HomeMy Public PortalAboutGEFA- Loan Agreement ($720,000)- Clean Water State Revolving Fund- 3-29-17Nathan Deal
Governor
Kevin Clark
GEORGIA ENVIRONMENTAL FINANCE AUTHORITY Executive Director
March 28, 2017
Ms. Diane Schleicher
City Manager
City of Tybee Island
403 Butler Avenue
Tybee Island, GA 31328
Re: Loan Agreement for Loan No. DW2016045
Dear Ms. Schleicher:
Enclosed is the executed loan agreement between the city of Tybee Island and the Georgia
Environmental Finance Authority (GEFA).
Included are 10 loan draw forms. Loan draw requests will only be accepted on these forms. Additional
forms are available at www.gefa.georgia.gov/loan-documents. If you have contracted with an engineering
firm, regional commission, or other consultant to complete your loan draws, please ensure that the
consultant receives the forms.
The 1 percent origination fee will be withdrawn from your account by May 15, 2017. You will receive a
billing statement prior to the withdrawal.
We are pleased to assist you with financing for this project. Should you or your staff have questions, please
contact us at 404-584-1000.
Sincerely,
Kevin Clark
KC:jb
Enclosures
233 PEACHTREE STREET NE • HARRIS TOWER, SUITE 900 • ATLANTA, GEORGIA 30303-1506 •404-584-1000 • FAx 404-584-1069
www.gefa.georgia.gov
Loan/Project No. CW2016043
Catalog of Federal Domestic Assistance (CFDA): # 66.458
CLEAN WATER STATE REVOLVING FUND, ADMINISTERED BY GEORGIA
ENVIRONMENTAL FINANCE AUTHORITY
(a public corporation duly created and
existing under the laws of
the State of Georgia)
as Lender
and
CITY OF TYBEE ISLAND
(a public body corporate and politic duly created and existing
under the laws of the State of Georgia)
as Borrower
LOAN AGREEMENT
(WV
LOAN AGREEMENT
This LOAN AGREEMENT (this "Agreement") dated 6%/L ail ,
20 /7 , by and between CITY OF TYBEE ISLAND, a Georgia public body corporate and
politic (the "Borrower"), whose address for purposes of this Agreement shall be 403
BUTLER AVENUE, TYBEE ISLAND, GA 31328, and the CLEAN WATER STATE
REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE
AUTHORITY, a Georgia public corporation (the "Lender"), whose address for purposes
of this Agreement shall be 233 Peachtree Street, N.E., Peachtree Center -Harris Tower,
Suite 900, Atlanta, GA 30303-1506.
1. Background - The Lender desires to loan to the Borrower SEVEN
HUNDRED TWENTY THOUSAND DOLLARS AND ZERO CENTS ($720,000) from the
Clean Water State Revolving Fund, Administered by Georgia Environmental Finance
Authority (the "Fund") to finance the costs of acquiring, constructing, and installing the
environmental facilities described in Exhibit A attached hereto (the "Project"). The
Environmental Protection Division ("EPD") of the Department of Natural Resources of
the State of Georgia has completed all existing statutory reviews and approvals with
respect to the Project, as required by Section 50-23-9 of the Official Code of Georgia
Annotated, and has approved or will approve the detailed plans and specifications (the
"Plans and Specifications") for the Project prepared or to be prepared by the
Borrower's engineer (the "Engineer"), which may be amended from time to time by the
Borrower but subject to the approval of the EPD.
2. Loan - Subject to the terms and conditions of this Agreement, the Lender
agrees to make the following loan or loans (collectively, the "Loan") available to the
Borrower:
(a) The Lender agrees to advance to the Borrower, on or prior to the earlier of (1)
the Completion Date (as hereinafter defined), (2) APRIL 1, 2018, or (3) the date that the
loan evidenced by this Note is fully disbursed, the Loan in a principal amount of up to
$720,000 which Loan may be disbursed in one or ° more advances but each such
disbursement shall reduce the Lender's loan commitment hereunder and any sums
advanced hereunder may not be repaid and then re -borrowed.
(b) The Lender's commitment in paragraph (a) above to make advances to the
Borrower shall be a limited obligation of the Lender, to be funded solely from available
moneys in the Fund and from no other source of funds, including other funds of the
Lender.
(c) The Borrower's obligation to pay the Lender the principal of and interest on
the Loan shall be evidenced by the records of the Lender and by the Note described
below.
3. Note - The Loan shall be evidenced by the Promissory Note, dated this date,
executed by the Borrower in favor of the Lender in an original stated principal amount
equal to the maximum amount of the Loan as described above (the "Note," which term
shall include any extensions, renewals, modifications, or replacements thereof). The Note
shall be in substantially the form attached to this Agreement as Exhibit B.
4. Interest, Fees, and Other Charges - In consideration of the Loan, the
Borrower shall pay the Lender the following interest, fees, and other charges:
(a) The Loan shall bear interest at the rate or rates per annum specified in the
Note and such interest shall be calculated in the manner specified in the Note.
(b) The Borrower agrees to pay all reasonable out-of-pocket costs and expenses
of the Lender incurred in connection with its negotiation, structuring, documenting, and
closing the Loan, including, without limitation, the reasonable fees and disbursements of
counsel for the Lender. The Borrower agrees to pay all reasonable out-of-pocket costs
and expenses of the Lender incurredin connection with its administration or modification
of, or in connection with the preservation of its rights under, enforcement of, or any
refinancing, renegotiation, restructuring, or termination of, any Credit Document (as
hereinafter defined) or any instruments referred to therein or any amendment, waiver, or
consent relating thereto, including, without limitation, thereasonable fees and
disbursements of counsel for the Lender. Such additional loan payments shall be billed
to the Borrower by the Lender from time to time, together with a statement certifying that
the amount billed has been incurred or paid by the Lender for one or more of the above
items. Amounts so billed shall be paid by the Borrower within thirty (30) days after receipt
of the bill by the Borrower.
(c) In the event the Borrower fails to request any advances under the Loan within
six (6) months after the dated date of this Agreement, the Borrower shall pay the Lender
a fee equal to the Lender's Loan Continuation Fee, as published from time to time in the
Lender's fee schedules, if the Lender requests the Borrower to pay such fee in writing
within twelve (12) months after the dated date of this Agreement, such fee to be payable
within fifteen (15) days of such written request.
(d) The Borrower shall pay the Lender an origination fee for the loan in the amount
of one percent (1%) of the maximum amount of the Loan, payable on the dates specified
by the Lender on not less than thirty (30) days written advance notice.
5. Prepayment - The Loan shall be prepayable in accordance with the terms
and conditions of the Note.
6. Authorized Borrower.. Representative _and Successors - The Borrower
shall designate a person to act on behalf of the Borrower under this Agreement (the
"Authorized Borrower Representative") by written certificate furnished to the Lender,
containing the specimen signature of such person and signed on behalf of the Borrower
by its chief executive officer. Such certificate or any subsequent or supplemental
certificate so executed may designate an alternate or alternates. In the event that any
person so designated and his alternate or alternates, if any, should become unavailable
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or unable to take any action or make any certificate provided for or required in this
Agreement, a successor shall be appointed in the same manner.
7. Conditions to the Loan - At the time of the making of each advance under
the Loan by the Lender to the Borrower under this Agreement (each an "Advance"), the
following conditions shall have been fulfilled to the Lender's satisfaction:
(a) This Agreement and the Note shall have been duly executed and delivered by
all required parties thereto and in form and substance satisfactory to the Lender, and the
Lender shall have received (1) a certified copy of the resolution adopted by the Borrower's
governing body, substantially in the form of Exhibit F attached hereto, and (2) a signed
opinion of counsel to the Borrower, substantially in the form of Exhibit E attached hereto.
(b) There shall then exist no Event of Default under this Agreement (or other
event that, with the giving of notice or passage of time, or both, would constitute such an
Event of Default).
(c) All representations and warranties by the Borrower in this Agreement and the
Note (collectively the "Credit Documents") shall be true and correct in all material
respects with the same effect as if such representations and warranties had been made
on and as of the date of such advance.
(d) Since the date of the most recent annual financial statements of the Borrower
delivered to the Lender, there shall have been no material adverse change in the financial
condition, assets, management, control, operations, or prospects of the Borrower.
(e) ; The Advance to be made and the use of the proceeds thereof shall not violate
any applicable law, regulation, injunction, or order of any government or court.
