Loading...
HomeMy Public PortalAbout1996 State Revolving Fund Fla Dept Environmental Protection.tifLawton Chiles Governor Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee Florida 32399 2400 July 1 1996 Mr C Samuel Kissinger Village Manager Village of Key Biscayne 85 West McIntyre Street Village of Key Biscayne Flonua 33149 Re CS12085002P Key Biscayne Collection Facilities (Eliminate Septic Tanks) Dear Mr Kiscmger Virginia B Wetherell Secretary Upon review of your recently executed State Revolving Fund loan agreement for the referenced project, a typographical error was discovered The semiammal repayment dates on Page 17 were inadvertently listed as March 1 and October 1 of each year instead of March 1 and September 1 Enclosed is a new corrected Page 17 for you to msert m your official loan copy Please accept our apology for this oversight If you have any questions about the loan agreement, please call Dick Smith at 904/488-8163 Berry Chief Bureau of Water Facilities Funding DWB/mrm Fndosures cc Carlos A Perim CAP Engmeenng Consultants Inc /Miami Mike Bechtold - DEP/West Palm Beach Protect, Conserve and Manage Florida s Environment and Natural Resources P ted on ecyded p p n-lat ems' of the Loan, mcludmg Capitahzed Interest Interest on the principal shall be computed as of the due date of the Semiannual Loan Payment Semiannual Loan Payments shall be received by the Department begmimmg on, or before September 1 1999 and semiannually thereafter on, or before March 1 and September 1 of each year until all amounts due hereunder have been fully paid Funds transfer shall be made by electronic means or by means of magnetic tape when either of such transfer mechanisms are available This Subsection 8 04(2) shall be voided m the event of an Additional Completion Loan to fund Post -allowance Project Costs THE REMAINDER OF THIS PAGE INTENTIONALLY HAS BEEN LEFT BLANK Page 17 Lawton Chiles Governor Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee Florida 32399 2400 CERTIFIED MAIL RETURN RECEIPT REQUESTED ,,UN 2 S 1996 Mr Sam Kissinger Village Manager 85 West McIntyre Street Key Biscayne Flonda Re CS12085002P Key Biscayne Collection and Transmission S} stem Dear Mr Kissinger Virginia B Wetherell Secretary We are pleased to make a loan from the State Revolving Fund to the Village of Key Biscayne to complete the planning design and administrative activities necessary to construct additions to the wastessater collection sNstem One copy of the fully executed loan agreement is enclosed. Yotr agreement is now in effect and disbursements may begin You and your staff are congratulated on sour efforts m bnngmg about this important project. VBW/ds Enclosure Smcerelv laia G/Virgmra Wetherell Secretary cc Carlos Perim C A P Engineering Consultants Inc /Coral Gables Mike Bechtold FDEP/West Palm Beach Bonnie Wells MDWSD/Coral Gables ° o err. Conserve ana Manage Florida s Environment and Natural Resourc,s P red on ecyned paper STALE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PRO IECTION AND VILLAGE OF KEY BISCAYNE FLORIDA STATE REVOLVING FUND LOAN AGREEMENT PRECONSTRUCTIONLOAN NUMBER CS12085002P Honda Department of Environmental Protection Bureau of Water Facilities Funding 2600 Blair Stone Road Tallahassee Florida 32399 2400 1 STATE REVOLVING FUND PRECONSTRUe1ION LOAN AGREEMENT CONTENTS PAGE ARTICLF I DEFINITIONS 1 01 WORDS AND TERMS 1 1 02 CORRELATIVE WORDS 3 ARTICLE II - WARRANTIES REPRESENTATIONS AND COVENANTS 2 01 WARRANTIES REPRESENTATIONS AND COVENANTS 3 2 02 CONDITIONS PRECEDENT 5 ARTICLE III - MONTHLY ESCROW AND LOAN REPAYMENT ACCOUNTS 3 01 MONTHLY ESCROW ACCOUNT 6 3 02 INVESTMENT OF MONTHLY ESCROW MONEYS 6 3 03 MONTHLY ESCROW WITHDRAWALS 6 3 04 LOAN REPAYMENT RESERVE ACCOUNT 6 3 05 LOAN REPAYMENT RESERVE WITHDRAWALS 7 3 06 RESTORATION OF LOAN REPAYMENT RESERVE ACCOUNT 7 3 07 INVESTMENT OF LOAN REPAYMENT RESERVE MONEYS 7 3 08 ASSETS HELD IN TRUST 7 ARTICLE IV PROJECT INFORMATION 4 01 PROJECT SCHEDULE 7 4 02 PROJECT RELATED COSTS 9 4 03 LOAN DISBURSEMENTS 10 4 04 PROJECT CHANGES 10 4 05 TITLE TO PROJECT SITE 11 4 06 PERM!' S AND APPROVALS 11 4 07 COMPLLTION MONEYS 11 4 08 PROJECT CLOSE OUT 11 4 09 SURPLUS LOAN FUNDS 11 ARTICLE V DEFAULTS AND REMEDIES 5 01 EVENTS OF DEFAULT 11 5 02 REMEDIES 12 5 03 DELAY AND WAIVER 13 STALE REVOLVING FUND PRECONSTRUCTION LOAN AGREEMENT CONTENTS PAGE ARTICLE VI THE PLEDGED REVENUES 6 01 PLEDGED REVENUE COVERAGE 13 6 02 RESERVED P7 PDGED REVENUES 13 6 03 SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT 14 6 04 ADDITIONAL DEBT OBLIGATIONS 14 6 05 CHANGES TO PLEDGED REVENUES 14 ARTICI F VII GENERAL PROVISIONS 7 01 DISCHARGE OF OBLIGATIONS 14 7 02 PROJECT RECORDS AND STATEMENTS 15 7 03 ACCESS TO PROJECT SIZE 15 7 04 ASSIGNMENT OF RIGHTS UNDER AGREEMENT 15 7 05 AMENDMENT OF AGREEMENT 15 7 06 SEVERABILITY CLAUSE 0 15 7 07 EXECUTION OF AGREEMENT 15 ARTICLE VIII - DETAILS OF FINANCING 8 01 PRINCIPAL AMOUNT OF LOAN 15 8 02 INTEREST RATE 15 8 03 LOAN TERM 16 8 04 REPAYMENT SCHEDULE 16 ARTICLE DC - EXECUTION OF LOAN AGREEMENT 18 11 STATE REVOLVING FUND LOAN AGREEMENT THIS AGREEMENT is executed by the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (Department) and the Village of Key Biscayne existing as a local government agency (Local Government) under the laws of the State of Florida WITNESSETH WHEREAS pursuant to Section 403 1835 Florida Statutes the Department is authorized to make loans to local government agencies to finance the planning, design, and construction of wastewater pollution control facilities and WHEREAS the Local Government has made application for the financing of the Project and the Department has determined that such Project meets all requirements for a preconstruction loan NOW THEREFORE in consideration of the Department loaning money to the Local Government, in the principal amount herein set forth and the covenants hereinafter set forth, it is agreed as follows ARTICLE I - DEFINITIONS 1 01 WORDS AND TERMS Words and terms used herein shall have the meanings set forth below (1) Additional Completion Loan shall mean a loan, subsequent to the Loan authorized by this Agreement and subsequent to the Departments authorization to incur Post allowance Project Costs which may be made to the Local Government by the Department for the purpose of furnishing additional funds for Post allowance Project Costs The interest rate for any