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Clean Water State Revolving Fund Loan Agreement SW 131300 2_5-19 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION AND CITY OF MIANII BEACH,FLORIDA CLEAN WATER STATE REVOLVING FUND LOAN AGREEMENT SW131300 Florida Department of Environmental Protection State Revolving Fund Program Bob Martinez Center 2600 Blair Stone Road,MS 3505 Tallahassee, Florida 32399-2400 y , CLEAN WATER STATE REVOLVING FUND LOAN AGREEMENT CONTENTS PAGE ARTICLE I-DEFINITIONS 1 • 1.01.WORDS AND TERMS. 1 1.02.CORRELATIVE WORDS. 3 • ARTICLE II-WARRANTIES,REPRESENTATIONS AND COVENANTS 3 2.01.WARRANTIES,REPRESENTATIONS AND COVENANTS. 3 2.02.LEGAL AUTHORIZATION. 5 2.03.AUDIT AND MONITORING REQUIREMENTS. 5 ARTICLE III-LOAN REPAYMENT ACCOUNT 8 3.01.LOAN DEBT SERVICE ACCOUNT. 8 3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS. 9 3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS. 9 3.04.ASSETS HELD IN TRUST. 9 ARTICLE IV-PROGRAM INFORMATION 9 4.01. RESERVED 9 4.02. RESERVED 9 4.03.RESERVED. 9 4.04. RESERVED. 9 4.05.PROHIBITION AGAINST ENCUMBRANCES. 9 4.06.COMPLETION MONEYS. 10 4.07.CLOSE-OUT. 10 4.08.LOAN DISBURSEMENTS. 10 ARTICLE V-RATES AND USE OF THE STORMWATER SYSTEMS 10 5.01.RATE COVERAGE. 10 5.02.MAINTENANCE OF THE STORMWATER SYSTEMS. 10 5.03.ADDITIONS AND MODIFICATIONS. 10 5.04. COLLECTION OF REVENUES. 11 ARTICLE VI -DEFAULTS AND REMEDIES 11 6.01.EVENTS OF DEFAULT. 11 6.02. REMEDIES. 12 6.03. DELAY AND WAIVER. 13 ARTICLE VII-THE PLEDGED REVENUES 13 7.01. SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT. 13 7.02.ADDITIONAL DEBT OBLIGATIONS. 13 ARTICLE VIII-GENERAL PROVISIONS 13 8.01.DISCHARGE OF OBLIGATIONS. 13 8.02. RECORDS AND STATEMENTS. 14 8.03.ACCESS TO WORK SITE. 14 8.04.ASSIGNMENT OF RIGHTS UNDER AGREEMENT. 14 8.05.AMENDMENT OF AGREEMENT. 14 8.06.ANNULMENT OF AGREEMENT. 14 • CLEAN WATER STATE REVOLVING FUND LOAN AGREEMENT CONTENTS PAGE 8.07. SEVERABILITY CLAUSE. , 15 8.08.USE AS MATCHING FUNDS. 15 8.09.RESERVED. 15 8.10.RESERVED. 15 ARTICLE IX-RESERVED 15 ARTICLE X-DETAILS OF FINANCING 15 10.01.PRINCIPAL AMOUNT OF LOAN. 15 10.02.LOAN SERVICE FEE. 15 10.03.FINANCING RATE. 16 10.04.LOAN TERM. 16 10.05.REPAYMENT SCHEDULE. 16 10.06. PROJECT RELATED COSTS. 16 10.07. SCHEDULE. 17 ARTICLE XI-EXECUTION OF AGREEMENT 18 ii • CLEAN WATER STATE REVOLVING FUND LOAN AGREEMENT SW131300 THIS AGREEMENT is executed by the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION(Department) and the CITY OF MIAMI BEACH, FLORIDA,(Local Government) existing as a local governmental agency under the laws of the State of Florida. WITNES SETH: WHEREAS,pursuant to Section 403.1835,Florida Statutes,and Chapter 62-503,Laws of Florida, the Department is authorized to make loans to local governmental agencies to finance the planning of stormwater pollution control facilities; and WHEREAS, funding is provided from the State Revolving Fund program repayments and interest, which are Federally protected but which are subject to state audit requirements; and WHEREAS,the Local Government has made application for the financing of Planning Activities, and the Department has determined that all requirements for a loan have been met. NOW,THEREFORE, in consideration of the Department loaning money to the Local Government, in the principal amount and pursuant to the covenants hereinafter set forth, 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 Local Government authorized by ordinance or resolution to sign documents associated with the Loan. (3) "Capitalized Interest" shall mean a finance charge that accrues at the Financing Rate 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 Project construction,equipment, materials, demolition,contingency, legal and technical services incurred 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) "Financing Rate"shall mean the charges,expressed as a percent per annum,imposed on the unpaid principal of the Loan. The Financing Rate shall consist of an interest rate component and a Grant Allocation Assessment rate component. (7) "Grant Allocation Assessment"shall mean an assessment,expressed as a percent per annum, accruing on the unpaid balance of the Loan. It is computed similarly to the way interest charged on the Loan is computed and is included in the Semiannual Loan Payment. The Department will use Grant Allocation Assessment moneys for making grants to financially disadvantaged small communities pursuant to Section 403.1835 of the Florida Statutes. (8) "Gross Revenues"shall mean stormwater utility fees and all income and earnings received by the Local Government from the ownership or operation of its Stormwater System, 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 Stormwater System, condemnation awards or proceeds of insurance, except use and occupancy or business interruption insurance,received with respect to the Stormwater System. (9) "than"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 Local Government 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 Local Government. (13)"Monthly Loan Deposit"shall mean the monthly deposit to be made by the Local Government to the Loan Debt Service Account. (14)"Operation and Maintenance Expense"shall mean the costs of operating and maintaining the Stormwater System 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. (15)"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 Stormwater System 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 obligations issued pursuant to Section 7.02 of this Agreement. (16)"Planning Activities"shall mean the planning or administrative work necessary for the Local Government to qualify for.Clean Water State Revolving Fund financing for construction of stormwater pollution control facilities. 