(f) When the Project budget included as part of Exhibit A indicates that the Loan
will finance less than all of the costs of the Project or a category, of costs of the Project,
the Advance to be made shall not cause the percentage of such Project costs funded to
date by the Loan to exceed the total percentage of such Project costs budgeted to be
funded by the Loan.
(g) The Borrower shall submit requests for Advances not more frequently than
monthly and at least 21 days before the requested disbursement date.
(h) The Advance to be made and the use of the proceeds thereof shall be limited
to payment of costs of the Project set forth in the Project budget included as part of Exhibit
A and contemplated by the Plans and Specifications approved by the EPD.
(i) There shall be filed with the Lender:
(1) A requisition for such Advance, stating the amount to be disbursed.
(2) A certificate executed by the Authorized Borrower Representative
attached to the requisition and certifying:
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(A) that an obligation in the stated amount has been incurred by the
Borrower and that the same is a cost of the Project and is presently due and
payable or has been paid by the Borrower and is reimbursable hereunder and
stating that the bill or statement of account for such obligation, or a copy
thereof, is attached to the certificate;
(B) that the Borrower has no notice of any vendor's, mechanic's, or
other liens or rights to liens, chattel mortgages, or conditional sales contracts
that should be satisfied or discharged before such payment is made; and
(C) that each item on such requisitionhas not been paid or reimbursed,
as the case may be, and such requisition contains no item representing
payment on account of any retained percentages that the Borrower is, at the
date of any such certificate, entitled to retain or payment for labor performed
by employees of the Borrower.
0) The completed construction on the Project shall be reviewed (at thetime each
requisition is submitted) by the Engineer, and the Engineer shall certify to the Lender as
to (A) the cost of completed construction, (B) the percentage of completion, and (C)
compliance with the Plans and Specifications.
8. Representations and Warranties - The Borrower hereby represents and
warrants to the Lender:
(a) Creation and Authority. The Borrower is a public body corporate and politic
duly created and validly existing under the laws of the State of Georgia and has all
requisite power and authority to execute and deliver the Credit Documents and to perform
its obligations thereunder.
(b) Pending Litigation. Except as disclosed in writing to the Lender, there are no
actions, suits, proceedings, inquiries, or investigations pending or, to the knowledge of
the Borrower, after making due inquiry with respect thereto, threatened against or
affecting the Borrower in any court or by or before any governmental authority or
arbitration board or tribunal, which involve the possibility of materially and adversely
affecting the properties, activities, prospects, profits, operations, or condition (financial or
otherwise) of the Borrower, or the ability of the Borrower to perform its obligations under
the Credit Documents, or the transactions contemplated by the Credit Documents or
which, in any way, would adversely affect the validity or enforceability of the Credit
Documents or any agreement or instrument to which the Borrower is a party and which
is used or contemplated for use in the consummation of the transactions contemplated
hereby or thereby, nor is the Borrower aware of any facts or circumstances presently
existing that would form the basis for any such actions, suits, or proceedings. Except as
disclosed in writing to the Lender, the Borrower is not in default with respect to any
judgment, order, writ, injunction, decree, demand, rule, or regulation of any court,
governmental authority, or arbitration board or tribunal.
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(c) Credit Documents are Legal and Authorized. The execution and delivery by
the Borrower of the Credit Documents, the consummation of the transactions therein
contemplated, and the fulfillment of or the compliance with all of the provisions thereof (i)
are within the power, legal right, and authority of the Borrower; (ii) are legal and will not
conflict with or constitute on the part of the Borrower a violation of or a breach of or a
default under, any organic document, indenture, mortgage, security deed, pledge, note,
lease, loan, or installment sale agreement, contract, or other agreement or instrument to
which the Borrower is a party or by which the Borrower or its properties are otherwise
subject or bound, or any license, law, statute, rule, regulation, judgment, order, writ,
injunction, decree, or demand of any court or governmental agency or body having
jurisdiction over the Borrower or any of its activities or properties; and (iii) have been duly
authorized by all necessary and appropriate official action on the part of the governing
body of the Borrower. The Credit Documents are the valid, legal, binding, and
enforceable obligations of the Borrower. The officials of the Borrower executing the Credit
Documents are duly and properly in office and are fully authorized and empowered to
execute the same for and on behalf of the Borrower.
(d) Governmental Consents. Neither the Borrower nor any of its activities or
properties, nor any relationship between the Borrower and any other person, nor any
circumstances in connection with the execution, delivery, and performance by the
Borrower of its obligations under the Credit Documents, is such as to require the consent,
approval, permission, order, license, or authorization' of, or the filing, registration, or
qualification with, any governmental authority on the part of the Borrower in connection
with the execution, delivery, and performance of the Credit ' Documents or the
consummation of any transaction therein contemplated, except as shall have been
obtained or made and as are in full force and effect and except as are not presently
obtainable.' To the knowledge of the Borrower, after making due inquiry with respect
thereto, the Borrower will be able to obtain all such additional consents, approvals,
permissions, orders, licenses, or authorizations of governmental authorities as may be
required on or prior to the date the Borrower is legally required to obtain the same.
(e) No Defaults. No event has occurred and no condition exists that would
constitute an Event of Default or that, with the lapse of time or with the giving of notice or
both, would become an Event of Default. To the knowledge of the Borrower, after making
due inquiry with respect thereto, the Borrower is not in default or violation in any material
respect under any organic document or other agreement or instrument to which it is a
party or by which it may be bound, except as disclosed in writing to the Lender.
(f) Compliance with Law. To the knowledge of the Borrower, after making due
inquiry with respect thereto, the Borrower is not in violation of any laws, ordinances, or
governmental rules or regulations to which it or its properties are subject and has not
failed to obtain any licenses, permits, franchises, or other governmental authorizations
(which are presently obtainable) necessary to the ownership of its properties or to the
conduct of its affairs, which violation or failure to obtain might materially and adversely
affect the properties, activities, prospects, profits, and condition (financial or otherwise) of
the Borrower, and there have been no citations, notices, or orders of noncompliance
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issued to the Borrower under any such law, ordinance, rule, or regulation, except as
disclosed in writing to the Lender.
(g) Restrictions on the Borrower. The Borrower is not a party to or bound by any
contract, instrument, or agreement, or subject to any other restriction, that materially and
adversely affects its activities, properties, assets, operations, or condition (financial or
otherwise), except as disclosed in writing to the Lender. The Borrower is not a party to
any contract or agreement that restricts the right or ability of the Borrower to incur
indebtedness for borrowed money or to enter into loan agreements, except as disclosed
in writing to the Lender. Any contract or agreement of the Borrower that pledges the
revenues of the Borrower permits such pledged revenues to be used to make payments
due under the Credit Documents.
(h) Disclosure. The representations of the Borrower contained in this Agreement
and any certificate, document, written statement, or other instrument furnished by or on
behalf of the Borrower to the Lender in connection with the transactions contemplated
hereby, do not contain any untrue statement of a material fact and do not omit to state a
material fact necessary to make the statements contained herein or therein not
misleading. There is no fact that the Borrower has not disclosed to the Lender in writing
that materially and adversely affects or in the future may (so far as the Borrower can now
reasonably foresee) materially and adversely affect the acquisition, construction, and
installation of the Project or the properties, activities, prospects, operations, profits, or
condition (financial or otherwise) of the Borrower, or the ability of the Borrower to perform
its obligations under the Credit Documents or any of the documents or transactions
contemplated hereby or thereby or any other transactions contemplated by this
Agreement, which has not been set forth in writing to the Lender or in the certificates,
documents, and instruments furnished to the Lender by or on behalf of the Borrower prior
to the date of execution of this Agreement in connection with the transactions
contemplated hereby.
(i) Proiect Compliance. The Project complies or will comply with all presently
applicable building and zoning, health, environmental, and safety ordinances and laws
and all other applicable laws, rules, and regulations of any and all governmental and
quasi -governmental authorities having jurisdiction over any portion of the Project.
(j) Financial Statements. The financial statements of the Borrower that have
been provided to the Lender in connection with the Loan present fairly the financial
position of the Borrower as of the date thereof and the results of its operations and its
cash flows of its proprietary fund types for the period covered thereby, all in conformity
with generally accepted accounting principles, (subject to normal year-end adjustments in
the case of interim statements). Additionally, the Borrower agrees that all future financial
statements that are required to be submitted to the Authority will be prepared in conformity
with generally accepted accounting principles, including infrastructure provisions of
GASB 34. Since the date of the most recent annual financial statements for the Borrower
delivered to the Lender in connection with the Loan, there has been no material adverse
change in the Borrower's financial condition, assets, management, control, operations, or
prospects.