Additional Completion Loan shall be established pursuant to Rule 62-503 of the Flonda Administrative Code (2) ' Agreement' or "Loan Agreement shall mean this agreement. (3) Authorized Representative shall mean the official of the Local Government authorized by ordinance or resolution to sign documents associated with the Loan (4) ' Capitalzed Interest shall mean interes accruing on a loan before repayment begins Capitalized Interest shall be included in the principal of the Loan Capitalized Interest is not disbursed to the Local Government but it shall be amortized via penodic loan repayments to the Department as if it were actually disbursea Capitalized Interest shall be computed at the interest rate 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 Page 1 (5) Depository shall mean a bank or trust company having a combined capital and unimpaired surplus of not less than $50 million, authorized to transact commercial banking or savings and loan business in the State of Florida and insured by the Federal Deposit Insurance Corporation (6) Loan shall mean the amount of money to be loaned to complete planning engmeenng and administrative preconstruction activities generally described in the schedule set forth in Section 4 01 pursuant to this Agreement (7) Loan Application shall mean completed Form 62 503 900(2) for preconstruction loan financial assistance supported by information that meets all requirements under Rule 62-503 415 of the Florida Administrative Code (8) Loan Repayment Reserve Account shall mean the account into which will be deposited the amount set aside to pay unexpected and temporary deficiencies if any in the Semiannual Loan Payment (9) 'Loan Service Fee shall mean an origination fee in the amount of 2 0% of the sum of the planning, engineering and administrative allowances which shall be paid to the Department by the Local Government The Loan Service Fee shall be paid with Loan proceeds and amortized as part of the Loan principal The Loan Service Fee shall be adjusted downward if actual Post allowance Project Costs under an Additional Completion Loan, result in a Loan decrease (10) Monthly Loan Deposit' shall mean the monthly deposit to be made by the Local Government to an escrow account (11) Pledged Revenues' shall mean the specific Revenues pledged as security for repayment of the Loan and shall be the gross Revenues derived yearly from State revenue sharing funds There are no prior hers on these funds {12) Post allowance Project Costs' shall mean costs for construction, equipment materials demolition, contingency legal and technical service costs incurred after construction bid opening and the incremental pc rfaon of the Loan repayment reserve disbursement Capitalized Interest, and Loan Service Fee associated with the foregoing costs {13) Project" shall mean the planning administrative and engmeenng work necessary for the Local Government to qualify for a State Revolving Fund loan, under Rule 62-503 410 of the Florida Admrmstrative Code to finance construction of wastewater collection and transmission facilities The nature of the preconstruction work is generally described in die schedule presented in Section 4 01 (14) Revenues shall mean all receipts and income or earnings received by the Local Government from revenue sharing funds established by the State Page 2 (15) Semiannual Loan Payment shall mean the payment due from the Local Government to the Department at six month intervals and it is comprised of principal and Interest 102 CORRELATIVE WORDS Words of the masculine gender shall be understood to include correlative words of the feminine and neuter genders Unless the context shall otherwise indicate the singular shall Include the plural and the word person shall include corporations and associations including public bodies as well as natural persons Capitalized words not otherwise defined herein shall be defined as set forth in the Florida Administrative Code Chapter 62 503 ARTICLE II WARRANTIES REPRESENTATIONS AND COVENANTS 2 01 WARRANTIES REPRESENTATIONS AND COVENANTS The Local Government warrants represents and covenants that (1) The Local Government has full power and authority to enter into this Agreement and to comply with the provisions hereof (2) The Local Government currently is not the subject of bankruptcy insolvency or reorganization proceedings and is not in default of, or otherwise subject to any agreement or any law administrative regulation, judgment, decree note resolution, charter or ordinance which would currently restrain or enjoin it from entering into or complying with, this Agreement (3) There is no material action, suit proceeding inquiry or investigation at law or m equity before any court or public body pending or to the best of the Local Government s knowledge threatened, which seers to restrain or enjoin the Local Government from entering into or complying with this Agreement (4) The Local Government knows of no reason why any future required permits or approvals associated with the Project are not obtainable (5) The Local Government shall undertake the Project on its own responsibility to the extent permitted by law (6) To the extent permitted by law the Local Government shall release and hold harmless the State its officers members and employees from any claim arising in connection with the Local Governments actions or omissions in its planning engineering and administrative activities financed by this Loan (7) All Local Government representations to the Department pursuant to the Loan Application and Agreement, were true and accurate as of the date such representations were made The Local Government shall comply with all applicable State and Federal laws rules and regulations which are identified in the Loan Application or Agreement To the extent that any assurance representation, or covenant requires a future action, the Local Government shall take such action as is necessary for compliance Page 3 (8) The financial information delivered by the Local Government to the Department was current and correct as of the date such information was delivered The Local Government shall provide the Department with additional financial information via audits required by Rule 62 503 800 of the Florida Administrative Code notification of changing conditions that materially and adversely affect the Local Government s ability to repay