HomeMy WebLinkAbout2022 Ordinance No. 015BY AUTHORITY
ORDINANCE NO. 15 COUNCIL BILL NO. 15
SERIES OF 2022 INTRODUCED BY COUNCIL
MEMBER WARD
AN ORDINANCE OF THE CITY OF ENGLEWOOD, ACTING BY AND
THROUGH ITS WATER UTILITY ENTERPRISE, AUTHORIZING A
LOAN FROM THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY FOR THE PURPOSE OF FINANCING WATER
CAPITAL IMPROVEMENTS AS PART OF THE CITY’S ONE WATER
MODERNIZATION PROGRAM – WATER UTILITY SYSTEM
PROJECT; APPROVING A WIFIA LOAN AGREEMENT AND THE
ISSUANCE OF A REVENUE BOND TO EVIDENCE THE REPAYMENT
OBLIGATION; PROVIDING FOR THE PAYMENT OF THE BOND
FROM THE OPERATION OF THE WATER UTILITY SYSTEM; AND
PROVIDING OTHER DETAILS AND APPROVING RELATED
DOCUMENTS IN CONNECTION WITH THE LOAN.
WHEREAS, the City of Englewood, Colorado is a municipal corporation duly organized
and operating as a home rule city under Article XX of the Constitution of the State of Colorado
and the Charter of the City (unless otherwise indicated, capitalized terms used in this preamble
shall have the meanings set forth in Section 1 of this Ordinance); and
WHEREAS, as provided in Article XIII of the Charter the City is the owner and operator
of a public water system, including water and water rights and the acquisition thereof, which
system which has historically been operated on a self-supporting basis by the City, is considered
to be a government-owned business and is generally known as the “Water Utility Enterprise” of
the City; and
WHEREAS, pursuant to Section 99 of the Charter the accounts of each utility owned
and operated by the City shall be kept separate and distinct from all other accounts of the City
and in such manner as to show the true and complete financial result of such City ownership and
operation, and the Water Fund previously established by the City accounts for financial
operations of the Water Utility Enterprise; and
WHEREAS, pursuant to Section 105 of the Charter the City may issue revenue bonds as
provided for municipalities by State statute and revenue bonds for the Water Utility Enterprise
are permitted under Title 31, Article 35, Part 4, C.R.S. and Title 37, Article 45.1, C.R.S.; and
WHEREAS, to finance the costs of modernizing the Water Utility System, the City
Council has requested that the WIFIA Lender provide financial assistance, in the form of a loan
under the Water Infrastructure Finance and Innovation Act, and has determined to enter into the
WIFIA Loan Agreement with the WIFIA Lender; and
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WHEREAS, the repayment obligation under the WIFIA Loan Agreement will be
evidenced by a revenue bond to be issued by the City, acting by and through its Water Utility
Enterprise, to the WIFIA Lender, which WIFIA Bond shall constitute a special revenue
obligation generally payable from the net revenues generated from the operation of the Water
Utility System (which includes all of the City’s water-related operations, services, program and
facilities); and
WHEREAS, after consideration, the City Council has determined that the execution of
the WIFIA Loan Agreement and the issuance of the WIFIA Bond to the WIFIA Lender is to the
best advantage of the City; and
WHEREAS, as of the date of adoption of this Ordinance, the City has no outstanding
multi-year obligations which are secured by the Pledged Property; and
WHEREAS, there has been made available to the City Council the form of the WIFIA
Loan Agreement, which is set forth hereto as Attachment A; and
WHEREAS, as provided in the Enabling Laws, which include but are not limited to Title
11, Article 57, Part 2, C.R.S., by this Ordinance the City authorizes the Project and the execution
and delivery of the WIFIA Loan Agreement, the WIFIA Bond and all documents and certificates
contemplated hereby, and delegates to the Mayor of the City, or in the absence of the Mayor, the
Mayor Pro Tem of the City, for a period not to exceed one year, the authority to approve certain
financial terms relating to the WIFIA Bond.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. Definitions. As used herein, the following capitalized terms shall have the
respective meanings set forth below, unless the context indicates otherwise.
“Additional Parity Lien Obligations” means Parity Lien Obligations, other than the
WIFIA Bond, which are issued by the City after the date of adoption of this WIFIA Ordinance.
“Capital Improvements” means the acquisition of water and water rights, land,
easements, facilities and equipment (other than ordinary repairs and replacements), and the
construction or reconstruction of improvements, betterments and extensions, for use by or in
connection with the Water Utility System which, under GAAP, are properly chargeable as
capital items.
“City” means the City of Englewood, Colorado, acting by and through its Water Utility
Enterprise.
“City Charter” means the home rule Charter of the City.
“City Council” means the City Council of the City, acting as the governing body of the
Water Utility Enterprise.
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“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
“Debt Service Accounts” means the accounts and subaccounts within the Water Fund
established for the payment of the debt service on Parity Lien Obligations and Subordinate Lien
Obligations, including without limitation the WIFIA Bond Account.
“Enabling Laws” means the Charter; Title 37, Article 45.1, C.R.S.; Title 31, Article 35,
Part 4, C.R.S.; and Title 11, Article 57, Part 2, C.R.S.; and all other laws of the State thereunto
enabling.
“GAAP” means generally accepted accounting principles for U.S. state and local
governments, as established by the Government Accounting Standards Board (or any successor
entity with responsibility for establishing accounting rules for governmental entities), in effect
from time to time in the United States of America.
“Gross Revenues” means all income and revenues derived directly or indirectly from the
operation and use of, and otherwise pertaining to, the Water Utility System or any part thereof,
whether resulting from repairs, enlargements, extensions, betterments or other improvements to
the Water Utility System, or otherwise, including all fees, rates and other charges for the use of
the Water Utility System, or for any service rendered in connection with the Water Utility
System in its operations, directly or indirectly, the availability of any such service, or the sale or
other disposal of any commodities derived therefrom, and all income or gain from the investment
of such income and revenues, but excluding (a) any refund of fees, rates and other charges for
the use of the Water Utility System, (b) any moneys received as grants, appropriations or gifts
from the federal government, the State or other sources, the use of which is limited or restricted
by the grantor or donor to the acquisition or construction of Capital Improvements or for other
purposes resulting in the general unavailability thereof, except to the extent any such moneys
shall be received as payments for the use of the Water Utility System, services rendered thereby,
the availability of any such service, or the disposal of any commodities therefrom, (c) any
moneys deposited by third parties which are held in any escrow for extensions, modifications, or
upgrading of the Water Utility System and the use of which is limited or restricted to the
construction of Capital Improvements, (d) any moneys borrowed for, or special assessments
imposed in connection with, the acquisition and construction of Capital Improvements, and (e)
any moneys and securities, and interest and other gain from investment of such money and from
such securities in any refunding fund or escrow account or similar account pledged to the
payment of any bonds or other obligations therein specified.
“Interest Payment Date” means, in relation to the WIFIA Bond, each February 1 and
August 1, commencing on the date provided in the WIFIA Loan Agreement, and in relation to all
other Obligations, each February 1 and August 1, commencing on the date established by the
City in the documents adopted or entered into by the City in connection with the issuance of each
Obligation.
“Net Revenues” means Gross Revenues remaining after the payment of Operation and
Maintenance Expenses.
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“O&M Reserve Requirement” means an amount equal to the lesser of (a) three (3) months
of Operation and Maintenance Expenses as set forth in the Water Fund annual budget for the
City’s current fiscal year or (b) $1,250,000.
“Obligations” means the Parity Lien Obligations and any Subordinate Lien Obligations.
“Operation and Maintenance Expenses” means all reasonable and necessary current
expenses of the City, paid or accrued, for operating, maintaining, and repairing the Water Utility
System, including without limitation legal and overhead expenses of the City directly related to
the administration of the Water Utility System; provided however, that there shall be excluded
from Operation and Maintenance Expenses (a) any allowance or transfers for depreciation, (b)
any costs of improvement, extension or betterment that qualify as Capital Improvements or are
incurred in connection therewith, and (c) payments due in connection with any bonds, notes,
loans or other multiple fiscal year obligations issued or incurred to provide Capital
Improvements or to refund Obligations. For purposes of the above definition expenses shall, to
the extent possible, be determined in accordance with GAAP.
“Parity Lien Obligations” means the WIFIA Loan (and corresponding WIFIA Bond) and
one or more series of additional bonds, notes, interim securities or other obligations, if any,
issued by the City in compliance with Section 15(a) of the WIFIA Loan Agreement and having a
lien on the Net Revenues which is on a parity with the lien of the WIFIA Bond.
“Payment Date” means each Interest Payment Date and each Principal Payment Date.
“Pledged Property” means the Net Revenues, including all amounts on deposit in or
credited to the Debt Service Accounts, and all amounts in respect of Net Revenues that are on
deposit in or credited to any other account or subaccount of the Water Fund.
“Principal Payment Date” means, in relation to the WIFIA Bond, each August 1,
commencing on August 1, 2031, and in relation to all other Obligations, each August 1,
commencing on the date established by the City in the documents adopted or entered into by the
City in connection with the issuance of each Obligation.
“Project” means the Englewood One Water Modernization Program – Water Utility
System Project, which consists of a combination of sub-projects for the modernization of
drinking water treatment and conveyance systems, the replacement of outdated electrical and
control systems, the replacement of lead pipe, the modernization of metering processes, and the
initiation of a water reuse program, located in or nearby Englewood, Colorado, as further
described in Schedule IV (Project Description) to the WIFIA Loan Agreement).
“Project Costs” means the City’s costs properly attributable to the Project, or any parts
thereof, and permitted by the provisions of the Enabling Laws and eligible as an Eligible Project
Cost (as defined in the WIFIA Loan Agreement) of the Project under the WIFIA Loan
Agreement.
“Pro Rata Portion” means when used with respect to a required credit to or deposit in the
applicable Debt Service Accounts, the dollar amount derived by dividing the amount of principal
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or interest to come due on the next scheduled principal or interest Payment Date, as applicable,
by the number of months prior to such Payment Date.
“Water Fund” means the proprietary fund of the City established for the purpose of
accounting for the financial activity of the Water Utility Enterprise in accordance with Section
99 of the Charter, including all accounts and subaccounts established thereunder.
“Water Utility Enterprise” means the “enterprise” of the City, within the meaning of
Article X, Section 20 of the State Constitution, established for the purpose of operating the
Water Utility System.
“Water Utility System” means all of the City’s water facilities and properties now owned
or hereafter acquired, whether situated within or without the geographical boundaries of the City,
including all present or future improvements, extensions, enlargements, betterments,
replacements or additions thereof or thereto, including but not limited to the Project.
“State” means the State of Colorado.
“Subordinate Lien Obligations” means one or more series of bonds, notes, interim
securities or other obligations issued by the City in compliance with Section 15(a) of the WIFIA
Loan Agreement and having a lien on the Net Revenues which is subordinate or junior (in
priority of payment and security interest) to the Parity Lien Obligations.
“WIFIA Bond” means the Englewood One Water Modernization Program – Water Utility
System Project (WIFIA ID – 20113CO) WIFIA Revenue Bond to be issued by the City to the
WIFIA Lender pursuant to the WIFIA Loan Agreement, the form of which is set forth as
EXHIBIT A to the WIFIA Loan Agreement.
“WIFIA Bond Account” means a special account of the City designated as the “WIFIA
Bond Account,” established by this Ordinance for the purpose of paying the principal of and
interest on the WIFIA Bond, including the WIFIA Interest Subaccount and the WIFIA Principal
Subaccount.
“WIFIA Interest Subaccount” means a subaccount of the WIFIA Bond Account
established by the provisions hereof for the purpose of paying the interest on the WIFIA Bond.
“WIFIA Lender” means the United States Environmental Protection Agency, an agency
of the United States of America acting by and through the Administrator of the Environmental
Protection Agency.
“WIFIA Loan” means the secured loan in a maximum principal amount not to exceed
$38,416,490 (excluding capitalized interest), to be made by the WIFIA Lender to the City
pursuant and subject to the terms and conditions set forth in the WIFIA Loan Agreement.
“WIFIA Loan Agreement” means the WIFIA Loan Agreement (WIFIA ID – 20113CO) to
be entered into by and between the City and the WIFIA Lender.
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“WIFIA Loan Documents” means the WIFIA Loan Agreement, the WIFIA Bond and this
WIFIA Ordinance.
“WIFIA Ordinance” or “Ordinance” means this Ordinance of the City Council,
including any amendments hereto.
“WIFIA Principal Subaccount” means a subaccount of the WIFIA Bond Account
established by the provisions hereof for the purpose of paying the principal of the WIFIA Bond.
Section 2. Approval of WIFIA Loan Agreement and Authorization of the WIFIA
Bond. Pursuant to and in accordance with the State Constitution, the Enabling Laws and this
WIFIA Ordinance, the WIFIA Bond shall be issued to the WIFIA Lender by the City, acting by
and through its Water Utility Enterprise. The form of the WIFIA Loan Agreement attached
hereto as Attachment A, is incorporated herein by reference and is hereby approved; all City
officials, agents and employees are hereby directed to take such actions as are necessary and
appropriate to fulfill the obligations of the City under the WIFIA Loan Documents. The City
shall enter into the WIFIA Loan Agreement and deliver the WIFIA Bond in substantially the
form attached hereto as Attachment A with only such changes as are not inconsistent herewith;
provided that such documents may be completed, corrected, or revised as deemed necessary by
the parties thereto in order to carry out the purposes of this Ordinance. The accomplishment of
the Project and the payment of Project Costs are hereby authorized, approved, and ordered. It is
hereby determined that the date of final maturity of the WIFIA Bond, as established within the
parameters set forth in Section 3 hereof, does not exceed the estimated life of the Project.
Section 3. WIFIA Bond Details. The WIFIA Bond shall be in substantially the form set
forth in Exhibit A to the WIFIA Loan Agreement with such changes thereto, not inconsistent
herewith, as may be necessary or desirable and approved by the officials of the City executing the
same (whose signatures thereon shall constitute conclusive evidence of such approval). The WIFIA
Bond shall be in an aggregate principal amount not to exceed $46,500,000 (which amount includes
up to $8,083,510 for capitalized interest) for a loan term maturing no later than August 1, 2062 and
is otherwise in accordance with the WIFIA Loan Agreement. The WIFIA Bond shall bear interest
at a maximum net effective interest rate not to exceed 2.95% per annum, plus an additional 200
basis points upon the application of the “Default Rate” as provided in the WIFIA Loan Agreement.
For a period not to exceed one year from the effective date of this Ordinance, the City Council
hereby delegates to the Mayor of the City, or in the absence of the Mayor, the Mayor Pro Tem of
the City, the right to determine the final principal of, interest rate on and loan term for, the WIFIA
Bond within the parameters established above.