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(k) Reaffirmation. Each request by the Borrower for an advance under the Loan
shall constitute a representation and warranty by the Borrower to the Lender that the
foregoing statements are true and correct on the date of the request and after giving effect
to such advance.
(I) Borrower's Tax Certificate. The representations and warranties of the
Borrower set forth in the Borrower's Tax Certificate, dated the date hereof, are hereby
incorporated herein and made a part hereof by this reference thereto, as if fully set forth
herein, and are true and correct as of the date hereof.
9. Security for Payments under_Credit Documents - (a) As security for the
payments required to be made and the obligations required to be performed by the
Borrower under the Credit Documents, the Borrower hereby pledges to the Lender its full
faith and credit and revenue -raising power (including its taxing power) for such payment
and performance. The Borrower covenants that, in order to make any payments required
by the Credit Documents when due from its funds to the extent required hereunder, it will
exercise its power of taxation and its power to set rates, fees, and charges to the extent
necessary to pay the amounts required to be paid under the Credit Documents and will
make available and use for such payments all rates, fees, charges, and taxes levied and
collected for that purpose together with funds received from any other sources, The
Borrower further covenants and agrees that in order to make funds available for such
purpose in each fiscal year, it will, in its revenue, appropriation, and budgetary measures
through which its tax funds or revenues and the allocation thereof are controlled' or
provided for, include sums sufficient to satisfy any such payments that may be required
to be made under the Credit Documents, whether or not any other sums are included in
such measure, until all payments so required to be made under the Credit Documents
shall have been made in full. The obligation of the Borrower to make any such payments
that may be required to be made from its funds shall constitute a general obligation of the
Borrower and a pledge of the full faith and credit of the Borrower to provide the funds
required to fulfill any such obligation. In the event for any reason any such provision or
appropriation is not made as provided in this Section 9, then the fiscal officers of the
Borrower are hereby authorized and directed to set up as an appropriation on their
accounts in the appropriate fiscal year the amounts required to pay the obligations that
may be due from the funds of the Borrower. The amount of such appropriation shall be
due and payable and shall be expended for the purpose of paying any such obligations,
and such appropriation shall have the same legal status as if the Borrower had included
the amount of the appropriation in its revenue, appropriation, and budgetary measures,
and the fiscal officers of the Borrower' shall make such payments required by the Credit
Documents to the Lender if for any reason the payment of such obligations shall not
otherwise have been made.
(b) The Borrower covenants and agrees that it shall, to the extent necessary, levy
an annual ad valorem tax on all taxable property located within the territorial or corporate
limits of the Borrower, as now existent and as the same may hereafter be extended, at
such rate or rates, within any limitations that may be prescribed by law, as may be
necessary to produce in each year revenues that will be sufficient to fulfill the Borrower's
obligations under the Credit Documents, from which revenues the Borrower agrees to
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appropriate sums sufficient to pay in full when due all of the Borrower's obligations under
the Credit Documents. Nothing herein contained, however, shall be construed as limiting
the right of the Borrower to make the payments called for by the Credit Documents out of
any funds lawfully available to it for such purpose, from whatever source derived
(including general funds or enterprise funds).
10. Borrower Covenants - The Borrower agrees to comply with the following
covenants so long as this Agreement is in effect:
(a) Information. The Borrower shall deliver to the Lender, within 180 days after
the end of each fiscal year, an electronic copy of the financial statements required under
state audit requirements (O.C.G.A. § 36-81-7). Borrower's annual financial statements
shall be prepared in accordance with generally accepted accounting principles and
otherwise in form and substance satisfactory to the Lender, which financial statements
shall be accompanied by a certificate of the Borrower (1) to the effect that the Borrower
is not in default under any provisions of the Credit Documents and has fully complied with
all of the provisions thereof, or if the Borrower is in default or has failed to so comply,
setting forth the nature of the default or failure to, comply, and (2) stating the Fixed
Charges Coverage Ratio, the Fixed Charges, and the Income Available for Fixed Charges
of the Borrower for the fiscal, year. The Borrower also shall promptly provide the Lender
(A) upon receipt thereof, a copy of each other report submitted to the Borrower by its
accountants in connection with any annual, interim, or special audit made by them of the
books of the Borrower (including, without limitation, any management report prepared in
connection with such accountants' annual audit of the Borrower) and (B) with such other
information relating to the Borrower and the Project as the Lender may reasonably
request from time to time.
(b)'Access _to Property and Records. The Borrower agrees that the Lender, the
EPD, and their duly authorized representatives and agents shall have the right, upon
reasonable prior notice, to enter the Borrower's property at all reasonable times for the
purpose of examining and inspecting the Project, including any construction or renovation
thereof The Borrower shall keep accurate and complete records and books of account
with respect to its activities in which proper entries are made in accordance with generally
accepted accounting principles reflecting all of its financial transactions. The Lender and
the EPD shall also have the right at all reasonable times to examine and make extracts
from the books and records of the Borrower, insofar as such books,and records relate to
the Project or insofar as necessary to ascertain compliance with this Agreement, and to
discuss with the Borrower's officers, employees, accountants, and engineers the Project
and the Borrower's activities, assets, liabilities, financial condition, results of operations,
and financial prospects.
(c) Agreement to Acquire, Construct, and Install the Project. The Borrower
covenants to cause the Project to be acquired, constructed, and installed without material
deviation from the Plans and Specifications and warrants that the acquisition,
construction, and installation of the Project without material deviation from the Plans and
Specifications will result in facilities suitable for use by the Borrower and that all real and
personal property provided for therein is necessary or appropriate in connection with the
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Project. The Borrower may make changes in or additions to the Plans and Specifications;
provided, however, changes in or additions to the Plans and Specifications that are
material shall be subject to the prior written approval of the Engineer and the EPD. The
Borrower agrees to complete the acquisition, construction, and installation of the Project
as promptly as practicable and with all reasonable dispatch after the date of this
Agreement. Without limiting the foregoing sentence, the Borrower shall commence and
complete each activity or event by the deadline stated in the Project Schedule included
as part of Exhibit A attached hereto. The Borrower shall comply with the bidding and
preconstruction requirements set forth in Exhibit C attached hereto.
(d) Establishment of:Comple tion Date. The date of completion of the acquisition,
construction, and installation of the Project (the "Completion Date") shall be evidenced
to the Lender and the EPD by a certificate of completion signed by the Authorized
Borrower Representative and approved by the Engineer, stating that construction of the
Project has been completed without material deviation from the Plans and Specifications
and all labor, services, materials, and supplies used in such construction have been paid
or provided for. Notwithstanding the foregoing, such certificate may state that it is given
without prejudice to any rights against third parties that exist at the date of such certificate
or that may subsequently come into being. It shall be the duty of the Borrower to cause
the certificate contemplated by this paragraph to be furnished as soon as the construction
of the Project shall have been completed.
(e) Indemnity. (1) To the extent provided by law, in addition to the other amounts
payable by the Borrower under this Agreement (including, without limitation, Section 4
hereof), the Borrower hereby agrees to pay and indemnify the Lender from and against
all claims, liabilities, losses, costs, and expenses (including, without limitation, reasonable
attorneys' fees and expenses) that the Lender may (other than as a result of the gross
negligence or willful misconduct of the Lender) incur or be subjected to as a consequence,
directly or indirectly, of (i) any actual or proposed use of any proceeds of the Loan or the
Borrower's entering into or performing under any Credit Document, (ii) any breach by the
Borrower of any representation, warranty, covenant, or condition in, or the occurrence of
any other default under, any of the Credit Documents, including without limitation all
reasonable attorneys' fees or expenses resulting from the settlement or defense of any
claims or liabilities arising as a result of any such breach or default, (iii) allegations of
participation or interference by the Lender in the management, contractual relations, or
other affairs of the Borrower, (iv) allegations that the Lender has joint liability with the
Borrower to any third party as a result of the transactions contemplated by the Credit
Documents, (v) any suit, investigation, or proceeding as to which the Lender is involved
as a consequence, directly or indirectly, of its execution of any of the Credit Documents,
the making of the Loan, or any other event or transaction contemplated by any of the
Credit Documents, or (vi) the conduct or management of or any work or thing done on the
Project and any condition of or operation of the Project.
(2) Nothing contained in this paragraph (e) shall require the Borrower to
indemnify the Lender for any claim or liability that the Borrower was not given any
opportunity to contest or for any settlement of any such action effected without the
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Borrower's consent. The indemnity of the Lender contained in this paragraph (e) shall
survive the termination of this Agreement.
