projects, including special Appropriations Act projects.
8.09. PUBLIC RECORDS ACCESS.
(1) The Project Sponsor 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
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Florida law, as defined in Section 119.011(12), F.S. The Project Sponsor 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
Project Sponsor to either provide to the Department upon request, or to allow inspection and
copying of all public records made or received by the Project Sponsor in conjunction with this
Agreement and subject to disclosure under Chapter 119, F.S., and Section 24(a), Article I,
Florida Constitution.
(3) IF THE PROJECT SPONSOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
PROJECT SPONSOR'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
public. services@dep. state. fl.us, 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
8.10. SCRUTINIZED COMPANIES.
The Project Sponsor certifies that it and any of its affiliates are not scrutinized companies
as identified in Section 287.135, F.S. In addition, the Project Sponsor 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 Project Sponsor, its affiliates, or its
subcontractors are found to have submitted a false certification; or if the Project Sponsor, 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.
ARTICLE IX — RESERVED
ARTICLE X - DETAILS OF FINANCING
The principal amount of the Loan is $587,650, which includes $584,950 to be disbursed
to the Project Sponsor and $2,700 of Capitalized Interest.
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Capitalized Interest is not disbursed to the Project Sponsor, but is amortized via periodic
Loan repayments to the Department as if it were actually disbursed. Capitalized Interest is
computed at the interest rate, or rates, set for the Loan. It accrues and is compounded annually
from the time when disbursements are made until six months before the first Semiannual Loan
Payment is due. Capitalized Interest is estimated prior to establishing the schedule of actual
disbursements.
10.02. LOAN SERVICE FEE.
The Loan Service Fee is estimated as $11,699 for the Loan amount authorized to date.
The fee represents two percent of the Loan amount excluding Capitalized Interest; that is, two
percent of $584,950. The fee shall be revised with any increase or decrease amendment. The
Loan Service Fee shall be based on actual Project costs and will be assessed in the final Loan
amendment. The Project Sponsor shall pay the Loan Service Fee from the first available
repayments following the final amendment.
Capitalized Interest is computed on the assessed Loan Service Fee at the Financing Rate,
or rates and included in the final amendment. It accrues and is compounded annually from the
final amendment date until six months before the first Semiannual Loan Payment is due. A
service fee assessed in a final amendment occurring later than six months before the first
Semiannual Loan Payment date would not accrue Capitalized Interest charges. The estimated
Loan Service Fee Capitalized Interest is $110.
10.03. INTEREST RATE.
The rate of interest on the unpaid principal of the Loan amount specified in Section 10.01
is 1.04 percent per annum. However, if this Agreement is not executed by the Project Sponsor
and returned to the Department before October 1, 2017, the interest rate may be adjusted.
10.04. LOAN TERM.
The Loan shall be repaid in 20 Semiannual Loan Payments.
10.05. REPAYMENT SCHEDULE.
Repayments shall be made semiannually (twice per year). The Semiannual Loan
Payment shall be computed based upon the principal amount of the Loan plus the estimated Loan
Service Fee and the principle of level debt service. The Semiannual Loan Payment amount may
be adjusted, by amendment of this Agreement, based upon revised information. After the final
disbursement of Loan proceeds, the Semiannual Loan Payment shall be based upon the actual
Project costs, the actual Loan Service Fee and Loan Service Fee capitalized interest, if any, and
actual dates and amounts of disbursements, taking into consideration any previous payments.
Actual Project costs shall be established after the Department's inspection of the completed
Project and associated records. The Department will deduct the Loan Service Fee and any
associated interest from the first available repayments following the Final Amendment.
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Each Semiannual Loan Payment shall be in the amount of $31,636 until the payment
amount is adjusted by amendment. The interest portion of each Semiannual Loan Payment shall
be computed on the unpaid balance of the principal amount of the Loan, including Capitalized
Interest. Interest also shall be computed on the unpaid balance of the Loan Service Fee and Loan
Service Fee capitalized interest. Interest shall be computed as of the due date of each
Semiannual Loan Payment.
Unless repayment is deferred by an amendment to this Agreement, Semiannual Loan
Payments shall be received by the Department beginning on August 15, 2019 and semiannually
thereafter on February 15 and August 15 of each year until all amounts due hereunder have been
fully paid. Funds transfer shall be made by electronic means.
The Semiannual Loan Payment amount is based on the total amount to be repaid of
$599,459, which consists of the Loan principal plus the Loan Service Fee with its capitalized
interest.
10.06. PROJECT COSTS.
The Project Sponsor and the Department acknowledge that actual Project costs have not
been determined as of the effective date of this Agreement. An adjustment may be made due to
a reduction in the scope of work proposed for Loan funding as a result of the facilities planning
process. Capitalized Interest will be recalculated based on actual dates and amounts of Loan
disbursements. The final costs shall be established in the final amendment. Changes in costs
may also occur as a result of the Project Sponsor's audit or the Department's audit.
The Project Sponsor agrees to the following estimates of the Project costs:
PROJECT COSTS
Planning (Disbursable Amount) $ 150,500
Design (Disbursable Amount) $ 434,450
SUBTOTAL (Loan Amount) $ 584,950
Capitalized Interest $ 2,700
TOTAL (Loan Principal Amount) $ 587,650
10.07. SCHEDULE.
All Planning and Design Activities shall be completed no later than the completion dates
set forth below to enable the Department to accept the engineering documents.
(1) Invoices submitted for work performed on or after August 9, 2017 shall be eligible
for reimbursement.
(2) Completion of all Planning Activities for all Project facilities proposed for loan
funding no later than August 15, 2018.
(3) Completion of all Design Activities for all Project facilities proposed for loan
funding no later than August 15, 2018.
(4) Unless deferred by amendment, establish the Loan Debt Service Account and begin
Monthly Loan Deposits no later than February 15, 2019.
(5) Unless deferred by amendment, provide certifications under Subsection 2.01(10)
beginning May 15, 2019, and annually thereafter no later than September 30 of each year until
the final Semiannual Loan Payment is made.
(6) The first Semiannual Loan Payment in the amount of $31,636 shall be due
August 15, 2019.
10.08. SPECIAL CONDITION.
Prior to any funds being released, the Project Sponsor shall submit a certified copy
of the Resolution which authorizes the application, establishes the Pledged Revenues, and
designates an Authorized Representative for signing the application and executing the Loan
Agreement
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ARTICLE XI - EXECUTION OF AGREEMENT
This Loan Agreement DW590191 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 cause4 this Agreement to be executed on
its behalf by the Secretary or Designee and the Project Spans • has caused this Agreement to be
executed on its behalf by its Authorized Representative andits affixed seal. The effective
date of this Agreement shall be as set forth below by the Dep tment.
SEAL
for
CITY OF Si
Attest:
City Clerk
I attest to the opinion expressed in Section
2.02, entitled Legal Authorization. -
M' �
for
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Secretary or Designee
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Date