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Resolution 2013-220/CWS 2013-04RESOLUTION 2013 - 2 2 0 /CWS RESOLUTION 2013- 0 4 A JOINT RESOLUTION OF COLLIER COUNTY, FLORIDA AND THE COLLIER COUNTY WATER - SEWER DISTRICT AUTHORIZING AN ADDITIONAL DISBURSEMENT UNDER AN EXISTING LOAN AGREEMENT Wl T H THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION IN AN AGGREGATE PRINCIPAL AMOUNT OF NOT EXCEEDING $12,000,000 IN ORDER TO REFUND A PORTION OF THE COLLIER COUNTY WATER -SEWER DISTRICT WATER AND SEWER REVENUE BONDS, SERIES 2006; AUTHORIZING THE EXECUTION AND DELIVERY OF AN AMENDMENT TO SUCH AGREEMENT; DELEGATING CERTAIN AUTHORITY TO THE CHAIRWOMAN IN CONNECTION WITH THE APPROVAL OF THE TERMS AND DETAILS OF SAID DISBURSEMENT AND AMENDMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF AN ESCROW DEPOSIT AGREEMENT AND APPOINTMENT OF AN ESCROW AGENT THERETO; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ACTING ON ITS OWN BEHALF AND AS THE EX- OFFICIO GOVERNING BOARD OF THE COLLIER COUNTY WATER- SE WER DISTRICT: SECTION 1. FINDINGS. It is hereby found and determined that: (A) On July 30, 1985, the Board of County Commissioners (the "Board ") of Collier County, Florida (the "County "), acting as the ex- officio governing board (the "Governing Body ") of the Collier County Water -Sewer District (the "District "), duly adopted Resolution No. CWS -85 -5, as amended and restated by Resolution No. CWS -85- 13 duly adopted on December 26, 1985, as amended and supplemented (collectively, the "Resolution "), for the purposes described therein. (B) On December 13, 2006, the District issued its Collier County Water -Sewer District Water and Sewer Revenue Bonds, Series 2006 (the "Series 2006 Bonds ") for the principal purpose of financing and refinancing certain capital improvements to the District's System (as defined in the Resolution). (C) The County previously entered into Drinking Water State Revolving Fund Construction Loan Agreement DW1111 040 (as previously amended, the "SRF Loan Agreement "), with the State of Florida Department of Enviromnental Protection ( "DEP "), to finance certain capital improvements to the System. (D) An additional disbursement may be received pursuant to the SRF Loan Agreement (the "Additional Disbursement ") in order to refund a portion of the Series 2006 Bonds (the "Refunded Bonds ") to provide debt service savings to the District. (E) The County and the District find it to be in the best interests of the citizens within the County to receive the Additional Disbursement in order to refund the Refunded Bonds and achieve debt service savings. (F) In order to obtain the Additional Disbursement it is necessary and desirable to amend the SRF Loan Agreement in certain respects. (G) In connection with the refunding of the Refunded Bonds, the District shall deposit part of the proceeds derived from the Additional Disbursement, together with other legally available moneys of the District, in a special escrow deposit trust fund (the "Escrow Fund "), to purchase U.S. Treasury obligations (the 'Refunding Securities ") which shall be sufficient, together with the investment earnings therefrom and a cash deposit, if any, to pay the Refunded Bonds as the same mature or are redeemed prior to maturity, all as provided herein and in the hereinafter described Escrow Deposit Agreement. (H) Because of the nature of the DEP loan program it is necessary and desirable to procure the Additional Disbursement directly from DIP by a negotiated sale in accordance with the provisions hereof and of the SRF Loan Agreement. (I) The Additional Disbursement shall not constitute a general obligation, or a pledge of the faith, credit or taxing power of the District, the County, the State of Florida, or any political subdivision thereof, within the meaning of any constitutional or statutory provisions; neither the State of Florida, nor any political subdivision thereof, nor the County, nor the District shall be obligated (i) to exercise its ad valorem taxing power in any form on any real or personal property of or in the County to pay the principal of the Additional Disbursement, the interest thereon, or other costs incidental thereto or (ii) to pay the salve from any other funds of the District or the County except from the revenues and sources of funds set forth in the SRF Loan Agreement, in the manner provided therein. SEQTION 2. DEFINITIONS. When used in this Resolution, the terms defined in the Resolution shall have the meanings therein stated, except as such definitions shall be hereinafter amended and defined. 2 SECTION 3. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to Pail 11 of Chapter 153, Florida Statutes, Chapter 78- 489, Laws of Florida, Special Acts of 1978, and other applicable provisions of law. SECTION 4. AUTHORIZATION OF THE REFUNDING OF THE REFUNDED BONDS. The District hereby authorizes the refunding of the Refunded Bonds for the purpose of achieving debt service savings. The Chairwoman, upon the advice of the Financial Advisor to the District, Public Financial Management, Inc. (the "Financial Advisor "), shall determine the specific maturities of the Series 2006 Bonds and/or portions thereof which shall constitute the Refunded Bonds. SECTION 5. AUTHORIZATION OF THE ADDITIONAL DISBURSEMENT. The District and the County hereby authorize the Additional Disbursement in an aggregate principal amount of not exceeding $12,000,000, the specific amount to be approved by the Chairwoman, upon the advice of the Financial Advisor. The final maturities of the Additional Disbursement shall not exceed 20 years and the interest rates thereon shall not exceed 3.00 %, the specific maturities and interest rates to be approved by the Chairwoman, upon the advice of the Financial Advisor. SECTION 6. APPLICATION OF SRF LOAN PROCEEDS. The proceeds of the Additional Disbursement shall be applied simultaneously with the delivery thereof as follows: (A) A sufficient amount of such proceeds, together with other legally available moneys of the District, shall be deposited irrevocably in trust in the Escrow Fund established under the terms and provisions of the hereinafter defined Escrow Deposit Agreement and, other than a cash deposit, if any, shall be invested in Refunding Securities in the manner set forth in such Escrow Deposit Agreement, which investments shall mature at such times and in such amounts which, together with such cash deposit, shall be sufficient to pay the principal of, Redemption Price, if applicable, and interest on the Refunded Bonds as the same mature and become due and payable or are redeemed prior to maturity. (B) The remainder of the proceeds of the Additional Disbursement, if any, shal I be applied to the payment of costs and expenses relating to the incurrence of the Additional Disbursement. SECTION 7. TRANSFER OF CERTAIN MONEYS. The Refunded Bonds will be refunded from the proceeds of the Additional Disbursement and from other legally available funds of the District. Any excess moneys on deposit in the Sinking Fund (as defined in the Resolution) established for the benefit of the Refunded Bonds pursuant to the Resolution and not required to remain on deposit therein shall be transferredto the Escrow Fund established pursuant to the Escrow Deposit Agreement. 