(f) Fixed Charges Coverage Ratio. The Borrower shall not permit the Fixed
Charges Coverage Ratio for any fiscal year to be less than 1.05. The following terms are
defined terms for purposes of this Agreement:
"Fixed Charges" means, for any period, the sum of all cash outflows that the
Borrower cannot avoid without violating the Borrower's long-term contractual obligations
(those obligations that extend for a period greater than one year, determined in
accordance with generally accepted accounting principles) and that are accounted for in
the enterprise fund containing the Borrower's water or sewer operations, including, but
not limited to, (i) interest, on long-term debt, determined in accordance with generally
accepted accounting principles, (ii) payments under long-term leases (whether
capitalized or operating), and (iii) scheduledpayments of principal on long-term debt.
"Fixed Charges Coverage Ratio" means, for any period, the ratio of Income
Available for Fixed Charges to Fixed Charges.
"Income Available For Fixed Charges" means, for any period, net income
of the Borrower, plus amounts deducted in arriving at such net income for (i) interest on
long-term debt (including the current portion thereof), (ii) depreciation, (iii) amortization,
(iv) payments under long-term leases, and (v) transfers to other funds of the Borrower.
(g) Tax Covenants. The Borrower covenants that it will not take or omit to take
any action nor permit any action to be taken or omitted that would cause the interest on
the Note to become includable in the gross income of any owner thereof for federal
income tax purposes. The Borrowerfurther covenants and agrees that it shall comply
with the representations and certifications it made in its Borrowers Tax Certificate dated
the date hereof and that it shall take no action nor omit to take any action that would
cause such representations and certifications to be untrue.
11. Events of Default and Remedies — (a) Each of the following events shall
constitute an Event of Default under this Agreement:
(1) Failure by the Borrower to make any payment with respect to the Loan
(whether principal, interest, fees, or other amounts) when and as the same becomes due
and payable (whether at maturity, on demand, or otherwise); or
(2) The Borrower shall (A) apply for or consent to the appointment of or the
taking of possession by a receiver, custodian, trustee, or liquidator of the Borrower or of
all or a substantial part of the property of the Borrower; (B) admit in writing the inability of
the Borrower, or be generally unable, to pay the debts of the Borrower as such debts
become due; (C) make a general assignment for the benefit of the creditors of the
Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or
hereafter in effect); (E) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding -up, or composition or adjustment of
debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to,
-10-
any petition filed against the Borrower in an involuntary case under such federal
bankruptcy law; or (G) take any action for the purpose of effecting any of the foregoing;
or
(3) A proceeding or case shall be commenced, without the application of
the Borrower, in any court of competent jurisdiction, seeking (A) the liquidation,
reorganization, dissolution, winding -up, or composition or readjustment of debts of the
Borrower; (B) the appointment of a trustee, receiver, custodian, liquidator, or the like of
the Borrower or of all or any substantial part of the assets of the Borrower; or (C) similar
relief in respect of the Borrower under any law relating to bankruptcy, insolvency,
reorganization, winding -up, or composition and adjustment of debts, and such proceeding
or case shall continue undismissed, or an order, judgment, or decree approving or
ordering any of the foregoing shall be entered and continue in effect, for a period of sixty
(60) days from commencement of such proceeding or case or the date of such order,
judgment, or decree, or any order for relief against the Borrower shall be entered in an
involuntary case or proceeding under the federal bankruptcy law; or
(4) Any representation or warranty made by the Borrower in any Credit
Document shall be false or misleading in any material respect on the date as of which
made(or deemed made); or
(5) Any default by the Borrower shall occur in the performance or
observance of any term, condition, or provision contained in any Credit Document and
not referred to in clauses (1) through (4) above, which default shall continue for thirty (30)
days after the Lender gives the Borrower written notice thereof; or
(6) Any material provision of any Credit Document shall at any time for any
reason cease to be valid and binding., in accordance with its terms on the Borrower, or the
validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall
terminate or repudiate (or attempt to terminate or repudiate) any -Credit Document;: or
(7) Default in the payment of principal of or interest on any other obligation
of the Borrower for money borrowed (or any obligation under any conditional sale or other
title retention agreement or any obligation secured by purchase money mortgage or deed
to secure debt or any obligation under notes payable or drafts accepted representing
extensions of credit or on any capitalized lease obligation), or default in the performance
of any other agreement, term, or condition contained in any contract under which any
such obligation is created, guaranteed, or secured if the effect of such default is to cause
such obligation to become due prior to its stated maturity provided that in each and every
case noted above the aggregate then outstanding principal balance of the obligation
involved (or all such obligations combined) must equal or exceed $100,000; or
(8) Default in the payment of principal of or interest on any obligation of the
Borrower for money borrowed from the Lender (other than the Loan) or default in the
performance of any other agreement, term, or condition contained in any contract under
which any such obligation is created, guaranteed, or secured if the effect of such default
is to entitle the Lender to then cause such obligation to become due prior to its stated
-11-
maturity (the parties intend that a default may constitute an Event of Default under this
paragraph (8) even if such default would not constitute an Event of Default under
paragraph (7) immediately above); or
(9) The dissolution of the Borrower; or
(10) Any material adverse change in the Borrower's financial condition or
means or ability to perform under the Credit Documents; or
(11) The occurrence of any other event as a result of which the Lender in
good faith believes that the prospect of payment in full of the Loan is impaired.
(b) Upon the occurrence of an Event of Default, the Lender, at its option, without
demand or notice of any kind, may declare the Loan immediately due and payable,
whereupon all outstanding principal and accrued interest shall become immediately due
and payable.
(c) Upon the occurrence of an Event of Default, the Lender, without notice or
demand of any kind, may from time to time take whatever action at law or in equity or
under the terms of the Credit Documents may appear necessary or desirable to collect
the Loan and other amounts payable by the Borrower hereunder then due or thereafter
to become due, or to enforce performance and observance of any obligation, agreement,
or covenant of the Borrower under the Credit Documents.
(d) In the event of a failure of the Borrower to pay any amounts due to the Lender
under the Credit Documents within 15 days of the due date thereof, the Lender shall
perform its duty under Section 50-23-20 of the Official Code of Georgia Annotated to
notify the state treasurer of such failure, and the Lender may apply any funds allotted to
the Borrower that are withheld pursuant to Section 50-23-20 of the Official Code of
Georgia Annotated to the payment of the overdue amounts under the Credit Documents.
(e) Upon the occurrence of an Event of Default, the Lender may, in its discretion,
by written notice to the Borrower, terminate its remaining commitment (if any) hereunder
to make any further advances of the Loan, whereupon any such commitment shall
terminate immediately.
12. Assignment or Sale by Lender - (a) The Credit Documents, and the
obligation of the Borrower to make payments thereunder, may be sold, assigned, or
otherwise disposed of in whole or in part to one or more successors, grantors, holders,
assignees, or subassignees by the Lender. Upon any sale, disposition, assignment, or
reassignment, the Borrower shall be provided with a notice of such assignment. The
Borrower shall keep a complete and accurate register of all such assignments in form
necessary to comply with Section 149(a) of the Internal Revenue Code of 1986, as
amended.
(b) The Borrower agrees to make all payments to the assignee designated in the
assignment, notwithstanding any claim, defense, setoff, or counterclaim whatsoever that
the Borrower may from time to time have against the Lender. The Borrower agrees to
-12-
execute all documents, including notices of assignment, which may be reasonably
requested by the Lender or its assignee to protect its interests in the Credit Documents.
(c) The Borrower hereby agrees that the Lender may sell or offer to sell the Credit
Documents (i) through a certificate of participation program, whereby two or more
interests are created in the Credit Documents or the payments thereunder or (ii) with other
similar instruments, agreements, and obligations through a pool, trust, limited partnership,
or other entity.
13. Miscellaneous (a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Georgia, exclusive of such state's rules
regarding choice of taw.
(b) This Agreement shall be binding upon and shall inure to the benefit of the
Borrower, the Lender, and their respective heirs, legal representatives, successors, and
assigns, but the Borrower may not assign or transfer any of its rights or obligations
hereunder without the express prior written consent of the Lender.
(c) This Agreement may not be waived or amended except by a writing signed by
authorized officials of the Lender and the Borrower.