this Loan, or upon request of the Department (9) The Local Government shall maintain records using Generally Accepted Governmental Accounting Standards established by the Government Accounting Standards Board As part of its bookkeeping system, the Local Government shall keep accurate records of all Revenues Pledged Revenues and Loan disbursement receipts (10) In the event the anticipated Pledged Revenues are shown by the Local Government s annual budget to be insufficient to make the Semiannual Loan Payments for such Fiscal Year when due the Local Government shall include in such budget other legally available funds which will be sufficient together with the Pledged Revenues to make the Semiannual Loan Payments Such other legally avalable funds shall be budgeted in the regular annual governmental budget and designated for the purpose provided by this Subsection, and the Local Government shall collect such funds for application as provided herein The Local Government shall notify the Department immediately in writing of any such budgeting of other legally available funds Nothing in this covenant shall be construed as creating a pledge lien, or charge upon any such other legally available funds requiring the Local Government to levy or appropriate ad valorem tax revenues or preventing the Local Government from pledging to the payment of any bonds or other obligations all or any part of such other legally available funds (11) Beginning with the Fiscal Year during which the Loan is executed and for each Fiscal Year until the Loan is retired the Local Government shall submit annual audit reports to the Department Annual reports shall be submitted no later than the date estabhshed in Subsection 4 01(13) Audits shall be conducted in accordance with Government Auditing Standards (1988) issued by the Comptroller General of the United States Beginning with the Fiscal Year during which the Loan is made and continuing through the Fiscal Year during witch the final Loan disbursement to the Local Government is received audits shall address the Local Government s financial condition, the accounting for the sources of the Pledged Revenues loan disbursements received project expenditures and compliance with Loan Agreement covenants Beginning with the first Fiscal Year after the final loan disbursement to the Local Government is received and ending with the Fiscal Year during which the Loan is retired financial audits shall be conducted as required under Section 11 45 of the Florida Statutes (12) Beginning with the first Fiscal Year during which Monthly Loan Deposits to a debt service account are required and continuing through the Fiscal Year during which the Loan is retired the Local Government shall cause its auditor to comment on its compliance with the Loan Agreement Page 4 covenants The Department shall be notified immediately if anything comes to the auditor s attention during the annual examination of the Local Governments records that would constitute a default under the Loan Agreement When appropriate the audit report shall include a statement to the effect that nothing came to the auditors attention that would constitute a default under the Loan Agreement (13) After the Department issues the administrative close-out amendment to this Agreement, the Local Government shall submit to the Department a separate audit report by an independent certified public accountant of the Loan revenues and expenditures The audit report shall be submitted no later than the date to be established under Section 4 08 The audit shall be conducted in accordance with Government Auditing Standards (1988) issued by the Comptroller General of the United States The audit shall address whether the Local Government complied with requirements set forth in the Loan Agreement The audit findings shall set aside or question any costs that are unallowable under Rule 62 503 Florida Administrative Code A final determination of the allowability of such costs shall be made by the Department (14) Each year beginning with the 12 month period preceding the Local Governments second semiannual Loan repayment and ending with the year during which the final Loan repayment is made the Local Government s Authorized Representative or its chief financial officer shall submit no later than the date established in Subsection 4 01(12) a certification that (a) Pledged Revenue collections satisfy on a pro rata basis the rate coverage requirement (b) the monthly escrow account contains the funds required (c) the Loan Repayment Reserve Account contains the funds required and (d) insurance including that issued through the National Flood Insurance Program authorized under 42 U S C secs 4001-4128 when applicable is in effect for the facilities generating the Pledged Revenues rid adequately covers the customary risks to the extent that such insurance is available (15) Pursuant to Section 216 349 of the Flonda Statutes the Local Government shall not use the Loan proceeds for the purpose of lobbying the Flonda Legislature the Judicial Branch, or a State agency (16) The Local Government agrees to complete the Project in accordance with the Project schedule set forth in Section 4 01 Delays incident to strikes riots acts of God and other events beyond the reasonable control of the Local Government are excepted However there shall be no resulting dinnnutions or delay in the Semiannual Loan Payment or the Monthly Loan Deposit or finding of the Loan Repayment Reserve Account (17) The Local Government covenants that this Agreement is entered into for the purpose of completing planning engineering and administrative activities in order to construct facilities which will, in all events serve a public purpose 2 02 CONDITIONS PRECEDENT As conditions precedent to execution of this Agreement by the Department the Local Government s legal counsel covenants that Page 5 (1) This Agreement has been duly authorized and executed by the Local Government and shall constitute a valid and legal obligation of the Local Government in accordance with its terms upon execution by both parties (2) This Agreement specifies the Revenues pledged for repayment of the Loan, and the pledge is valid and enforceable ARTICLE DI - MONTHLY ESCROW AND LOAN REPAYMENT ACCOUNTS 3 01 MONTHLY ESCROW ACCOUNT The Local Government shall establish a monthly escrow account, upon the written