3 SECTION 8. AUTHORIZATION TO EXECUTE AMENDMENT TO SRF LOAN AGREEMENT. The County and the District hereby authorize and direct the Chairwoman to execute and the Clerk to attest Amendment 3 to Loan Agreement DWI 111040 (the "Amendment 3 ") and to deliver such Amendment 3 to DEP. The Amendment 3 shall be in substantially the form of the Amendment 3 attached hereto as Exhibit A with such changes, amendments, modifications, omissions and additions, including the date of such Amendment 3, as may be approved by said Chairwoman. Execution by the Chairwoman of the Amendment 3 shall be deemed to be conclusive evidence of approval of such changes. SECTION 9. AUTHORIZATION TO EXECUTE ESCROW DEPOSIT AGREEMENT. The District hereby authorizes and directs the Chairwoman to execute and the Clerk to attest an escrow deposit agreement (the "Escrow Deposit Agreement ") and to deliver the Escrow Deposit Agreement to U.S. Bank National Association, Fort Lauderdale, Florida, which is hereby appointed as Escrow Agent. The Escrow Deposit Agreement shall be in substantially the form of the Escrow Deposit Agreement attached hereto as Exhibit B with such changes, amendments, modifications, omissions and additions, including the date of such Escrow Deposit Agreement, as may be approved by said Chairwoman. Execution by the Chairwoman of the Escrow Deposit Agreement shall be deemed to be conclusive evidence of approval of such changes. SECTION 10. GENERAL AUTHORITY. The members of the Governing Body and the Board, the County Manager, the Clerk and the officers, attorneys and other agents or employees of the District and the County are hereby authorized to do all acts and things required of them hereby, by the Resolution, the SRF Loan Agreement, the Amendment 3 or the Escrow Deposit Agreement, or desirable or consistent with the requirements hereof or the Resolution, the SRF Loan Agreement, the Amendment 3 or the Escrow Deposit Agreement for the full punctual and complete performance of all the terms, covenants and agreements contained herein or in the Resolution, the SRF Loan Agreement, the Amendment 3 and the Escrow Deposit Agreement and each member, employee; ' attorney and officer of the District and the County and the Clerk is hereby authorized and directed to execute and deliver any and all papers and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated hereunder. In the event the Chairwoman is absent or unavailable to perform any function or duty hereunder the Vice - Chairman is hereby authorized to perform any and all of such functions or duties. Bond Counsel and the Financial Advisor are hereby authorized and directed to take all action necessary and desirable to carry out the intent and purposes of this Resolution. SECTION 11. SEVERABILITY AND INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited or against public policy, or shall for any reason whatsoever be 4 held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof or of the SRF Loan Agreement or the Amendment 3. SECTION 12. EFFECTIVE DATE. This Resolution shall become effective immediately upon its adoption. THIS RESOLUTION ADOPTED, after motion, second and majority vote on this the 24th day of September, 2013. ATTEST: DWIGHT E. BROCK, Cleric . U� 3 BOARD OF COUNTY COMMI §6117''`5�;; COLLIER COUNTY, FLOR��;' ;AS 1�Y fi GOVERNING B DY 01� • COLLIE-R COUNTY AND S EX f- OFF10- O 'Tilt'- GO V I IN BO RD OIE TJI �-,O ,IFA CO T W TE SEWE*bI1 T& CT E 01�9RGIA A. HILLER, ESQ. CHAIRWOMAN EXHIBIT A FORM OF AMENDMENT 3 DRINKING WATER STATE REVOLVING FUND AMENDMENT 3 TO LOAN AGREEMENT DWI 111 OHIO COLLIER COUNTY This amendment is executed by the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (Department) and COLLIER COUNTY, FLORIDA, (Project Sponsor) existing as a local government agency under the laws of the State of Florida. WITNES SETH: WHEREAS, the Department and the Project Sponsor entered into a Drinking Water State Revolving Fund Loan Agreement, Number DWI 111 040, as amended, authorizing a Loan amount of $32,200,000, excluding Capitalized Interest; and WHEREAS, the Project Sponsor is entitled to additional financing of $12,000,000, excluding Capitalized Interest; and WHEREAS, an interest rate must be established for the additional financing amount awarded in this amendment; and WHEREAS, a Loan Service Fee must be assessed for the additional Inancing; and WHEREAS, the Semiannual Loan Payment amount needs revision to reflect adjustment in the Loan amount; and WHEREAS, revised provisions for audit and monitoring are needed. NOW, THEREFORE, the parties hereto agree as follows: 1. Subsection 2.03(1) of the Agreement is hereby deleted and replaced as follows: (1) The financial assistance authorized pursuant to this Loan Agreement consists of the following: Federal Resources, Including State Match, Awarded to the Recipient Pursuant to this Agreement Consist of the Following: Federal State Program Federal CFDA Funding Appropriation Number Agency Number CFDA Title Amount Category FS984522 -130 EPA 66.468 Capitalization Grants $44,200,000 140129 for Drinking Water State Revolving Fund 2. Additional financing in the amount of $12,000,000, excluding Capitalized Interest, is hereby awarded to the Project Sponsor. 3. An interest rate of 2.37 percent per annum is established for the additional financing amount awarded in this amendment; however, if this amendment is not executed by the Project Sponsor and returned to the Department before October 1, 2013, the interest rate may be adjusted. 