(d) This Agreement shall be effective on the date on which the Borrower and the
Lender have signed one or more counterparts of it and the Lender shall have received
the same, provided the Lender receives the same executed by the Borrower by JULY 23,
2017. At such time as the Lender is no longer obligated under this Agreement to make
any further advances under the Loan and all principal, interest, or other amounts owing
with respect to the Loan and hereunder have been finally and irrevocably repaid by the
Borrower to the Lender, this Agreement shall terminate.
(e) All notices, certificates, requests, demands, or other communications
hereunder shall be sufficiently given and shall be deemed given upon receipt, by hand
delivery, mail, overnight delivery, telecopy, or other electronic means, addressed as
provided at the beginning of this Agreement. Any party to this Agreement may, by notice
given to the other party, designate any additional or different addresses to which
subsequent notices, certificates, or other communications shall be sent. For purposes of
this Section, "electronic means" shall mean telecopy or facsimile transmission or other
similar electronic means of communication that produces evidence of transmission.
(f) This Agreement may be executed in one or more counterparts.
(g) All pronouns used herein include' all genders and all singular terms used
herein include the plural (and vice versa).
(h) In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
-13-
(i) Statements in Exhibit D attached hereto shall govern the matters they
address.
(j) This Agreement and the Note constitute the entire agreement between the
Borrower and the Lender with respect to the Loan and supersede all prior agreements,
negotiations, representations, or understandings between such parties with respect to
such matters.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officials hereunto duly authorized as of
the date first above written.
CITY OF TYBEE ISLAND,
Approved as to form:
By: LAc c'_Aj�
Borrower's Attorney
Signature: C
Print Name: An
Title: y-,4%._
(SEAL)
Attest SignatureCt
Print Name:..iq nley- ll �e-lfinas
Title: ei
CLEAN WATER STATE REVOLVING FUND,
ADMINISTERED BY GEORGIA
ENVIRONMENTAL FINANCE AUTHORITY
Signature:
evin Clark
Executive Director
Luta
(SEAL)
-14-
Recipient:
Loan Number: CW2016043
DESCRIPTION OF THE PROJECT
SCOPE OF WORK
EXHIBIT A
PAGE 1 OF 3
BEI
This project consists of replacing the ultraViolet (UV)
wastewater treatment plant and all related appuilenances.
,
the
DESCRIPTION OF THE PROJECT
PROJECT BUDGET
EXHIBIT A
PAGE 2 OF 3
ITEM
TOTAL
CWSRF
.:.:Construction
$600,000
$600,000-,
Contingency
Engineering & Inspection
Administrative/Legal
TOTAL
60.000
60,000
$720,000
60,000
60,000
:$720,0013:',
Recipient:
Loan Number:
EXHIBIT A
PAGE 3 OF 3
DESCRIPTION OF THE PROJECT
PROJECT SCHEDULE
ACTION
DATE
Plans & Specs Submitted toEPD
Bid Opening
OCTOBER 201
FEBRUARY 2017
Notice to Proceed
Completion of Construction
MARCH 2017 _.
DECEMBER 2017
SPECIMEN PROMISSORY NOTE
EXHIBIT B
PAGE 1 OF 3
CITY OF TYBEE ISLAND
CW2016043
$720,000
FOR VALUE RECEIVED: the undersigned (hereinafter"referred to as the
"Borrower") promises to pay to the; order of the CLEAN WATER STATE REVOLVING
FUND, ADMINISTERED PST; GEORGIA ENI IRONMENTAL FtNANCE AUTHORITY
(hereinafter referred to as the "Lender") at the Lender's" office located in Atlanta, Georgia,
or at such other place as the holder hereof may designate, the principalsum of SEVEN
HUNDRED TWENTY THOUSAND DOLLARS AND ZERO CENTS, ($7244000), or so
much thereof as; shall have been 'advanced hereagainst and shall be outstanding,
together with interest on so much of the principal balance of this Note " as may be
outstanding and unpaid from time to time, calculated at the rate or rates per annum
indicated below.
The unpaid principal balance of this Note shall bear interest at a rate per annum
equal to ZERO AND 89/100 PERCENT (0.89%) (1) calculated on the basis of actual
number of days in the year and actual days elapsed until the Amortization
Commencement Date (as hereinafter defined), and (2) calculated on the basis of a 360 -
day year consisting of twelve 30 -day months thereafter.
Accrued interest on this Note shall be payable monthly on the first day of each
calendar month until the first day of the calendar month following the, earlier of (1) the
Completion Date (as defined in the hereinafter defined Loan Agreement), (2) APRIL 1,
2018, or (3) the date that the loan evidenced by this Note is fully disbursed (the
"Amortization Commencement Date"). Principal of and interest on this Note shall be
payable in TWO HUNDRED THIRTY-NINE (239) consecutive monthly installments equal
to the Installment Amount (as hereinafter defined), commencing on thefirst day of the
calendar month`foliowing the Amortization Commencement Date, and continuing to be
due on the first day at each succeeding calendar month thereafter, together with a final
installment equal to the entire remaining unpaid principal balance of and all accrued
interest on this Note, which, shalt,_ be due and payable on the date that is 20 years from
the Amortization Commencement Date (the."Maturity; Date";
This Note shall bear interest tin any overdue installment of principal and, to the
extent permitted by applicable law, on any overdue installment of interest, at the aforesaid
rates. The Borrower shall pay a late fee equal to the Lender's late fee, as published from
time to time in the Loan Servicing Fee schedules, for any installment payment or other
amount due hereunder that is not paid by the 15th of the month in which the payment is
due.
"Installment Amount" means the amount equal to the monthly installment of
principal and interest required to fully amortize the then outstanding principal balance of
this Note as of the Amortization Commencement Date at the rate of interest on this
EXHIBIT B
PAGE 2 OF 3
Note, on the basis of level monthly debt service payments from the Amortization
Commencement Date to and including the Maturity Date.
All payments or prepayments on this Note shall be applied first to unpaid fees and
late fees, then to interest accrued on this __Note through the date of such payment or
prepayment, and then to principal (and partial principal -prepayments shall be applied to
such installments in the inverse order of their maturity) "^
At the option of the Lender, the Borrower shall -Make payments due under this Note
using pre -authorized electronic debit transactions, under which the Lender will be
authorized to initiate -and effect debit transactions from--dd.esignatedl,account of the
Borrower without further or additional.approval: or confirmaton by the -Borrower. The
Borrower further agrees to adopt any necessary approving resolutions and to complete
and execute any necessary documents in order for the Lender to effect -each pre-
authorzed=debit transactions. In the event the Borrower has insufficient, funds in its
designated account on the date. the Lender attempts to.debit any.paymentdue hereunder,
the Borrower shall pay the Lender a processing fee equal to the Lender's processing fee,
as published from time to time in the. Lender's fee schedulesfior each` such occurrence
(but not._exceeding two such; processing fees in any calendar month)/in addition to any
late fee as provided above.
The Borrower may prepay the -principal balance of this Note in whole or in part at
any time without premium or penalty.
This Note constitutes; the Promissory Note issued under and pursuant to and is
entitled to the benefits and subject to the conditions of a Loan Agreement'(the "Loan
m
Agreeent"), stated the date hereof, ,between the Borrower -ands the Lender, to which
Loan Agreement reference is hereby made for a description of the circumstancesunder
which principal shall be advanced under this Note. Reference is hereby ►radetothe Loan
Agreement fora description of the' security forthis'Note and the options and obligations
of the Borrower .,description
Lender hereunder. Upon an Event of Default (as defined in the
Loan Agreement), theentire principal of and interest on this Notemay bedeclared or may
become immediately due and payable as provided in the Loan Agreement.
The obligation of the Borrowerto make the payments required to be made under
this Note and to perform and observe. any and ell of the;other covenants and agreements
on its part contained herein shall be o general bligation"of the Borrower, as provided in
the Loan Agreement, and shall be absolute and unconditional irrespective of any defense
or any rights of setoff, counterclaim, or recoupment, except for payment, it may otherwise
have against the Lender.
In case this Note is collected by or through an attorney-at-law, all costs of such
collection incurred by the Lender, including reasonable attorney's fees, shall be paid by
the Borrower.
EXHIBIT B
PAGE 3 OF 3
Time is of the essence of this Note. Demand, presentment, notice, notice of
demand, notice for payment, protest, and notice of dishonor are hereby waived by each
and every maker, guarantor, surety, and other person or entity primarily or secondarily
liable on this Note. The Lender shall not be deemed to waive any of its rights under this
Note unless such waiver be in writing and signed by the Lender. No delay or omission
by the Lender in exercising any of its rights under this Note shall operate as a waiver of
such rights, and a waiver in writing. on one occasion shall not be construed as a consent
to or a waiver of any right or remedy on any future occasion.'