2 (17)"Project"shall mean the construction of facilities planned through Planning Activities. The Project shall be defined more specifically if the Agreement is amended. (18)"Semiannual Loan Payment"shall mean the payment due from the Local Government to the Department at six-month intervals. (19)"Senior Revenue Obligations"shall mean the following debt obligations: (a) City of Miami Beach,Florida, Stormwater Revenue Refunding Bonds,Taxable Series 2009J-2, issued in the amount not to exceed$17,000,000,pursuant to Resolution No. 2000-24127,and supplemented by Resolution No. 2009-27243; and (b) City of Miami Beach,Florida, Stormwater Revenue Bonds, Series 2011A,issued in the amount not to exceed$54,000,000,pursuant to Resolution No. 2000-24127, and supplemented by Resolution No. 2011-27782; and (c) City of Miami Beach,Florida, Stormwater Revenue Refunding Bonds, Series 2011B, issued in the amount not to exceed$28,000,000,pursuant to Resolution No. 2000-24127, and supplemented by Resolution No. 2011-27782; and (d) Additional bonds issued on a parity with the bonds identified above pursuant to Section 209 of Resolution No. 2000-24127; and (e) 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. (20)"Stormwater System" shall mean all devices and facilities owned by the Local Government for collection,transmission, detention,retention,treatment, and management of stormwater. L02. 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 bodies, as well as natural persons. ARTICLE II-WARRANTIES,REPRESENTATIONS AND COVENANTS 2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS. The Local Government warrants,represents and covenants that: (1) The Local Government has full power and authority to enter into this Agreement and to comply with the provisions hereof. (2) The Local Government 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 3 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. (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 Local Government's knowledge,_threatened,which seeks to restrain or enjoin the Local Government from entering into or complying with this Agreement. (4) The Local Government knows of no reason why any future required permits or approvals associated with the Project are not obtainable. (5) The Local Government shall undertake Planning Activities and the Project on its own responsibility,to the extent permitted by law. (6) To the extent permitted by law, the Local Government shall release and hold harmless the State,its officers,members, and employees from any claim arising in connection with the Local Government's actions or omissions in its planning or administrative activities financed by this Loan or in its operation of Project facilities. (7) All Local Government 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 Local Government to the Department was current and correct as of the date such information was delivered. The Local Government shall comply with Chapter 62-503,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 Local Government shall take such action as is necessary for compliance. (8) The Local Government shall maintain records using generally accepted accounting principles established by the Governmental Accounting Standards Board.. As part of its bookkeeping system,the Local Government shall keep accounts of the Stormwater System separate from all other accounts and it shall keep accurate records of all revenues, expenses,and expenditures relating to the Stormwater System,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 Local Government's annual budget to be insufficient to make the Semiannual Loan Payments for such Fiscal Year when due,the Local Government 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 Local Government shall collect such funds for application as provided herein. The Local Government 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 Local Government to levy or appropriate ad valorem tax revenues; 4 or preventing the Local Government from pledging to the payment of any bonds or other obligations all or any part of such other legally available non-ad valorem funds. (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 Local Government's Authorized Representative or its chief financial officer shall submit,no later than the date established in Section 10.07, a certification that: (a)Pledged Revenue collections satisfy,on a pro rata basis,the rate coverage requirement; (b)the Loan Debt Service Account contains the funds required; and(c)insurance,including that issued through the National Flood Insurance Program authorized under 42 U.S.C. secs. 4001-4128 when applicable,in effect for the facilities generating the Pledged Revenues, adequately covers the customary risks to the extent that such insurance is available. (11)Pursuant to Section 216.347 of the Florida Statutes,the Local Government shall not use the Loan proceeds for the purpose of lobbying the Florida Legislature,the Judicial Branch, or a State agency. (12)The Local Government agrees to complete the Planning Activities and, if included by an amendment to this Agreement,the Project,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 Local Government are excepted. However,there shall be no resulting diminution or delay in the Semiannual Loan Payment or the Monthly Loan Deposit. (13)The Local Government covenants that this Agreement is entered into for the purpose of completing planning or administrative activities in order to construct facilities which will,in all events, serve a public purpose. (14)The Local Government shall update the revenue generation system annually to assure that sufficient revenues are generated for debt service;operation and maintenance; replacement of equipment,.accessories, and appurtenances necessary to maintain the system design capacity and performance during its design life; and to make the system financially self- sufficient. 