Fort Walton Beach Council agenda — 01-08-13--regular — reading text

and the Department, at its expense, an opinion of Bond Counsel to the effect that to do so would not adversely affect the exclusion from gross income of interest on the Applicable Tax -Exempt Bonds or cause the interest on the Applicable Tax -Exempt Bonds, or any portion thereof, to become an item of tax preference for purposes of the alternative minimum tax imposed on individuals and corporations under the Code. n Notwithstanding any provision of this Section 2. 02, if the Local Borrower provides, at the Local Borrower' s expense, to the Corporation and the Department an opinion of 11 Packet P9 103  14.2: b Bond Counsel to the effect that any action required under this Section is no longer required, or to the effect that some further action is required, to maintain the exclusions from gross income of interest on the Applicable Tax- Exempt Bonds pursuant to Section 103( a) of the Code, the Local Borrower, the Corporation and the Department may rely conclusively on such opinion in complying with the provisions hereof, and the covenants hereunder shall be deemed to be modified to that extent. N 8) All tax warranties, representations, covenants and obligations of the Local w Borrower contained in this Section 2. 02 shall remain in effect and be binding upon the Local ' o a` Borrower until all of the Applicable Tax -Exempt Bonds have been paid, notwithstanding any earlier termination of this Agreement or any provision for payment of principal of and premium, c if any, and interest on the outstanding Applicable Tax -Exempt Bonds and release and discharge zc of the Indenture. ° 9) Amounts deposited from time to time in the Loan Debt Service Account will be used to pay principal and interest within 13 months after the amounts are so deposited. 10) The Local Borrower has not established and does not expect to establish or use o any sinking fund, debt service fund, redemption fund, reserve or replacement fund, or similar v fund, or any other fund to pay principal of, interest and any redemption premium on the Loan u other than the Loan Debt Service Account. Except as set forth in the next sentence and except e for money referred to in paragraph ( 9) above, no other money or investment property ( including, without limitation, fixed income, equity and other investments) is or will be pledged as collateral ` m or used for the payment of such principal and interest ( or for the reimbursement of any others 0 who may provide money to pay that principal and interest), or is or will be restricted, dedicated, N encumbered, or set aside in any way as to afford the Corporation or holders of the Applicable Tax -Exempt Bonds reasonable assurance of the availability of such money or investment property to pay debt service on the Loan or the Applicable Tax- Exempt Bonds. 11) Except as stated otherwise in this Agreement, no portion of the Loan will be used: i) to pay principal of or interest on, refund, renew, roll over, retire, or replace any other obligations issued by or on behalf of the Corporation, the Local Borrower or any other Governmental Unit, ii) to replace any proceeds of another issue of tax- exempt bonds that were not expended on the project for which such other issue was issued, iii) to replace any money that was or will be used directly or indirectly to acquire investments, iv) to make a loan to any other person or Governmental Unit, v) to pay any working capital expenditure other than expenditures identified in Treasury Regulations § 1. 148- 6( d)( 3)( ii)( A) and ( B) i. e. issuance costs of the Applicable Tax -Exempt Bonds, qualified administrative costs, reasonable charges for a qualified guarantee or for a qualified hedge, interest on the Loan for a period commencing on the issuance date of the Applicable Tax- Exempt Bonds and ending on 12 Packet Pg. 104  14.2. 6 the date that is the later of three years from that issuance date or one year after the date on which the Project was or will be placed in service, payments of amounts, if any, pursuant to paragraph ( i), and costs, other than those already described, that do not exceed 5% of the sale proceeds of the Applicable Tax- Exempt Bonds and that we directly related to capital expenditures financed or deemed financed by the Applicable Tax- Exempt Bonds), or vi) to reimburse any expenditures made prior to the issuance date of the Applicable Tax -Exempt Bonds except those that qualify as a reimbursement of prior capital expenditures, based upon an opinion of Bond Counsel, at the expense of the Local Borrower, delivered to the Department and the Corporation. 12) The Local Borrower does not intend to sell or otherwise dispose of the Project or any portion thereof during the term of the Applicable Tax- Exempt Bonds except for dispositions of property in the normal course at the end of such property' s useful life to the Local Borrower. 13) None of the Semiannual Loan Payments shall be federally guaranteed within the meaning of Section 149( b) of the Code. 2. 03, LEGAL AUTHORIZATION Upon signing this Agreement, the Local Borrower' s legal counsel hereby expresses the opinion, subject to laws affecting the rights of creditors generally, that: 1) This Agreement has been duly authorized by the Local Borrower and shall constitute a valid and legal obligation of the Local Borrower enforceable in accordance with its terms upon execution by both parties; and 2) This Agreement specifies the revenues pledged for repayment of the Loan, and the pledge is valid and enforceable. 2. 04. AUDIT AND MONITORING REQUIREMENTS. The Local Borrower agrees to the following audit and monitoring requirements. Funds provided under this Agreement have been identified as second -tier monies under the Federal Clean Water Act which are identified as state funds whose use is federally protected. 1) The financial assistance authorized pursuant to this Loan Agreement consists of the following: REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 13 PackatPg:,105  14. 2. b State Resources Awarded to the Local Borrower Pursuant to this Agreement Consist of the Followin Resources Subject to Section 215. 97, F. S.: State State Appropriation Program CSFA CSFA Title or Fund Funding Fundin Source Number Source Description Amount Category Number Statewide Surface 19, 504,447 140131 Original Wastewater 37. 077 Water Restoration Agreement Treatment and and Wastewater Stormwater Projects Management TF 2) Audits. a) In the event that the Local Borrower expends a total amount of state financial assistance equal to or in excess of $500,000 in any fiscal year of such Local Borrower, the Local Borrower must have a State single or project- specific audit for such fiscal year in accordance with Section 215. 97, Florida Statutes; applicable rules of the Department of Financial Services; and Chapters 10. 550 ( local governmental entities) or 10.650 ( nonprofit and for -profit organizations), Rules of the Auditor General. In determining the state financial assistance expended in its fiscal year, the Local Borrower shall consider all sources of state financial assistance, including state financial assistance received from the Department of Environmental Protection, other state agencies, and other nonstate entities. State financial assistance does not include Federal direct or pass -through awards and resources received by a nonstate entity for Federal program matching requirements. b) In connection with the audit requirements addressed in the preceding paragraph a); the Local Borrower shall ensure that the audit complies with the requirements of Section 215. 97( 7), Florida Statutes. This includes submission of a financial reporting package as defined by Section 215.97( 2), Florida Statutes, and Chapters 10. 550 ( local governmental entities) or 10. 650 ( nonprofit and for -profit organizations), Rules of the Auditor General. c) If the Local Borrower expends less than $ 500,000 in state financial assistance in its fiscal year, an audit conducted in accordance with the provisions of Section 215. 97, Florida Statutes, is not required. The Local Borrower shall inform the Department of findings and recommendations pertaining to the State Revolving Fund in audits conducted by the Local Borrower in which the $ 500,000 threshold has not been met. In the event that the Local Borrower expends less than $ 500, 000 in state financial assistance in its fiscal year, and elects to have an audit conducted in accordance with the provisions of Section 215. 97, Florida Statutes, the cost of the audit must be paid from the non -state entity' s resources ( i. e., the cost of such an audit must be paid from the Local Borrower' s resources obtained from other than State entities). d) For information regarding the Florida Catalog of State Financial Assistance CSFA), a Local Borrower should access the Florida Single Audit Act website located at hams //aPrx.fldfs.com/ fi;aa for assistance. In addition to the above websites, the following Legislature' s Website at websites may be accessed for information: 14 Packet'Pg,;1116