Section 4. Pledge for Payment of the WIFIA Bond.
(a) Pledge of Net Revenues. The Pledged Property is hereby pledged,
assigned and granted for the payment of the amounts due under the WIFIA Loan
Documents. The WIFIA Loan (and corresponding WIFIA Bond) shall constitute a first
lien upon the Net Revenues and all other Pledged Property, on a parity with all other
Parity Lien Obligations and senior to all other Obligations. Pursuant to and in
accordance with Section 11-57-208, C.R.S., Net Revenues, as received by the City or
otherwise credited to the Water Fund, shall immediately be subject to the lien of the
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pledge stated above without any physical delivery, filing, or further act. The lien of each
such pledge, and the obligation to perform the contractual provisions made in this
Ordinance and the other WIFIA Loan Documents, shall have priority over any or all
other obligations and liabilities of the City except for the Parity Lien Obligations. The
lien of the above pledge shall be valid, binding, and enforceable as against all persons
having claims of any kind in tort, contract, or otherwise against the City irrespective of
whether such persons have notice of such liens.
(b) Establishment of Accounts. There shall be established and maintained by
the City such accounts or subaccounts within the Water Fund as are necessary or
convenient to carry out the terms and provisions of this Ordinance and the WIFIA Loan
Agreement, including without limitation the WIFIA Bond Account, within which are the
WIFIA Interest Subaccount and the WIFIA Principal Subaccount, each established for
the purpose of paying the debt service on the WIFIA Bond in accordance with the WIFIA
Loan Documents. No payments shall be made from Debt Service Accounts established
for the payment of principal of and interest on any Subordinate Lien Obligations, if any,
unless and until the amounts due in connection with all Parity Lien Obligations are made
on any Payment Date.
(c) Flow of Funds. The City shall credit to the Water Fund all Gross
Revenues immediately upon receipt. The City shall pay from the Water Fund all
Operation and Maintenance Expenses as they become due and payable. After such
payment or the allocation of Gross Revenues to such payment and on or before the last
business day of each month, the City shall apply the Net Revenues in the following order
of priority:
FIRST, in respect of all Parity Lien Obligations, to the credit of or deposit in
the applicable Debt Service Accounts, including without limitation the WIFIA
Interest Subaccount, an amount equal to the sum of 1/6th of the interest payments
due on the next succeeding Interest Payment Date, provided that, if the period prior
to the initial Interest Payment Date for any Additional Parity Lien Obligations is less
than six months, the amount credited or deposited in respect of such Additional
Parity Lien Obligations during such period shall be an amount equal to the Pro Rata
Portion of the interest payment due in connection with such initial Interest Payment
Date;
SECOND, in respect of all Parity Lien Obligations, to the credit of or deposit
in the applicable Debt Service Accounts, including without limitation the WIFIA
Principal Subaccount, an amount equal to the sum of 1/12th of the principal
payments due on the next succeeding Principal Payment Date, provided that, if the
period prior to the initial Principal Payment Date for any Additional Parity Lien
Obligations is less than twelve months, the amount credited or deposited in respect
of such Additional Parity Lien Obligations during such period shall be an amount
equal to the Pro Rata Portion of the principal payment due in connection with such
initial Principal Payment Date;
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THIRD, in respect of all Subordinate Lien Obligations, to the credit of or
deposit in the applicable Debt Service Accounts an amount equal to the sum of the
Pro Rata Portion of the principal and interest due on the next succeeding Interest
Payment Date and Principal Payment Date for the Subordinate Lien Obligations in
the same manner as specified in clauses FIRST and SECOND above for the Parity
Lien Obligations;
FOURTH, to the credit of or deposit in any reserve accounts established for
the payment of the WIFIA Bond and any Parity Lien Obligations the amounts
required in the ordinances or related documents authorizing and controlling the
establishment of such reserve accounts; and
FIFTH, subject to Section 15(d) of the WIFIA Loan Agreement, to the credit
of any other fund or account as may be designated by the City in compliance with
the WIFIA Loan Agreement, to be used for any lawful purpose, any moneys
remaining in the Water Fund after the payments and accumulations set forth in
FIRST through FOURTH hereof.
(d) The WIFIA Bond Does Not Constitute a General Obligation. The
WIFIA Lender may not look to any general or other fund of the City for the payment of
the principal of or interest on the WIFIA Bond, except the Water Fund and Net Revenues
pledged thereto pursuant to authority of this Ordinance, and the WIFIA Bond shall not
constitute a debt or an indebtedness of the City within the meaning of any constitutional
or statutory provision or limitation; nor shall the WIFIA Bond be considered or held to be
a general obligation of the City.
Section 5. Various Findings, Determinations, Declarations and Covenants. The City
Council, having been fully informed of and having considered all the pertinent facts and
circumstances, hereby affirms the representation and warranties set forth in Article IV of the
WIFIA Loan Agreement and further finds, determines, declares and covenants that:
(a) Additional Obligations. The City hereby covenants that it will not issue
any bonds, notes, interim securities or other obligations of any kind that are payable from
the Net Revenues and have a lien thereon which is superior to the lien of the WIFIA
Bond. The City further herby covenants that it will not issue any bonds, notes, interim
securities or other obligations of any kind that are payable from the Net Revenues and
have a lien thereon which is on a parity with, or subordinate to, the lien of the WIFIA
Bond unless the requirements set forth in Section 15(a) of the WIFIA Loan Agreement
have been met.
(b) Maintenance of Rates and Coverage. The City hereby covenants that it
will establish, maintain, enforce and collect rates, fees and charges for services furnished
by or the use of the Water Utility System as required in Section 14(a) of the WIFIA Loan
Agreement. In the event that the Gross Revenues at any time are not sufficient to make
the payments and meet the coverage levels required by said provision, the City covenants
to promptly increase such rates, fees and charges to an extent which will ensure
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compliance with said covenant and will take all other action required by the WIFIA Loan
Agreement.
(c) Enterprise Status. The City has and will continue to maintain the Water
Utility System as part of its “enterprise” within the meaning Article X, Section 20 of the
Colorado Constitution, and the meaning of Title 37, Article 45.1, C.R.S.
(d) No Obligations Are Currently Secured by Net Revenues. The City has
no outstanding debt, bonds, loans or other multiple fiscal year obligations secured by a
pledge of Net Revenues which is a Parity Lien Obligation hereunder.
(e) Findings of the City Council. The City Council, having been fully
informed of and having considered all the pertinent facts and circumstances, hereby finds,
determines, declares and covenants with the WIFIA Lender that:
(i) the Water Utility Enterprise is operating during the current
calendar year as an “enterprise” within the meaning of Article X, Section 20 of
the State Constitution;
(ii) the City Council elects to apply all of the provisions of Title 11,
Article 57, Part 2, C.R.S. to the execution of the WIFIA Loan Agreement and to
the issuance of the WIFIA Bond;
(iii) the execution of the WIFIA Loan Agreement and the issuance and
delivery of the WIFIA Bond, and all procedures undertaken incident thereto, are
in full compliance and conformity with all applicable requirements, provisions
and limitations prescribed by the Constitution and the Enabling Laws, and all
conditions and limitations of the Enabling Laws and other applicable law relating
to the execution of the WIFIA Loan Agreement and the issuance and delivery of
the WIFIA Bond have been satisfied; and
(iv) it is in the best interests of the City and its residents that the WIFIA
Bond be authorized, issued and delivered at the time, in the manner and for the
purposes provided in this Ordinance.
(f) Operations and Maintenance Reserve. The City hereby covenants to
establish and maintain a reserve equal to the O&M Reserve Requirement, and in the
event of shortfalls reestablish such amount as required by the WIFIA Loan Agreement.
Such reserve may be in the form of an unassigned fund balance in the Water Fund or
other unobligated cash or securities (i.e., capital reserves) or may be in a separate
segregated account and shall be maintained as a continuing reserve for payment of any
lawful purpose relating to the Water Utility System.
Section 6. Approval of Miscellaneous Documents. The Mayor is hereby authorized
and directed to execute the WIFIA Loan Agreement and all documents and certificates necessary
or desirable to effectuate the issuance of the WIFIA Bond and the financing contemplated by this
Ordinance, including the term sheet required by the WIFIA Lender in connection therewith, and
the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where
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necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the
above-referenced agreements, documents and certificates. The execution of any agreements,
documents and certificates by said officials shall be conclusive evidence of the approval by the
City of such agreements, documents and certificates in accordance with the terms thereof and
this Ordinance. As of the date of this Ordinance the Borrower’s Authorized Representatives, as
defined in the WIFIA Loan Agreement, shall be the City Manager, the Assistant City Manager,
the Public Works Director and the Utilities Director.
Section 7. Amendment of Ordinance. This Ordinance may be amended only with the
prior written consent of the WIFIA Lender.
Section 8. Ratification of Prior Actions. All actions heretofore taken (not inconsistent
with the provisions of this WIFIA Ordinance) by the City Council or by the officers and
employees of the City directed toward the issuance of the WIFIA Bond for the purposes herein
set forth are hereby ratified, approved and confirmed.
Section 9. Headings. The headings to the various sections and paragraphs to this
Ordinance have been inserted solely for the convenience of the reader, are not a part of this
Ordinance, and shall not be used in any manner to interpret this Ordinance.
Section 10. Ordinance Irrepealable. After the WIFIA Bond has been issued, this
Ordinance shall constitute a contract between the WIFIA Lender and the City, and shall be and
remain irrepealable until the WIFIA Bond, the interest accruing thereon and all fees and
expenses payable to the WIFIA Lender under the WIFIA Loan Agreement shall have been fully
paid, satisfied, and discharged, as herein provided.
Section 11. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 12. Repealer. All orders, bylaws and Ordinances of the City, or parts thereof,
inconsistent or in conflict with this Ordinance are hereby repealed to the extent only of such
inconsistency or conflict.
Section 13. Effective Date. This Ordinance shall take effect thirty days after publication
following final passage.
Introduced, read in full, and passed on first reading on the 14th day of March, 2022.
Published as a Bill for an Ordinance on the City’s official website beginning on the 14th
day of March, 2022 for thirty (30) days.
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Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 17th
day of March, 2022.
Read by Title and passed on final reading on the 21st day of March, 2022.
Published by Title in the City’s official newspaper as Ordinance No. 15, Series of 2022,
on the 24th day of March, 2022.
Published by title on the City’s official website beginning on the 23rd day of March, 2022
for thirty (30) days.
This Ordinance shall take effect thirty (30) days after publication following final passage.
Othoniel Sierra, Mayor
ATTEST:
Stephanie Carlile, City Clerk
I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the
above and foregoing is a true copy of the Ordinance passed on final reading and published by
Title as Ordinance No. 15, Series of 2022.
Stephanie Carlile
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Attachment A
FORM OF WIFIA LOAN AGREEMENT
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EPA/Hawkins Draft 3/3/2022
3671586.4 045485 CTR
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
WIFIA LOAN AGREEMENT
For Up to $[38,416,490]
With
CITY OF ENGLEWOOD
For the
ENGLEWOOD ONE WATER MODERNIZATION PROGRAM –
WATER UTILITY SYSTEM PROJECT
(WIFIA ID – 20113CO)
Dated as of [_________], 2022
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i
3671586.4 045485 CTR
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INTERPRETATION ...................................................2
Section 1. Definitions ...........................................................................................................2
Section 2. Interpretation .....................................................................................................17
ARTICLE II THE WIFIA LOAN .........................................................................................18
Section 3. WIFIA Loan Amount ........................................................................................18
Section 4. Disbursement Conditions ..................................................................................18
Section 5. Term ..................................................................................................................19
Section 6. Interest Rate .......................................................................................................19
Section 7. Security and Priority; Flow of Funds. ...............................................................19
Section 8. Payment of Principal and Interest .....................................................................21
Section 9. Prepayment ........................................................................................................23
Section 10. Fees and Expenses .............................................................................................24
ARTICLE III CONDITIONS PRECEDENT........................................................................26
Section 11. Conditions Precedent .........................................................................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES .............................................30
Section 12. Representations and Warranties of Borrower ...................................................30
Section 13. Representations and Warranties of WIFIA Lender ...........................................36
ARTICLE V COVENANTS ..................................................................................................36
Section 14. Affirmative Covenants ......................................................................................36
Section 15. Negative Covenants ...........................................................................................42
Section 16. Reporting Requirements ....................................................................................44
ARTICLE VI EVENTS OF DEFAULT ................................................................................48
Section 17. Events of Default and Remedies .......................................................................48
ARTICLE VII MISCELLANEOUS ........................................................................................51
Section 18. Disclaimer of Warranty .....................................................................................51
Section 19. No Personal Recourse .......................................................................................51
Section 20. No Third Party Rights .......................................................................................51
Section 21. Borrower’s Authorized Representative .............................................................52
Section 22. WIFIA Lender’s Authorized Representative ....................................................52
Section 23. Servicer ..............................................................................................................52
Section 24. Amendments and Waivers .................................................................................52
Section 25. Governing Law ..................................................................................................52
Section 26. Severability ........................................................................................................52
Section 27. Successors and Assigns .....................................................................................52
Section 28. Remedies Not Exclusive ...................................................................................52
Section 29. Delay or Omission Not Waiver .........................................................................53
Section 30. Counterparts ......................................................................................................53
Section 31. Notices ...............................................................................................................53
Section 32. Indemnification .................................................................................................54
Section 33. Sale of WIFIA Loan ..........................................................................................55
Section 34. Effectiveness .....................................................................................................55
Section 35. Termination .......................................................................................................55
Section 36. Integration .........................................................................................................55
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SCHEDULE I – Project Budget
SCHEDULE II – Construction Schedule
SCHEDULE III – Existing Indebtedness
SCHEDULE IV – Project Description
SCHEDULE 12(f) – Litigation
SCHEDULE 12(n) – Existing Construction Contracts
SCHEDULE 12(p) – Environmental Matters
EXHIBIT A – Form of WIFIA Bond
EXHIBIT B – Anticipated WIFIA Loan Disbursement Schedule
EXHIBIT C – Form of Non-Debarment Certificate
EXHIBIT D-1 – Requisition Procedures
EXHIBIT D-2 – Certification of Eligible Project Costs Documentation
EXHIBIT E – Form of Non-Lobbying Certificate
EXHIBIT F – WIFIA Debt Service
EXHIBIT G-1 – Opinions Required from Counsel to Borrower
EXHIBIT G-2 – Opinions Required from Bond Counsel
EXHIBIT H – Form of Closing Certificate
EXHIBIT I – Form of Certificate of Substantial Completion
EXHIBIT J – Form of Quarterly Report
EXHIBIT K – Form of Public Benefits Report
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EPA/Hawkins Draft 3/3/2022
WIFIA LOAN AGREEMENT
THIS WIFIA LOAN AGREEMENT (this “Agreement”), dated as of [___], 2022, is by
and between CITY OF ENGLEWOOD, a municipal corporation duly organized and operating
as a home rule city under Article XX of the Constitution of the State of Colorado (the “State”) and
the Charter of the City of Englewood, acting by and through its Water Utility Enterprise (as defined
herein), with an address at 1000 Englewood Parkway, Englewood, Colorado 80110 (the
“Borrower”), and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an
agency of the United States of America, acting by and through the Administrator of the
Environmental Protection Agency (the “Administrator”), with an address at 1200 Pennsylvania
Avenue NW, Washington, DC 20460 (the “WIFIA Lender”).
