HomeMy WebLinkAboutR-2023-051 State Revolving Fund (SRF) Loan Agreement with FDEP - C51 Reservoir Capacity ProjectRESOLUTIONNO.2OB- OS\
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORZING EXECUTION OF A DRINK]NG WATER
STATE REVOLVING FLTND CONSTRUCTION LOAN AGREEMENT WITHTHE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION FOR THE C-5I RESERVOIR REGIONAL PROJECT;PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FoR AN
EFFECTTVE DATE.
WHEREAS, on september 10,2013, the city commission of the city of Dania Beach
adopted Resolution No. 2013-092 pledging its support of the c-51 Reservoir Regional project
("the Project"); and
WHEREAS' in 2018 and 2020, the City Commission adopted Resolutions respectively
approving and amending an Agreement for Capacity Allocation in phase I ofthe C-51 Reservor.
and
WHEREAS, in 2022, the city commission adopted a Resorution declaring its intent to
apply for a State Revolving Fund loan to Finance the project; and
WHEREAS, the state of Florida Department of Environmental protection has approved
funding of a State Revolving Fund roan (Dw061230) to the city in the amount of Four Million
Six Hundred rhousand Dollars ($4,600,000.00) requiring the execution of a loan agreement,
which agreement is incorporated into this Resolution by this reference as Exhibit ..A,,.
NOW, THEREFORE, BE IT RESOLVED By THE CITY COMIVIISSION oF
THE CITY OF DANIA BEACH, FLORIDA:
section l. That the above "whereas" clauses are ratified and confirmed as being true
and correct, and they are made a part ofand incorporated into this Resolution by this reference.
section 2 That the city commission authorizes the appropriate city officials to
execute the loan agreement, which agreement is incorporated into this Resolution by this reference
as Exhibit "A".
section 3' That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent ofsuch conflict.
section 4. That this Resolution shall take effect immediately upon its passage and
adoption.
PASSED AND ADOPTED on June 13. 2023.
A
CITYCLERK
APPROVED AS TO FORM AND CORRECTNESS:
w
REsoLUrroN#2023- OSt
STATE OFFLORIDA
Df,,PARTMENT OF EI{VIRONMENTAL PROTECTION
A]\ID
CITY OF DANIA Bf,,ACII, FLORIDA
DRINKING WATER STATE REVOLVING FUND
CONSTRUCTION LOAN AGREEMENT
DW061230
Florida Department of Environmental protection
State Revolving Fund program
- ^ ^Yryow Stoneman Douglas Building
3900 Commonwealth Boulevard, MS 3505
Tallahassee, Florida 32399-3000
DRINKING WATER STATE REVOLVING FTJND CONSTRUCTION LOAN AGREEMENT
CONTENTS PAGE
ARTICLE I - DEFINITIONS
I.OI, WORDS AND TERMS.
1.02. CORRELATIVE WORDS.
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS
2.0 1. WARRANTIES, REPRESENTATIONS AND COVENANTS.
2.02. LEGAL AUTHORIZATION.
2.03. AUDrT AND MONTTORTNG REQUTREMENTS.
ARTICLE III - LOAN REPAYMENT ACCOI.INT
3.0I. LOAN DEBT SERVICE ACCOLINT.
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS.
3.03. LOAN DEBT SERVICE ACCOTINT WITHDRAWALS.
3.04. ASSETS HELD IN TRUST.
ARTICLE IV - PROJECT INFORMATION
4,01. PROJECT CHANCES.
4.02. TITLE TO PROJECT SITE.
4.03. PERMITS AND APPROVALS.
4.04. ENGINEERING SERVICES.
4.05. PROIIIBITION AGAINST ENCUMBRANCES.
4.06. COMPLETION MONEYS.
4.07. CLOSE_OUT.
4.08. DISBURSEMENTS.
ARTICLE V. RATES AND USE OF THE UTILITY SYSTEM5.0I. RATE COVERACE.
5.02. NO FREE SERVICE.
5.03. MANDATORY CONNECTIONS.
5.04. NO COMPETING SERVICE.
5.05. MAINTENANCE OF THE UTILITY SYSTEM.
5,06. ADDITIONS AND MODIFICATIONS.
5.07. COLLECTION OF REVENUES,
ARTICLE VI - DEFAULTS AND REMEDIES
6.0I. EVENTS OF DEFAULT.
6,02. REMEDIES.
6.03. DELAY AND WAIVER.
ARTICLE VII - THE PLEDGED REVENUES
7.01. SUPERIORITY OF THE PLEDGE TO THE OEPANTMENT.
7,02. ADDITIONAL DEBT OBLIGATIONS
ARTICLE VIII - GENERAL PROVISIONS
I
I
J
J
3
5
7
7
8
8
8
8
8
o
o
9
o
9
9
9
l0
l0
l0
t0
1l
ll
tl
lt
l1ll
.|.,
It
l3
IJ
t4
14
DRINKING WATER STATE REVOLVING FUND CONSTRUCTION LOAN AGREEMENT
8.0I, DISCIIARGE OF OBLIGATIONS.
8.02. PROJECT RECORDS AND STATEMENTS.
8,03. ACCESS TO PROJECT SITE.
8.04. ASSIGNMENT OF RIGHTS UNDERAGRIEMENT.
8.05, AMENDMENT OF AGREEMENT.
8.06. ABANDONMENT, TERMINATION OR VOLTINTARY CANCELLATION.
8.07. SEVERABILITY CLAUSE.
8.08. SIGNAGE.
8.09. DAVIS-BACON ACT REQUIREMENTS.
8. I O. AMERICAN IRON AND STEEL REQI,]IREMENT.
8.1r. BUrLD AMERTCA, BUy AMERTCA eCr essrsraNcE REQUTREMENT.
8.12. RESERVED.
8,I3. PUBLIC RECORDS ACCESS.
8. 14. SCRUTINIZED COMPANIES.
8.15, SUSPENSION.
8.16. CIVIL RIGHTS.
ARTICLE IX - CONSTRUCTION CONTRACTS AND INSURANCE
9.01. AUTHORIZATTON TO AWARD COrqSrnUCrtOtr CONTRACTS.9.02. suBMrrrAL oF coNSTRUCTToN coNrnacibocuMENrs.
9.03. TNSURANCE REQUTRED.
ARTICLE X - DETAILS OF FINANCING
10.01. PRINCIPAL AMOLINT OF LOAN.
IO.O2. LOAN SERVICE FEE.
IO.O3. FINANCING RATE.
IO.O4. LOAN TERM.
IO.O5. REPAYMENT SCHEDULE.
IO.06. PROJECT COSTS.
IO.O7. SCHEDULE.