4. The estimated principal amount of the Loan is hereby revised to $44,583,530, which consists of $44,200,000 authorized for disbursement to the Project Sponsor and $383,530 of Capitalized Interest. This total consists of the following: (a) Original Agreement of $8,336,811, including $8,000,000 authorized for disbursement to the Project Sponsor and $336,811 of Capitalized Interest, at an interest rate of 2.64 percent per annum; and (b) Amendment 1 of $3,246,719, including $3,200,000 authorized for disbursement to the Project Sponsor and $46,719 of Capitalized Interest, at an interest rate of 2.79 percent per annum; and (c) Amendment 2 of $21,000,000 authorized for disbursement to the Project Sponsor at an interest rate of 2.25 percent per annum; and (d) Amendment 3 of $12,000,000 authorized for disbursement to the Project Sponsor at an interest rate of 2.37 percent per annum. The estimated principal does not reflect payments received to date. 5. An additional Loan Service Fee in the amount of $240,000, for a total of $884,000, is hereby assessed. The fee represents two percent of the Loan amount excluding Capitalized Interest; that is, two percent of $44,200,000. The unpaid balance of $660,000 and associated interest will be deducted from the next Semiannual Loan Payment, and if necessary the following payment, after the effective date of this amendment. 6. The Semiannual Loan Payment amount, adjusted to account for repayments received to date, is h --reby revised and shall be in the amount of $1,637,160. Such payments shall be received by the Department on October 15, 2013 and semiannually thereafter on April 15 and October 15 of each year until all amounts due hereunder have been fully paid. Until this Agreement is further amended, each Semiannual Loan Payment will be proportionally applied, after deduction of the Loan Service Fee is complete, toward repayment of the amounts owed on each incremental Loan amount at the date such payment is due. 7. The Project Sponsor and the Department acknowledge that the actual cost of the Project has not been determined. Project cost adjustments may be made as a result of mutually agreed upon Project changes. Capitalized Interest will be recalculated based on actual dates and amounts of Loan disbursements. If the Project Sponsor receives other governmental financial assistance for this Project, the costs funded by such other governmental assistance will not be financed by this Loan. The Department shall establish the final Project costs after its final inspection of the Project records. Changes in Project costs may also occur as a result of the Project Sponsor's Project audit or a Department audit. t 2 Funds disbursed in accordance with Section 4.08 of this Agreement shall be disbursed in the order in which they have been obligated without respect to budgetary line item estimates. All disbursements shall be made from the original Loan amount until that amount has been disbursed; the interest rate established for the original Loan amount shall apply to such disbursements for the purpose of determining the associated Capitalized Interest and repayment amount. The interest rate established for any additional increment of Loan financing shall be used to determine the Capitalized Interest and repayment amount associated with the funds disbursed from that increment. The estimated Project costs are revised as follows: 8. All other terms and provisions of the Loan Agreement shall remain in effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 3 AUTHORIZED LOAN CATEGORY COST($) AMOUNT'($) TO DA'L'E (1) Administrative Allowance 296,342 Line items (2) Engineering Allowance 2,963,422 inay Vary (3) Construction and Demolition 47,038,450 based on (4) Contingencies 2,351,923 actual (5) Technical Services After Bid Opening 4,796,000 disbursements SUBTOTAL (Disbursable Amount) 57,446,137 44,200,000 (6) Capitalized Interest 383,530 383,530 TOTAL, (Loan Principal Amount) 57,829,667 44,583,530 8. All other terms and provisions of the Loan Agreement shall remain in effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 3 This Amendment 3 to Loan Agreement DW l I I 1 040 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. IN WITNESS WHEREOF, the Department has caused this amendment to the Loan Agreement to be executed on its behalf by the Program Administrator and the Project Sponsor has caused this amendment to be executed on its behalf by its Authorized Representative and by its affixed seal. The effective date of this amendment shall be as set forth below by the Program Administrator. SEAL for COLLIER COUNTY Chairwoman Attest: Approved as to fonn and legal sufficiency: County Clerk County Attorney for STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Program Administrator State Revolving Fund 4 Date EXHIBIT B FORM OF ESCROW DEPOSIT AGREEMENT ESCROW DEPOSIT AGREEMENT ESCROW DEPOSIT AGREEMENT, dated as of , 2013, by and between COLLIER COUNTY WATER -SEWER DISTRICT (the "District "), and U.S. BANK NATIONAL ASSOCIATION (the "Escrow Agent "), a national banking association, having a corporate trust office at 550 West Cypress Creek Road, Suite 380, Fort Lauderdale, Florida 33309, as escrow agent hereunder. WHEREAS, the District has heretofore issued its Collier County Water -Sewer District Water and Sewer Revenue Bonds, Series 2006 (the "Series 2006 Bonds ") pursuant to Resolution No. CWS -85 -5 adopted on July 30, 1985, as amended and restated by Resolution No. CWS -85 -13 adopted on December 26, 1985, as amended and supplemented (collectively, the 'Resolution "); and WHEREAS, the District has determined to exercise its option under the Resolution to advance refund that portion of the outstanding Series 2006 Bonds identified on Schedule A attached hereto (the 'Refunded Bonds "); and WHEREAS, a loan from the State of Florida Department of Environmental Protection will be incurred pursuant to an existing loan agreement (the "SRF Loan"), a portion of the proceeds of which SRF Loan will be used to purchase certain United States Treasury ;obligations in order to provide payment for the Refunded Bonds and to discharge-and satisfy the pledges, liens and other obligations of the District under the Resolution in regard to such Refunded Bonds; and