request of the Department, with a Depository prior to the date set forth in Subsection 4 01(11) Beginning no later than on the date set forth in Subsection 4 01(11) and in accordance with the written request of the Department, the Local Government shall make a Monthly Loan Deposit from the Pledged Revenues to the monthly escrow account In any month in which the amount on deposit in the monthly escrow account does not equal or exceed five sixths of the Semiannual Loan Payment the Depository shall be required to promptly notify the Department in writing if the Local Government fails to make a Monthly Loan Deposit winch equals or exceeds one sixth of the Semiannual Loan Payment In the event any monthly deposit is less than one sixth of the Semiannual Loan Payment and the amount on deposit is less than five sixths of the Semiannual Loan Payment the Local Government alyees to budget by amendment if necessary payment to the Department from other legally available funds all sums becoming due before the same become delinquent Such budgeted payments shall be made first from Revenues and then from other moneys legally available to the Local Government for such purpose This requirement shall not be construed to give superiority to the Departments claim on any Revenues over prior claims of general creditors of the Local Government, nor shall it be construed to give the Department the power to require the Local Government to levy and collect any Revenues other than Pledged Revenues 3 02 INVESTMENT OF MONTHLY ESCROW MONEYS Upon the direction of the Local Government a Depos_tory shall invest escrowed moneys pursuant to the laws of the State of Florida Such escrowe d moneys may be pooled for investment purposes The investment earnings shall be used to satisfy the escrow funding requirement of this Agreement The maturity or redemption date of investments shall be not later than the date upon which such moneys may be needed to make Semiannual Loan Payments 3 03 MONTHLY ESCROW WITHDRAWALS The withdrawal of rr oneys from the monthly escrow account shall be for the purpose of making Semiannual Loan Payment or for discharging the Local Government's obligations pursuant to Section 7 01 3 04 LOAN REPAYMENT RESERVE ACCOUNT A Loan Repayment Reserve Account shall be established with a Depository in the amount of 0 03 tunes the sum of the planning engineering and administrative allowances The reserve shall be fully funded on the date set forth in Subsection 4 01(11) Page 6 3 05 LOAN REPAYMENT RESERVE WITHDRAWALS The Loan Repayment Reserve Account shall be used by the Local Government to cure an unexpected and temporary deficiency in any Semiannual Loan Payment The Depository shall be required to promptly notify the Department upon any withdrawal from the Account Any unused portion of the Loan Repayment Reserve Account shall be used to reduce the final Semiannual Loan Payment(s) or for discharging the Local Government s obligations pursuant to Section 7 01 3 06 RESTORATION OF LOAN REPAYMENT RESERVE ACCOUNT A default causing the Local Government to use the Loan Repayment Reserve Account or the use of the Account to prevent default shall result in the Local Government being responsible for making special payments to restore its Loan Repayment Reserve Account Special restoration payments shall be made first from Revenues and then from other moneys legally available to the Local Government for such purpose 3 07 INVESTMENT OF LOAN REPAYMENT RESERVE MONEYS Upon the direction of the Local Government a Depository shall invest reserved moneys pursuant to the laws of the State of Florida Such escrowed moneys may be pooled for investment purposes The maturity or redemption date of investments shall be not later than the date set for the final Semiannual Loan Payment providea however that moneys must be available for withd awal if necessary pursuant to Section 3 05 All investment income and earnings shall be credited to the Loan Repayment Reserve Account 3 08 ASSETS HELD IN TRUST The moneys in each of the accounts created by the Local Government under this Agreement shall be held m trust for the purposes provided herein and used only for such purpose' in the manner provided for in this Agreement Pending such use said moneys shall be subject to a hen and charge in favor of the Department However nothing in this Agreement shall require the Local Government to maintain a separate banking account to satisfy the escrow account or loan repayment reserve requirements of this Agreement This Agreement shall not prohibit the pooling of cash credited to an account created under thi. Agreement with other moneys of the Local Government provided that adequate accounting procedures are maintained to identify and control the amounts on deposit m each of said accounts in order to assize compliance with the terms of tbs. Agreement The designation and establishment of the various funds and accounts in and by this Agreement shall not be construed to require the establishment of any completely indepf ndent self balancing funds as such term is commonly defined and used in governmental accounting but rather is intended solely to constitute an earmarking of certain revenues for certain purposes and to establish certain priorities for application of such moneys as is herein provided ARTICLE IV PROJECT INFORMATION 4 01 PROJECT SCHEDULE The Project activities are to be completed no later than by the dates set forth below to preserve the Departments commitment to provide completion moneys for Page 7 Post allowance Project Costs Project activities shall be completed by the Local Government m time to enable all reviews and any requested document revisions to be submitted prior to the Departmental actions hat are scheduled in Subsections (5) (6) and (9) below (1) Collection system study (with such additional information as necessary to satisfy all facilities planning requirements) as adopted by the Village and accepted by all departments and agencies having review jurisdiction, and public participation documentation no later than June 30 1997 (2) Capital financing plan complete with any supporting draft user charge system and user charge ordinance app-opnate (if any) orgamzationalllegal documentation for special taxing district or special assessments and public participation documentation no later than June 30 1997 (3) Sewer use ordinance and dispute