This Note shall be;9overned by and construed "and enforced in accordance with
the laws of the State= of Georgia (without giving effect to itsi, conflicts of law rules).
Whenever possible, each provisionof this Note shall be interpreted in sur h:manner as to
be effective and valid under applicable law, but if any provision Of ,this Note shall be
prohibited by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder of such
provision orthe remaining provisions of this Note.
Words importing the singular number hereunder shall include the plural number
and vice versa, and any pronoun used herein shall be deemed to cover all genders. The
word "Lender" as used herein shall include transferees. successors, and assigns' of the
Lender, and all rights of the Lender hereunder shall inure to the benefit of its transferees,
successors, and assigns. All obligations of the Borrower hereunder shall bind, the
Borrower's successors and assigns.
SIGNED, SEALED, AND DELIVERED by the undersigned Borrower as of the
day of
CITY OF=TYBEE.ISLAND
By: SPECIMEN
(SEAL)
Name:
Title:
Approved as to form:
By: SPECIMEN
Borrower's Attorney
SPECIMEN
Name:
Title:
EXHIBIT C
PAGE 1 OF 2
BIDDING AND PRECONSTRUCTION REQUIREMENTS
Recipient: CITY OF TYBEE ISLAND
Loan Number: CW2016043
I. Competitive procurement by public bidding is required for construction, construction
services, materials, and equipment.
II. The Borrower must advertise for bids by conspicuously posting the noticein its office
and by advertising in the local newspaper that is the legal organ or on its Internet website
or on an Internet site designated for its legal advertisements.
III. Advertisements must appear at least twice. The first advertisement must appear at
least four weeks prior to the bid opening date The second advertisement must follow at
least two weeks after the first advertisement. Website advertisements must remain
posted foriat least four weeks. Plans and specifications must be available for inspection
by the public on the first day of the advertisement. The advertisement must include details
to inform the public of the extent and character of work to be performed, any -pre -
qualification requirements, any pre-bid conferences, and any federal requirements.
IV. The Borrower must require at least a 5 percent bid bond or certified check or cash
deposit equal to 5 percent of the contract amount.
V. Sealed bids, with a public bid opening, are required.
VI. The Borrower must award the contract to the low, responsive, and responsible bidder
or bidders, with reservation of right to reject all bids.
VII. The Borrower maymodify bidding documents only by written addenda with
notification to all potential bidders not less than 72 hours Prior to bid opening,
excluding Saturdays, Sundays, and legal holidays.
VIII. The Borrower must require 100 percent payment and performance bonds.
IX. Change orders may not be issued to evade the purposes of required bidding
procedures. Change orders may be issued for changes or additions consistent with the
scope of the original construction contract documents.
EXHIBIT C
PAGE 2 OF 2
X. Prior to disbursement of funds, the Borrower shall provide the Lender with copies of
the following:
A. Proof of advertising;
B. Certified detailed bid tabulation;
C. Engineer's award recommendation;
D. Governing bodys award resolution;
E. Executed contract documents, including plans and specifications;
F. Construction and payment schedules;
G. Notice to proceed;
H. Contractors written oath in accordance with O.C.G.A. Section 36 91-21 (e).
(This is an oath required by law to be provided to the Borrower by the contractor.
In short, this oath must state that the contractor has not acted alone or otherwise
to prevent or attempt to prevent competition in, bidding by any means and must
be signed by appropriate parties as defined bylaw.); and
I. Summary of plans for on-site quality control to be provided by the Borrower or
the. Engineer - name and brief qualifications of construction inspector(s) and
approximate hours per week of inspection to be provided.
XI. If other funding sources are involved that have stricter bidding requirementsor if
applicable, laws or ordinances require stricter requirements, these stricter requirements
shall govern.
XII. If the Borrower wishes to fund work that may not fully meet the bidding
requirements of this Agreement, then, prior to bidding this work, it shall submit a written
request to the Lender that specific requirements be waived. Basedon.'specific
circumstances of the request, the Lender may require submission of atditional
information necessary to document that State laws and local ordinances are not'violated
and that the intent of the bid procedures set forth in this Exhibit C(pubile, open, and
competitive procurement) is satisfied through alternate means.
XIII. The Borrower is required to notify the Lender at least two weeks prior to pre-
construction conferences for `work "funded under this Agreement and to schedule these
conferences so that a representative from the Lender may participate.
Recipient:
Loan Number:
None.
STATE REQUIREMENTS
CITY OF TYBEE ISLAND
CW2OI 6043
EXHIBIT D
PAGE 1 OF 6
EXHIBIT D
PAGE 2 OF 6
FEDERAL REQUIREMENTS
Recipient: CITY OF TYBEE ISLAND
Loan Number: CW2016043•
1. The Borrower covenants- that the Project will comply with the federal requirements
applicable to activities supported with federal funds. The Borrower further covenants that
the Project will be constructed in compliance with State of Georgia objectives for
participation .by women's and minority business enterprises in projects financed with
federal funds under the federal Clean Water Act. The Borrower will comply with all federal
and State of Georgia laws, rules, and regulations relating to maintenance of a drug-free
workplace at' the Project.
2. The Borrower covenants to comply with the requirements of the Federal Single Audit Act,
to the extent it applies to the exRenditure of federal .funds, including the Loan or, any
portion thereof. The Borrower agrees to submit to the Lender copies of any audit prepared
andfiled pursuant to the requirements of this Section.
3. It is the policy of the Lender to promote a fair share award of sub -agreements tosmall
and minority and women's businesses on contracts performed under the Lender. If the
successful bidder plans to subcontract a portion of the Project, the bidder must submit to
the Lender, with copy to the Borrower within 10 days after bid opening, evidence of the
positive steps taken to utilize small, minority, and women's businesses. Suoh positive
efforts shall include:
a) ;;including qualified small and minority and women's businesses on solicitation lists;
b) assuring that small and minority and women's businesses are solicited whenever
they are potential sources;
c) dividing total requirements, when economically feasible, into small tasks or
quantities' to permit maximum participation of small and minority and women's
businesses;
d) establishing delivery schedules, where the requirements of the work permit, to
encourage participation by small and minority and women's businesses;
e) using the services and assistance of the, U.S... Smalf Business Administration and
the Office of Minority Business Enterprise of the U.S. Department of Commerce;
f) requiring each party to a subagreement to take the affirmative steps outlined in
paragraphs (a) through (e) of this section.
EXHIBIT D
PAGE 3 OF 6
4. The Borrower shall fully comply with Subpart C of 2 CFR Part 180 and 2 CFR Part 1532,
entitled "Responsibilities of Participants Regarding Transactions (Doing Business with
Other Persons)." The Borrower is responsible for ensuring that any lower tier covered
transaction as described in Subpart B of 2 CFR Part 180 and 2 CFR Part 1532, entitled
"Covered Transactions," includes a, term or.condition requiring compliance with Subpart
C. The Borrower is responsible, for furtherrequiring_;the inclusion of a similar term or
condition in any subsequent lorwer?tier transactions The Borrower acknowledges that
failure to disclosethe inforrnation asrequiredat2CFR 180 335 m y result in the delay or
negation of this assistance agreement, or pursuance of legal remedies, including
suspension and debarment.
The Borrower may access the Excluded Parties List System at www.epls.gov. This term
and condition supersedes EPA Form 5700;49. "Certification Regarding Debarment,
Suspension, and Other Responsibility Matters? a_
5. The Borrower shall insert in full inany contract in _excess of $2,090 which)s entered into
for:ractual construction, alteration and/or repair, including painting and:decorating,
financed_ in whole or in part from: Federal funds and which is subject to the requirements
of the Davis -Bacon Act, the document entitled "Supplemental General Conditions for
Federally Assisted State Revolved Loan Fund Construction Contracts."
6. Borrower certifies to the best of its knowledge and belief that No Federal appropriated
funds have been paid in full or will be paid, by or on behalf of the Borrower, to any person
influencing or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with any of the following" covered Federal actions: The awarding of any
Federal contract,, the making of any Federal grant, the making of any Federal. loan, the
entering into of any cooperative agreement, and the extension, continuation, -renewal,
amendment, or modification of -- • Federal contract,gran` loan, .aooperative
agreement.