2.02. LEGAL AUTHORIZATION. Upon signing this Agreement, the Local Government'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 Local Government and shall constitute a valid and legal obligation of the Local Government enforceable in accordance with its terms upon execution by both parties; and (2) This Agreement specifies the revenues pledged for repayment of the Loan, and the pledge is valid and enforceable. 2.03. AUDIT AND MONITORING REQUIREMENTS. The Local Government agrees to the following audit and monitoring requirements. 5 Funds provided under this Agreement have been identified as second-tier monies under the Federal Clean Water Act which are identified as state funds whose use is federally protected. (1) The financial assistance authorized pursuant to this Loan Agreement consists of the following: State Resources Awarded to the Local Government Pursuant to this Agreement Consist of the Following Re sources Subject to Section 215.97,F.S.: State State Program Funding Source CSFA CSFA Title or Fund Funding Appropriation Number Number Source Description Amount Category Wastewater Statewide Surface Original Treatment and 37 077 Water Restoration $7,500,000 140131 Agreement Stormwater and Wastewater Management TF Projects (2) Audits. (a) In the event that the Local Government expends a total amount of state fmancial assistance equal to or in excess of$500,000 in any fiscal year of such Local Government,the Local Government must have a State single 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 Local Government shall consider all sources of state fmancial assistance,including state financial assistance received from the Department of Environmental Protection,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 Local Government 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 Local Government expends less than$500,000 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 Local Government shall inform the Department of findings and recommendations pertaining to the State Revolving Fund in audits conducted by the Local Government in which the$500,000 threshold has not been met. In the event that the Local Government expends less than$500,000 in state fmancial 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 Local Government's resources obtained from other than State entities). 6 (d) For information regarding the Florida Catalog of State Financial Assistance(CSFA), a Local Government should access the Florida Single Audit Act website located at https://apps.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.state.fl.us/audgen. (3)Report Submission. (a) Copies of fmancial reporting packages shall be submitted by or on behalf of the Local Government directly to each of the following: (i) The Department at the following address: Valerie Peacock,Audit Director Office of the Inspector General Florida Department of Environmental Protection 3900 Commonwealth Boulevard,MS 41 Tallahassee,Florida 32399-3123 (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 Local Government directly to the Department of Environmental Protection at the following address: Valerie Peacock,Audit Director Office of the Inspector General Florida Department of Environmental Protection 3900 Commonwealth Boulevard,MS 41 Tallahassee,Florida 32399-3123 (b) 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. (c) Local Governments,when submitting financial reporting packages to the Department for audits done in accordance with Chapters 10.550(local governmental entities)or 10.650 (nonprofit and for-profit organizations),Rules of the Auditor General, should indicate the date that the_reporting package was delivered to the Local Government in correspondence accompanying the reporting package. 7 (4) Record Retention. The Local Government 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 Local Government 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. The Local Government 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. The Local Government should confer with its chief financial officer, audit director or contact the Department for assistance with questions pertaining to the applicability of these requirements. (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 Local Government agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by the Department of Environmental Protection. In the event the Department of Environmental Protection determines that a limited scope audit of the Local Government is appropriate,the Local Government agrees to comply with any additional instructions provided by the Department to the Local Government regarding such audit. The Local Government 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 Local Government shall establish a Loan Debt Service Account with a Depository and begin making Monthly Loan Deposits no later than the date set forth in Section 10.07 unless the date is revised by amendment of this Agreement. Beginning six months prior to each Semiannual Loan Payment,the Local Government 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. 