RECITALS:
WHEREAS, the Congress of the United States of America enacted the Water Infrastructure
Finance and Innovation Act, as amended by Section 1445 of the Fixing America’s Surface
Transportation Act of 2015, as further amended by Section 5008 of the Water Infrastructure
Improvements For the Nation Act of 2016, Section 4201 of America’s Water Infrastructure Act of
2018 and Sections 50214 and 50215 of the Infrastructure Investment and Jobs Act of 2021
(collectively, as the same may be amended from time to time, the “Act” or “WIFIA”), which is
codified as 33 U.S.C. §§ 3901–3914;
WHEREAS, the Act authorizes the WIFIA Lender to enter into agreements to provide
financial assistance with one or more eligible entities to make secured loans with appropriate
security features to finance a portion of the eligible costs of projects eligible for assistance;
WHEREAS, the Borrower has requested that the WIFIA Lender make the WIFIA Loan (as
defined herein) in a principal amount not to exceed $[38,416,490] (excluding interest that is
capitalized in accordance with the terms hereof) to be used to pay a portion of the Eligible Project
Costs (as defined herein) related to the Project (as defined herein) pursuant to the application for
WIFIA financial assistance dated September 22, 2021 (the “Application”);
WHEREAS, as of the date hereof, the Administrator has approved WIFIA financial
assistance for the Project to be provided in the form of the WIFIA Loan, subject to the terms and
conditions contained herein;
WHEREAS, based on the Application and the representations, warranties and covenants
set forth herein, the WIFIA Lender proposes to make funding available to the Borrower through
the purchase of the WIFIA Bond (as defined herein), upon the terms and conditions set forth
herein;
WHEREAS, the Borrower agrees to repay any amount due pursuant to this Agreement and
the WIFIA Bond in accordance with the terms and provisions hereof and of the WIFIA Bond; and
WHEREAS, the WIFIA Lender has entered into this Agreement in reliance upon, among
other things, the information and representations of the Borrower set forth in the Application and
the supporting information provided by the Borrower.
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NOW, THEREFORE, the premises being as stated above, and for good and valuable
consideration, the receipt and sufficiency of which are acknowledged to be adequate, and intending
to be legally bound hereby, it is hereby mutually agreed by and between the Borrower and the
WIFIA Lender as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1. Definitions.
Unless the context otherwise requires, capitalized terms used in this Agreement shall have
the meanings set forth below in this Section 1 or as otherwise defined in this Agreement. Any
term used in this Agreement that is defined by reference to any other agreement shall continue to
have the meaning specified in such agreement, whether or not such agreement remains in effect.
“Acceleration Right” has the meaning provided in Section 17(c)(vi) (Events of Default
and Remedies).
“Act” means the Act as defined in the recitals hereto.
“Additional Construction Contract” means, with respect to the Project, each
Construction Contract entered into after the Effective Date.
“Additional Obligations” means any Additional Parity Lien Obligations and any
Additional Subordinate Lien Obligations.
“Additional Parity Lien Obligations” means any Parity Lien Obligations permitted under
Section 15(a) (Negative Covenants – Indebtedness) and under the Parity Issuance Documents,
which Parity Lien Obligations are issued or incurred on or after the Effective Date.
“Additional Subordinate Lien Obligations” means any Subordinate Lien Obligations
permitted under Section 15(a) (Negative Covenants – Indebtedness) and under the Parity Issuance
Documents, which Subordinate Lien Obligations are issued or incurred after the Effective Date.
“Administrator” has the meaning provided in the preamble hereto.
“Agreement” has the meaning provided in the preamble hereto.
“Anticipated WIFIA Loan Disbursement Schedule” means the schedule set forth in
Exhibit B (Anticipated WIFIA Loan Disbursement Schedule), reflecting the anticipated
disbursement of proceeds of the WIFIA Loan, as such schedule may be amended from time to time
pursuant to Section 4(c) (Disbursement Conditions).
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction from
time to time concerning or relating to bribery or corruption.
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“Anti-Money Laundering Laws” means all U.S. and other applicable laws, rules and
regulations of any jurisdiction from time to time concerning or related to anti-money laundering,
including but not limited to those contained in the Bank Secrecy Act and the Patriot Act.
“Application” has the meaning provided in the recitals hereto.
“Bank Secrecy Act” means the Bank Secrecy Act of 1970, as amended, and the regulations
promulgated thereunder.
“Bankruptcy Related Event” means, with respect to any Person, (a) an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of such Person or any of its debts, or of a substantial part
of the assets thereof, under any Insolvency Laws, or (ii) the appointment of a receiver, trustee,
liquidator, custodian, sequestrator, conservator or similar official for such Person or for a
substantial part of the assets thereof and, in any case referred to in the foregoing subclauses (i) and
(ii), such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree
approving or ordering any of the foregoing shall be entered; (b) such Person shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator
or similar official therefor or for a substantial part of the assets thereof, (ii) generally not be paying
its debts as they become due unless such debts are the subject of a bona fide dispute, or become
unable to pay its debts generally as they become due, (iii) solely with respect to the Borrower, fail
to make a payment of WIFIA Debt Service in accordance with the provisions of Section 8
(Payment of Principal and Interest) and such failure is not cured within thirty (30) days following
notification by the WIFIA Lender of failure to make such payment, (iv) make a general assignment
for the benefit of creditors, (v) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition with respect to it described in clause (a) of this
definition, (vi) commence a voluntary proceeding under any Insolvency Law, or file a voluntary
petition seeking liquidation, reorganization, an arrangement with creditors or an order for relief,
in each case under any Insolvency Law, (vii) file an answer admitting the material allegations of a
petition filed against it in any proceeding referred to in the foregoing subclauses (i) through (v),
inclusive, of this clause (b), or (viii) take any action for the purpose of effecting any of the
foregoing, including seeking approval or legislative enactment by any Governmental Authority to
authorize commencement of a voluntary proceeding under any Insolvency Law; (c) (i) any Person
shall commence a process pursuant to which all or a substantial part of the Pledged Property may
be sold or otherwise disposed of in a public or private sale or disposition pursuant to a foreclosure
of the Liens thereon securing the Parity Lien Obligations, or (ii) any Person shall commence a
process pursuant to which all or a substantial part of the Pledged Property may be sold or otherwise
disposed of pursuant to a sale or disposition of such Pledged Property in lieu of foreclosure; or (d)
any receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official shall
transfer, pursuant to directions issued by the Bondholders, funds on deposit in the Water Fund
(including any accounts or subaccounts established therein) upon the occurrence and during the
continuation of an Event of Default under this Agreement or an event of default under any other
Parity Issuance Documents for application to the prepayment or repayment of any principal
amount of the Parity Lien Obligations other than in accordance with the provisions of the WIFIA
Ordinance.
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“Base Case Financial Model” means the financial model or plan, prepared by the
Borrower and delivered to the WIFIA Lender as part of the Application, forecasting the capital
costs of the Water Utility System (including the Project) and the estimated debt service coverage,
rates, revenues, operating expenses and major maintenance requirements of the Water Utility
System (as may be applicable) for the Forecast Period and based upon assumptions and
methodology provided by the Borrower and acceptable to the WIFIA Lender as of the Effective
Date, which model or plan shall have been provided to the WIFIA Lender as a fully functional
Microsoft Excel-based financial model or such other format agreed with the WIFIA Lender.
“Bondholder” means, when used with respect to the WIFIA Bond, the WIFIA Lender (and
any subsequent registered owner of the WIFIA Bond) and, when used with respect to any other
Obligation, the registered owner of such Obligation.
“Borrower” has the meaning provided in the preamble hereto.
“Borrower Fiscal Year” means (a) as of the Effective Date, a fiscal year of the Borrower
commencing on January 1 of any calendar year and ending on December 31 of such year or (b)
such other fiscal year as the Borrower may hereafter adopt after giving thirty (30) days’ prior
written notice to the WIFIA Lender in accordance with Section 15(f) (Negative Covenants – Fiscal
Year).
“Borrower’s Authorized Representative” means any Person who shall be designated as
such pursuant to Section 21 (Borrower’s Authorized Representative).
“Business Day” means any day other than a Saturday, a Sunday or a day on which offices
of the Government or the State are authorized to be closed or on which commercial banks are
authorized or required by law, regulation or executive order to be closed in New York, New York
or Englewood, Colorado.
“Capital Improvements” means the acquisition of water and water rights, land,
easements, facilities and equipment (other than ordinary repairs and replacements), and the
construction or reconstruction of improvements, betterments and extensions, for use by or in
connection with the Water Utility System which, under GAAP, are properly chargeable as capital
items.
“Capitalized Interest Period” means the period from (and including) the date of the first
disbursement of the WIFIA Loan to (but excluding) the first day of the initial Payment Period,
subject to earlier termination as set forth in Section 8(b) (Payment of Principal and Interest –
Capitalized Interest Period).
“City Charter” means the home rule charter adopted by the Borrower, as amended.
“City Council” means the governing body of the Borrower.
“Congress” means the Congress of the United States of America.
“Construction Contract” means, with respect to the Project, any prime contract entered
into by the Borrower with respect to the Project that involves any construction activity (such as
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demolition, site preparation, civil works construction, installation, remediation, refurbishment,
rehabilitation, or removal and replacement services). For the avoidance of doubt, “Construction
Contract” shall include each Existing Construction Contract and, upon the effectiveness thereof,
each Additional Construction Contract.
“Construction Contractor” means any Person (other than the Borrower) party to a
Construction Contract.
“Construction Period” means the period from the Effective Date through the Substantial
Completion Date.
“Construction Period Servicing Fee” has the meaning set forth in Section 10(a)(ii) (Fees
and Expenses – Fees).
“Construction Schedule” means (a) the initial schedule or schedules on which the
construction timetables for the Project are set forth, attached as Schedule II (Construction
Schedule), and (b) any updates thereto included in the periodic reports submitted to the WIFIA
Lender pursuant to Section 16(d) (Reporting Requirements – Construction Reporting) most
recently approved by the WIFIA Lender.
“Control” means, when used with respect to any particular Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or partnership or other ownership
interests, by contract or otherwise, and the terms “Controlling” and “Controlled by” have
meanings correlative to the foregoing.
“CPI” means the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S.
City Average for All Items, 1982-84=100 (not seasonally adjusted) or its successor, published by
the Bureau of Labor Statistics and located at https://www.bls.gov/news.release/cpi.t01.htm.
“Debt Service Accounts” means the accounts and subaccounts within the Water Fund
established for the payment of the debt service on Parity Lien Obligations (including the WIFIA
Bond Account) and Subordinate Lien Obligations.
“Debt Service Payment Commencement Date” means the earliest to occur of either (a)
February 1, 2031; or (b) if the Capitalized Interest Period ends pursuant to Section 8(b) (Payment
of Principal and Interest – Capitalized Interest Period) due to the occurrence of an Event of
Default, the first Payment Date immediately following the end of the Capitalized Interest Period;
or (c) the Payment Date falling closest to, but not later than, the fifth anniversary of the Substantial
Completion Date.
“Default” means any event or condition that, with the giving of any notice, the passage of
time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to the sum of (a) the WIFIA Interest Rate plus
(b) 200 basis points.
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“Development Default” means (a) the Borrower abandons work or fails, in the reasonable
judgment of the WIFIA Lender, to diligently prosecute the work related to the Project or (b) the
Borrower fails to achieve Substantial Completion of the Project by December 30, 2028.
“Dollars” and “$” means the lawful currency of the United States of America.
“Effective Date” means the date of this Agreement.
“Eligible Project Costs” means amounts in the Project Budget approved by the WIFIA
Lender, which are paid by or for the account of the Borrower in connection with the Project
(including, as applicable, Project expenditures incurred prior to the receipt of WIFIA credit
assistance), which shall arise from the following:
(a) development-phase activities, including planning, feasibility analysis
(including any related analysis necessary to carry out an eligible project), revenue
forecasting, environmental review, permitting, preliminary engineering and design work
and other preconstruction activities;
(b) construction, reconstruction, rehabilitation, and replacement activities;
(c) the acquisition of real property or an interest in real property (including
water rights, land relating to the Project and improvements to land), environmental
mitigation (including acquisitions pursuant to Section 3905(8) of Title 33 of the United
States Code), construction contingencies, and acquisition of equipment; or
(d) capitalized interest (with respect to Obligations other than the WIFIA
Loan) necessary to meet market requirements, reasonably required reserve funds, capital
issuance expenses, and other carrying costs during construction;
provided, that Eligible Project Costs must be consistent with all other applicable federal law,
including the Act.
“Eligible Project Costs Documentation” has the meaning provided in Section 1 of
Exhibit D-1 (Requisition Procedures).
“EMMA” means the Electronic Municipal Market Access system as described in 1934 Act
Release No. 59062 and maintained by the Municipal Securities Rulemaking Board established
pursuant to Section 15B(b)1 of the Securities Exchange Act of 1934, as amended, and its
successors.
“Environmental Laws” has the meaning provided in Section 12(p) (Representations and
Warranties of Borrower – Environmental Matters).
“EPA” means the United States Environmental Protection Agency.
“Event of Default” has the meaning provided in Section 17(a) (Events of Default and
Remedies).
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“Event of Loss” means any event or series of events that causes any portion of the Water
Utility System to be damaged, destroyed or rendered unfit for normal use for any reason
whatsoever, including through a casualty, a failure of title, or any loss of such property through
eminent domain.
“Existing Construction Contract” means each contract of the Borrower set forth in
Schedule 12(n) (Existing Construction Contracts).
“Federal Fiscal Year” means the fiscal year of the Government, which is the twelve (12)
month period that ends on September 30 of the specified calendar year and begins on October 1 of
the preceding calendar year.