resolution process no later than December 31 1996 (4) Interlocal agreement(s) necessary to implement the project including provision for operation and maintenance no later than March 31 1997 (5) Environmental information document addressing all facilities proposed for loan funding publication by the Department no later than August 30 1997 (6) Authorization for design of all facilities proposed for loan fundmg no later than October 15 1997 (7) Design of all Project facilities proposed for loan `undmg no later than October 1 1998 (8) Certification of availability of all sites for facilities proposed for loan funding no later than July 1 1998 (9) Authorization to incur Post -allowance Project Costs for all Project facilities proposed for loan finding no later than November 1 1998 (10) Unless deferred by an amendment to this Agreement apply for an Additional Completion Loan to fund Post -allowance Project Costs no later than March 1 1999 (11) Unless deferred by an amendment to this Agreemert notification by the Department to the Local Government no later than November 1 1998 of the conditions under which the Local Government shall establish both the Loan Repayment Reserve Account and the monthly escrow account and begin Monthly Loan Deposits When so notified the Local Government shall establish both the Loan Repayment Reserve Account and monthly escrow account and begin Monthly Loan Deposits no later than March 1 1999 The timing for the establishment of the accounts and the beginning of Monthly Loan Deposits shall be modified in the event of an Additional Completion Loan agreement to fund Post allowance Project Costs Page 8 (12) Unless deferred by an amendment to this Agreement certifications under Subsection 2 0104) beginning December 1 1999 and annually no later than December 1 thereafter (13) Submittal of audit reports under Subsection 2 01(11) no later than September 30 annually following the close of the Fiscal Year for which the audit report is prepared 4 02 PROJECT RLLA1'ED COSTS The Local Government and the Department acknowledge that the actual Post allowance Project Costs that will result from the Project have not been determined as of the effective date of this Agreement Post allowance Project Costs adjustment may be made as a result of work descnbed in Section 4 01 and after completion moneys have been made available by the Department as a result of construction bidding or as a result of mutually agreed upon changes to the facilities to be constructed Said adjustments may cause adjustments to the Project costs The final Project costs shall be established in the close out amendment addressed in Section 4 08 Pursuant to Rules 62 503 800(3) and (4) of the Flonda Administrative Code changes in Project costs may also occur as a result of the Local Governments Project audit or the Departments audit The Local Government agrees to the following estimates for the preconstruction Project costs and the Post allowance Project Costs including the additional incremental costs associated with the Loan repayment reserve Loan Service Fee and Capitalized Interest (1) Preconstructior Project costs by category Administrative allowance $ 39 600 00 Planning allowance $ 198 000 00 Allowance for engneenng $ 422 400 00 Loan repayment reserve $ 19 800 00 Loan Service Fee $ 13 200 00 Capitalized Interes $ 30,762.90 TOTAL PRECONS 'RUCTION PROJECT COSTS $ 723 762 90 (2) Post -allowance Project Costs category Construction, demolition, equipment and matenals $5 650 000 00 Contingencies $ 565 000 00 Technical services dunng construction $ 345 000 00 Start up services $ 40 000 00 Loan repayment reserve (incremental) $ 198 000 00 Loan Service Fee (incremental) $ 132 000 00 Page 9 Capitalized Interest (Incremental) TOTAL POST ALLOWANCE PROJECT COSTS $ 89_919,00 $7 019 919 00 (3) The maximum total amount to be disbursed (Capitalized Interest is not disbursed) under this preconstruction Loan amount plus an Additional Completion Loan to fund Post -allowance Project Costs shall be $7 623 000 00 An amount not to exceed this sum shall be made available to the Local Government at the interest rate established in Section 8 02 under the preconstruction loan program set forth in Rule 62 503 350 of the Florida Administrative Code provided the requirements of Section 4 08 are met The eligibility of individual line items in Subsection (2) above shall be reevaluated before completion moneys are made available under Section 4 08 4 03 LOAN DISBURSEMENTS Disbursements shall be made only upon the issue of warrants signed by the State Comptroller and only when the requests for such warrants are accompAnied by a Department certification that such withdrawals are proper expenditures Disbursements shall be made directly to the Local Government for planning, engmeenng and administration allowances and for the Loan Repayment Reserve Account pursuant to Section 3 04 The disbursement of the Loan Service Fee as defined in Subsection 1 01(9) will be made directly to the Departments Operating Trust.Fund Requests by the Local Government for disbursements of the preconstruction funds shall not require documentation of actual costs incurred The disbursement of preconstruction funds shall be as scheduled below The disbursements for Post -allowance Project Costs are not scheduled in the preconstruction Loan Agreement and such disbursements shall be scheduled as a result of an Additional Completion Loan The timing and amounts of the preconstruction disbursements are as follows Preconstruction Disbursement Date Amount Planning allowance October 1 1996 $198 000 00 Administrative allowance October 1 1996 $ 39 600 00 Loan Service Fee October 15 1996 $ 13 200 00 Engineering Allowance October 15 1997 $422 400 00 Loan repayment reserve March 1 1999 $ 19 800 00 TOTAL $693 000 00 4 04 PROJECT CHANGES After the Department's environmental review has been completed, the Local Government promptly shall notify the Department in writing of any Project change that would require a modification to the environmental information document After the Department provides the Local Government with written authorization to incur Post -allowance Project Costs, Project changes prior to bid opening shall be made by addendum to plans and specifications Changes after bid opening shall be made by change order The Local Government shall submit all addenea and all change