ARTICLE XI - EXECUTION OF AGREEMENT
t4
t4
14
t5
l5
IJ
t)
16
t6
t7
17
t7
t7
l8
l8
l9
19
19
20
20
20
20
2l
21
2l
21
22
22
ZJ
ii
DRINKING WATER STATE Rf,VOLVING FUND
CONSTRUCTION LOAN AGREEMENT
DW061230
THIS AGREEMENT is executed by the STATE OF FLORIDA DEPARTMENT OF
EN\,aIRONMENTAL PROTECTION (Deparrment) and the CITy OF DANIA BEACH,
FLORIDA, (Project Sponsor) existing as a local govemmental entity under the laws of the State
ofFlorida. 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 and chapter 62-552, Florida Administrative
code, the Department is authorized to make loans to finance or refinance the construction of
public water systems, the planning and design of which have been reviewed by the Departmenr;
and
The Project sponsor has applied for financing ofthe project, and the Department has determined
that such Project meets all requirements for a Loan.
AGREEMENT
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
1.0I. WORDS AND TERMS.
Words and terms used herein shall have the meanings set forth below:
( 1) "Agreement" or "Loan Agreement" shall mean this construction loan agreement.
. .
(2)
_
"Authorized Representative" shall mean the officiar ofthe project Sponsorauthorized by ordinance or resolution to sign documents associated with the Loan.
(3) "capitalized Interest" shall^mean the finance charge that accrues at the Financing
Rate. on Loan proceeds from the time of disbursement until six months before the firstSemiannual Loan Payment is due. capitalized Interest is financed as part of the Loan principal.
(4) "Depository" shall mean a-bank or trust company, having a combined capital andunimpaired surplus ofnot less than $50 mifiion, authorized to transact comrnercial banking or
ltvin^B_s
and loan business in the State ofFlorida and insured by the nederal leposit tnsural-rceLOmorauon-
(5) "Final Amendment" shall mean the final agreement executed between the parties
that establishes the final terms for the Loan such as the final Loan amount, the Financing Rate,
Loan Service Fee, amortization schedule and Semiannual Loan payment amount.
(6) "Final Unilateral Amendment" shall mean the Loan Agreement unilaterally finalized
by the Department after Loan Agreement and Project abandonment under section 8.06 that
establishes the final amortization schedule for the Loan.
_ (7) "Financing Rate" shall mean the charges, expressed as a percent per annum, imposed
on the unpaid principal ofthe Loan.
(8) "Gross Revenues" shall mean all income or eamings received by the project Sponsor
from the ownership or operation of its Utility System, including investment income, ull us
-
calculated in accordance with generally accepted accounting principles. Gross Revenues shall
not include proceeds from the sale or other disposition ofany part ofthe utility system,
condemnation awards or proceeds of insurance, except use and occupancy or business
intemrption insurance, received with respect to the Utility 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 construction loan financial assistance.
(11) "Loan Debt Service Account" shall mean an account, or a separately identified
component ofa pooled cash or liquid account, with a Depository established by the project
Sponsor for the purpose of accumulating Monthly Loan Deposiis 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 Govemmental Entity" means a county, municipality, or special district.
_ (14) "Monthly Loan Deposif'shall mean the monthly deposit to be made by the project
Sponsor to the Loan Debt Service Account.
( 15) "operation and Maintenance Expense" shalr mean tre costs ofoperating and
maintaining the Utility System determined pursuant to generally accepted accountirig principles,
exclusive of interest on any debt payable from Gross Revenues, depreciation, and anly other'
ttems not requiring the expenditure ofcash.
(16) "Pledged Revenues"_shall mean the specific revenues pledged as security for
repayment ofthe Loan and shall be the Gross Revenues derived yearlylrom the opeiation oftheUtility System after paynent ofthe operation and Maintenance b*pen." and the ;atisfaction ofall yearly payment obligations on account ofany senior or parity obligations issued pursuant toSection 7.02 of this Agleement.
(17) "Project" shall mean the works financed by this Loan and shall consist of fumishing
all labor, materials, and equipment to purchase capacity in the C-51 Reservoir.
(18) "Semiannual Loan Payment" shall mean the payment due from the project sponsor
to the Department at six-month intervals.
__ (19) "Sewer System" shall mean all facilities owned by the project Sponsor for
collection, hansmission, treatment and reuse of wastewater and its residuals.
- (20) "Utility System" shall mean all devices and facilities of the Water System and Sewer
System owned by the Project Sponsor.
. - (2-l ) "water System" shan mean all facilities owned by the project Sponsor for supplyrng
and distributing water for residential, commercial, industrial, and govemmental use.
I.02. CORRELATIVE WORDS.
Words of the masculine gender shall be understood to include correlative words ofthefeminine_ and neuter genders. Unless the context shalr otherwise indicate, the singular shalr'include the plural and the word "person" shall include corporations and associations, includingpublic entities, as well as naftral persons.
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS
2.0I. WARRANTIES, REPRESENTATIONS AND COVENANTS.
The Project Sponsor warrants, represents and covenants that:
. (t)
.
Tle Project sponsor has full power and authority to enter into this Agreement and tocomply with the provisions hereof.
(2) The Project Sponsor currently is not the subject of bankruptcy, insolvency, orreorganization proceedings and is_not in default of, or otierwise subject to, any agreement or anylaw,.administrative reguration, judgment, decree, note, resolution, .hu.ta. o, oidiiu""" *-r,i"r,would currently restrain or enjoin it from entering into, or complying *ith, thi, t;r;;;;;;. ''
(3) There is no materiar action, suit, proceeding, inquiry or investigation, at law or in
IllY:|1!:lycourtorpublictody,pendingor,toi-rretestortnerrojeitSpo^o.;5
----
Knowleoge. threatened, which seeks to restrain or enjoin the project sponsor frLm entering intoor complying with this Agreement.
(4) All permits, real pro^perty interests, and approvals required as of the date of thisAgreement have been obtained for construction and use ofthe project. The prqect s;;;;;knows ofno reason why any future required permits o, upprouuts are not obtainable.
(5) The Project sponsor sha'undertake the project on rts own responsibility, to theextent 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 LoanApplication and Agreement, were true and accurate as ofthe date such representations weremade. The financial information delivered by the Project Sponsor to the bepartment was current
and correct as of the date such information was delivered. ihe project Sponsor shall complywith chapter 62-552, Florida Administrative code, and all applicable state and Federal la;s,
rules, and regulations which are identified in the Loan Application or Agreement. Minority andwomen's Business Enterprise goals as stated in the plans and specificat[ns apply,o tr-,i, r'ro1..r.To the extent that any assurance, representation, or iovenant requires a future action, the project
Sponsor shall take such action to comply with this agreement.