“Final Disbursement Date” means the earliest of (a) the date on which the WIFIA Loan
has been disbursed in full; (b) the last anticipated date of disbursement set forth in the then-current
Anticipated WIFIA Loan Disbursement Schedule; (c) the date on which the Borrower has certified
to the WIFIA Lender that it will not request any further disbursements under the WIFIA Loan; (d)
the date on which the WIFIA Lender terminates its obligations relating to disbursements of any
undisbursed amounts of the WIFIA Loan in accordance with Section 17 (Events of Default and
Remedies); and (e) the date that is one (1) year after the Substantial Completion Date.
“Final Maturity Date” means the earlier of (a) August 1, 2062 (or such earlier date as is
set forth in an updated Exhibit F (WIFIA Debt Service) pursuant to Section 8(e) (Payment of
Principal and Interest – Adjustments to Loan Amortization Schedule)); and (b) the Payment Date
immediately preceding the date that is thirty-five (35) years following the Substantial Completion
Date.
“Financial Statements” has the meaning provided in Section 12(t) (Representations and
Warranties of Borrower – Financial Statements).
“Forecast Period” means, as of any date, the time period from and including the then-
current Borrower Fiscal Year until the later ending date of either (a) the immediately succeeding
five (5) Borrower Fiscal Years or (b) the end of the Borrower Fiscal Year in which the Borrower’s
then-currently effective capital improvement plan for the Water Utility System concludes.
“GAAP” means generally accepted accounting principles for U.S. state and local
governments, as established by the Government Accounting Standards Board (or any successor
entity with responsibility for establishing accounting rules for governmental entities), in effect
from time to time in the United States of America.
“Government” means the United States of America and its departments and agencies.
“Governmental Approvals” means all authorizations, consents, approvals, waivers,
exceptions, variances, filings, permits, orders, licenses, exemptions and declarations of or with any
Governmental Authority.
“Governmental Authority” means any federal, state, provincial, county, city, town,
village, municipal or other government or governmental department, commission, council, court,
board, bureau, agency, authority or instrumentality (whether executive, legislative, judicial,
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administrative or regulatory), of or within the United States of America or its territories or
possessions, including the State and its counties and municipalities, and their respective courts,
agencies, instrumentalities and regulatory bodies, or any entity that acts “on behalf of” any of the
foregoing, whether as an agency or authority of such body.
“Government Obligations” means (a) direct obligations of, or obligations on which the
timely payment of principal and interest are fully and unconditionally guaranteed by, the
Government, (b) bonds, debentures or notes issued by any of the following federal agencies:
Banks for Cooperatives, Federal Intermediate Credit Banks, Federal Home Loan Banks, Export-
Import Bank of the United States, Government National Mortgage Association or Federal Land
Banks, (c) obligations issued or guaranteed by a Person controlled or supervised by and acting as
an instrumentality of the Government pursuant to authority granted by the Congress, and (d)
evidences of ownership of proportionate interests in future interest or principal payments on
obligations specified in clauses (a), (b) and (c) of this definition held by a bank or trust company
as custodian and which underlying obligations are not available to satisfy any claim of the
custodian or any Person claiming through the custodian or to whom the custodian may be
obligated, in each case.
“Gross Revenues” means all income and revenues derived directly or indirectly from the
operation and use of, and otherwise pertaining to, the Water Utility System or any part thereof,
whether resulting from repairs, enlargements, extensions, betterments or other improvements to
the Water Utility System, or otherwise, including all fees, rates and other charges for the use of
the Water Utility System, or for any service rendered in connection with the Water Utility System
in its operations, directly or indirectly, the availability of any such service, or the sale or other
disposal of any commodities derived therefrom, and all income or gain from the investment of
such income and revenues, but excluding (a) any refund of fees, rates and other charges for the use
of the Water Utility System, (b) any moneys received as grants, appropriations or gifts from the
federal government, the State or other sources, the use of which is limited or restricted by the
grantor or donor to the acquisition or construction of Capital Improvements or for other purposes
resulting in the general unavailability thereof, except to the extent any such moneys shall be
received as payments for the use of the Water Utility System, services rendered thereby, the
availability of any such service, or the disposal of any commodities therefrom, (c) any moneys
deposited by third parties which are held in any escrow for extensions, modifications, or upgrading
of the Water Utility System and the use of which is limited or restricted to the construction of
Capital Improvements, (d) any moneys borrowed for, or special assessments imposed in
connection with, the acquisition and construction of Capital Improvements, and (e) any moneys
and securities, and interest and other gain from investment of such money and from such securities
in any refunding fund or escrow account or similar account pledged to the payment of any bonds
or other obligations therein specified.
“Indemnitee” has the meaning provided in Section 32 (Indemnification).
“Insolvency Laws” means the United States Bankruptcy Code, 11 U.S.C. § 101 et seq., as
from time to time amended and in effect, and any state bankruptcy, insolvency, receivership,
conservatorship or similar law now or hereafter in effect.
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“Interest Payment Date” means, in relation to the WIFIA Bond, each February 1 and
August 1, commencing on the Debt Service Payment Commencement Date, and in relation to all
other Obligations, each February 1 and August 1, commencing on the date established by the
Borrower in the applicable Issuance Documents.
“Investment Grade Rating” means a public rating no lower than ‘BBB-’, ‘Baa3’, ‘bbb-’,
‘BBB (low)’, or higher, from a Nationally Recognized Rating Agency.
“Issuance Documents” means, collectively and individually, any (a) ordinance,
resolution, indenture, trust agreement or other document adopted or entered into by the Borrower
for the purpose of authorizing the issuance of Obligations and (b) each other agreement, instrument
and document executed and delivered pursuant to or in connection with any of the foregoing.
“Lien” means any mortgage, pledge, hypothecation, assignment, mandatory deposit
arrangement, encumbrance, attachment, lien (statutory or other), charge or other security interest,
or preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever, including any sale-leaseback arrangement, any conditional sale or other title retention
agreement, any financing lease having substantially the same effect as any of the foregoing, and
the filing of any financing statement or similar instrument under the UCC or any other applicable
law.
“Loan Amortization Schedule” means the Loan Amortization Schedule reflected in the
applicable column of Exhibit F (WIFIA Debt Service), as amended from time to time in
accordance with Section 8(e) (Payment of Principal and Interest – Adjustments to Loan
Amortization Schedule).
“Loss Proceeds” means any proceeds of builders’ risk or casualty insurance (other than
any proceeds from any policy of business interruption insurance insuring against loss of revenues
upon the occurrence of certain casualties or events covered by such policy of insurance) or
proceeds of eminent domain proceedings resulting from any Event of Loss.
“Material Adverse Effect” means a material adverse effect on (a) the Water Utility
System, the Project or the Revenues, (b) the business, operations, properties, condition (financial
or otherwise) or prospects of the Borrower, (c) the legality, validity or enforceability of any
material provision of the WIFIA Ordinance or any WIFIA Loan Document, (d) the ability of the
Borrower to enter into, perform or comply with any of its material obligations under any WIFIA
Loan Document, (e) the validity, enforceability or priority of the Liens provided under the WIFIA
Ordinance on the Pledged Property in favor of the Secured Parties or (f) the WIFIA Lender’s rights
or remedies available under any WIFIA Loan Document.
“Maximum Annual Debt Service” means the maximum amount in a given Borrower
Fiscal Year when adding all current and proposed debt service that would be payable in that
Borrower Fiscal Year.
“Nationally Recognized Rating Agency” means any nationally recognized statistical
rating organization identified as such by the Securities and Exchange Commission.
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“NEPA” means the National Environmental Policy Act of 1969, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as in effect from time
to time.
“NEPA Determination” means the [Finding of No Significant Impact][Categorical
Exclusion][Record of Decision] for the Project issued by EPA on [___], 20[__] in accordance with
NEPA.
“Net Loss Proceeds” means Loss Proceeds after excluding any proceeds of delay-in-start-
up insurance and proceeds covering liability of the Borrower to third parties.
“Net Revenues” means Gross Revenues remaining after the payment of Operation and
Maintenance Expenses.
“Non-Debarment Certificate” means a certificate, signed by the Borrower’s Authorized
Representative, as to the absence of debarment, suspension or voluntary exclusion from
participation in Government contracts, procurement and non-procurement matters with respect to
the Borrower and its principals (as defined in 2 C.F.R. § 180.995 and supplemented by 2 C.F.R.
1532.995), substantially in the form attached hereto as Exhibit C (Form of Non-Debarment
Certificate).
“Non-Lobbying Certificate” means a certificate, signed by the Borrower’s Authorized
Representative, with respect to the prohibition on the use of appropriated funds for lobbying
pursuant to 49 C.F.R. § 20.100(b), substantially in the form attached hereto as Exhibit E (Form of
Non-Lobbying Certificate).
“O&M Reserve Requirement” means an amount equal to the lesser of (a) three (3)
months of Operation and Maintenance Expenses, as set forth in the Water Fund annual budget for
the current Borrower Fiscal Year or (b) $1,250,000.
“Obligations” means debt of the Borrower that is secured by a pledge and lien on all or a
portion of the Net Revenues, including the Parity Lien Obligations and any Subordinate Lien
Obligations.
“OFAC” means the Office of Foreign Assets Control of the United States Department of
the Treasury.
“Operating Period Servicing Fee” has the meaning set forth in Section 10(a)(iii) (Fees
and Expenses – Fees).
“Operation and Maintenance Expenses” means all reasonable and necessary current
expenses of the Borrower, paid or accrued, for operating, maintaining, and repairing the Water
Utility System, including without limitation legal and overhead expenses of the Borrower directly
related to the administration of the Water Utility System; provided however, that there shall be
excluded from Operation and Maintenance Expenses (a) any allowance or transfers for
depreciation, (b) any costs of improvement, extension or betterment that qualify as Capital
Improvements or incurred in connection therewith, and (c) payments due in connection with any
bonds, notes, loans or other multiple fiscal year obligations issued or incurred to provide Capital
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Improvements or to refund Obligations. For purposes of the above definition, expenses shall, to
the extent possible, be determined in accordance with GAAP.
“Organizational Documents” means: (a) the constitutional and statutory provisions that
are the basis for the existence and authority of the Borrower, including the City Charter any other
organic laws establishing the Borrower and (b) the ordinances, resolutions, bylaws, code of
regulations, operating procedures or other organizational documents (including any amendments,
modifications or supplements thereto) of or adopted by the Borrower by which the Borrower, its
powers, operations or procedures or its securities, bonds, notes or other obligations are governed
or from which such powers are derived.
“Outstanding” means (a) with respect to Obligations other than the WIFIA Loan,
Obligations that have not been cancelled or legally defeased or discharged within the meaning of
the applicable Issuance Documents, and (b) with respect to the WIFIA Loan, the (i) entire amount
available to be drawn under this Agreement (including amounts drawn and amounts that remain
available to be drawn), less (ii) any amount that has been irrevocably determined will not be drawn
under this Agreement, less (iii) the aggregate principal amount of the WIFIA Loan Balance that
has been repaid.
“Parity Issuance Documents” means, collectively and individually, the Issuance
Documents with respect to Parity Lien Obligations, including the WIFIA Loan Documents and
any Issuance Documents with respect to Additional Parity Lien Obligations.
“Parity Lien Obligations” means the WIFIA Loan (and corresponding WIFIA Bond) and
any Additional Parity Lien Obligations.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, and all regulations
promulgated thereunder.
“Payment Date” means each Interest Payment Date and each Principal Payment Date.
“Payment Default” has the meaning provided in Section 17(a)(i) (Events of Default and
Remedies – Payment Default).
“Payment Period” means the six (6) month period beginning on August 1, 2030 and
ending on January 31, 2031, and each succeeding six (6) month period thereafter; provided, that,
that if the Debt Service Payment Commencement Date begins earlier than February 1, 2031, the
first Payment Period shall be the six (6) month period ending on the date immediately prior to the
Debt Service Payment Commencement Date.
“Permitted Debt” means:
(a) the WIFIA Loan;
(b) Additional Parity Lien Obligations that satisfy the requirements of Section
15(a) (Negative Covenants – Indebtedness) and the WIFIA Ordinance; and
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(c) Additional Subordinate Lien Obligations that satisfy the requirements of
Section 15(a) (Negative Covenants – Indebtedness) and the WIFIA Ordinance.
“Permitted Investments” means:
(a) Government Obligations;
(b) certificates of deposit where the certificates are collaterally secured by
securities of the type described in clause (a) of this definition and held by a third party as
escrow agent or custodian, of a market value not less than the amount of the certificates
of deposit so secured, including interest, but this collateral is not required to the extent the
certificates of deposit are insured by the Government;
(c) repurchase agreements with creditworthy counterparties, when
collateralized by securities of the type described in clause (a) of this definition and held
by a third party as escrow agent or custodian, of a market value not less than the amount
of the repurchase agreement so collateralized, including interest;
(d) investment agreements or guaranteed investment contracts rated, or with
any financial institution whose senior long-term debt obligations are rated, or guaranteed
by a financial institution whose senior long-term debt obligations are rated in one of the
two (2) highest Rating Categories for comparable types of obligations by any Nationally
Recognized Rating Agency; and
(e) money market funds that invest solely in obligations of the United States
of America, its agencies and instrumentalities, and having a rating by a Nationally
Recognized Rating Agency equal to the then applicable rating of the United States of
America by such Nationally Recognized Rating Agency.
“Permitted Liens” means:
(a) Liens imposed pursuant to the WIFIA Loan Documents;
(b) Liens imposed pursuant to Parity Issuance Documents or Issuance
Documents for Subordinate Lien Obligations in respect of Permitted Debt;
(c) Liens imposed by law, including Liens for taxes that are not yet due or are
being contested in compliance with Section 14(j) (Affirmative Covenants – Material
Obligations);
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being contested in
compliance with Section 14(j) (Affirmative Covenants – Material Obligations);
(e) pledges and deposits made in the ordinary course of business in compliance
with workers’ compensation, unemployment insurance, and other social security laws or
regulations;
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(f) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(g) judgment Liens in respect of judgments that do not constitute an Event of
Default under Section 17(a)(vi) (Events of Default and Remedies – Material Adverse
Judgment); and
(h) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that, in any
case, do not secure any monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct of business of the Borrower.
“Person” means and includes an individual, a general or limited partnership, a joint
venture, a corporation, a limited liability company, a trust, an unincorporated organization and any
Governmental Authority.
“Pledged Property” means the Net Revenues, including all amounts on deposit in or
credited to the Debt Service Accounts and all amounts in respect of Net Revenues that are on
deposit in or credited to any other account or subaccount of the Water Fund.
“Principal Payment Date” means, in relation to the WIFIA Bond, each August 1,
commencing on August 1, 2031, and in relation to all other Obligations, each August 1,
commencing on the date established by the Borrower in the applicable Issuance Documents.