If any funds other than Federal appropriated funds have been paid or .will tie paid to any
person for influencing or, attempting to influence an officer or employee of any agency or
a Member of Congress in connection with this loan agreement then the Borrower shall
fully disclose same to the =Lender, and shall complete arkd sut nfit tandard Form -LLL,
"Disclosure Form to Report Lobbying " in accordance with instructions.
7. The Borrower will not discriminate against any employee or applicant for employment
because of race, color, religion, sex or national origin. The Borrower will comply with all
sections of Executive Order 12246 — Equal Employment Opportunity.
8. Reserved.
EXHIBIT D
PAGE 4 OF 6
9. The Borrower will comply with all federal requirements outlined in the Water Resources
Reform and Development Act of 2014 and related Clean Water State Revolving Fund
Policy Guidelines, which the Borrower understands includes, among other requirements,
that all of the iron and steel products used in the Project (as described in Exhibit A) are to
be produced in the United States ("American Iron and Steel Requirement" — section 608)
unless (i) the Borrower has. requested froom the Lender and obtained a waiver from the
Environmental Protection Agencypertaining tothe Projector (i) the Lender has otherwise
advised the Borrower in writing that, the Araencarr Iron and, Steel Requirement is not
applicable to the"Project.
10. The Borrower will;comply with all federal requirements outlined in the Water Resources
Reform and"Development Act of 2014 and related Clean Water State ;Revolving Fund
Policy, Guidelines, which the Borrower understands includes, among 'ather requirements,
the development of a Fiscal Sustainability Plan (FSP) (section 603(d)(1)(E)) forthe Project
(as,described in Exhibit A). The Borrower has either certified that the FSP:has been
devetopedand is being implemented for the portion of the treatment works in the'Project
or, the' Borrower has certified that an FSP will be developed and implemented for the
portion of the treatment works in the Project prior to the final. disbursement of funds, unless
the Lender has otherwise advised the Borrower in writing that the development and
implementation of an FSP is not applicable to the Project.
11. The Borrower will comply with all record keeping and reporting requirements under the
Clean Water Act, including any reports required by the Environmental Protection Agency
or the Lender such as performance indicators of program deliverables," informationon
costs and project progress. The Borrower understands that (i) each contract and
subcontract related to the Project is subject to audit by appropriate federal and state
entities and (ii) failure to comply with the Clean Water: Act and this °Agreementnay be a
default hereunder that results in a repayment of the Loan in advance and/or other remedial
actions."
12. The Borrower shall insert in full in any contract which is ;entered into for construction,
alteration, maintenance, or repair of a public water system or treatment works, financed
in whole or in part from Federal funds, the document entitled "American "Iron and Steel
Special Conditions and Information for Federally Assisted State Revolving Loan Fund
Construction Contracts."
13. The Borrower will comply with the requirements and obligations of Title VI of the Civil
Rights Act in accordance with 40 C.F.R. Part "5 and 7. Among the requirements,
borrowers must have a nondiscrimination notice, operate programs or activities that are
accessible to individuals with disabilities, designate a civil rights coordinator, have a
language access services policy, and maintain demographic data on the race, color,
national origin, sex, age, or handicap of the population it serves.
EXHIBIT D
PAGE 5 OF 6
14. As required by 40 CFR Part 33.501(b), the Environmental Protection Agency (EPA)
Disadvantaged Business Enterprise Rule requires State Revolving Loan recipients to
create and maintain a bidders list. The purpose of a bidders list is to provide the Borrower
who conducts competitive bidding with a more accurate database of the universe of
Minority Business Enterprises (MBE) and Women., Business Enterprises (WBE) and non-
MBE/WBE prime and subcontractors The.(ist must include all firms that bid on EPA -
assisted projects, including both MBE/WBEsand non=MBEIWBEs. The bidders list must
be kept active until the project period.fortheloan has`,ended.
The bidders list must contain the following information from all prime -contractors and
subcontractors:::'z
1) Bidder's name With point of confract
Bidder's mailing address, telephone number, and email address
The procurement item on which the bidder bid or quoted, and when•„
4) Bidder's status as an MBE/WBE or non-MBE/WBE
Borrowers receiving a combined total of $250,000 or less in federal funding in'any one
fiscal year, are exempt from the requirements to maintain a bidders list.
Recipient:
FINANCIAL COVENANTS
CITY OF TYBEE ISLAND
Loan Number: CW2016043
None.
EXHIBIT D
PAGE 6 OF 6
rotec EPRA
ELLIS PAINTER, RATTERREE PAINTER, RATTERREE &ADAMS LLP
February 24, 2017
Clean Water State Revolving Fund, Administered
By Georgia Environmental Finance Authority
233 Peachtree Street, NE
Harris Tower, Suite 900
Atlanta, GA 30303-1506
Ladies and Gentlemen:
EDWARD M. HUGHES
EMAIL: BHUGHES@EPRA-LAW.COM
DIRECT DIAL: 912-231-2720
W W W.EPRA-LAW.COM
As counsel for the CITY OF TYBEE ISLAND (the "Borrower"), I have examined duly
executed originals of the Loan Agreement (the "Loan Agreement"), Loan/Project No.
CW2016043, between the Borrower and Georgia Environmental Finance Authority (the
"Lender"), the related Promissory Note (the "Note") of the Borrower, the proceedings taken by
the Borrower to authorize the Loan Agreement and the Note (collectively, the "Credit
Documents"), and such other documents, records and proceedings as I have deemed relevant or
material to render this opinion and, based upon such examination, I am of the opinion, as of the
date hereof, that:
1. The Borrower is a public body corporate and politic, duly created and validly
existing under the laws of the State of Georgia.
2. The Credit Documents have been duly authorized, executed and delivered by the
Borrower and are legal, valid and binding obligations of the Borrower, enforceable in accordance
with their terms.
3. To the best of my knowledge, no litigation is pending or threatened in any court
or other tribunal, state or federal, in any way questioning or affecting the validity of the Credit
Documents.
4. To the best of my knowledge, the execution, delivery and performance by the
Borrower of the Credit Documents will not conflict with, breach, or violate any law, any order,
or judgment to which the Borrower is subject, or any contract to which the Borrower is a party.
5. The signatures of the officers of the Borrower that appear on the credit
Documents are true and genuine. I know such officers and know them to be the duly elected or
appointed qualified incumbents of the offices of the Borrower set forth below their names.
ATTORNEYS AT LAW
OFFICE: 2 EAST BRYAN STREET, TENTH FLOOR, SAVANNAH, GEORGIA 31401
MAILING ADDRESS: POST OFFICE Box 9946, SAVANNAH, GEORGIA 31412
TELEPHONE: 912-233-9700 - FACSIMILE: 912-233-2281
With your permission, in rendering the opinions set forth herein, I have assumed the
following, without any investigation or inquiry on my part:
(i)
Lender; and
the due authorization, execution and delivery of the Credit Documents by the
(ii) that the credit Documents constitute the binding obligations of the Lender and that
the Lender has all requisite power and authority to perform its obligations thereunder.
The enforceability of the Credit Documents (i) may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights, (ii) may be subject to general principles of equity, whether
applied by a court of law or equity, and (iii) may also be subject to the exercise of judicial
discretion in appropriate cases.
EMH/md
Very truly yours,
r/vf /-Ve
Edward M. Hughes
EXTRACT OF MINUTES
RESOLUTION OF GOVERNING BODY
Recipient: CITY OF TYBEE ISLAND
Loan Number: CW2016043
At a duly called meeting of the gov
(the "Borrower") held on the a3 day o
introduced and adopted.
EXHIBIT F
ing body of the Borrower identified above
o2cti3e following resolution was
WHEREAS, the governing body of the Borrower has determined to borrow but not
to exceed $720,000 from the CLEAN WATER STATE REVOLVING FUND,
ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY (the
"Lender") to finance a portion of the costs of acquiring, constructing, arid installing the
environmental facilities described in Exhibit A to the hereinafter defined Loan Agreement
(the `Project), pursuant to the terms of a Loan Agreement (the "Loan Agreement")
between the Borrower and the Lender, the form of which has been presented to this
meeting; and
WHEREAS, the Borrower's obligation to repay the loan made pursuant to the Loan
Agreement will be evidenced by a Promissory Note (the "Note") of the Borrower, the form
of which has been presented to this meeting;
NOW, THEREFORE, BE IT RESOLVED by the governing body of the Borrower
that the forms, terms, and conditions and the execution, delivery, and performance of the
Loan Agreement and the Note are hereby approved and authorized.