. . J8) The Project sponsor shall maintain records using Generafly Accepted Accountingprinciples established by the Financial Accounring Standardi noard. As part of its bookkeeprngsystem, the Project Sponsor shalr keep accounts oi the utility System separate nom att ottrei
1""9y5 and it shan keep accurate records ofall revenu.r, .-*p.nr.r, and expenditures relating tothe Utility System, and ofthe pledged Revenues, Loan disbursement recerpts, and Loan DebtService Account.
(9) In the event the anticipated pledged Revenues are shown by the project sponsor,sannual budget to be insufficient to make the Semiannuar Loan payments ro. ,u""h rir*l y.*
when due-, the Project Sponsor shal include in such budget other iegally available non-aJvalorem funds which will be sufficient, together with *rJrteageo nevenues, to make theSemiannual T'oan Payments. Such other rJgally availabrenon-ad varorem funds sha'bebudgeted in the regular annual govemmentil budget and designated for the purpose provided bythis Subsection, and the proiecisponsor shall coll"r ruli n na, for application as providedherein.. The-Project Sponsoi shali.otny tn. b"p"r*.ri'-i""ai"ely in writing of any suchbudgeting of other legally available non-ad valorem funds. Notring in this covenant shall beconstrued ascreating a pledge, lien, o_r charge upon any such other legally available nonJvalorem funds; requiring the project sponso-r to'reuy oi upfroprrut. ad valorem tax revenues; orpreventing the Project Sponsor fr_om piedging to ttt" puy-.nt oruny bonds o, otn., outieuti;r,,all or any part ofsuch other legally availa-ble-non_uO uuio."m n oa.l ---
(10) Pursuant to Section_216.347 ofthe Florida statutes, the project sponsor shall not usethis Loan for the purpose of lobbying the Frorida Legistufil,lr," rr,oi.ial Branch, or a stareagency.
(l l) The Pro-lect Sponsor-agrees to conshuct the Project in accordance with the projectschedule set forth in Section 10.07. Delays incident to r"it'.,., ""o, acts of God, and otherevents beyond the reasonable contr.ot 9r.ti9 project sponsor are excepted. If for any reason
::TP"iol-ir not completed as scheduled, tn"i" rrtuir u" no ..sulting diminutio, "i a"r"yl'. ,rr"Semrannual Loan Payment or the Monthly Loan Deposit.
(12) The Project Sponsor covenants that this Agreement is entered into for the purpose of
constructing, refunding, or refinancing the Project which will in all events serve a pubiic
purpose. The Project sponsor covenants that it will, under all conditions, complete and operate
the Project to fulfill the public need.
(13) The Project Sponsor shall update the revenue generation system arurually 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-suffiiient.
2.02. LEGAL AUTHORIZATION.
. . Up91 signing this Agreement, the Project Sponsor's legal counsel hereby expresses the
opinion, subject to laws affecting the rights ofcrediton g"n".ully, thut,
- - (l) This Agreement has been duly authorized by the Project Sponsor and shall constitute
a valid and legal obligation ofthe Project Sponsor enforceable in accoidance with its terms uponexecution by both parties; and
(2) This Agreement identifies the revenues pledged for repayment of the Loan, and tnepledge is valid and enforceable
2.03. AUDrT AND MONTTORTNG REQUIREMENTS.
The Project Sponsor agrees to the following audit and monitoring requirements.
( I ) The financial assistance authorized pursuant to this Loan Agreement consists of thefollowing:
leder.al \1ou1ce9, Including Stat" tvt
Consist of the Followins:
4D-02D37922_0
Capitalization Grants
for Drinking Water
State Revolving
Fund
$4,600,000
(2) Audits.
(a) In the event that the Project Sponsor expends $750,000 or more in Federal awards inits fiscal.year, th-e-Project Sponsor must have a Federal single audit conducted in accordance withthe provisions of 2 cFR part 200. subpart F. In,determiniig the Federal awards expended in itsfiscal year, the Project Sponsor shan consider all sourc"r oi-p"a.rut awards, including Federalresources received from the Department. The determination of amounts of i'ederal ;"rd" -
expended should be in accordance with the guidelines established by 2 cFR part 200, d"up"" r.
An audit ofthe Project Sponsor conducted by the Auditor General in accordance with the
provisions of2 CFR Part 200, Subpart F, will meet the requirements of this part.
(b) In connection with the audit requirements addressed in the preceding paragaph (a),
the Project Sponsor shall fulfill the requirements relative to auditee responsibilities as provided
in 2 CFR Part 200, Subpart F.
(c) Ifthe Project Sponsor expends less than $750,000, in Federal awards in its fiscal
year, an audit conducted in accordance with the provisions of2 cFR part 200, Subpart F, 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 the event
that the Project Sponsor expends less than $750,000, in Federal awards in iti fiscal year and
elects to have an audit conducted in accordance with the provisions of2 cFR part zoo, suupurt
F, the cost ofthe audit must be paid from non-Federal resources (i.e., the cost ofsuch an audit
must be paid fiom Project sponsor reso'rces obtained from other than Federal entities).
_ (d) The Project Sponsor may access information regarding the Catalog of Federal
Domestic Assistance (CFDA) via the internet at httos://sam.eov/.
(3) Report Submission.
(a) copies of reporting packages for audits conducted in accordance with 2 cFR pan
200'.subpart F, and required by Subsection 2.03(2) of this Agreement shall be submitted, when
required by 2 cFR Part 200, subpart F, by or on behalfofthJ project sponsor directly toeach of
the following:
(i) The Departrnent at one ofthe followins addresses;
By Mail:
Audit Director
Florida Department of Environmental protection
Offrce of the Inspector General, MS40
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-30000
or
Electronically:
FDEPSineleAudit@deo.state.fl .us
(ii) The Federal Audit crearinghouse designated in 2 cFR section 200.501(a) at thefollowing address:
httos://harvester.census. sov/facweb/
^^^ -. -(iiD Other Federal agencies and pass-through entities in accordance with 2 CFR Section200.512.
(b) Pursuant to 2 CFR Part 200, Subpart F, the Project Sponsor shall submit a copy of
the reporting package described in 2 cFR Part 200, Subpart F, and any management letters
issued by the auditor, to the Department at the address listed under subsection 2.03(3)(a)(i) of
this A$eement.
(c) Any reports, management letters, or other information requted to be submitted to
the Department pursuant to this Agreement shall be submitted timely in accordance with 2 CFR
Part 200, Subpart F, Florida Statutes, or chapters 10.550 (local govemmental entities) or 10.650
(nonprofit and for-profit organizations), Rules ofthe Auditor General, as appticable.