“Pro Rata Portion” means when used with respect to a required credit to or deposit in the
applicable Debt Service Accounts, the dollar amount derived by dividing the amount of principal
or interest to come due on the next scheduled principal or interest Payment Date, as applicable, by
the number of months prior to such Payment Date.
“Project” means the Englewood One Water Modernization Program – Water Utility
System Project, which consists of a combination of sub-projects for the modernization of drinking
water treatment and conveyance systems, the replacement of outdated electrical and control
systems, the replacement of lead pipe, the modernization of metering processes, and the initiation
of a water reuse program, located in or nearby Englewood, Colorado, as further described in
Schedule IV (Project Description).
“Project Budget” means the budget for the Project attached to this Agreement as
Schedule I (Project Budget) showing a summary of Total Project Costs with a breakdown of all
Eligible Project Costs and the estimated sources and uses of funds for the Project.
“Projected Substantial Completion Date” means December 30, 2027, as such date may
be adjusted in accordance with Section 16(d) (Reporting Requirements – Construction Reporting).
“Public Benefits Report” has the meaning provided in Section 16(e) (Reporting
Requirements – Public Benefits Report).
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“Rate Covenant” has the meaning set forth in Section 14(a)(i) (Affirmative Covenants –
Rate Covenant).
“Related Documents” means the Parity Issuance Documents and the WIFIA Loan
Documents.
“Requisition” has the meaning provided in Section 4(a) (Disbursement Conditions).
“Sanctioned Country” means, at any time, a country or territory which is itself the subject
or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person
operating, organized or resident in a Sanctioned Country, or (c) any Person owned or controlled
by any such Person or Persons.
“Sanctions” means economic or financial sanctions or trade embargoes imposed,
administered, or enforced from time to time by the Government, including those administered by
OFAC or the U.S. Department of State.
“Secured Parties” means the WIFIA Lender and any other Bondholder.
“Servicer” means such entity or entities as the WIFIA Lender shall designate from time to
time to perform, or assist the WIFIA Lender in performing, certain duties hereunder.
“Servicing Fee” means the Servicing Set-Up Fee and any Construction Period Servicing
Fee or Operating Period Servicing Fee.
“Servicing Set-Up Fee” has the meaning set forth in Section 10(a)(i) (Fees and Expenses
– Fees).
“State” has the meaning provided in the preamble hereto.
“Subordinate Lien Obligations” means any Obligation that is subordinate (in priority of
payment and security interest) to the Parity Lien Obligations.
“Substantial Completion” means, with respect to the Project, the stage at which the
Project is able to perform the functions for which the Project is designed.
“Substantial Completion Date” means the date on which the Borrower certifies to the
WIFIA Lender, with evidence satisfactory to the WIFIA Lender, that Substantial Completion has
occurred.
“Technical and Rate Consultant” means a single individual or firm, or a combination of
one or more individuals or firms, not related to the Borrower and considered independent with
respect to the Borrower (i.e. not an employee of the Borrower or any affiliate of the Borrower)
authorized to do business in and qualified to practice in the areas required to provide the services
required of the Technical and Rate Consultant, that together have expertise in the technical
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requirements for operation and maintenance of systems similar in size and scope to the Water
Utility System and delivering the services provided by the Water Utility System, and establishing
rates and charges for governmental water or wastewater systems similar in size and scope to the
Water Utility System, selected by the Borrower and reasonably acceptable to the WIFIA Lender.
“Total Project Costs” means (a) the costs paid or incurred or to be paid or incurred by the
Borrower in connection with or incidental to the acquisition, design, construction and equipping
of the Project, including legal, administrative, engineering, planning, design, insurance and
financing (including costs of issuance); (b) amounts, if any, required by the WIFIA Loan
Documents to be paid into any fund or account upon the incurrence of the WIFIA Loan, any Parity
Lien Obligations or any Subordinate Lien Obligations, in each case in respect of the Project;
(c) payments when due (whether at the maturity of principal, the due date of interest, or upon
optional or mandatory prepayment) in respect of any indebtedness of the Borrower, in each case
in connection with the acquisition, design, construction and equipping of the Project (other than
the WIFIA Loan); and (d) costs of equipment and supplies and initial working capital and reserves
required by the Borrower for the commencement of operation of the Project, including general
administrative expenses and overhead of the Borrower.
“Uncontrollable Force” means any cause beyond the control of the Borrower, including:
(a) a hurricane, tornado, flood or similar occurrence, landslide, earthquake, fire or other casualty,
strike or labor disturbance, freight embargo, act of a public enemy, explosion, war, blockade,
terrorist act, insurrection, riot, general arrest or restraint of government and people, civil
disturbance or similar occurrence, sabotage, pandemic or act of God (provided, that the Borrower
shall not be required to settle any strike or labor disturbance in which it may be involved) or (b) the
order or judgment of any federal, state or local court, administrative agency or governmental
officer or body, if it is not also the result of willful or negligent action or a lack of reasonable
diligence of the Borrower and the Borrower does not control the administrative agency or
governmental officer or body; provided, that the diligent contest in good faith of any such order or
judgment shall not constitute or be construed as a willful or negligent action or a lack of reasonable
diligence of the Borrower.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code, as in
effect from time to time in the State.
“Updated Financial Model/Plan” means (a) an updated Base Case Financial Model or (b)
a financial plan in a format agreed with the WIFIA Lender, in each case reflecting the then-current
and projected conditions for the Forecast Period, in accordance with Section 16(a) (Reporting
Requirements – Updated Financial Model/Plan).
“Variable Interest Rate” means a variable interest rate to be borne by any Permitted Debt.
The method of computing such variable interest rate shall be specified in the Issuance Documents
pursuant to which such Permitted Debt is incurred. Such Issuance Documents shall also specify
either (a) the particular period or periods of time for which each value of such variable interest rate
shall remain in effect or (b) the time or times upon which any change in such variable interest rate
shall become effective.
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“Variable Interest Rate Obligations” means Permitted Debt which bears a Variable
Interest Rate but does not include any Permitted Debt for which the interest rate has been fixed
during the remainder of the term thereof to maturity.
“Water Fund” shall have the meaning set forth in the WIFIA Ordinance.
“Water Utility Enterprise” means the “enterprise” of the Borrower, within the meaning
of Article X, Section 20 of the State Constitution, established for the purpose of operating the
Water Utility System.
“Water Utility System” means all of the Borrower’s water facilities and properties now
owned or hereafter acquired, whether situated within or without the geographical boundaries of
the Borrower, including all present or future improvements, extensions, enlargements,
betterments, replacements or additions thereof or thereto, including but not limited to the Project.
“WIFIA” has the meaning provided in the recitals hereto.
“WIFIA Bond” means the Bond delivered by the Borrower in substantially the form of
Exhibit A (Form of WIFIA Bond).
“WIFIA Bond Account” means a special account of the Borrower designated as the
“WIFIA Bond Account,” established by the WIFIA Ordinance for the purpose of paying the
principal of and interest on the WIFIA Bond, including the WIFIA Interest Subaccount and the
WIFIA Principal Subaccount.
“WIFIA Debt Service” means with respect to any Payment Date occurring on or after the
Debt Service Payment Commencement Date, the principal portion of the WIFIA Loan Balance
and any interest payable thereon (including interest accruing after the date of any filing by the
Borrower of any petition in bankruptcy or the commencement of any bankruptcy, insolvency or
similar proceeding with respect to the Borrower), in each case, (a) as set forth on Exhibit F (WIFIA
Debt Service) and (b) due and payable on such Payment Date in accordance with the provisions of
Section 8(a) (Payment of Principal and Interest – Payment of WIFIA Debt Service).
“WIFIA Interest Rate” has the meaning provided in Section 6 (Interest Rate).
“WIFIA Interest Subaccount” means a subaccount of the WIFIA Bond Account
established by the provisions of the WIFIA Ordinance for the purpose of paying the interest on the
WIFIA Bond.
“WIFIA Lender” has the meaning provided in the preamble hereto.
“WIFIA Lender’s Authorized Representative” means the Administrator and any other
Person who shall be designated as such pursuant to Section 22 (WIFIA Lender’s Authorized
Representative).
“WIFIA Loan” means the secured loan made by the WIFIA Lender to the Borrower on
the terms and conditions set forth herein, pursuant to the Act, in a principal amount not to exceed
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$[38,416,490] (excluding capitalized interest), to be used in respect of Eligible Project Costs paid
or incurred by the Borrower.
“WIFIA Loan Balance” means (a) the aggregate principal amount of the WIFIA Loan
drawn by the Borrower plus (b) capitalized interest added to the principal balance of the WIFIA
Loan minus (c) the aggregate principal amount of the WIFIA Loan repaid by the Borrower, as
determined in accordance with Section 8(e) (Payment of Principal and Interest – Adjustments to
Loan Amortization Schedule).
“WIFIA Loan Documents” means this Agreement, the WIFIA Bond and the WIFIA
Ordinance.
“WIFIA Ordinance” means the ordinance, adopted by the City Council on [___],
authorizing the execution and delivery of this Agreement and the issuance of the WIFIA Bond,
along with certain related actions by the Borrower in connection with the WIFIA Loan, and
pledging the Pledged Property for the benefit of the WIFIA Loan and all other Parity Lien
Obligations.
“WIFIA Principal Subaccount” means a subaccount of the WIFIA Bond Account
established by the provisions of the WIFIA Ordinance for the purpose of paying the principal of
the WIFIA Bond.
Section 2. Interpretation.
(a) Unless the context shall otherwise require, the words “hereto,” “herein,” “hereof”
and other words of similar import refer to this Agreement as a whole.
(b) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders and vice versa.
(c) Words importing the singular number shall include the plural number and vice
versa unless the context shall otherwise require.
(d) The words “include,” “includes” and “including” shall be deemed to be followed
by the phrase “without limitation.”
(e) Whenever the Borrower’s knowledge is implicated in this Agreement or the phrase
“to the Borrower’s knowledge” or a similar phrase is used in this Agreement, the Borrower’s
knowledge or such phrase(s) shall be interpreted to mean to the best of the Borrower’s knowledge
after reasonable and diligent inquiry.
(f) Unless the context shall otherwise require, references to any Person shall be deemed
to include such Person’s successors and permitted assigns.
(g) Unless the context shall otherwise require, references to preambles, recitals,
sections, subsections, clauses, schedules, exhibits, appendices and provisions are to the applicable
preambles, recitals, sections, subsections, clauses, schedules, exhibits, appendices and provisions
of this Agreement.
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(h) The schedules and exhibits to this Agreement, and the appendices and schedules to
such exhibits, are hereby incorporated by reference and made an integral part of this Agreement.
(i) The headings or titles of this Agreement and its sections, schedules or exhibits, as
well as any table of contents, are for convenience of reference only and shall not define or limit its
provisions.
(j) Unless the context shall otherwise require, all references to any resolution, contract,
agreement, lease or other document shall be deemed to include any amendments or supplements
to, or modifications or restatements or replacements of, such documents that are approved from
time to time in accordance with the terms thereof and hereof.
(k) Every request, order, demand, application, appointment, notice, statement,
certificate, consent or similar communication or action hereunder by any party shall, unless
otherwise specifically provided, be delivered in writing in accordance with Section 31 (Notices)
and signed by a duly authorized representative of such party.
(l) References to “disbursements of WIFIA Loan Proceeds” or similar phrasing shall
be construed as meaning the same thing as “paying the purchase price of the WIFIA Bond”.
(m) Whenever this Agreement requires a change in principal amount, interest rate or
amortization schedule of the WIFIA Loan, it is intended that such change be reflected in the WIFIA
Bond. Whenever there is a mandatory or optional prepayment of the WIFIA Loan, it is intended
that such prepayment be implemented through a prepayment of the WIFIA Bond.
ARTICLE II
THE WIFIA LOAN
Section 3. WIFIA Loan Amount. The principal amount of the WIFIA Loan shall not
exceed $[38,416,490] (excluding any interest that is capitalized in accordance with the terms
hereof). WIFIA Loan proceeds available to be drawn shall be disbursed from time to time in
accordance with Section 4 (Disbursement Conditions) and Section 11(b) (Conditions Precedent –
Conditions Precedent to Disbursements).
Section 4. Disbursement Conditions.
(a) WIFIA Loan proceeds shall be disbursed solely in respect of Eligible
Project Costs paid or incurred and approved for payment by or on behalf of the Borrower in
connection with the Project. Each disbursement of the WIFIA Loan shall be made pursuant to a
requisition and certification (a “Requisition”) in the form set forth in Appendix One (Form of
Requisition) to Exhibit D-1 (Requisition Procedures), along with all documentation and other
information required thereby, and otherwise in accordance with the procedures of Exhibit D-1
(Requisition Procedures) and subject to the requirements of this Section 4 and the conditions set
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forth in Section 11(b) (Conditions Precedent – Conditions Precedent to Disbursements); provided,
that no disbursements of WIFIA Loan proceeds shall be made after the Final Disbursement Date.
(b) At the time of any disbursement, the sum of all prior disbursements of
WIFIA Loan proceeds and the disbursement then to be made shall not exceed the cumulative
disbursements through the end of the then-current Federal Fiscal Year set forth in the Anticipated
WIFIA Loan Disbursement Schedule, as the same may be amended from time to time in
accordance with the terms of this Agreement. Subject to this Section 4, any scheduled
disbursement (as reflected in the Anticipated WIFIA Loan Disbursement Schedule) that remains
undrawn at the end of any Federal Fiscal Year shall automatically roll forward to be available in
the succeeding Federal Fiscal Year up to the Final Disbursement Date, having the effect of
automatically updating the Anticipated WIFIA Loan Disbursement Schedule without need for the
WIFIA Lender’s approval. The Borrower may also amend the Anticipated WIFIA Loan
Disbursement Schedule by submitting a revised version thereof to the WIFIA Lender no later than
thirty (30) days prior to the proposed effective date of such amendment, together with a detailed
explanation of the reasons for such revisions. Such revised Anticipated WIFIA Loan
Disbursement Schedule shall become effective upon the WIFIA Lender’s approval thereof, which
approval shall be deemed granted if the WIFIA Lender has not objected within thirty (30) days
from receipt of the revised schedule, and which approval shall have the effect of updating the
WIFIA Loan Amortization Schedule to reflect the updated disbursement schedule.
Notwithstanding the foregoing, the date of the first disbursement of the WIFIA Loan shall not be
earlier than the initial date of disbursement set out in the WIFIA Loan Amortization Schedule as
of the Effective Date.
Section 5. Term. The term of the WIFIA Loan shall extend from the Effective Date to
the Final Maturity Date or to such earlier date as all amounts due or to become due to the WIFIA
Lender hereunder have been irrevocably paid in full in immediately available funds.