orders to the Department Any change order which affects the performance standards to be established for the facilities to be constructed or which increases Page 10 the contract amount bq more than one hundred thousand dollars ($100 000) or which alters the purpose that the facilities to be constructed will serve will require written approval by the Department 4 05 TITLE TO PROJECT SITE No later than the date estabhshed by Subsection 4 01(8) the Local Government shall have an interest in real property sufficient for the construction and location of the Project free and clear of liens and encumbrances which would impair the usefulness of such sites for the intended use 4 06 PERMITS AND APPROVALS The Local Government shall obtain all permits and approvals required by the Department to enable the construction of the faci sties to be funded under an amendment to this Agreement 4 07 COMPLETION MONEYS The Department covenants that loan funds to finance Post allowance Project Costs in the amount set forth in Subsection 4 02(2) have been scheduled to be available to the Local Government This Agreement shall be amended to include said funds at the interest rate set fo-th in Section 8 02 provided the Local Government complies with said schedule and providec there are no substantive delays in repayment of other State Revolving Fund loans upon which con pletion moneys are dependent In addition to the proceeds of this Loan when amended to provide funds as set forth in Subsection 4 02(3) the Local Government covenants that it has cytained or will obtain, sufficient moneys from other ources to complete construction and place the facilities designed under the Project in operation on, or prior to the date to be specified under an Additional Completion Loan 4 08 PROJECT CLOSE-OUT The Department shall conduct a final inspection of the Project records As a result cf the inspection, deadlines for submitting additional el sbi,rsement requests if any shall be established When an Additional Completion Loan is made o fund Post -allowance Project Costs the close out of the Loan shall be postponed and combined with the close-out for the amended loan agreement Deadlines shall be incorporated into the Loan Agreement by the amendment At the time of the amendment the Local Governments audit under Subsection 2 01(13) shall be scheduled 4 09 SURPLUS LOAN FUNDS After the Department establishes the final costs to be financed by the Loan, the Loan Service Fee Loan repayment reserve Capitah7ed Interest, and all allowances may be adjusted and the balance of Loan funds remaining will be eliminated The principal amount of the Loan will be adjusted by the Department Such an adjustment will change on a pro rata basis the amount of the remaining Semiannual Loan Payments as addressed in Section 8 04 ARTICLE V DEFAULTS AND REMEDIES 5 01 EVENTS OF DEFAULT Each of the following events is hereby declared an event of default Page 11 (1) Failure to fund the Loan Repayment Reserve Account or to make any Monthly Loan Deposit or to deposit Pledged Revenues into the reserve account pursuant to Section 6 02 or to make any installment of the Semiannual Loan Payment when due and such failure shall continue for a period of 30 days (2) Except as provided in Subsections 5 01(1) (7) and (8) failure to comply with the provisions of this Agreement or failure in the performance or observance of any of the covenants or actions required by this Agreement and such failure shall continue for a period of 60 days after written notice thereof to the Local Government by the Department (3) Any warranty representation, or other statement by or on behalf of the Local Government contained in this Agreement or in any information famished in compliance with, or in reference to this Agreement which is false or misleading (5) Any proceeding instituted with the acquiescence of the Local Government for the purpose of effecting a composition between the Local Government and its creditors or for the purpose of adjusting the claims of such creditors pursuant to any federal or state statute now or hereafter enacted if the claims of such creditors are payable from Revenues (6) Any bankruptcy insolvency or other stimlar proceeding instituted by or against, the Local Government under federal or s,.ate bankruptcy or insolvency law now or hereafter in effect and if instituted against the Local Government is not dismissed within 60 days after filing (7) Failure of the Local Government to give immediate written notice of defai.lt to the Department and such failure shall continue for a period of 30 days (8) Failure of the I ocal Government to perform or to enable to be performed the project activities in aggregate m time to enable the Department s authorization to incur Post -allowance Project Costs for all Project facilities proposed for loan funding by the date set forth in Subsection 4 01(9) However failure to perform or to enable to be performed any of the individual project activities itemized under Subsections 4 01(1) through (8) according to the dates listed therein, shall not be considered an event of default 5 02 REMEDIES Upon an event of default and subject to the rights of others having prior hens on the Pledged Revenues the Department may enforce its rights by any of the following remedies (1) By mandamus or other proceeding at law or in equity require the Local Government to fulfill this Agreement (2) By action or suit in equity require the Local Government to account for all moneys received from the Department and to account for the receipt use application, or disposition of the Pledged Revenue Page 12 (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 certifying to the Auditor General and the Comptroller delinquency on loan repayments the Department may intercept the delinquent amount plus six percent expressed as an annual interest rate penalty of the amount due to the Department from any unobhgated funds due to the Local Government under any revenue or tax sharing fund established by the State except as otherwise provided by the State Constitution or State law Penalty interest shall accrue on any amount due and payable beginning on the 30th day following the date upon which payment is due (5) By notifying financial market credit rating agencies (6) By suing for payment of amounts due or becoming due with interest on overdue payments together with