(d) Project Sponsors, when submitting financial reporting packages to the Department
for audits done in accordance with 2 cFR Part 200, Subpart F, or Chapteis 10.550 (loial
govemmental entities) or 10.650 (nonprofit and for-profit organizations), Rules ofthe 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 offive years from the date ofthe Final Amindment, and
shall allow the Departrnent, or its designee, ChiefFinancial 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, chiefFinancial officer, or Auditoi beneral uoon
request for a period of five years from the date ofthe Final Amendment, unless extended in
writing by the Department.
(5) Monitoring.
In addition to reviews ofaudits conducted in accordance with 2 cFR part 200, subpart F,
as revised (see audit requirements above), monitoring procedures may include, but not be imited
to, on-site visits by Department staff, limited scope audits as defined by 2 cFR part 200, Subpart
F., and/or other procedures. By entering into thiJ Agreement, the proj;ct Sponro. ugr.". to
lomply and cooperate with any monitoring proceduies/processes deemed appropriui" by th.Department. In the event the Department determines that a limited scope auiit ortl" rro;e"t
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
understands its duty, pursuant to Section 20.055(5), F.s., to cooperate with the Inspector Generalin.any investigation, audit, inspection, review, or hearing. The iroject Sponsor wiil comply withthis duty and ensur€ that any subcontracts issued under this Agreement will impose this
requirement, in writing, on its subcontractors.
ARTICLE III - LOAN REPAYMENT ACCOUNT
3.01. LOAN DEBT SERVICE ACCOUNT.
The Project sponsor shall establish a Loan Debt Service Acco'nt with a Depository andbegin making Monthly Loan Deposits no later than the date set fo(h for such action inSection 10.07 of this Agreement.
. Beginning six months prior to each Semiannual Loan payment, the project sponsor shall
m3!e 1x 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 earninss 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 notift the Department of such iailure. 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 becomins due before the
same become delinquent. This requirement shall not be construed to give superiJrity to the
Department's claim on any revenues over prior claims ofgeneral creditors of the project
Sponsor, nor shall it be construed to give the Departrnent ihe power to require the project
Sponsor to lely and collect any revenues other than pledged Revenues.
3.02. I}N/ESTMENT OF LOAN DEBT SERVICE ACCOTJNT 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 inveshnent purpoi"s. The matunry
or redemption date of investments shall be not later than the date upon whichsuch moneys may
be needed to make Semiannual Loan Payments. The investment earnings shall be creditid to the
Loan Debt Service Account and applied toward the Monthly Loan Deposit requirements.
3.03. LOAN DEBT SERVICE ACCOI.JNT WITIIDRAWALS.
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 thepurposes provided herein and used only for the purposes and in the manner prescribed in thisAgreemenl and, pending such use, said assets shali be subject to a lien and iharge in favor ofthe
Department.
ARTICLE IV. PROJECT INFORMATION
4.01, PROJECT CHANGES.
. _ Project changes prior to bid opening shall be made by addendum to plans andspecifications. changes after bid.opening iha be made by change order. ihe project Sponsorshall submit all addenda and all change orders to the Department-for an eligibility determination.After execution of all construction, equipment and mate;ials contracts, the-project contingencymay be reduced.
4.02. TITLE TO PROJECT SITE.
The Project Sponsor shall have an interest in real property sufficient for the construction
and location of the Project free and clear ofliens and encumbrances which would imnair the
usefulness of such sites for the intended use.
4.03. PERMITS AND APPROVALS.
The Project Sponsor shall have obtained, prior to the Department's authorization to award
construction contracts, all permits and approvals required for construction ofthe project or
portion ofthe Project funded under this Agreement.
4.04. ENGINEERING SERVICES.
A professional engineer, registered in the state ofFlorida, shall be employed by, or under
contract with, the Project Sponsor to oversee construction.
4.05. PROHIBITION AGAINST ENCUMBRANCES.
._. The Project Sponsor is prohibited from selling, leasing, or disposing ofany part ofthe
Utility System which would materially reduce operational intigrity or GroJs Revinues so long as
this Agreement, including any amendments thereto, is in effect unless the written consent ofthe
Department is first secured.
4.06. COMPLETION MONEYS.
In addition to the proceeds of this Loan, the project sponsor covenants that it has
obtained, or will obtain, sufficient moneys from other sourcei to complete construction and place
the Project in_ operation on, or prior to, the date specified in Article X. Failure of the Deparunent
to apprwe additional financing shall not constitute a waiver ofthe Project Sponsor's covenants
to complete and place the Project in operation.
4.0?. cl-osE-ouT.
The Department shall conduct a final inspection ofthe project and project records.
Following the inspection, deadlines for submitting additional disbursement requests, ifany, shall
be established, along with deadlines for uncompleled Loan requirements, if any. Deadlines shall
be incorporated into the Loan Agreement by amendment. Thi Loan principaishall be reduced
by any excess over the amount required to pay all approved costs. As a result of suchadjustment, the Semiannual Loan payment sha beiiduced accordingly, as addressed in
Section 10.05.
4.08. DISBURSEMENTS.
Disbursements shan be made only by the state chief Financial officer and only when therequests for such disbursements are accompanied by a Department certification that suchwithdraw^als are proper expenditures. Disbursemenis shali be made directly to the project
sponsor for reimbursement of the incurred construction costs and related services.
Disbursements for materials, labor, or services shall be made upon receipt ofthe
following:
(1) A completed disbursement request form signed by the Authorized Representative.
Such requests must be accompanied by sufficiently itemized summaries of the materials, labor,
or services to identifu the nature of the work performed; tle cost or charges for such work; and
the person providing the sewice or perlorming the work, and. proofofpayment.
(2) A certification signed by the Authorized Representative as to the curent estimated
costs ofthe Project; that the materials, labor, or services represented by the invoice have been
satisfactorily purchased, performed, or received and applied to the project; that all funds received
to-date have been applied toward completing the Project; and that undir the terms and provisions
ofthe contracts, the Project Sponsor is required to make such payments.
(3) A certification by the engineer responsible for overseeing construction stating that
equipment, materials, labor and services represented by the construction invoices have been
satisfactorily purchased, or received, and applied to the Project in accordance with construction
contract-documents; stating that payment is in accordance with construction conkact provisions;
siating that construction, up to the point ofthe requisition, is in compliance with the contract
documents; and identifoing all additions or deletions to the project which have altered the
Project's performance standards, scope, or purpose since the issue ofthe Departrnent
construction permit.
(4) Such other certificates or documents by engineers, attomeys, accountants,
contractors, or suppliers as rnay reasonably be required by the Department.