Section 6. Interest Rate. The interest rate with respect to the WIFIA Loan Balance
(the “WIFIA Interest Rate”) shall be [___] percent ([___]%) per annum. Interest will accrue and
be computed on the WIFIA Loan Balance (as well as on any past due interest) from time to time
on the basis of a three hundred sixty (360) day year of twelve (12) thirty (30) day months; provided,
that, upon the occurrence of an Event of Default, the Borrower shall pay interest on the WIFIA
Loan Balance at the Default Rate, (a) in the case of any Payment Default, from (and including) its
due date to (but excluding) the date of actual payment and (b) in the case of any other Event of
Default, from (and including) the date of such occurrence to (but excluding) the earlier of the date
on which (i) such Event of Default has been cured (if applicable) in accordance with the terms of
this Agreement and (ii) the WIFIA Loan Balance has been irrevocably paid in full in immediately
available funds. For the avoidance of doubt, interest on the WIFIA Loan (and the corresponding
WIFIA Bond) shall accrue and be payable only on those amounts for which a Requisition has been
submitted and funds (or such portion of funds as have been approved by the WIFIA Lender) have
been made available to the Borrower for use on the Project in accordance with Section 4
(Disbursement Conditions).
Section 7. Security and Priority; Flow of Funds.
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(a) As security for the WIFIA Loan, the Borrower has pledged, assigned and
granted to the WIFIA Lender for its benefit, Liens on the Pledged Property pursuant to the WIFIA
Ordinance. The WIFIA Loan (and corresponding WIFIA Bond) shall be secured by the Liens on
the Pledged Property on a parity with the Parity Lien Obligations and senior to all other
Obligations.
(b) Except (i) for Permitted Liens, or (ii) to the extent otherwise provided in
Section 7(a), the Pledged Property will be free and clear of any pledge, Lien, charge or
encumbrance thereon or with respect thereto, of equal rank with or senior to the pledge of the
Borrower created under the WIFIA Ordinance, and all organizational, regulatory or other
necessary action on the part of the Borrower with respect to the foregoing has been duly and validly
taken.
(c) The Borrower shall not use Gross Revenues to make any payments or
satisfy any obligations other than in accordance with the provisions of this Section 7 and the
WIFIA Ordinance and shall not apply any portion of the Gross Revenues in contravention of this
Agreement or the WIFIA Ordinance. Without limiting the foregoing, no payments shall be made
from Debt Service Accounts established for the payment of principal of and interest on any
Subordinate Lien Obligations, if any, unless and until the amounts due in connection with all Parity
Lien Obligations are made on any Payment Date.
(d) The Borrower shall deposit to the Water Fund all Gross Revenues
immediately upon receipt. The Borrower shall pay from the Water Fund all Operation and
Maintenance Expenses as they become due and payable. After such payments and on or before
the last Business Day of each month, as provided in the WIFIA Ordinance, the Borrower shall
apply the Net Revenues in the following order and with the following priority:
(i) FIRST, in respect of all Parity Lien Obligations, to the credit of or
deposit in the applicable Debt Service Accounts, including the WIFIA Interest Subaccount,
an amount equal to the sum of 1/6th of the interest payments due on the next succeeding
Interest Payment Date, provided that, if the period prior to the initial Interest Payment Date
for any Additional Parity Lien Obligations is less than six months, the amount credited or
deposited in respect of such Additional Parity Lien Obligations during such period shall be
an amount equal to the Pro Rata Portion of the interest payment due in connection with
such initial Interest Payment Date;
(ii) SECOND, in respect of all Parity Lien Obligations, to the credit of
or deposit in the applicable Debt Service Accounts, including the WIFIA Principal
Subaccount, an amount equal to the sum of 1/12th of the principal payments due on the
next succeeding Principal Payment Date, provided that, if the period prior to the initial
Principal Payment Date for any Additional Parity Lien Obligations is less than twelve
months, the amount credited or deposited in respect of such Additional Parity Lien
Obligations during such period shall be an amount equal to the Pro Rata Portion of the
principal payment due in connection with such initial Principal Payment Date;
(iii) THIRD, in respect of all Subordinate Lien Obligations, to the credit
of or deposit in the applicable Debt Service Accounts, an amount equal to the sum of the
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Pro Rata Portion of the principal and interest due on the next succeeding Interest Payment
Date and Principal Payment Date for the Subordinate Lien Obligations in the same manner
specified in clause FIRST and SECOND above for the Parity Lien Obligations;
(iv) FOURTH, to the credit of or deposit in any reserve accounts
established for the payment of the WIFIA Bond and any Parity Lien Obligations, the
amounts required in the Ordinances or related documents authorizing and controlling the
establishment of such reserve accounts; and
(v) FIFTH, subject to Section 15(d) (Negative Covenants – Restricted
Payments and Transfers), to the credit of any other fund or account as may be designated
by the Borrower, to be used for any lawful purpose, any moneys remaining in the Water
Fund after the payments and accumulations set forth in clauses FIRST through FOURTH
above.
(e) The WIFIA Ordinance establishes the WIFIA Bond Account within the
Water Fund for the payment of WIFIA Debt Service. Transfers pursuant to clauses FIRST and
SECOND above in respect of the WIFIA Bond shall be made to the WIFIA Bond Account and
shall commence (i) with respect to the interest component of WIFIA Debt Service, no later than in
the sixth (6th) month prior to the month in which the Debt Service Payment Commencement Date
occurs and (ii) with respect to the principal component of WIFIA Debt Service, no later than in
the twelfth (12th) month prior to the month in which the first Principal Payment Date occurs; in
each case, to ensure that the full amount of interest and principal due is on deposit in the WIFIA
Bond Account on the applicable Payment Date.
Section 8. Payment of Principal and Interest.
(a) Payment of WIFIA Debt Service.
(i) No WIFIA Debt Service shall be due or payable prior to the Debt
Service Payment Commencement Date. The Borrower shall pay (A) WIFIA Debt Service
in the amounts and manner and on the Payment Dates as set forth in the WIFIA Loan
Amortization Schedule, as the same may be revised pursuant to Section 8(c) (Adjustments
to WIFIA Loan Amortization Schedule) and (B) payments of any other amounts on each
other date on which payment thereof is required to be made hereunder; provided, that, in
either case if any such date is not a Business Day, payment shall be made on the next
Business Day following such date. WIFIA Loan proceeds borrowed and repaid may not be
reborrowed.
(ii) Notwithstanding anything herein to the contrary, the WIFIA Loan
Balance and any accrued interest thereon shall be due and payable in full on the Final
Maturity Date (or on any earlier date on which the WIFIA Loan and corresponding WIFIA
Bond are subject to mandatory redemption or prepayment prior to maturity thereof or
accelerated pursuant to Section 17 (Events of Default and Remedies)).
(b) Capitalized Interest Period. No payment of the principal of or interest on
the WIFIA Loan is required to be made during the Capitalized Interest Period. Interest on amounts
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capitalized pursuant to this Section 8(b) shall commence on the date such interest is added to the
principal balance of the WIFIA Loan (and corresponding WIFIA Bond) during the Capitalized
Interest Period. On each February 1 and August 1 occurring during the Capitalized Interest Period
and on the day immediately following the end of the Capitalized Interest Period, interest accrued
on the WIFIA Loan in the six (6) month period ending immediately prior to such date shall be
capitalized and added to the WIFIA Loan Balance. Within thirty (30) days after the end of the
Capitalized Interest Period, the WIFIA Lender shall give written notice to the Borrower stating the
WIFIA Loan Balance as of the close of business on the last day of the Capitalized Interest Period,
which statement thereof shall be deemed conclusive absent manifest error; provided, however, that
no failure to give or delay in giving such notice shall affect any of the obligations of the Borrower
hereunder or under any of the other WIFIA Loan Documents. Notwithstanding the foregoing, the
Capitalized Interest Period shall end immediately upon written notification to the Borrower by the
WIFIA Lender that an Event of Default has occurred, in which case the provisions of this Section
8(b) shall no longer apply and payments of principal and interest shall be currently due and payable
in accordance with the terms hereof and interest shall no longer be capitalized. For purposes of
this subsection, an Event of Default under Section 17(a)(v) (Events of Default and Remedies –
Cross Default with Other Financing Documents) shall be deemed to have occurred upon the
occurrence of any nonpayment of principal of, interest on or redemption price of Parity Lien
Obligations when due, regardless of whether the holders of the applicable Obligations, or any legal
order, has waived, permitted deferral of, or forgiven any such payment. The Borrower and the
WIFIA Lender acknowledge and agree that, pursuant to the WIFIA Ordinance, the maximum
approved amount of capitalized interest for the WIFIA Bond is $[8,083,510] and that no
amendment to the Anticipated WIFIA Loan Disbursement Schedule or disbursement of WIFIA
Loan proceeds may be made that would cause the total amount of interest that is capitalized and
added to the Outstanding WIFIA Loan Balance pursuant to this Section 8(b) (Payment of Principal
and Interest – Capitalized Interest Period) to exceed such maximum approved amount.
(c) WIFIA Bond. As evidence of the Borrower’s obligation to repay the WIFIA
Loan, the Borrower shall issue and deliver to the WIFIA Lender, on or prior to the Effective Date,
the WIFIA Bond substantially in the form of Exhibit A (Form of WIFIA Bond), having a maximum
principal amount (excluding capitalized interest) of $[38,416,490], bearing interest at the WIFIA
Interest Rate and having principal and interest payable on the same dates set forth herein. Any
payment in respect of the WIFIA Bond shall be treated as a payment in respect of the WIFIA Loan
and any prepayment of principal in respect of the WIFIA Loan shall be treated as a redemption in
respect of the WIFIA Bond.
(d) Manner of Payment. Payments of WIFIA Debt Service under this
Agreement (and the WIFIA Bond, which payments shall not be duplicative) shall be made on or
before each Payment Date in Dollars and in immediately available funds (without counterclaim,
offset or deduction) in accordance with the payment instructions provided by the WIFIA Lender
prior to the relevant payment, as may be modified in writing from time to time by the WIFIA
Lender; provided, that the failure to provide updated payment instructions shall not affect in any
manner the Borrower’s obligations hereunder or under any other WIFIA Loan Document. The
Borrower may make any such payment or portion thereof with funds then on deposit in the WIFIA
Bond Account.
(e) Adjustments to Loan Amortization Schedule.
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(i) The WIFIA Loan Balance will be (A) increased on each occasion
on which the WIFIA Lender disburses loan proceeds hereunder, by the amount of such
disbursement of loan proceeds; (B) increased on each occasion on which interest on the
WIFIA Loan is capitalized pursuant to the provisions of Section 8(b) (Payment of Principal
and Interest – Capitalized Interest Period), by the amount of interest so capitalized; and
(C) decreased upon each payment or prepayment of the WIFIA Loan Balance, by the
amount of principal so paid. The WIFIA Lender may in its discretion at any time and from
time to time, or when so requested by the Borrower, advise the Borrower by written notice
of the amount of the WIFIA Loan Balance as of the date of such notice, and its
determination of such amount in any such notice shall be deemed conclusive absent
manifest error.
(ii) The WIFIA Lender is hereby authorized to modify the Loan
Amortization Schedule included in Exhibit F (WIFIA Debt Service) from time to time, in
accordance with the principles set forth below in this Section 8(e), to reflect (A) any change
to the WIFIA Loan Balance, (B) any change to the date and amount of any principal or
interest due and payable or to become due and payable by the Borrower under this
Agreement, and (C) such other information as the WIFIA Lender may determine is
necessary for administering the WIFIA Loan and this Agreement. Any calculations
described above shall be rounded up to the nearest whole cent. Any adjustments or
revisions to the Loan Amortization Schedule as a result of changes in the WIFIA Loan
Balance shall be applied to reduce future payments due on the WIFIA Bond in inverse
order of maturity. Absent manifest error, the WIFIA Lender’s determination of such
matters as set forth on Exhibit F (WIFIA Debt Service) shall be conclusive evidence
thereof; provided, however, that neither the failure to make any such recordation nor any
error in such recordation shall affect in any manner the Borrower’s obligations hereunder
or under any other WIFIA Loan Document. The WIFIA Lender shall provide the Borrower
with a copy of Exhibit F (WIFIA Debt Service) as revised, but no failure to provide or
delay in providing the Borrower with such copy shall affect any of the obligations of the
Borrower under this Agreement or the other WIFIA Loan Documents.
Section 9. Prepayment.
(a) Optional Prepayments. The Borrower may prepay the WIFIA Loan (i) in
full on any date or (ii) in part on any Payment Date (and, if in part, the amounts thereof to be
prepaid shall be determined by the Borrower; provided, that such prepayments shall be in principal
amounts of $1,000,000 or any integral multiple of $1.00 in excess thereof), in each case from time
to time but not more than once annually in accordance with 33 U.S.C. § 3908(c)(4)(A). The
Borrower may make such prepayment, without penalty or premium, by paying to the WIFIA
Lender such principal amount of the WIFIA Loan to be prepaid, together with the unpaid interest
accrued on the amount of principal so prepaid to the date of such prepayment and all fees and
expenses then due and payable to the WIFIA Lender. Each prepayment of the WIFIA Loan
pursuant to this Section 9(a) shall be made on such date (subject to this Section 9(a)) and in such
principal amount as shall be specified by the Borrower in a written notice delivered to the WIFIA
Lender not less than ten (10) days or more than thirty (30) days prior to the date set for prepayment,
unless otherwise agreed by the WIFIA Lender. At any time between delivery of such written
notice and the applicable optional prepayment, the Borrower may, without penalty or premium,
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rescind its announced optional prepayment by further written notice to the WIFIA
Lender. Anything in this Section 9(a) to the contrary notwithstanding, the failure by the Borrower
to make any optional prepayment shall not constitute a breach or default under this Agreement.
(b) Borrower’s Certificate. Each prepayment pursuant to this Section 9 shall be
accompanied by a certificate signed by the Borrower’s Authorized Representative identifying the
provision of this Agreement pursuant to which such prepayment is being made and containing a
calculation in reasonable detail of the amount of such prepayment.
(c) General Prepayment Instructions. Upon the WIFIA Lender’s receipt of
confirmation that payment in full of the entire WIFIA Loan Balance and any unpaid interest, fees
and expenses with respect thereto has occurred as a result of a mandatory or optional prepayment,
the WIFIA Lender shall surrender the WIFIA Bond to the Borrower or its representative at the
principal office of the WIFIA Lender. If the Borrower prepays only part of the unpaid balance of
principal of the WIFIA Loan, the WIFIA Lender may make a notation on Exhibit F (WIFIA Debt
Service) indicating the amount of principal of and interest on the WIFIA Loan then being prepaid.