all costs of collection including attorneys fees (7) By accelerating the repayment schedule or increasing the interest rate by as much as three percent per annum on the unpaid principal of the Loan for a default under Subsection 5 01(1) (8) By terminating the Departments commitment under Section 4 07 to provide an Additional Completion Loan for the funding of Post -allowance Project Costs 5 03 DELAY AND WAIVER No delay or omission by the Department to exercise any right or power accruing upon an event of default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised as often as may be deemed expedient No waiver of any default under this Agreement shall extend to or affect any subsequent event of default whether of the same or different provision of this Agreement or shall impair consequent rights or remedies ARTICLE VI THE PLEDGED REVENUES 6 01 PLEDGED REVENUE COVERAGE The Local Government shall pledge and collect Pledged Revenues equal to or exceeding 1 20 tunes the sum of the Semiannual Loan Payments due in each fiscal year This Subsection shall be re negotiated if the Pledged Revenues are changed as a result of an Additional Completion Loan pursuant to Section 4 07 6 02 RESERVED PLEDGED REVENUES The Pledged Revenues collected in excess of the sum of the two Semiannual Loan Payments due in each fiscal year shall be deposited or maintained in an account reserving such moneys as additional security for repayment of this Loan For the purpose of estabhshmg requirements for account withdrawals account restoration, investment (except that all investment income and earnings may be used at the Local Government's discretion) of Rinds and account restrictions the analogous provisions of Sections 3 05 to 3 08 respectively shall be apphcable The reserve account deposits annually expected to be 0 20 tunes the sum of the Semiannual Loan Payments due in each fiscal year, shall be made beginning with the first Fiscal Year during which Monthly Loan Deposits to a monthly escrow Page 13 account are required and this annual requirement shall be met no later than an the anniversary of the date set forth in Subsection 4 01(11) Such deposits shall continue unti the amount on deposit equals or exceeds the sum of the first two Semiannual Loan Payments This Subsection shall be re negotiated if the Pledged Revenues are changed as a result of an Additional Completion Loan pursuant to Section 4 07 6 03 SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT From and after the effective date of this Agreement the Department shall have a hen on the Pledged Revenues prior and superior to any other hen, pledge or assignment not specifically set forth in this Agreement Any of the Pledged Revenues may be released from the hen on such Pledged Revenues in favor of the Department if the Department makes a determination, based upon facts deemed sufficient by the Department that tie remaining Pledged Revenues will in each Fiscal Year equal or exceed 120 times the debt seivice coming due in each Fiscal Year under the terms of this Agreement 6 04 ADDITIONAL DEBT OBLIGATIONS In addition to those obhgauons listed in Subsection 1 01(11) of the Loan Agreement the Local Government may issue additional debt obligations on a pant) with, or senior to the lien of the Department on the Pledged Revenues with the written consent of the Department if the Pledged Revenues plus R venues to be pledged to the additional proposed debt obligations will equal or exceed 1 20 times (or equivalent) the annual combined debt service requirements of this Agreement plus debt service on other obligations issued, or proposed to be issued by the Local Government secured by the Pledged Revenues The Department shall issue written consent when the Department finds that an adequate demonstrati^n of such coverage has been made 6 05 CHANGES TO PLEDGED REVENUES Changes to Pledged Revenues as defined in Subsection 1 01(11) may be made at such time as the Additional Completion Loan addressed under Section 4 07 is executed In the event of such changes the rate coverage subordination of the Department's hen on Pledged Revenues provisions for Monthly Loan Deposits and Loan Repayment Reserve &riding and other appropriate means of providing assurance oftimely Semiannual Loan Payments shall be established or re established ARTICLE VII GENERAL PROVISIONS 7 01 DISCHARGE OF OBLIGATIONS All payments required to be made under this Agreement shall be cumulative and any deficiencies in any Fiscal Year shall be added to the payments due m the succeeding year and all years thereafter until fully paid Payments shall continue to be secured by this Agreement until all of the payments required shall be fully paid to the Department It, at any time the Local Government shall have paid or Shall have made provision for the time y payment o% the principal amount of the Loan and interest required the pledge of and hen on, the Pledged Revenues to the Department shall be no longer m effect Deposit of sufficient cash, securities or investments authonzed by law from time to time may be made to effect defeasance of this Loan However the deposi1. shall be made in irrevocable trust with a banking institution or trust company for the sole benefit of the Department There shall be no penalty imposed by the Department for early retirement of this Loan. Page 14 7 02 PROJECT RECORDS AND STATEMENTS Books records reports engineering documents contract documents and papers shall be available to the authorized representatives of the Department and the U S Environmental Protection Agency's Inspector General for inspection at any reasonable time after the Local Government has received a disbursement and before three years have elapsed afar the Departments final Project disbursement to the Local Government 7 03 ACCESS TO PROJECT SITE The Local Government shall provide access to offices and other sites where Project work is ongoing or has been performed to authorized representatives of the Department at any reasonable time The Local Government shall cause its engineers and contractors to provide copies of project records and statements for inspection 7 04 ASSIGNMENT OF RIGHTS UNDER AGREEMENT The Department may assign any part of its rights under this Agreement after notification to the Local Government The Local Government shall not assign rights created by this Agreement without the written