ARTICLE V - RATES AND USE OF THE UTILITY SYSTEM
5.0I. RATE COVERAGE,
The Project sponsor shall maintain rates and charges for the services fumished by theUtility 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 pa)ments due in such Fiscal year.
5.02. NO FREE SERVICE.
. _, _The Project Sponsor shall not permit connections to, or furnish any services afforded by,
the utility System without making a charge therefore based on the projeci Sponsor's uniform
schedule ofrates, fees, and charges.
5.03. MANDATORY CONNECTIONS.
_ The Project Sponsor shall adopt, as necessary, and enforce requirements, consistent withapplicable laws, for the owner, tenant or occupant oieach building located on aiot or parcel ofland.whrch rs served, or may reasonably be served, by the Sewer system to connect suchbuilding to the Sewer System.
10
5.04. NO COMPETING SERVICE.
The Project Sponsor shall not allow any person to provide any services which would
compete with the Utility System so as to adversely affect Gross Revenues.
5.05. MAINTENANCE OF THE UTILITY SYSTEM.
The Project sponsor shall operate and maintain the utility System in a proper, sound and
economical manner and shall make all necessary repairs, renewals and replace-ents.
5.06. ADDITIONS AND MODIFICATIONS.
The Project Sponsor may make any additions, modifications or improvements to the
utility system which it deems desirable and which do not materially reduce the operational
integrity of any part ofthe utility System. All such renewals, replacements, additions,
modifications and improvements shall become part of the Utility System.
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 Utility 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 Utility System and use its best efforts to shut off water service fumished to persons who
are delinquent beyond customary grace periods in the payment ofutility System rates, fees and
other charges.
ARTICLE VI . DEFAULTS AND REMEDIES
6.0I. EVENTS OF DEFAULT.
Upon the occurrence ofany of tle following events (the Events of Default) all obligations
on the part of Department to make any further disbursements hereunder shall, if Departmeit
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 ofany Event of Default without thereby waiving the right to exercise such remedies
and without becoming liable to make any further disbursement:
^ (l) _Failure to make any Monthly Loan Deposit or to make any installment of the
Semiannual Loan Payment when it is due and sucli failure shall continue for a period of 15 days.
. (2) Except as provided in-subsection 6,01(r ), fa ure to comply with the provisions ofthis Agreement, failure in the performance or observance of any of the covenants or actionsrequired by this Agreement or th.e Suspension of this Agreement by the Department pursuant tosection 8.14, below, and such failure sha continue for-a period of30 oay, arte, wrltten noiicethereof to the Project Sponsor by the Department.
T1
(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 ifproject sponsor shall fail to
keep, observe or perform any ofthe terms, covenants, representations or warranties contained in
this Agreement, the Note, or any otier 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 ofthe project Sponsor, appointing
a receiver ofany part ofthe Utility System or Gross Revenues thereof; or ifsuch order oi de"t"",
having been entered without the consent or acquiescence ofthe project Sponsor, shall not be
vacated or discharged or stayed on appeal within 60 days after the ent4r thereof.
(5) Any proceeding instituted, with the acquiescence of the proj ect Sponsor, for the
purpose of effecting a composition between the Project Sponsor and its creditors or for the
purpose of adjusting the claims ofsuch creditors, pursuant to any federal or state statute now or
hereafter enacted, ifthe claims ofsuch creditors are payable from Gross Revenues ofthe Utility
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 ii effect
and, ifinstituted against the Project sponsor, is not dismissed within 60 days after filing.
(7) Any charge is brought alleging violations of any criminal law in the implementation
ofthe Project or the administration ofthe proceeds from this Loan against one or more officials
ofthe Project Sponsor by a state or Federal law enforcement authority, which charges are not
withdrawn or dismissed within 60 days following the filing thereof.
(8) Failure of the Project Sponsor to give immediate written notice of its knowledse of apotential default or an event of default, hereunder, to the Department and such failure shalf
continue for a period of 30 days.
6.02. REMEDIES.
_ All rights, remedies, and powers confened in this Agreement and the transaction
documents are cumulative and are not exclusive of any othei rights or remedies, and they shall
be in add_ition to every other right, power, and remedy that Department may have, whether
specifically granted in this Agreement or any other transactio; document, or exisiing at law, in
equity, or by statute. Any and all such rights and remedies may be exercised fiom tiire to time
and as often and in such order as Department may deem expeiient. Upon any ofthe Events ofDefault and subject to the rights ofothers having prior lieni on the plidged Revenues, the
Department may enforce its rights by, inter alia, iny ofthe following reledies:
(1) By mandamus or other proceeding at law or in equity, cause to establish rates andcollect fees and charges foruse ofthe Utility system, and to;equire the project Sponsor to fulfill
this Agreement.
(2) By action or suit in equity, require the Project Sponsor to account for all moneys
received from the Department or from the ownership ofthe Utility System and to account ior 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 utility System, establish and collect fees and charges, and apply the revenues to the
reduction ofthe obligations under this Agreement.
(5) By certiffing to the Auditor General and the chiefFinancial offrcer delinquency on
loan repayments, the Department may intercept the delinquent amount plus six percent,
expressed as an annual interest rate, penalty ofthe amount due to the Department from any
unobligated funds due to the Project Sponsor under any revenue or tax sharing fund estabiished
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 daie upon
which payment is due.
(6) By notifuing financial market credit rating agencies and potential creditors.
(7) By suing for payment of amounts due, or becoming due, witl interest on overdue
payments together with all costs ofcollection, including attomeys, 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 Financins Rate.
6.03. DELAY AND WAIVER.
. No course ofdealing between Department and project sponsoq or any failure or delay on
the part of Department in exercising any rights or remedies herzunder, shall operate as a waiver
ofany 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 ofany otirer -rights or
remedies hereunder. No delay or omission by the Department to exercise any right Jr power
accruing upon Events 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 oiany defautt unoer this Agreement
shall extend to or affect any subsequent Events of Default, whether ofthe same or diffeientprovision 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 onthe Pledged Revenues, which along with any other Department state Revolving Fund liens on
the.Pledged Revenue-s,.of equal priority, will be prior ind superior to anv otrt"irien, pr"ag. o.
assrgnment with the following exception. All obligations of the project Sponro. *d". th],
13
Agreement shall bejunior, inferior, and subordinate in all respects in right of payment and
security to any additional senior obligations issued with the Departmeni's conient pursuant to
Section 7.02. The Department may release its lien on such pledged Revenues in favor oftie
Department if the Departrnent 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 Ll5 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 ofthe Department on the Pledged Revenues provided the Department's written consent
is obtained. Such consent may be granted if the Project Sponsor demonstates at the time of such
issuance that the Pledged Revenues, which may take into account reasonable projections of
growth of the Utility System and revenue increases, plus revenues to be pledged to the additional
proposed debt obligations will, during the period oftime Semiannual Loan pil,rnents are to be
made under this Agreement, equal or exceed 1.15 times the annual combined debt service
requirements ofthis Agreement and the obligations proposed to be issued by the project Sponsor
and will satis$ the coverage requirements ofall other debt obligations secured by the pledged
Revenues.