WHEREAS, the incurrence of the SRF Loan, the purchase by the Escrow Agent of the hereinafter defined Escrow Securities, the deposit of such Escrow Securities into an escrow deposit trust fund to be held by the Escrow Agent and the discharge and satisfaction of the pledges, liens and other obligations of the District under the Resolution in regard to the Refunded Bonds shall occur as a simultaneous transaction; and WILL REAS, this Agreement is intended to effectuate such simultaneous transaction; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows: SECTION 1. PREAMBLES. The District represents that the recitals stated above are true and correct and incorporated herein. SECTION 2. RECEIPT OF RESOLUTION AND VERIFICATION REPORT. Receipt of a true and correct copy of the above - mentioned Resolution and this Agreement is hereby acknowledged by the Escrow Agent. The applicable and necessary provisions of the Resolution, including but not limited to Article III and Section 9.01 thereof, are incorporated herein by reference. The Escrow Agent also acknowledges receipt of the verification report of The Arbitrage Group, Inc., dated , 2013 (the "Verification Report"). Reference herein to or citation herein of any provisions of the Resolution or the Verification Report shall be deemed to incorporate the same as a part hereof in the same manner and with the same effect as if the same were fully set forth herein. SECTION 3. DISCHARGE OF PLEDGE OF HOLDERS OF REFUNDED BONDS. In accordance with Section 9.01 of the Resolution, the District by this writing exercises its option to cause the pledge of the Pledged Funds and all covenants, agreements and other obligations of the District to the holders of the Refunded Bonds under the Resolution to cease, terminate and become void and be discharged and satisfied. SECTION 4. ESTABLISHMENT OF ESCROW FUND. There is hereby created and established with the Escrow Agent a special, segregated and irrevocable escrow fund designated the "Collier County Water -Sewer District Water and Sewer Revenue Bonds, Series 2006 Escrow Deposit Trust Fund #2" (the "Escrow Fund "). The Escrow Fund shall be held in the custody of the Escrow Agent as a trust fund for the benefit of the holders of the Refunded Bonds separate and apart from other funds and accounts of the District and the Escrow Agent. The Escrow Agent hereby accepts the Escrow Fund and acknowledges the receipt of and deposit to the credit of the Escrow Fund the sum of $ received from the District from proceeds of the SRF Loan (the "SRF Moneys ") and $ from other legally available moneys of the District (the "District Moneys "). SECTION 5. DEPOSIT OF MONEYS AND SECURITIES IN ESCROW FUND. The District hereby directs and the Escrow Agent represents and acknowledges that, concurrently with the deposit of the SRF Moneys and District Moneys under Section 4 above, it has used $ of the SRF Moneys and $ of the District Moneys to purchase on behalf of and for the account of the Distriot certain United States Treasury obligations (collectively, together with any other securities which may be on deposit, from time to time, in the Escrow Fund, the "Escrow Securities "), which are described in Schedule B hereto, and the Escrow Agent will deposit such Escrow Securities and $ in cash (the "Cash Deposit ") in the Escrow Find. All Escrow Securities shall be noncallable, direct obligations of the United States of America. In the event any of the Escrow Securities described in Schedule B hereto are not available for delivery on , 2013, the Escrow Agent may, at the written direction of the District and with the approval of Bond Counsel, substitute other United States Treasury obligations and shall credit such other obligations to the Escrow Fund and hold such obligations until the aforementioned Escrow Securities have been delivered. Bond Counsel shall, as a condition precedent to giving its approval, require 2 the District to provide it with a revised Verification Report in regard to the adequacy of the Escrow Securities, taking into account the substituted obligations to pay the Refunded Bonds in accordance with the terms hereof. The Escrow Agent shall in no manner be responsible or liable for failure or delay of Bond Counsel or the District to promptly approve the substitutions of other United States Treasury obligations for the Escrow Fund. SECTION 6. SUFFICIENCY OF ESCROW SECURITIES AND THE CASH DEPOSIT. In reliance upon the Verification Report, the District represents that the Cash Deposit and the interest on and the principal amounts successively maturing on the Escrow Securities in accordance with their terms (without consideration of any reinvestment of such maturing principal and interest) are sufficient such that moneys will be available to the Escrow Agent in amounts sufficient and at the times required to pay the amounts of principal of, premium, if any, and interest due and to become due on the Refunded Bonds as described in Schedule C attached hereto. If the Escrow Securities and the Cash Deposit shall be insufficient to make such payments, the District shall timely deposit to the Escrow Fund, solely from legally available funds of the District, such additional amounts as may be required to pay the Refunded Bonds as described in Schedule C hereto. Notice of any insufficiency shall be given by the Escrow Agent to the District as promptly as possible, but the Escrow Agent shall in no manner be responsible for the District's failure to make such deposits. SECTION 7. ESCROW SECURITIES AND THE CASH DEPOSIT IN TRUST FOR HOLDERS OF REFUNDED BONDS. The deposit of the Escrow Securities' and the Cash Deposit in the Escrow Fund shall constitute an irrevocable deposit o% Refunding Securities (as defined in the Resolution) and cash in trust solely for the payment of the principal of, premium, if any, and interest on the Refunded Bonds at such times and in such amounts as set forth in Schedule C hereto, and the principal of and interest earnings on such Escrow Securities and the Cash Deposit shall be used solely for such purpose. SECTION 8. ESCROW AGENT TO PAY REFUNDED BONDS FROM ESCROW FUND. The District hereby directs, and the Escrow Agent hereby agrees, that it will take all actions required to be taken by it under the provisions of the Resolution referenced in this Agreement, including the timely transfer