8 Any month in which the Local Government fails to make a required Monthly Loan Deposit,the Local Government's chief financial officer shall notify the Department of such failure. In addition,the Local Government 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 Local Government,nor shall it be construed to give the Department the power to require the Local Government 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 Local Government'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-PROGRAM INFORMATION 4.01. RESERVED 4.02. RESERVED 4.03. RESERVED. 4.04. RESERVED. 4.05. PROHIBITION AGAINST ENCUMBRANCES. The Local Government is prohibited from selling, leasing,or disposing of any part of the Stormwater 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. 9 4.06. 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 Activities. The Local Government also covenants that if additional Loan financing is provided for Construction Related Costs by amendment of this Agreement, it will obtain sufficient moneys from other sources as necessary to complete the Project. 4.07. CLOSE-OUT. The Department may conduct a final inspection of the Planning Activities records, or if this Agreement is amended to fund Construction Related Costs,the Department shall conduct a final inspection of the Project records. Following the inspection;deadlines for submitting additional disbursement requests, if any, shall be established, along with deadlines for uncompleted Loan requirements, if any. After the Department establishes the fmal Planning Activities costs to be fmanced by the Loan,the amount may be adjusted by amendment. The Loan principal shall be reduced by any excess over the amount required to pay the approved costs. As a result of such adjustment,the Semiannual Loan Payment shall be reduced accordingly,as addressed in Section 10.05. 4.08. LOAN DISBURSEMENTS. Disbursements shall be made 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. Disbursements shall be made directly to the Local Government for reimbursement of allowable invoiced costs. Requests by the Local Government for disbursements of the Planning funds shall be made using the Department's disbursement request form. The Department reserves the right to retain 25%of the funds until the information necessary for the Department to prepare the Environmental Assessment as described in Chapter 62-503.75.1.Florida.Administrative Code,have been met. ARTICLE V-RATES AND USE OF THE STORMWATER SYSTEM 5.01. RATE COVERAGE. The Local Government shall maintain rates and charges for the services furnished by the Stormwater System 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 Local Government shall satisfy the coverage requirements of all senior and parity debt obligations. 5.02. MAINTENANCE OF THE STORMWATER SYSTEM. The Local Government shall operate and maintain the Stormwater System in a proper, sound and economical manner and shall make all necessary repairs,renewals and replacements. 10 5.03.ADDITIONS AND MODIFICATIONS. The Local Government may make any additions,modifications or improvements to the Stormwater System which it deems desirable and which do not materially reduce the operational integrity of any part of the Stormwater System. All such renewals,replacements,additions, modifications and improvements shall become part of the Stormwater System. 5.04. COLLECTION OF REVENUES. The Local Government shall use its best efforts to collect all rates, fees and other charges due to it. The Local Government shall establish liens on premises served by the Stormwater System for the amount of all delinquent rates, fees and other charges where such action is permitted by law. The Local Government shall use its best efforts to shut off water service furnished to persons who are delinquent beyond customary grace periods in the payment of Stormwater System rates,fees and other charges. ARTICLE VI-DEFAULTS AND REMEDIES 6.01. EVENTS OF DEFAULT. Each of the following events is hereby declared an event of default: (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. (2) Except as provided in Subsections 6.01(1) and(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 Local Government by the Department. (3) -Any warranty,representation or other statement by,or on behalf of,the Local Government contained in this Agreement or in any information furnished in compliance with,or in reference to,this Agreement,which is false or misleading. (4) An order or decree entered,with the acquiescence of the Local Government, appointing a receiver of any part of the Stormwater System or Gross Revenues thereof; or if such order or decree,having been entered without the consent or acquiescence of the Local Government, 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 Local Government, for the purpose of effecting a composition between the Local Government 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 Stormwater System. 