consent of the Department 7 05 AMENDMENT OF AGREEMENT This Agreement may be amended except that no amendment shall be permitted which is inconsistent with statutes rules regulations executive orders or written agreements between the Department and the Ti S Environmental Protection Agency This Agreement may be amended as set forth in Section 4 07 to provide fundmg for Post allowance Projecx Costs This Agreement shall be amended to close out the Project after the final Project cost has been determined by the Department as set forth in Section 4 08 7 06 SEVERABILITY CLAUSE If any provision of this Agreement shall be held invalid or unenforceable the remaining provisions shall be construed and enforced as if such invalid or unenforceable provision had not been contained herein 7 07 EXECUTION OF AGREEMENT This Agreement shall be executed in three or more counterparts any of which shall be regarded as an original and all of which constitute but one and the same instrument The Agreement becomes effective upon execution by the Department ARTICLE VIII DETAILS OF FINANCING 8 01 PRINCIPAL AMOUNT OF LOAN The amount of the Loan is $723 762 00 including Capitalized Interest 8 02 INTEREST RAPE The rate of interest on the unpaid principal of the Loan is 2 56% percent per annum however if this Agreement is not executed by the Local Government and the Department before June 30 1996 the interest rate shall be adjusted pursuant to Section 62- 503 430 of the Flond'i Administrative Code This interest rate shall apply to an Additional Completion Loan to fund Post -allowance Project Costs provided the requirements set forth in Section 4 07 are met Page 15 8 03 LOAN TERM The Loan shall be repaid in forty Semiannual Loan Payments 8 04 REPAYMENT SCHEDULE The Loan repayment schedule shall be dependent upon whether an amendment to this Loan Agreement is executed for an Additional Completion Loan to fund Post allowance Project Costs Subsection (1) below pertains to the repayment schedule m the event that this Agreement is amended to provide completion moneys as set forth in Section 4 07 and thereby fund Post allowance Protect Costs Subsection (2) below pertains to the repayment schedule in the event that this Agreement is not amended (1) When this Agreement is amended to provide completion moneys the first Semiannual Loan Payment shall be postponed until the date to be established in the amendment for the Additional Completion Loan The first Semiannual Loan Payment shall be computed based upon the amended principal amount of the loan, generally expected to be the sum of the amount estimated under Subsection 4 02(3) plus Capitalized Interest the estimated disbursement schedule to be identified under an Additional Completion Loan reflecting construction related activities the timing of the actual disbursements made under this Loan for preconstruction activities and the principle of level debt service Subsequent Semiannual Loan Payments may be adjusted based upon actual disbursement information, overpayment or underpayment associated with the amount of previous Semiannual Loan Payment and the principle of level debt service Final costs to be financed under the Sta e Revolving Fund loan shall be established after the Department s inspection of the constructed facilities and associated records and after the close out amendment to the Loan Agreement The interest portion of each Semiannual Loan Payment shall be computed on the unpaid balance of the principal amount of the amended loan, including Capitalized Interest recalculated to reflect the postponement of repayment of this Loan Interest on the principal shall be computed as of the due date of the Semiannual Loan Payment Semiannual Loan Payments shall be received by the Department beginning on or before six months from the date established for completion of construction as is to be set forth by amendment to this Agreement Repayments shall be made semiannually thereafter until all amounts due hereunder have been fully paid Funds transfer shall be made by electronic means or by means of magnetic tape when such transfer mechanisms are available (2) Unless this Agreement is amended to provide an Additional Completion Loan to fund Post allowance Project Cots or otherwise deferred by an amendment to this Agi cement, the first Semiannual Loan Payment shall be computed based upon the principal amount of the Loan as set forth m Section 8 01 the estimated disbursement schedule identified Section 4 03 and the principle of level debt service Subsequent Semiannual Loan Payments may be adjusted based on the timing of actual disbursements and an adjustment for any overpayment or underpayment associated with the amount of the first Semiannual Loan Payment Actual Project costs shall be established after the Department's inspection of the Project records and the close out amendment to the Loan Agreement has been issued Each Semiannual Loan Payment shall be in the amount of $23 233 00 The interest portion of each Semiannual Loan Payment shall be computed on the unpaid balance of the principal amount Page 16 of the Loan, including Capitalized Interest Interest on the principal shall be computed as of the due date of the Semiannual Loan Payment Semiannual Loan Payments shall be received by the Department beginning on, or before September 1 1999 and semiannually thereafter on, or before March 1 and October 1 of each year until all amounts due hereunder have been fully paid Funds transfer shall be made by electronic means or by means of magnetic tape when either of such transfer mechanisms are available This Subsection 8 04(2) shall be voided m the event of an Additional Completion Loan to fund Post allowance Project Costs THE REMAINDER OF THIS PAGE INTENTIONALLY HAS BEEN TEFT BLANK Page 17 ARTICLE DC EXECUTION OF LOAN AGREEMENT IN WITNESS WHEREOF the Department has caused this Agreement to be executed on its behalf by the Secretary of the Department and the Local Government has caused this Agreement to be executed on its behalf by the Authorized Representative and by its affixed seal The effective date of this Agreement shall be as set forth below by the Department for VILLAGE OF KEY BISCAYNE FLORIDA SEAL Mayor Approved as to Form and Legality trO est by VI - :e Clerk Village Attorney for STALE OF I<LORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Dated Z k• M Secretary Page 18