of money to the Paying Agent for the Refunded Bonds (U.S. Bank National Association) as provided in the Resolution, in order to effectuate this Agreement and to pay the Refunded Bonds in the amounts and at the times provided in Schedule C hereto. The Escrow Securities and the Cash Deposit shall be used to pay debt service on the Refunded Bonds as they mature or are redeemed prior to maturity. The Refunded Bonds shall be redeemed prior to maturity on July 1, 2016 (the "Redemption Date ") at a redemption price equal to 100% of the principal amount of each Refunded Bond, plus interest accrued to the Redemption Date. If any payment date shall be a day on which either the Paying Agent for the 3 Refunded Bonds or the Escrow Agent is not open for the acceptance or delivery of funds, then the Escrow Agent may make payment on the next business day. The liability of the Escrow Agent for the payment of the principal of, premium, if any, and interest on the Refunded Bonds pursuant to this Agreement shall be limited to the application of the Escrow Securities and the Cash Deposit and the interest earnings thereon available for such purposes in the Escrow Fund. SECTION 9. REINVESTMENT OF MONEYS AND SECURITIES IN ESCROW FUND. Moneys deposited in the Escrow Fund shall be invested, other than the Cash Deposit, only in the Escrow Securities listed in Schedule B hereto and, except as provided in Section 5 hereof and this Section 9, neither the District nor the Escrow Agent shall otherwise invest or reinvest any moneys in the Escrow Fund. Except as provided in Section 5 hereof and in this Section 9, the Escrow Agent may not sell or otherwise dispose of any or all of the Escrow Securities or the Cash Deposit in the Escrow Fund and reinvest the proceeds thereof in other securities nor may it substitute securities for any of the Escrow Securities, except upon written direction of the District and where, prior to any such reinvestment or substitution, the Escrow Agent has received from the District the following: (a) a written verification report by a firm of independent certified public accountants, of recognized standing, appointed by the District and acceptable to the Escrow Agent, to the effect that after such reinvestment or substitution the principal amount of Escrow Securities, together with the interest thereon and any uninvested cash, will be sufficient to pay the Refunded Bonds as described in Schedule C hereto; and (b) a written opinion of nationally recognized Bond Counsel to the effect that (i) such investment will not cause the Refunded Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code, as amended, and the regulations promulgated thereunder or otherwise cause the interest on the Refunded Bonds to be included as gross income for purposes of federal income taxation, and (ii) such investment does not violate any provision of Florida law or of the Resolution. The above- described verification report need not be provided in the event the District purchases Escrow Securities with the proceeds of maturing Escrow Securities and such purchased Escrow Securities mature on or before the next interest payment date for the Refunded :Bonds and have a face amount which is at least equal to the cash amount invested in such Escrow Securities. In the event the above - referenced verification concludes that there are surplus moneys in the Escrow Fund, such surplus moneys shall be released to the District upon its written direction. The Escrow Fund shall continue in effect until the date upon which 4 the Escrow Agent makes the final payment to the Paying Agent for the Refunded Bonds in an amount sufficient to pay the Refunded Bonds as described in Schedule C hereto, whereupon the Escrow Agent shall sell or redeem any Escrow Securities remaining in the Escrow Fund, and shall remit to the District the proceeds thereof, together with all other money, if any, then remaining in the Escrow Fund. SECTION 10. REDEMPTION OF REFUNDED BONDS. The District hereby irrevocably instructs the Escrow Agent to cause the Registrar for the Refunded Bonds (U.S. Bank National Association) to give, on behalf of the District, at the appropriate times the notice or notices, if any, required by the Resolution in connection with the redemption of the Refunded Bonds. The Refunded Bonds shall be redeemed on July 1, 2016 at a redemption price equal to 100% of the principal amount thereof, plus accrued interest. SECTION 11. DEFEASANCE NOTICE TO HOLDERS OF REFUNDED BONDS. Concurrently with the deposit of the Escrow Securities set forth in Section 5 hereof, the Refunded Bonds shall be deemed to have been paid within the meaning and with the effect expressed in Section 9.01 of the Resolution. Within 60 days of the deposit of moneys into the Escrow Fund, the Escrow Agent, on behalf of the District, shall cause the Paying Agent for the Refunded Bonds (U.S. Bank National Association) to mail to the Holders of the Refunded Bonds the notice in the form provided in Schedule D attached hereto. SECTION 12. ESCROW FUND IRREVOCABLE. The Escrow Fund hereby created shall be irrevocable and the holders of the Refunded Bonds shall have an express lien on all Escrow Securities and the Cash Deposit deposited in the Escrow Fund pursuant to the terms hereof and the interest earnings thereon until paid out, used and applied in accordance with this Agreement and the Resolution. Neither the District nor the Escrow Agent shall cause nor permit any other lien or interest whatsoever to be imposed upon the Escrow Fund. SECTION 13. AMENDMENTS TO AGREEMENT. This Agreement is made for the benefit of the District and the holders from time to time of the Refunded Bonds and it shall not be repealed, revoked, altered or amended without the written consent of all such holders and the written consent of the Escrow Agent; provided, however, ,that the District and the Escrow Agent may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; 5 X (b) to grant, or confer upon, the Escrow Agent for the benefit of the holders of the Refunded Bonds, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and (c) to subject to this Agreement additional funds, securities or properties. The Escrow Agent shall be entitled to rely exclusively upon an unqualified opinion of nationally recognized Bond Counsel with respect to compliance with this Section 13, including the extent, if any, to which any change, modification or addition affects the rights of the holders of the Refunded Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section 13. SECTION 14. FEES AND EXPENSES OF ESCROW AGENT; INDEMNIFICATION. In consideration of the services rendered by the Escrow Agent under this Agreement, the District agrees to and shall pay to the Escrow Agent the fees and expenses as set forth on Schedule 1 hereto. The Escrow Agent shall have no lien whatsoever upon any of the Escrow Securities in said Escrow Fund for the payment of such proper fees and expenses. The District further agrees to indemnify and save the Escrow Agent harmless, to the extent allowed by law, against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder, and which are not due to its negligence or misconduct. Indemnification provided under this Section 14 shall survive the termination of this Agreement. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved oi?_ established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the District. The Escrow Agent may conclusively rely, as to the correctness of statements, conclusions and opinions therein, upon any certificate, report, opinion or other document furnished to the Escrow Agent pursuant to any provision of this Agreement; the Escrow Agent shall be protected and shall not be liable for acting or proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument. The Escrow Agent may consult with counsel, who may be counsel to the District or independent counsel, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith in accordance herewith. Prior to retaining such independent counsel, the Fscrow Agent shall notify the District of its intention. The Escrow Agent and its successors, agents and servants shall not be held to any personal liability whatsoever, in tort, contract or otherwise, by reason of the execution and delivery of this Agreement, the establishment of the Escrow Fund, the acceptance 6 and disposition of the various moneys and funds described herein, the purchase, retention or payment, transfer or other application of funds or securities by the Escrow Agent in accordance with the provisions of this Agreement or any nonnegligent act, omission or error of the Escrow Agent made in good faith in the conduct of its duties. The Escrow Agent shall, however, be liable to the District and to holders of the Refunded Bonds to the extent of their respective damages for negligent or willful acts, omissions or errors of the Escrow Agent which violate or fail to comply with the terms of this Agreement. The duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement. SECTION 15. REPORTING REQUIREMENTS OF ESCROW AGENT. So long as the Escrow Fund is maintained under this Agreement, the Escrow Agent shall forward in writing to the District a statement in detail of the balance of the Securities held therein following payments made therefrom on each January 1 or July I of that year, whichever is applicable, and the income and maturities thereof, and withdrawals of money from the Escrow Fund, since the last statement furnished pursuant to this Section 15. Such statements shall be provided to the Issuer as soon as practicable following the end of each month in which payments are made with respect to the Refunded Bonds. SECTION 16. RESIGNATION OR REMOVAL OF ESCROW AGENT. The Escr )w Agent, at the time acting hereunder, may at any time resign and be discharged from the duties and obligations hereby created by giving not less than 60 days' written notice to the District and mailing notice thereof, specifying the date when such resignation will take effect to the holders of all Refunded Bonds then outstanding, but no such resignation shall take effect unless a successor Escrow Agent shall have been appointed by the holders of a majority in aggregate principal amount of the Refunded Bonds then outstanding or by the District as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in which event such resignation shall take effect immediately upon the appointment and acceptance of a successor Escrow Agent. The Escrow Agent may be replaced at any time by an instrument or concurrent instruments in writing, delivered to the Escrow Agent and signed by either the District or the holders of a majority in aggregate principal amount of the Refunded Bonds then outstandirj;. Such instrument shall provide for the appointment of a successor Escrow Agent, which appointment shall occur simultaneously with the removal of the Escrow Agent. In .the event the Escrow Agent hereunder shall resign or be removed, or be dissolved,.or shall be in the course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case the Escrow Agent shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the holders of a majority in aggregate principal amount of the 7 Refunded Bonds then outstanding by an instrument or concurrent instruments in writing, signed by such holders, or by their attorneys in fact, duly authorized in writing; provided, nevertheless, that in any such event, the District shall appoint a temporary Escrow Agent to fill such vacancy until a successor Escrow Agent shall be appointed by the holders of a majority in aggregate principal amount of the Refunded Bonds then outstanding in the manner above provided, and any such temporary Escrow Agent so appointed by the District shall immediately and without further act be superseded by the Escrow Agent so appointed by such holders. The District shall mail notice of any such appointment made by it at the times and in the manner described in the first paragraph of this Section 16. In the event that no appointment of a successor Escrow Agent or a temporary successor Escrow Agent shall have been made by such holders or the District pursuant to the foregoing provisions of this Section 16 within 60 days after written notice of resignation of the Escrow Agent has been given to the District, the holder of any of the Refunded Bonds or any retiring Escrow Agent may apply to any court of competent jurisdiction for the appointment of a successor Escrow Agent, and such court may thereupon, after such notice, if any, as it shall deem proper, appoint a successor Escrow Agent. In the event of replacement or resignation of the Escrow Agent, the Escrow Agent shall have no further liability hereunder and the District shall