11 (6) Any bankruptcy, insolvency or other similar proceeding instituted by or against,the Local Government under federal or state bankruptcy or insolvency law now or hereafter in effect and, if instituted against the Local Government,is not dismissed within 60 days after filing. (7) Failure of the Local Government to give immediate written notice of default to the Department and such failure shall continue for a period of 30 days. 6.02. REMEDIES. Upon an event of default and subject to the rights of others having prior liens on the Pledged Revenues,the Department may enforce its rights by any of the following remedies: - (1) By mandamus or other proceeding at law or inequity;cause to establish rates and collect fees and charges for use of the Stormwater System, and to require the Local Government to fulfill this Agreement. (2) By action or suit in equity,require the Local Government to account for all moneys received from the Department or from the ownership of the Stormwater System 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 Stormwater System, 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 a penalty from any unobligated funds due to the Local Government under any revenue or tax sharing fund established by the State, except as otherwise provided by the State Constitution. The Department may impose a penalty in an amount not to exceed an interest rate of 18 percent per annum on the amount due in addition to charging the cost to handle and process the debt. 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 fmancial market credit rating agencies and potential creditors. (7) By suing for payment of amounts due, or becoming due,with interest on overdue payments together with all costs of collection, including attorneys' fees. (8) By accelerating the repayment schedule or increasing the Financing Rate on the unpaid principal of the Loan to as much as 1.667 times the Financing Rate for a default under Subsection 6.01(1). 12 6.03. DELAY AND WAIVER. 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 event of default,whether of the same or different provision of this Agreement, or shall impair consequent rights or remedies. ARTICLE VII-THE PLEDGED REVENUES 7.01. SUPERIORITY OF THE PLEDGE TO THE 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 assignment with the following exception. All obligations of the Local Government under this Agreement shall be junior,inferior,and subordinate in all respects in right of payment and security to the Senior Revenue Obligations defined in Section 1.01 of this Agreement and to any additional senior obligations issued with the Department's consent pursuant to Section 7.02. Any of the Pledged Revenues may be released from the lien on such Pledged Revenues in favor of the Department if the Department makes a determination,based upon facts deemed sufficient by the Department,that the remaining Pledged Revenues will,in each Fiscal Year, equal or exceed 1.15 times the debt service coming due in each Fiscal Year under the terms of this Agreement. 7.02. ADDITIONAL DEBT OBLIGATIONS. The Local Government 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 Local Government demonstrates at the time of such issuance that the Pledged Revenues, which may take into account reasonable projections of growth of the Stormwater System and revenue increases,plus revenues to be pledged to the additional proposed debt obligations will, during the period of time Semiannual Loan Payments are to be made under this Agreement, equal or exceed 1.15 times the annual combined debt service requirements of this Agreement and the obligations proposed to be issued by the Local Government 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 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 Local Government shall have paid, or shall have made provision for the timely payment of,the entire 13 principal amount of the Loan,and as applicable,Loan Service Fee,interest,and Grant Allocation Assessment charges,the pledge of, and lien on,the Pledged Revenues to the 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. 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 Local Government has received a disbursement and until five years after the final amendment date. 8.03. ACCESS TO WORK SITE. The Local Government shall provide access to offices and other sites where Planning Activities or Project work(if financed by this Loan)is ongoing, or has been performed,to authorized representatives of the Department at any reasonable time. The Local Government 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 Local Government. The Local Government 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, 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. A final amendment establishing the final costs fmanced 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. ANNULMENT OF AGREEMENT. The Department may unilaterally annul this Agreement if the Local Government has not drawn any of the Loan proceeds within eighteen months after the effective date of this Agreement. If the Department unilaterally annuls this Agreement,the Department will provide written notification to the Local Government. 14 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 U.S.Environmental Protection Agency has provided a class deviation from the provisions of 40 CFR 35.3125(b)(1)to allow these second tier funds to be used as local matching requirements for most EPA grant funded treatment works projects, including special Appropriations Act projects. 8.09. RESERVED. 8.10. RESERVED. ARTICLE IX-RESERVED ARTICLE X-DETAILS OF FINANCING 10.01. PRINCIPAL AMOUNT OF LOAN. The principal amount of the Loan is$7,647,500,which includes$7,500,000 to be disbursed to the Local Government and$147,500 of Capitalized Interest. Capitalized Interest is not disbursed to the Local Government,but is amortized via periodic Loan repayments to the Department as if it were actually disbursed. Capitalized Interest is computed at the Financing 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 establishment of the schedule of actual disbursements. 