ARTICLEVIII - GENERAL PROVISIONS
8.0I. DISCHARGE OF OBLIGATIONS.
_ All Semiannual Loan payrnents required to be made under this Agreernent shall be
cumulative and any deficiencies in any Fiscal year shall be added to the f,ayments due in the
succeeding year and all years thereafter until fully paid. payments shall iontinue to be secured
by this Agreement until all of the payments required shall be fully paid to the Departrnent. If at
any time the Project sponsor shall have paid, or shall have made piovision for the timely
!?yTelt of' the entire principal amount ofthe Loan and interest, ihe pledge of, and lien on, the
Pledged Revenues to the Departrnent shall be no longer in effect. Deposii of sufficient casi,
securities, or investments, authorized by law, from time to time, may
-be
made to effect
defeasance ofthis Loan. However, the deposit shall bs made in irrevocable trust with a bankinsinstitution 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.
.. . Pookl, records, reports, engineering documents, contract documents, and papers shall beavailable to the authorized representatives ofthe Department for inspection at any."uronabletime after the Project sponsor has received a disbursement and untiffive years aiter the FinalAmendment date.
8.03. ACCESS TO PROJECT SITE.
- The Project Sponsor shall provide access to Project sites and administrative offices toauthorized representatives of the Department at any reaionable time. The project Sponsor shall
1.4
cause its engineers and contractors to cooperate during project inspections, including making
available working copies ofplans and specifications and supplementary materials.
8.04. ASSIGNMENT OF RIGHTS IJNDER AGREEMENT.
_ The Deparhnent may assign any part ofits rights under this Agrcement after notification
to the Project sponsor. The Project Sponsor shall not assign rights created by this Agreement
without the written consent ofthe Departrnent.
8.05. AMENDMENT OF AGREEMENT.
This Agreement may be amended in wdting, except that no amendment shall be
permitted which is inconsistent with statutes, rules, regulations, executive orders, or written
agr€ements between the Department and the u.s. Environmental protection Agency (EpA).
This Agreement may be amended after all construction contracts are executed to re-establish the
Project cost, Loan amount, Project schedule, and semiannual Loan payment amount. A Final
Am€ndment establishing the final Project and the Loan Service Fee based on actual project costs
shall be completed after the Department's final inspection ofthe project records.
8.06. ABANDONMENT, TERMINATION OR VOLIINTARY CANCELLATION.
_ Failure of the Project Sponsor to actively prosecute or avail itself of this Loan (including
e,g- described in para I and 2 below) shall constitute its abrogation and abandonment ofthe
rights hereunder, and the Department may then, upon writtennotification to the project sponsor,
suspend or terminate this Agreement.
. ^^
(1) Failureofthe Project Sponsor to draw Loan proceeds within eighteen months after
the effective date of this Agreement, or by the date set ilsection 10.0? to e;tablish the Loan
Debt Service Account, whichever date occurs first.
(2) Failure of the Project Sponsor, after the initial Loan draw, to draw any funds unoer
the Loan Agreement for twenty-four months, without approved justification or d#onstrable
progress on the Project.
Upon a determination of abandonment by the Deparfinent, the Loan will be suspended,
and the Department will implement administrative close out procedures (in lieu of those in
Section 4 07) and provide written notification ofFinal Unilateral Amendment to the project
Sponsor.
In the event that following the execution of this Agreement, the project sponsor decidesnot to proceed with this Loan, this Agreement can be cancelled by the projict sponsor, withoutpenalty, ifno funds have been disbursed.
8.07. SEVERABILITY CLAUSE.
Ifany provision of this Agreement shall be held invalid or unenforceable, the remainingprovisions shall be construed and enforced as ifsuch invalid or unenforceable provision had notbeen contained herein.
15
8.08. SIGNAGE.
The Project sponsor agrees to comply with signage requirements ofthe Infrastructure
Investment and Jobs Act (IIJIA) in order to enhance public awareness ofEpA assistance
agreements nationwide. A copy of signage requirements as well as EpA logo requirements can
be found at httos://floridaden.sov lwralsrf/aontentlsfate-rewnlwins-firnd-racnrrr.a.-e.i-/nnrrma-r
as "IIJA/BIL Projects only - A copy of signage requirements as well as EpA logo requirements,'.
guidance is located on the EPA website at: https://www.epa.sov/erants/interim-davis-bacon-act-
8.09. DAVIS-BACON ACT REQUIREMENTS.
(l) The Project Sponsor shall periodically interview 10% ofthe work force entitled to
Davis-Bacon prevailing wages (covered employees) to verify that contractors or subcontractors
are paying the appropriate wage rates. Project Sponsors shall immediately conduct interviews in
response to an alleged violation of the prevailing wage requirements. As provided in 29 cFR
5.6(a)(5) all interviews must be conducted in confidence. The project sponsor must use
Standard Form 1445 or equivalent documentation to memorialize the inGrviews. Cooies of the
SF 1445 are available from the EPA on request.
_ (2) The Project sponsor shalt periodically conduct spot checks of a representative
sample ofweekly payroll data to verifu that contractors or subcontractors are paying the
appropriate wage rates. The Project sponsor shall estabtish and follow a spot chick schedule
based on its assessment ofthe risks of noncompliance with Davis-Bacon posed by contractors or
subcontractors and the duration ofthe contract or subcontract, At a minimum, ifpracticable, the
subrecipient should spot check payroll data within two weeks ofeach contractor 6r
subcontractor's submission of its initial payroll data and two weeks prior to the completion date
the contract or subcontract. Project Sponsors must conduct more frequent spot checis if the
initial spot check or other information indicates that there is a risk that the contractor or
subcontractor is not complying with Davis-Bacon. In addition, during the examinations the
Project sponsor shall veri! evidence offringe benefit plans and payments thereunder by
contractors and subcontractors who claim credit for fringe benefit contributions.
(3) The Project Sponsor shall periodically review contractors and subcontractors use of
apprentices and trainees to veriS registration and certification with respect to apprenticeship andtraining_programs approved by either the U.S Department of Labor (lOl) o, u ,Lt., ",appfopriate, and that contfactors and subcontractors are not using disproportionate numbers of
laborers, trainees, and apprentices. These reviews shall be conducted in accordance v/ith the
schedules for spot checks and interviews described in items (l) and (2) above.