indemnify and hold harmless the Escrow Agent, to the extent allowed by law, from any such liability, including costs or expenses incurred by the Escrow Agent or its counsel. No successor Escrow Agent shall be appointed unless such successor Escrow Agent shall be a corporation with trust powers organized under the banking laws of the United States or any State, and shall have at the time of appointment capital and surplus of not less than $30,000,000. Every successor Escrow Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the District an instrument in writing accepting such appointment hereunder and thereupon such successor Escrow Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, immunities, powers, trusts, duties and obligations of its predecessor; but such predecessor shall nevertheless, on the written request of such successor Escrow Agent or the District execute and deliver an instrument transferring to such successor Escrow Agent all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Escrow Agent shall deliver all securities and moneys held by it to its successor; provided, however, that before any such delivery is required to be made, all fees, advances and expenses of the retiring or removed Escrow Agent shall be paid in full. Should any transfer, assignment or instrument in writing from the District be required by any successor Escrow Agent for more fully and certainly vesting in such successor Escrow Agent the estates, rights, powers and duties hereby vested or intended to be vested in the predecessor Escrow Agent, any such transfer, assignment and instruments in writing shall, on request, be executed, acknowledged and delivered by the District. Any corporation into which the Escrow Agent, or any successor to it in the trusts created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated, or any corporation resulting from any merger, conversion, consolidation or tax -free reorganization to which the Escrow Agent or any successor to it shall be a party shall be the successor Escrow Agent under this Agreement without the execution or filing of any paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. SECTION 17. TERMINATION OF AGREEMENT. This Agreement shall terminate when all transfers and payments required to be made by the Escrow Agent under the provisions hereof shall have been made. Upon such termination, all moneys remaining in the Escrow Fund shall be released to the District. SECTION 18. GOVERNING LAW. This Agreement shall be governed by the applicable laws of the State of Florida. SECTION 19. SEVERABILITY. If any one or more of the covenants or agreements provided in this Agreement on the part of the District or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining; covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. SECTION 20. COUNTERPARTS. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. SECTION 21. NOTICES. Any notice, authorization, request or demand required or permitted to be given in accordance with the terms of this Agreement shall be in writing and sent either by facsimile, overnight express mail with fees prepaid, first class mail with postage prepaid; or hand delivered to the Issuer or the Bank, respectively, at the addresses or facsimile numbers shown below: U.S. Bank National Association 550 West Cypress Creek Road, Suite 380 Fort Lauderdale, Florida 33309 Attention: Corporate Trust Department Phone: (954) 938 -2471 Facsimile: (954) 202 -2082 G9 Collier County, Florida Collier County Government Complex 3299 Tamiami Trail East Naples, FL 34112 Attention: County Manager Phone: 239/252 -8717 Facsimile: (239) 403 -2366 IN WITNESS WHEREOF, the parties hereto have each caused this Escrow Deposit Agreement to be executed by their duly authorized officers and appointed officials and their seals to be hereunder affixed and attested as of the date first written herein. COLLIER COUNTY WATER -SEWER DISTRICT (SEAL) Chairwoman, Board of County Commissioners of Collier County, Florida, as the Ex- Officio Chairwoman of the Governing Board of the Collier County Water -Sewer District ATTEST: Deputy Clerk Approved as to Form and Legal Sufficiency: County Attorney U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent By: Vice President [G] SCHEDULEI Fees and Expenses of Bank: $800.00 one time fee, payable in advance. SCHEDULE A DESCRIPTION OF THE REFUNDED BONDS Maturity Principal Interest Rate SCHEDULE B ESCROW SECURITIES SCHEDULE C DISBURSEMENT REQUIREMENTS FOR REFUNDED BONDS SCHEDULE D FORM OF NOTICE OF DEFEASANCE Notice is hereby given pursuant to Resolution No. CWS -85 -5, as amended and restated by Resolution No. CWS -85 -13 duly adopted on December 26, 1985, as amended and supplemented (collectively, the 'Resolution'), that the portion of the Collier County Water -Sewer District Water and Sewer Revenue Bonds, Series 2006 identified below (the "Refunded Bonds ") are deemed to be paid within the meaning of Section 9.01 of the Resolution and shall no longer be secured from the Pledged Funds (as defined in the Resolution) and the other liens created by the Resolution for the benefit of the holders of the Refunded Bonds and shall be secured solely from the irrevocable deposit of U.S. Treasury obligations made by the District with U.S. Bank National Association, as Escrow Agent, in accordance with Section 9.01 of the Resolution. Further, the Refunded Bonds shall be redeemed, prior to their respective maturities, on July 1, 2016 (the "Redemption Date ") at a redemption price equal to 100% of the principal amount of such Refunded Bond to be redeemed, together with interest accrued thereon to the Redemption Date. The Refunded Bonds to be defeased and redeemed are: Maturity Principal Interest (July 1) Amount Rate CUSIP No. DRINKING WATER STATE REVOLVING FUND AMENDMENT 3 TO LOAN AGREEMENT DW1111 040 COLLIER COUNTY This amendment is executed by the STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (Department) and COLLIER COUNTY, FLORIDA, (Project Sponsor) existing as a local government agency under the laws of the State of Florida. WITNESSETH: WHEREAS, the Department and the Project Sponsor entered into a Drinking Water State Revolving Fund Loan Agreement, Number DW 1111 040, as amended, authorizing a Loan amount of $32,200,000, excluding Capitalized Interest; and WHEREAS, the Project Sponsor is entitled to additional