Absent manifest error, the WIFIA Lender’s determination of such matters as set forth on Exhibit
F (WIFIA Debt Service) shall be conclusive evidence thereof; provided, however, that neither the
failure to make any such recordation nor any error in such recordation shall affect in any manner
the Borrower’s obligations hereunder or under any other WIFIA Loan Document. All such partial
prepayments of principal shall be applied to reduce future payments due on the WIFIA Loan in
inverse order of maturity. If such funds have not been so paid on the prepayment date, such
principal amount of the WIFIA Loan shall continue to bear interest until payment thereof at the
rate provided for in Section 6 (Interest Rate).
Section 10. Fees and Expenses.
(a) Fees. The Borrower shall pay to the WIFIA Lender:
(i) a servicing set-up fee equal to $10,790.00 (the “Servicing Set-Up
Fee”), which shall be due and payable within thirty (30) days after receipt of an invoice
from the WIFIA Lender with respect thereto (or, if earlier, the first disbursement date of
the WIFIA Loan);
(ii) an annual construction period servicing fee equal to $10,790.00 (the
“Construction Period Servicing Fee”), which shall accrue on the first Business Day of
the then-current Federal Fiscal Year and shall be due and payable on or prior to each
November 15 during the Construction Period (including the Federal Fiscal Year during
which the Substantial Completion Date occurs); provided, that the initial Construction
Period Servicing Fee shall be due and payable within thirty (30) days after receipt of an
invoice from the WIFIA Lender with respect thereto (or, if earlier, the first disbursement
date of the WIFIA Loan), in a pro-rated amount equal to $[___];1 and
(iii) an annual operating period servicing fee equal to $8,100.00 (the
“Operating Period Servicing Fee”), which shall accrue on the first Business Day of the
1 Note to Borrower: The pro-rated amount will be calculated closer to closing.
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then-current Federal Fiscal Year and shall be due and payable on or prior to each November
15, beginning with the first November 15 following the end of the Federal Fiscal Year
during which the Substantial Completion Date occurs, until (and including) the Final
Maturity Date; provided, that the Operating Period Servicing Fee due and payable with
respect to the Federal Fiscal Year during which the Final Maturity Date occurs shall be
equal to the pro-rata monthly portion of the then applicable Operating Period Servicing Fee
multiplied by the number of partial or whole months remaining between October 1 and the
Final Maturity Date.
(b) The amount of each Construction Period Servicing Fee (other than the initial
Construction Period Servicing Fee) and each Operating Period Servicing Fee shall be adjusted in
proportion to the percentage change in CPI for the calendar year immediately preceding the
calendar year during which such fee is due. The WIFIA Lender shall notify the Borrower of the
amount of each such fee at least thirty (30) days before payment is due, which determination shall
be conclusive absent manifest error.
(c) Expenses. The Borrower agrees, whether or not the transactions hereby
contemplated shall be consummated, to reimburse the WIFIA Lender on demand from time to
time, within thirty (30) days after receipt of any invoice from the WIFIA Lender, for any and all
fees, costs, charges, and expenses incurred by it (including the fees, costs, and expenses of its legal
counsel, financial advisors, auditors and other consultants and advisors) in connection with the
negotiation, preparation, execution, delivery, and performance of this Agreement and the other
WIFIA Loan Documents and the transactions hereby and thereby contemplated, including
attorneys’, and engineers’ fees and professional costs, including all such fees, costs, and expenses
incurred as a result of or in connection with (i) the enforcement of or attempt to enforce, or the
protection or preservation of any right or claim under, the Pledged Property or any provision of
this Agreement or any of the other WIFIA Loan Documents or the rights of the WIFIA Lender
thereunder; (ii) any amendment, modification, waiver, or consent with respect to this Agreement
or any other Related Document; and (iii) any work-out, restructuring, or similar arrangement of
the obligations of the Borrower under this Agreement or the other WIFIA Loan Documents,
including during the pendency of any Event of Default.
(d) All payments required under this Section 10 (Fees and Expenses) shall be
made on or before the applicable due date in Dollars and in immediately available funds (without
counterclaim, offset or deduction) in accordance with the payment instructions provided by the
WIFIA Lender prior to the relevant payment, as may be modified in writing from time to time by
the WIFIA Lender.
(e) The obligations of the Borrower under this Section 10 shall survive the
payment or prepayment in full or transfer of the WIFIA Bond, the enforcement of any provision
of this Agreement or the other WIFIA Loan Documents, any such amendments, waivers or
consents, any Event of Default, and any such workout, restructuring, or similar arrangement.
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ARTICLE III
CONDITIONS PRECEDENT
Section 11. Conditions Precedent.
(a) Conditions Precedent to Effectiveness. Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not become effective until each of the following
conditions precedent has been satisfied or waived in writing by the WIFIA Lender in its sole
discretion:
(i) The Borrower shall have duly executed and delivered to the WIFIA
Lender this Agreement, the WIFIA Bond, and the WIFIA Ordinance, each in form and
substance satisfactory to the WIFIA Lender.
(ii) [Reserved].
(iii) The Borrower shall have delivered to the WIFIA Lender complete
and fully executed copies of each Existing Construction Contract, together with any
amendments, waivers or modifications thereto, along with a certification in the Closing
Certificate that each such document is complete, fully executed and in full force and effect.
(iv) The Borrower shall have delivered to the WIFIA Lender (A) a copy
of its Organizational Documents, as in effect on the Effective Date (and certified by the
Secretary of State of the State, to the extent applicable), along with a certification in the
Closing Certificate that such Organizational Documents are in full force and effect, and
(B) other than the WIFIA Ordinance, all further instruments and documents (including any
resolutions, ordinances, and supplements) as are necessary for the Borrower to execute and
deliver, and to perform its obligations under, the WIFIA Loan Documents to which it is a
party and to consummate and implement the transactions contemplated by the WIFIA Loan
Documents.
(v) Counsel to the Borrower shall have rendered to the WIFIA Lender
legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those
opinions set forth on Exhibit G-1 (Opinions Required from Counsel to Borrower) and
bond counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions
satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth
on Exhibit G-2 (Opinions Required from Bond Counsel)).
(vi) The Borrower shall have delivered to the WIFIA Lender the Non-
Debarment Certificate.
(vii) The Borrower shall have delivered to the WIFIA Lender the Non-
Lobbying Certificate.
(viii) The Borrower shall have delivered to the WIFIA Lender a
certificate, signed by the Borrower’s Authorized Representative, substantially in the form
attached hereto as Exhibit H (Form of Closing Certificate) (the “Closing Certificate”)
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(A) designating the Borrower’s Authorized Representative, (B) confirming such person’s
position and incumbency, and (C) certifying as to the satisfaction of the following
conditions precedent:
(1) the aggregate of all funds committed to the development and
construction of the Project as set forth in the Base Case Financial Model
and in the Project Budget are sufficient to carry out the Project, pay all Total
Project Costs anticipated for the Project and achieve Substantial
Completion by the Projected Substantial Completion Date;
(2) the Borrower has obtained all Governmental Approvals
necessary (x) as of the Effective Date in connection with the Project and (y)
to execute and deliver, and perform its obligations under the WIFIA Loan
Documents, and all such Governmental Approvals are final, non-
appealable, and in full force and effect (and are not subject to any notice of
violation, breach, or revocation);
(3) as of the Effective Date, (x) the maximum principal amount
of the WIFIA Loan (excluding any interest that is capitalized in accordance
with the terms hereof), together with the amount of any other credit
assistance provided under the Act to the Borrower, does not exceed forty-
nine percent (49%) of reasonably anticipated Eligible Project Costs and
(y) the total federal assistance provided to the Project, including the
maximum principal amount of the WIFIA Loan (excluding any interest that
is capitalized in accordance with the terms hereof), does not exceed eighty
percent (80%) of Total Project Costs;
(4) the Borrower is in compliance with NEPA and any
applicable federal, state or local environmental review and approval
requirements with respect to the Project, and, if requested by the WIFIA
Lender, has provided evidence satisfactory to the WIFIA Lender of such
compliance;
(5) the Borrower has developed, and identified adequate
revenues to implement, a plan for operating, maintaining and repairing the
Project during its useful life;
(6) the Borrower has (A) obtained a Federal Employer
Identification Number (as evidenced by a signed W-9), (B) obtained a Data
Universal Numbering System number, and (C) registered with, and
obtained confirmation of active registration status from, the federal System
for Award Management (www.SAM.gov);
(7) the Borrower has obtained a CUSIP number for the WIFIA
Loan for purposes of monitoring through EMMA;
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(8) the representations and warranties of the Borrower set forth
in the WIFIA Loan Agreement and in each other Related Document to
which the Borrower is a party are true and correct on and as of the date
hereof, except to the extent that such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct as of such earlier date; and
(9) no Material Adverse Effect, or any event or condition that
could reasonably be expected to have a Material Adverse Effect, has
occurred or arisen since September 22, 2021.
(ix) The Borrower shall have provided evidence to the WIFIA Lender’s
satisfaction of the assignment by at least one (1) Nationally Recognized Rating Agency of
a public Investment Grade Rating to the Parity Lien Obligations then Outstanding and any
Parity Lien Obligations proposed to be issued for the Project (including the WIFIA Loan),
along with a certification in the Closing Certificate that no such rating has been reduced,
withdrawn or suspended as of the Effective Date.
(x) The Borrower shall have delivered to the WIFIA Lender a Base Case
Financial Model in form and substance acceptable to the WIFIA Lender, along with a
certification in the Closing Certificate that such Base Case Financial Model (A)
demonstrates that projected Gross Revenues are sufficient to meet the Loan Amortization
Schedule, (B) demonstrates compliance with the Rate Covenant for each Borrower Fiscal
Year through the Final Maturity Date; (C) reflects principal amortization and interest
payment schedules acceptable to the WIFIA Lender and (D) demonstrates that the
Borrower has developed, and identified adequate revenues to implement, a plan for
operating, maintaining and repairing the Project over the useful life of the Project.
(xi) Prior to the Effective Date, the Borrower shall have delivered to the
WIFIA Lender the Public Benefits Report.
(xii) The Borrower shall have provided the WIFIA Lender records of any
Eligible Project Costs incurred prior to the Effective Date, in form and substance
satisfactory to the WIFIA Lender.
(xiii) The Borrower shall have paid in full all invoices delivered by the
WIFIA Lender to the Borrower as of the Effective Date for the fees and expenses of the
WIFIA Lender’s counsel and financial advisors and any auditors or other consultants
retained by the WIFIA Lender for the purposes hereof.
(xiv) The Borrower shall have delivered such other agreements,
documents, instruments, opinions and other items required by the WIFIA Lender, all in
form and substance satisfactory to the WIFIA Lender.
(b) Conditions Precedent to Disbursements. Notwithstanding anything in this
Agreement to the contrary, the WIFIA Lender shall have no obligation to make any disbursement
of loan proceeds to the Borrower (including the initial disbursement hereunder) until each of the
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following conditions precedent has been satisfied or waived in writing by the WIFIA Lender in its
sole discretion:
(i) The Borrower shall have provided to the WIFIA Lender evidence
satisfactory to the WIFIA Lender that (A) the aggregate amount of all disbursements of
the WIFIA Loan (including the requested disbursement but excluding any interest that is
capitalized in accordance with the terms hereof) shall not exceed (1) the amount of the
WIFIA Loan, (2) the amount of Eligible Project Costs paid or incurred by the Borrower,
and (3) the cumulative disbursements through the end of the current Federal Fiscal Year as
set forth in the Anticipated WIFIA Loan Disbursement Schedule; (B) the Borrower has
sufficient available funds committed to the Project, which together with funds that remain
available and not yet drawn under the WIFIA Loan, will be sufficient to pay the reasonably
anticipated remaining Total Project Costs; and (C) the total federal assistance provided to
the Project, including the maximum principal amount of the WIFIA Loan (excluding any
interest that is capitalized in accordance with the terms hereof), does not exceed eighty
percent (80%) of Total Project Costs.
(ii) To the extent required as of the date of the requested disbursement,
the Borrower shall have provided an Updated Financial Model/Plan in compliance with the
requirements of Section 16(a) (Reporting Requirements – Updated Financial Model/Plan).
(iii) The Borrower shall have delivered to the WIFIA Lender a
Requisition that complies with the provisions of Section 4 (Disbursement Conditions)
(including satisfactory Eligible Project Costs Documentation relating to such Requisition),
and the WIFIA Lender shall have approved (or be deemed to have approved in accordance
with Section 4(b) (Disbursement Conditions)) such Requisition. The Borrower’s
Authorized Representative shall also certify in such Requisition that:
(A) all Governmental Approvals necessary as of the time of
such disbursement for the development, construction, operation and maintenance of the
Project have been issued and are in full force and effect (and are not subject to any notice
of violation, breach or revocation);
(B) each of the insurance policies obtained by the Borrower
and by any applicable Construction Contractor in satisfaction of the conditions in Section
14(f) (Affirmative Covenants – Insurance) is in full force and effect, and no notice of
termination thereof has been issued by the applicable insurance provider;
(C) at the time of, and immediately after giving effect to, any
disbursement of WIFIA Loan proceeds then currently requested, (1) no Default or Event
of Default hereunder shall have occurred and be continuing, (2) no event of default or
default that, with the giving of notice or the passage of time or both, would constitute an
event of default, in each case, under any other Related Document, shall have occurred and
be continuing and (3) no Material Adverse Effect, or any event or condition that could
reasonably be expected to result in a Material Adverse Effect, shall have occurred since the
Effective Date;
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(D) (1) the Borrower, and each of its contractors and
subcontractors at all tiers with respect to the Project, has complied with all applicable laws,
rules, regulations and requirements, including without limitation 40 U.S.C. §§ 3141–3144,
3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating
thereto) and 33 U.S.C. § 3914 (relating to American iron and steel products), and (2)
supporting documentation, such as certified payroll records and certifications for all iron
and steel products used for the Project, are being maintained and are available for review
upon request by the WIFIA Lender; and
(E) the representations and warranties of the Borrower set
forth in this Agreement (including Section 12 (Representations and Warranties of
Borrower)) and in each other Related Document shall be true and correct as of each date
on which any disbursement of the WIFIA Loan is made, except to the extent such
representations and warranties expressly relate to an earlier date (in which case, such
representations and warranties shall be true and correct as of such earlier date).
(iv) To the extent necessary to make the corresponding representations
and warranties true, correct and complete as of the date of the applicable disbursement, the
Borrower shall have delivered an updated version, in form and substance satisfactory to
the WIFIA Lender, of Schedule 12(p) (Environmental Matters).