10.02. LOAN SERVICE FEE. The Loan Service Fee is estimated as$150,000 for the Loan amount authorized to date. The fee represents two percent of the Loan amount excluding Capitalized Interest;that is,two percent of$7,500,000. 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 fmal Loan amendment. The Local Government 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 fmal 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. 15 • 10.03. FINANCING RATE. The Financing Rate on the unpaid principal of the Loan amount specified in Section 10.01 is 1.62 percent per annum. The Financing Rate equals the sum of the interest rate and the Grant Allocation Assessment Rate. The interest rate is.81 percent per annum and the Grant Allocation Assessment rate is .81 percent per annum. However,if this Agreement is not executed by the Local Government and returned to the Department before April 1,2015,the Financing Rate may be adjusted. A new Financing Rate shall be established for any funds provided by amendment to this Agreement. 10.04. LOAN TERM. The Loan shall be repaid in 40 Semiannual Loan Payments. 10.05. REPAYMENT SCHEDULE. 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 Department will deduct the Loan Service Fee and any associated interest from the first available repayments following the fmal amendment. The Loan principal and Semiannual Loan Payment amounts may be revised by amendment of the Agreement. After the final disbursement of Loan proceeds,the Loan principal will be adjusted to reflect the actual dates and amounts of disbursements. Accordingly, the Semiannual Loan Payment amount shall be adjusted,taking into consideration any previous payments. Until the principal amount of the Loan is amended,the Semiannual Loan Payment shall be in the amount of$229,001. The interest and Grant Allocation Assessment portions of each Semiannual Loan Payment shall be computed,using their respective rates,on the unpaid balance of the principal amount of the Loan,which principal includes Capitalized Interest. Interest(at the Financing Rate) shall also be computed,on the unpaid,balance of the estimated Loan Service Fee. The interest and Grant Allocation Assessment on the unpaid balance 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 February 15,2018 and semiannually thereafter on August 15 and February 15 of each year until all amounts due have been fully paid. Funds transfer shall be made by electronic means. The Semiannual Loan Payment amount is based on the total amount owed of$7,797,500, which consists of the Loan principal plus the estimated Loan Service Fee. 10.06. PROJECT RELATED COSTS. The Local Government and the Department acknowledge that actual Project costs and Planning Activities costs have not been determined as of the effective date of this Agreement. An adjustment to the Planning Activities cost may be made due to a reduction in the scope of work proposed•for construction or based on construction contract bid prices. Capitalized Interest will be recalculated based on actual dates and amounts of Loan disbursements. The final 16 r • amount, and Project costs if fmanced by this Loan, shall be established in the fmal amendment. Changes in the Planning Activities or Project costs may also occur as a result of the Local Government's audit or the Department's audit. The Local Government agrees to the following estimates of the Planning Activities and related costs: Planning(Disbursable Amount) $ 7,500,000 Capitalized Interest $ 147,500 TOTAL(Loan Principal Amount) $ 7,647,500 10.07. SCHEDULE. All Planning Activities shall be completed no later than the completion of all Planning Activities date set forth below. Planning activities shall be completed in time to enable the Department to accept the planning documents as scheduled in Subsection(2)below. (1) This Agreement shall be effective on November 12,2014. Invoices submitted for work on or after this date shall be eligible for reimbursement. (2) Acceptance of the planning documents by the Department(Design Authorization)no later than July 15, 2015. (3) Completion of all Planning Activities for all Project facilities proposed for loan funding no later than February 15,2017. (4) Unless deferred by amendment, establish the Loan Debt Service Account and begin Monthly Loan Deposits no later than August 15,2017. (5) Unless deferred by amendment,provide certifications under Subsection 2.01(10) beginning November 15,2017,and annually thereafter no later than September 30 of each year until the fmal Semiannual Loan Payment is made. (6) Unless this Agreement is amended to provide construction financing,the first • Semiannual Loan Payment in the amount of$229,001 shall be due February 15, 2018. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 17 i ARTICLE XI-EXECUTION OF AGREEMENT This Loan Agreement SW 131300 shall 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 Program Administrator 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 'rogram Administrator. for CI ILY-OF MIANH ;;EACH i '----- - i '`I Maa r I attest to the opinion expressed in Section Attest: 2.02, entitled Legal Authorization. f-'0\ E; -,:/' 4 .,NY:I..*''''''';;. ''''.,v, 3 11 13 ,... t l; , City Clerk * INCORP ORATED City Attorney SEAL '•�' �\/� ',`._ 0i-126 for STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION 0 ■.4 MAR 1 8 2015 iProgram Administrator. Date State Revolving Fund 18