financing of $12,000,000, excluding Capitalized Interest; and WHEREAS, an interest rate must be established for the additional financing amount awarded in this amendment; and WHEREAS, a Loan Service Fee must be assessed for the additional financing; and WHEREAS, the Semiannual Loan Payment amount needs revision to reflect adjustment in the Loan amount; and WHEREAS, rr:vised provisions for audit and monitoring are needed. NOW, THEREFORE, the parties hereto agree as follows: 1. Subsection 2.03(1) of the Agreement is hereby deleted and replaced as follows: (I) The financial assistance authorized pursuant to this Loan Agreement consists of the following: Federal Resources, Including State Match, Awarded to the Recipient Pursuant to this Agreement Consist of the Following: Federal State Program Federal CFDA Funding Appropriation Number Agency Number CFDA Title Amount Category FS984522 -13(' EPA 66.468 Capitalization Grants $44,200,000 140129 for Drinking Water State Revolving Fund 2. Additional financing in the amount of $12,000,000, excluding Capitalized Interest, is hereby awarded to the Project Sponsor. 3. An interest rate of 2.37 percent per annum is established for the additional financing amount awarded in this amendment; however, if this amendment is not executed by the Project Sponsor and returned to the Department before October 1, 2013, the interest rate may be adjusted. 4. The estimated principal amount of the Loan is hereby revised to $44,583,530, which consists of $44,200,000 authorized for disbursement to the Project Sponsor and $383,530 of Capitalized Interest. This total consists of the following: (a) Original Agreement of $8,336,811, including $8,000,000 authorized for disbursement to the Project Sponsor and $336,811 of Capitalized Interest, at an interest rate of 2.64 percent per annum; and (b) Amendment l of $3,246,719, including $3,200,000 authorized for disbursement to the Project Sponsor and $46,719 of Capitalized Interest, at an interest rate of 2.79 percent per annum;and (c) Amendment 2 of $21,000,000 authorized for disbursement to the Project Sponsor at an interest rate bf 2.25 percent per annum; and (d) Amendment 3 of $12,000,000 authorized for disbursement to the Project Sponsor at an interest rate of 2.37 percent per annum. The estimated principal does not reflect payments received to date. 5. An additional Loan Service Fee in the amount of $240,000, for a total of $884,000, is hereby assessed. The fee represents two percent of the Loan amount excluding Capitalized Interest; that is, two percent of $44,200,000. The unpaid balance of $660,000 and associated interest will be deducted from the next Semiannual Loan Payment, and if necessary the following payment, after the effective date of this amendment. 6. The Semiannual Loan Payment amount, adjusted to account for repayments received to date, is hereby revised and shall be in the amount of $1,637,160. Such payments shall be received by the Department on October 15, 2013 and semiannually thereafter on April 15 and October 15 of each year until all amounts due hereunder have been fully paid. Until this Agreement is further amended, each Semiannual Loan Payment will be proportionally applied, after deduction of the Loan Service Fee is complete, toward repayment of the amounts owed on each incremental Loan amount at the date such payment is due. 7. The Project Sponsor and the Department acknowledge that the actual cost of the Project has not been determined. Project cost adjustments may be made as a result of mutually agreed upon Project changes. Capitalized Interest will be recalculated based on actual dates and amounts of Loan disbursements. If the Project Sponsor receives other governmental financial assistance for this Project, the costs funded by such other governmental assistance will not be financed by this Loan. The Department shall establish the final Project costs after its final inspection of the Project records. Changes in Project costs may also occur as a result of the Project Sponsor's Project audit or a Department audit. Funds disbursed in accordance with Section 4.08 of this Agreement shall be disbursed in the order in which they have been obligated without respect to budgetary line item estimates. All disbursements shall be made from the original Loan amount until that amount has been disbursed; the interest rate established for the original Loan amount shall apply to such disbursements for the purpose of determining the associated Capitalized Interest and repayment amount. The interest rate established for any additional increment of Loan financing shall be used to determine the Capitalized Interest and repayment amount associated with the funds disbursed from that increment. The estimated Project costs are revised as follows: 8. All other terms and provisions of the Loan Agreement shall remain in effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK AUTHORIZED LOAN CATEGORY COST($) AMOUNT($) TO DATE (1) Administrative Allowance 296,342 Line items (2) Engineering Allowance 2,963,422 may vary (3) Construction and Demolition 47,038,450 based on (4) Contingencies 2,351,923 actual (5) Technical Services After Bid Opening 4,796,000 disbursements SUBTOTAL (Disbursable Amount) 57,446,137 44,200,000 (6) Capitalized Interest 383,530 383,530 TOTAL (Loan Principal Amount) 57,829,667 44,583,530 8. All other terms and provisions of the Loan Agreement shall remain in effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 4 'Hils Amendment 3 to L,oan Agreement LA VI I I 1 040 Shall he executed in three or more counterparts, any of'which shall be reuarded as an orioinal and all of which constitute 1)(11 011e and the same instrument. IN WITNESS WHF-IAEOF. the Department has CZIUscd this amendment to the Loan Agreement to be executed on its behalf by the Program Administrator and the Project Sponsor has caused this amendment, to be executed on its behalf by its :Authorized Representative and by its affixed seal. The effective (late of this amendment shall be as set forth below by the Program Administrator. COLLIF,R (AWNTY GEORGIA A. HILLER, 1:.;S(). -- A p 1) 1 v ol a S I at� �Clerk - JEFFRrY for and IC(.Ial Sufficiency: <L Attorney, . KLATZKOW STATE 0.14' FLORIDA DEPARTNIENTOF FNVIRONMENTAL PROTECTION t _P 2 6 2013 ................. ... Prouram Administrator Daie State Revolvinu Fund