._.(4) Project Sponsors must immediately report potential violations ofthe Davis-Baconprevailing wage requirements to the appropriate DoL wage and Hour District office listed atbqr//www.dol. eov/whd/america2.htm
"nd
to th" EpA Relion 4 water Divisior/Grants andInfiastructure section by callin g404-562-9345. Additional information on Davis-Bacon
guidance.
1,6
8.10. AMERICAN IRON AND STEEL REQUIREMENT.
The Project Sponsor's subcontracts must contain requirements that all ofthe iron and
steel products used in the Project are in compliance with the American Iron and Steel
requirement as described in Section 608 ofthe Federal Water Pollution Control Act unless the
Project sponsor has obtained a waiver pertaining to the project or the Department has advised
the Project Sponsor that the requirement is not applicable to the project.
8.I I . BUILD AMERICA, BUY AMERICA ACT ASSISTANCE REQUIREMENT.
The Project Sponsor's subcontracts must contain the following requirements: that all of
the iron and steel, manufactured products, and construction materials used in the Project are to be
produced in the United States ("Build America, Buy America Requirements,') unless (i) the
Project Sponsor has requested and obtained a waiver from the Departrnent pertaining to the
Project or the Project is otherwise covered by a general applicability waiver; or (ii) a[ ofthe
contributing Agencies have otherwise advised the Project Sponsor in writing that the Build
America, Buy America Requirements are not applicable to the project.
8.12. RESERVED.
8.I3. PUBLIC RECORDS ACCESS.
( I ) 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 recordi under
Florida law, as defined in Section l l9.0l l(12), F.s. The project sponsor shail keep and maintain
public records required by the Department to perform the services under this Agreiment.
(2) This Agreement may be unilaterally canceled by the Department for refusal by the
Project Sponsor to either provide to the Departrnent upon request, oi to allow inspection and
copying ofall public records made or received by the projeci sponsor in conjunciion with this
Agreement and subject to disclosure under chapter 119, F.s., and section 24(a), Article I,
Florida Constitution.
(3) rF THE PROJECT SPONSOR HAS QUESTTONS REGARDTNG
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 (S50)245-2118, by emait at
oublic.services@deo.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. BL 32399
17
8. 14. SCRUTINIZED COMPANIES.
(l) The Project Sponsor certifies that it and its subcontractors are not on the Scrutinized
Companies that Boycott Israel List. Pursuant to Section 287.135, F.S., the Department may
immediately terminate this Agreement at its sole option if the project Sponsor or its
subcontractors are found to have submitted a false certification; or if the Project Sponsor, or its
slbcontractors are placed on the Scrutinized Companies that Boycott Israel List or is engaged in
the boycott oflsrael during the term of the Agreement.
(2) If this Agreement is for more than one million dollars, the Project Sponsor certifies
that it and its subcontractors are also not on the Scrutinized Companies with Activities in Sudan,
scrutinized companies with Activities in the Iran petroleum Energy sector List, or engaged with
business operations in cuba or Syria as identified in Section 287.135, F.S. pursuant to section
287.135, F.S., the Department may immediately terminate this Agreement at its sole option 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 the
Scrutinized Companies that Boycott the Scrutinized Companies w"ith Activities in Sudan List. or
scrutinized companies with Activities in the Iran petroleum Energy Sector List, or engaged with
business operations in Cuba or Syia during the term ofthe Agreement.
_ (3) The Project Sponsor agrees to observe the above requirements for applicable
subcontracts entered into for the performance of work under this Agreement.
(4) As provided in Subsection 287.135(s), F.s., if federal law ceases to authorize these
contracting prohibitions then they shall become inoperative.
8.15. SUSPENSION.
The Department may suspend any or all of its obligations to Loan or provide financial
accommodation to the Project sponsor under this Agreement in the following events, as
determined by the Department.
(1) The Project sponsor abandons or discontinues the project before its completion,
(2) The comrnencement, prosecution, or timely completion ofthe project by the proiect
spolsor is rendered improbable or the Department has reasonable grounds to 6e insecure in '
Project Sponsor's ability to perform, or
-_ (3) The implementation of the project is determined to be illegal, or one or more
officials_ofthe Project Sponsor in responsible charge of, or influence &ei, the proiect is chargedwith violating any criminal law in the implementation of the Project or the adminiitration of theproceeds from this Loan.
The Department shall notify the project Sponsor ofany suspension by the Department of
its obligations under this Agreement, which suspinsion shall continue until such time as the
event or condition causing such suspension has ceased or been corrected, or the Department hasre-instated the Agreement.
18
Project Sponsor shall have no more than 30 days following notice ofsuspension
hereunder to remove or correct the condition causing suspension. Failure to do so shall constrtute
a default under this Agreement.
Following suspension of disbursements under this Agreement, the Department may
require reasonable assurance of future performance from Project Sponsor prior to re-instating the
Loan. Such reasonable assurance may include, but not be limited to, a payment mechanism
using two party checks, escrow or obtaining a Performance Bond for the work remaining.
Following suspension, upon failure to cure, correct or provide reasonable assurance of
future performance by Project Sponsor, the Departrnent may exercise any remedy available to it
by this Agreement or otierwise and shall have no obligation to fund any remaining Loan balance
under this Agreement.
8.I6. CIVIL RIGHTS.
The Project Sponsor shall comply with all Title VI requirements of the Civils Rights Act
of 1964, Section 504 of the Rehabilitation Act of 1973, and the Equal Employment oppott*ity
requirements (Executive ofier 11246, as amended) which prohibit activities that are
intentionally discriminatory and./or have a discriminatory effect based on race, color, national
origin (including limited English proficiency), age, disability, or sex.
ARTICLE IX - CONSTRUCTION CONTRACTS AND INSURANCE
9.0I. AUTHORZATION TO AWARD CONSTRUCTION CONTRACTS.
_ The following documentation is required to receive the Department's authorization to
award construction contracts:
(1) Proof of advertising.
(2) Award recommendation, bid proposal, and bid tabulation (certifred by the
responsible engineer).
(3) certification of compliance with the conditions of the Department,s approval of
competitively or non-competitively negotiated procurement, if applicable
_ (4) certification Regarding Disbarment, suspension, Ineligibility and voluntary
Exclusion.
(5) certification by the Authorized Representative that affirmative steps were taken ro
encourage Minority and women's Business Enterprises participation in projeci construction.
(6) cunent certifications for Minority and women's Business Enterprises participatingin-the.contract. If the goals as stated in the plans and specificatlons are not met, documentationof actions taken shall be submitted.