BE IT FURTHER RESOLVED by the governing body of the Borrower that the
terms of the Loan Agreement and the Note (including the interest rate provisions,which
shall be as provided in the Note) are in the best interests of the Borrower for the financing
of the Project, and the governing body of the Borrower designates and authorizes the
following persons to execute and deliver, and to attest, respectively, the Loan Agreement,
the Note, and any related documents necessary to the consummation of the transactions
contemplated by the Loan Agreement.
/J
e of Person to Execute Documents)
0 AA di
Y
(Print Title)
(Si. ature of Person to Attest Documents) (Print Title
The undersigned further certifies that the above resolution has not been repealed
or amended and remains in full force and effect.
Dated: 23/11 -
(SEAL)
cret
Jerk
Form 8038-G
(Rev. September 2011)
Department of the Treasury
Internal Revenue Service
Part I
Information return for Tax -Exempt Governmental Obligations
It. Under Internal Revenue Code section 149(e)
► See separate instructions.
Caution: If the issue price is under $100,000, use Form 8038 -GC.
OMB No. 1545-0720
Reporting Authority
1 Issuer's name
CITY OF TYBEE ISLAND
3a
If Amended Retum, check here ► 0
2 Issuer's employer identification number (EIN)
98-6000661
Nellie of person ( er than issuer) with whom theaRS may communicate about this retum (see instructions)
Ail A- I-Itic so 1,3
3y0 Telephone number of other pose shownan 3a
`lia) 97 a - bDaI
4 Number an street (or P.O. box d mail is not delivered to street address)
403 BUTLER AVENUE
Room/suite
5 Report number (For IRS Use Only)
13 f 1„
8 City, town, or post office, state, and ZIP code
TYBEE ISLAND, GA 31328
7 Date of issue ,
. n 12 \ --1 1
8 Name of issue
Loan Agreement w/Georgia Environmental Finance Authority (GEFA) CW2016043
9 CUSIP number
NONE
100 Name and title of officer or other employee of the issuer whom the IRS may call for mon: information (see
inst^s)t
ltlb Telephone number of officer or other
employee shown an 10a
ype of Issue (enter the issue price). See the instructions and attach schedule.
11 Education
12 Health and hospital
13 Transportation
14 Public safety
15 Environment (including sewage bonds)
16 Housing
17 Utilities
18 Other. Describe P.
19 If obligations are TANs or RANs, check only box 19a ► ❑
If obligations are BANs, check only box 19b ► ❑
20 If obligations are in the form of a lease or installment sale, check box ► ❑
Part III
Part IV
11
12
13
14
15
720,000
16
17
18
Description of Obligations. Complete for the entire issue for which this form is being filed.
(a) Final maturity date
3/1/2038
(b) Issue price
$ 720,000
(c) Stated redemption
price at maturity
720,000
Uses of Proceeds of Bond Issue (including underwriters' discount)
22 Proceeds used for accrued interest
(d) Weighted
average maturity
10.34
years
(e) Yield
0.89 %
23 Issue price of entire issue (enter amount from line 21, column (b))
24 Proceeds used for bond issuance costs (including underwriters' discount)
25 Proceeds used for credit enhancement
26 Proceeds allocated to reasonably required reserve or replacement fund
27 Proceeds used to currently refund prior issues
28 Proceeds used to advance refund prior issues
29 Total (add lines 24 through 28)
30
0
22
0
23
720,000
25
0
26
0
27
0
28
0
Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) . .
Description of Refunded Bonds. Complete this part only for refunding bonds.
Enter the remaining weighted average maturity of the bonds to be currently refunded . . . . ► years
Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
Enter the last date on which the refunded bonds will be called (MM/DD/YYYY) ►
Enter the date(s) the refunded bonds were issued ► (MM/DD/YYY11
Part V
31
32
33
34
29
0
30
720,000
For Paperwork Reduction Act Notice, see separate instructions.
Cat. No. 63773S Form 8038-G (Rev. 9-2011)
Fenn 8038-G
(Rev. September 2011)
Department of the Treasury
Internal Revenue Service
Information return for Tax -Exempt Governmental Obligations
► Under Internal Revenue Code section 149(e)
►See separate instructions.
Caution: B the issue price is under $100,000, use Fonn 8038 -GC.
OMB No. 1545-0720
I Reporting Authority
If Amended Return, check here ►
1 Issuer's name
CITY OF TYBEE ISLAND
2 Issuer's employer identification number (EIN)
98-6000661
3a NaRe of person (ot er than issuer) with ++whom the�(('IRS may communicate about this return (see instructions)
J\n�q( R- -IciQSC ri
Telephone number of other pgtse shown on 3a
Q1Q»-� a- .5 Pa
4 Number an street (or P.O. box if mail is not delivered to street address)
403 BUTLER AVENUE
Room/suite
5 Report number (For IRS Use Only)
13 LA --
s City, town, or post office, state, and ZIP code
TYBEE ISLAND, GA 31328
7 Date of issue
31 —Ci,\ § 1�-t
8 Name of issue
Loan Agreement w/Georgia Environmental Finance Authority (GEFA) CW2016043
9 CUSIP number
NONE
10a Name and title of officer or other employee of the issuer whom the IRS may call for more information (see
instruct s)
n n selva- f- 0ctSo-n)
10b Telephone number of officer or other
employee shown on 10a
C' g -5`a Q i
ype of issue (enter the issue price). See the instructions and attach schedule.
11 Education
12 Health and hospital
13 Transportation
14 Public safety
15 Environment (including sewage bonds)
16 Housing
17 Utilities
18 Other. Describe ►
19 If obligations are TANs or RANs, check only box 19a P. 0
If obligations are BANs, check only box 19b ► 0
20 If obligations are in the form of a lease or installment sale, check box ► 0
Part III
(a)
11
12
13
14
15
720,000
16
17
18
Description of Obligations. Complete for the entire issue for which this form is being fled.
Final maturity date (c) Stated redemption
price at maturity
(b) Issue price
(d) Weighted
average maturity
(e) Yield
21
4 Uses of Proceeds of Bond Issue (ncluding underwriters' discount)
22 Proceeds used for accrued interest
23 Issue price of entire issue (enter amount from line 21, column (b))
24 Proceeds used for bond issuance costs (including underwriters' discount) . 24 0
25 Proceeds used for credit enhancement 25 0
26 Proceeds allocated to reasonably required reserve or replacement fund
27 Proceeds used to currently refund prior issues
28 Proceeds used to advance refund prior issues
29 Total (add lines 24 through 28)
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) . .
Description of Refunded Bonds. Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . . ► yew
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM/DD/YYYY) ►
34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY)
For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8038-G (Rev. 9-2011)
3/1/2038
$ 720,000
$ 720,000
10.34
Years
Part V
26
27
28
0
0
0
0.89 %
22
0
23
720,000
29
0
30
720,000
Form 8038-G (Rev. 9-2011)
Page 2
Part VI
Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . .
36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIC) (see instructions)
b Enter the final maturity date of the GIC ►
C Enter the name of the GIC provider O.
37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans
to other governmental units
38a If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► ❑ and ente the following information:
b Enter the date of the master pool obligation ►
c Enter the EIN of the issuer of the master pool obligation ►
d Enter the name of the issuer of the master pool obligation P.
39 If the issuer has designated the issue under section 265(b)(3)(B)(0QII) (small issuer exception), check box ► ❑
40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box ► 0
41a If the issuer has identified a hedge, check here ► 0 and enter the following information:
b Name of hedge provider
c Type of hedge ►
d Term of hedge ►
42 If the issuer has superintegrated the hedge, check box ► ❑
43 If the issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations (see instructions), check box ► ❑
44 If the issuer has established written procedures to monitor the requirements of section 148, check box ► 0
45a If some portion of the proceeds was used to reimburse expenditures, check here ► 0 and enter the amount
of reimbursement ►
b Enter the date the official intent was adopted ►
35
36a
37
Signature
and
Consent
Paid
Preparer
Use Only
Under penalties of perjury, I declare that I have examined this retum and accompanying schedules and statements, and to the best of my knowledge
and belief, they am true, correct, and complete. I further declare that I consent to the IRS's disclosure of the issuer's return information, as necessary to
process this return, to the that I : authorized above.
Signature of i:': uer's Guth. , representative
Print/Type preparers name
Preparer's signature
Type or print name and title
Date
Check 0 i
self-employed
PTIN
Finn's name le
Firm's address le
Firm's EIN ►
Phone no.
Form 8038-G (Rev. 9-2011)