1q
(7) Certification that the Project Sponsor and contractors are in compliance with labor
standards, including prevailing wage rates established for its locality by the DoL under the
Davis-Bacon Act for Project construction.
(8) certification that all procurement is in compliance with Section g. l0 which states
that all iron and steel products used in the Project must be produced in the United States unless
(a) a waiver is provided to the Project Sponsor by the EpA or (b) compliance would be
inconsistent with United States obligations under intemational agreemints.
9.02. SUBMITTAL OF CONSTRUCTION CONTRACT DOCUMENTS.
After the Department's authorization to award construction contfacts has been received.
the Project Sponsor shall submit:
(l) Contractor insurance certifications.
(2) ExecutedContract(s).
(3) Notices to proceed with construction.
9.03. INSLTRANCE REQUIRED.
. The Project sponsor shall cause the project, as each pa't thereof is certified by the
engineer responsible for overseeing construction as completed, and the utility system (hereafter
referred to as "Revenue Producing Facilities") to be insured by an insurance .o^puoy o,
companies licensed to do business in the state ofFlorida against such damage ani destruction
risks as are customary for the operation ofutility systems ollike size, typ. uira location to the
extent such insurance is obtainable from time to time against any one or more ofsuch risks.
The proceeds of insurance policies received as a result of damage to, or destruction of,
the Project or the other Revenue Producing Facilities, shall be used to restore or replace damaged
portions ofthe facilities. Ifsuch proceeds are insufficient, the project Sponsor shail provide
additional funds to restore or replace the damaged portions ofthe iacilities. Repair, construction
or replacement shall be promptly completed.
ARTICLE X. DETAILS OF FINANCING
10.01. PRINCIPAL AMOT]NT OF LOAN.
..The estimated principal amount of the Loan is s4,624,r00, which consists of $4,600,000to be disbursed to the Project Sponsor and $24,100 of Capitalized Interest.
capitalized Interest is not disbursed to the project sponsor, but is amortized via periodic
Loan repa)'ments to the Department as if it were actuatty oiuursea. capitalized lnterest iscomputed-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 establishing the
schedule of actual disbursements.
20
10.02. LOAN SERVICE FEE.
The Loan Service Fee is $92,000 for the Loan amount authorized to date. The fee
represents two percent ofthe Loan amount excluding capitalized Interest; that is, two percent of
$4,600,000. The Loan Service Fee is estimated at the time of execution of the loan agieement
and shall be revised with any increase or decrease amendment. The Loan Service Fee is based
on actual Project costs and assessed in the final loan amendment. The project Sponsor shall pay
the Loan Service Fee from the first available repayment(s) following the Final Amendment.
IO.O3. FINANCING RATE.
The Financing Rate on the unpaid principal ofthe Loan amount specified in
section 10.01 is 1.56 percent per annum. However, if this Agreement is not executed by the
Project Sponsor and returned to the Department before July l, 2023, the Financing Rate may be
adjusted.
IO.O4. LOAN TERM.
The Loan term shall be 20 years.
I 0.05. REPAYMENT SCHEDULE.
Repayments shall be made semiannually (twice per year). The Semiannual Loan
Payment shall be computed based upon the principal amount ofthe Loan plus the estimated Loan
service Fee and the principle of level debt service. The Semiannual Loan payment amount may
be adjusted, by amendment ofthis Agreement, based upon revised information. After the final
disbursement ofLoan proceeds, the Semiannual Loan payment shall be based upon the actua-
Project costs, the actual Loan Service Fee and the Loan Service Fee capitalized interest. ifanv.
and actual dates and amounts of disbursements, taking into consideration any previous payments.
Actual Project costs shall be established after the Department,s inspection oitie co-ptetea
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.
Each semiannual Loan Payment shall be in the amount of$137,706 until the payment
amount is adjusted by amendment. The interest portion of each Semiannual Loan payment shall
be computed on the unpaid balance ofthe principal amount ofthe Loan, including capitalized
Interest. Interest also shall be computed on the unpaid balance of the Loan ServiJe Fee. Interest
shall be computed as of the due date ofeach Semiannual Loan payment.
. S,gngarnual Loan Payments shall be received by the Departrnent beginning on
August 15, 2024 and semiannually thereafter on February 15 and August l i of eaih year until all
amounts due hereunder have been fully paid. Funds transfer shall behade by electronic means.
The Semiannual Loan Pa)rment amount is based on the total amount to be repaid of
$4,716,100, which consists ofthe Loan principal plus the Loan Service Fee with its capitalized
lnterest.
2L
10.06. PROJECT COSTS.
The Project Sponsor and the Department acknowledge that the actual Project costs have
not been determined as ofthe effective date ofthis Agreement. project cost adjustments may be
made as a result of construction bidding or mutually agreed upon project changes. capitalized
Interest will be recalculated based on actual dates and amounts of Loan disbursements. If the
Project sponsor receives other govemmental financial assistance for this project, the costs
fimded by such other governmental assistance will not be financed by this Loan. The
Department shall establish the final Project costs after its final inspection ofthe Project records.
Changes in Project costs may also occur as a result ofan audit.
The Project Sponsor agrees to the following estimates ofproject costs:
CATEGORY PROJECTCOSTS($)
4,600,000
24.100
4,624,100
10.07. SCHEDULE.
The Project Sponsor agrees by execution hereof
(l) This Agreement shall be effective on May 25,2022. Invoices submitted for work
conducted on or after this date shall be eligible for reimbursement.
(2) Completion ofProject construction is scheduled for February 15,2024.
(3) The Loan Debt service Account shall be established and Monthlv Loan Deoosits
shall begin no later than February 15,2024.
(a) The first Semiannual Loan payment in the amorurt of9137,706 shall be due
August 15,2024.
IO.O8. SPECIAL CONDITIONS.
Prior to execution of this Agreement, the following items must be submitted:
(l) A completed EPA Preaward Compliance Repo(; and
(2) A completed a Federal Funding Accountability and Transparency Act Form.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Construction and Demolition
Capitalized Interest
TOTAL (Loan Principal Amount)
22
ARTICLE XI - EXECUTION OF AGREEMENT
This Loan Agreement DW061230 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
lnstrument.
IN WITNESS WHEREOF, the Department has caused this Agreement to be executed on
its behalfby the Secretary or Designee and the project Sponsor 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 bv the Deoartment.
ror
CITY OF DANIA BEACH
City Manager
Attest:
I attest to the opinion expressed in Section 2.02,
entitled Legal Authorization.
City Clerk City Attomey
ror
STATE OF FLORIDA
DEPARTMENT OF EIWIRONMENTAL PROTECTION
SEAL
Secretary or Designee
z3
Date