(v) To the extent not previously delivered to the WIFIA Lender, the
Borrower shall have delivered to the WIFIA Lender copies of any Parity Issuance
Documents (including any amendment, waiver, modification or supplement thereto)
entered into after the Effective Date, along with a certification in the Requisition that each
such document is complete, fully executed and in full force and effect.
(vi) The Borrower shall have paid in full (A) any outstanding Servicing
Fees due and payable under Section 10 (Fees and Expenses) and (B) all invoices received
from the WIFIA Lender as of the date of disbursement of the WIFIA Loan and delivered
by the WIFIA Lender to the Borrower, for the fees and expenses of the WIFIA Lender’s
counsel and financial advisors and any auditors or other consultants retained by the WIFIA
Lender for the purposes hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 12. Representations and Warranties of Borrower. The Borrower hereby
represents and warrants that, as of the Effective Date and, as to each of the representations and
warranties below other than those contained in Section 12(b) (Representations and Warranties of
Borrower – Officers’ Authorization), and Section 12(k) (Representations and Warranties of
Borrower – Credit Ratings), as of each date on which any disbursement of the WIFIA Loan is
requested or made:
(a) Organization; Power and Authority. The Borrower is a municipal
corporation duly organized and validly existing under its Organizational Documents and the laws
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of the State, has full legal right, power and authority to do business in the State and to enter into
the Related Documents then in existence, to execute and deliver this Agreement and the WIFIA
Bond, and to carry out and consummate all transactions contemplated hereby and thereby and has
duly authorized the execution, delivery and performance of this Agreement, the WIFIA Bond, and
the Related Documents. The Borrower maintains the Water Utility System as part of its
“enterprise” within the meaning of Article X, Section 20 of the Colorado Constitution, and the
meaning of Title 37, Article 45.1, C.R.S.
(b) Officers’ Authorization. As of the Effective Date, the officers of the
Borrower executing (or that previously executed) the Related Documents, and any certifications
or instruments related thereto, to which the Borrower is a party are (or were at the time of such
execution) duly and properly in office and fully authorized to execute the same.
(c) Due Execution; Enforceability. Each of the Related Documents in effect as
of any date on which this representation and warranty is made, and to which the Borrower is a
party has been duly authorized, executed and delivered by the Borrower and constitutes the legal,
valid and binding agreement of the Borrower enforceable against the Borrower in accordance with
its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors generally and (ii) is
subject to general principles of equity (regardless of whether enforceability is considered in equity
or at law).
(d) Non-Contravention. The execution and delivery of the Related Documents
to which the Borrower is a party, the consummation of the transactions contemplated by the
Related Documents, and the fulfillment of or compliance with the terms and conditions of all of
the Related Documents, will not (i) conflict with the Borrower’s Organizational Documents, (ii)
conflict in any material respect with, or constitute a violation, breach or default (whether
immediately or after notice or the passage of time or both) by the Borrower of or under, any
applicable law, administrative rule or regulation, any applicable court or administrative decree or
order, or any indenture, mortgage, deed of trust, loan agreement, lease, contract or other agreement
or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise
subject or bound, or (iii) result in the creation or imposition of any prohibited Lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the Borrower.
(e) Consents and Approvals. No consent or approval of any trustee, holder of
any indebtedness of the Borrower or any other Person, and no consent, permission, authorization,
order or license of, or filing or registration with, any Governmental Authority is necessary in
connection with (i) the execution and delivery by the Borrower of the Related Documents, except
as have been obtained or made and as are in full force and effect, or (ii) (A) the consummation of
any transaction contemplated by any Related Documents or (B) the fulfillment of or compliance
by the Borrower with the terms and conditions of any of the Related Documents, except as have
been obtained or made and as are in full force and effect or as are ministerial in nature and can
reasonably be expected to be obtained or made in the ordinary course on commercially reasonable
terms and conditions when needed.
(f) Litigation. [Except as set forth in Schedule 12(f) (Litigation), t][T]here is
no action suit, proceeding or, to the knowledge of the Borrower, any inquiry or investigation, in
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any case before or by any court or other Governmental Authority pending or, to the knowledge of
the Borrower, threatened against or affecting, the Water Utility System, the Project, or the ability
of the Borrower to execute, deliver and perform its obligations under the Related Documents or
that in any case could reasonably be expected to result in a Material Adverse Effect.
(g) Security Interests. (i) The WIFIA Ordinance and Title 31, Article 35, Part
4, C.R.S., Title 37, Article 45.1, C.R.S. and Title 11, Article 57, Part 2, C.R.S. establish, and (ii)
the Borrower has taken all necessary action to pledge, assign, and grant, in each case in favor of
the WIFIA Lender, legal, valid, binding and enforceable Liens on the Pledged Property purported
to be created, pledged, assigned, and granted pursuant to and in accordance with the WIFIA
Ordinance, irrespective of whether any Person has notice of the pledge and without the need for
any physical delivery, recordation, filing, or further act, and the security interests created in the
Pledged Property have been duly perfected under applicable State law. Such Liens are in full force
and effect and are not subordinate or junior to any other Liens in respect of the Pledged Property
except for the Permitted Liens, and not pari passu with any obligations other than the Parity Lien
Obligations. The Borrower is not in breach of any covenants set forth in Section 14(b) (Affirmative
Covenants – Securing Liens) or in the WIFIA Ordinance with respect to the matters described in
Section 14(b) (Affirmative Covenants – Securing Liens). As of the Effective Date and as of each
other date this representation and warranty is made, (i) all documents and instruments have been
recorded or filed for record in such manner and in such places as are required and all other action
as is necessary or desirable has been taken to establish a legal, valid, binding, and enforceable[and
perfected Lien on the Pledged Property in favor of the Secured Parties to the extent contemplated
by the WIFIA Ordinance, and (ii) all taxes and filing fees that are due and payable in connection
with the execution, delivery or recordation of the WIFIA Ordinance or any instruments, certificates
or financing statements in connection with the foregoing, have been paid. Neither the attachment,
perfection, validity, enforceability nor priority of the security interest in the Pledged Property
granted pursuant to the WIFIA Ordinance is governed by Article 9 of the UCC.
(h) No Debarment. The Borrower has fully complied with its verification
obligations under 2 C.F.R. § 180.320 and confirms, based on such verification, that, to its
knowledge, neither the Borrower nor any of its principals (as defined in 2 C.F.R. § 180.995 and
supplemented by 2 C.F.R 1532.995) is debarred, suspended or voluntarily excluded from
participation in Government contracts, procurement or non-procurement matters or delinquent on
a Government debt as more fully set forth in the certificate delivered pursuant to Section 11(a)(vi)
(Conditions Precedent – Conditions Precedent to Effectiveness).
(i) Accuracy of Representations and Warranties. The representations,
warranties and certifications of the Borrower set forth in this Agreement and the other Related
Documents are true, correct, and complete, except to the extent such representations and warranties
expressly relate to an earlier date (in which case, such representations and warranties shall be true,
correct, and complete as of such earlier date).
(j) Compliance with Laws.
(i) The Borrower, and each of its contractors and subcontractors at all
tiers with respect to the Project, has complied with all applicable laws, rules, regulations
and requirements, including without limitation 40 U.S.C. §§3141–3144, 3146, and 3147
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(relating to Davis-Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C.
§ 3914 (relating to American iron and steel products).
(ii) To ensure such compliance, the Borrower has included in all
contracts with respect to the Project (A) the contract clauses relating to the Davis-Bacon
Act requirements that are set forth in the Code of Federal Regulations, Title 29 Part 5.5
and (B) requirements that its contractor(s) (1) shall comply with all applicable laws, rules,
regulations, and requirements set forth in this Section 12(j) and follow applicable federal
guidance and (2) incorporate in all subcontracts (and cause all subcontractors to include in
lower tier subcontracts) such terms and conditions as are required to be incorporated therein
by any applicable laws, rules, regulations and requirements set forth in this Section 12(j)
(including without limitation with respect to the Davis-Bacon Act requirements).
(iii) None of the Borrower nor, to the knowledge of the Borrower, any
Construction Contractor, is (A) a Sanctioned Person or (B) in violation of or, since the date
that is five (5) years prior to the Effective Date, has violated: (1) any applicable Anti-
Money Laundering Laws; (2) any applicable Sanctions; (3) any applicable Anti-Corruption
Laws; or (4) any applicable anti-drug trafficking, anti-terrorism, or anti-corruption laws,
civil or criminal. There are no pending or, to the knowledge of the Borrower, threatened
claims or investigations by any Governmental Authority against, or any internal
investigations conducted by, the Borrower or any Construction Contractor, with respect to
any possible or alleged violations of any Sanctions, Anti-Money Laundering Laws, Anti-
Corruption Laws, or any anti-drug trafficking or anti-terrorism laws. No use of proceeds
of the WIFIA Loan or any other transaction contemplated by this Agreement or any other
Related Document will violate any applicable Sanctions, Anti-Money Laundering Laws,
or Anti-Corruption Laws, or any applicable anti-drug trafficking or anti-terrorism laws.
(k) Credit Ratings. The WIFIA Loan and the Parity Lien Obligations then
Outstanding have received a public Investment Grade Rating from at least one (1) Nationally
Recognized Rating Agency, written evidence of such rating has been provided to the WIFIA
Lender prior to the Effective Date, and such rating has not been reduced, withdrawn or suspended
as of the Effective Date.
(l) No Defaults. No Default or Event of Default, and no default or event of
default by the Borrower under any Related Document, has occurred and is continuing.
(m) Governmental Approvals. All Governmental Approvals required as of the
Effective Date and any subsequent date on which this representation is made (or deemed made)
for the undertaking and completion by the Borrower of the Project and the operation and
management of the Water Utility System, have been obtained or effected and are in full force and
effect and there is no basis for, nor proceeding that is pending or threatened that could reasonably
be expected to result in, the revocation of any such Governmental Approval.
(n) Construction Contracts. Schedule 12(n) (Existing Construction Contracts)
sets forth a list of the Existing Construction Contracts as of the Effective Date. With respect to
each Construction Contract executed as of any date on which this representation and warranty is
made, such Construction Contract is in full force and effect.
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(o) Information. The information furnished by, or on behalf of, the Borrower
to the WIFIA Lender, when taken as a whole, is true and correct in all material respects (other than
for projections and other forward-looking statements contained in the Base Case Financial Model
and any Updated Financial Model/Plan which have been made in good faith and based on
reasonable assumptions) and does not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained therein not misleading as of the
date made or furnished.
(p) Environmental Matters. [Except as set forth in Schedule 12(p)
(Environmental Matters), e][E]ach of the Borrower and, to the Borrower’s knowledge, each
Construction Contractor, is in compliance with all laws applicable to the Water Utility System
(including the Project) relating to (i) air emissions, (ii) discharges to surface water or ground water,
(iii) noise emissions, (iv) solid or liquid waste disposal, (v) the use, generation, storage,
transportation or disposal of toxic or hazardous substances or wastes, (vi) biological resources
(such as threatened and endangered species), and (vii) other environmental, health or safety
matters, including all laws applicable to the Water Utility System (including the Project)
(collectively, the “Environmental Laws”). All Governmental Approvals for the Project relating
to Environmental Laws have been, or, when required, will be, obtained and are (or, as applicable,
will be) in full force and effect. [Except as set forth in Schedule 12(p) (Environmental Matters),
t][T]he Borrower has not received any written communication or notice, whether from a
Governmental Authority, employee, citizens group, or any other Person, that alleges that the
Borrower is not in full compliance with all Environmental Laws and Governmental Approvals
relating thereto in connection with the Project and, to the Borrower’s knowledge, there are no
circumstances that may prevent or interfere with full compliance in the future by the Borrower
with any such Environmental Law or Governmental Approval. The Borrower has provided to the
WIFIA Lender all material assessments, reports, results of investigations or audits, and other
material information in the possession of or reasonably available to the Borrower regarding the
Borrower’s or the Project’s compliance with (A) Environmental Laws and (B) Governmental
Approvals that are required for the Project and relate to Environmental Laws.
(q) Sufficient Rights. The Borrower possesses either valid legal and beneficial
title to, leasehold title in, or other valid legal rights with respect to the real property relating to the
Water Utility System (including the Project), in each case as is necessary and sufficient as of the
date this representation is made for the construction, operation, maintenance and repair of the
Water Utility System (including the Project). As of any date on which this representation and
warranty is made, the Construction Contracts then in effect and the Governmental Approvals that
have been obtained and are then in full force and effect create rights in the Borrower sufficient to
enable the Borrower to own, construct, operate, maintain and repair the Project, and to perform its
obligations under the Construction Contracts to which it is a party.
(r) Insurance. The Borrower is in compliance with all insurance obligations
required under each Construction Contract and the other Related Documents as of the date on
which this representation and warranty is made. To the extent the Borrower self-insures, the
Borrower’s self-insurance program is actuarially sound.
(s) No Liens. Except for Permitted Liens, the Borrower has not created, and is
not under any obligation to create, and has not entered into any transaction or agreement that would
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result in the imposition of, any Lien on the Pledged Property, the Water Utility System, the Project,
the Gross Revenues, or the properties or assets in relation to the Project.
(t) Financial Statements. Each income statement, balance sheet and statement
of operations and cash flows (collectively, “Financial Statements”) delivered to the WIFIA
Lender pursuant to Section 16(b) (Reporting Requirements – Annual Financial Statements) has
been prepared in accordance with GAAP and presents fairly, in all material respects, the financial
condition of the Borrower as of the respective dates of the balance sheets included therein and the
results of operations of the Borrower for the respective periods covered by the statements of
income included therein. Except as reflected in such Financial Statements, there are no liabilities
or obligations of the Borrower of any nature whatsoever for the period to which such Financial
Statements relate that are required to be disclosed in accordance with GAAP.
(u) Securities Laws. Under existing law, the WIFIA Bond may be issued and
sold without registration under the Securities Act of 1933, as amended, and any state blue sky
laws.
(v) Taxes. The Borrower is not required to file tax returns with any
Governmental Authority.
(w) Sufficient Funds. The amount of the WIFIA Loan, when combined with all
other funds committed for the development and construction of the Project as set forth under the
various sources of funds in the Base Case Financial Model and the Project Budget will be sufficient
to carry out the Project, pay all Total Project Costs anticipated for the development and
construction of the Project and achieve Substantial Completion by the Projected Substantial
Completion Date.
(x) Sovereign Immunity. The Borrower either has no immunity from the
jurisdiction of any court of competent jurisdiction or from any legal process therein which could
be asserted in any action to enforce the obligations of the Borrower under any of the WIFIA Loan
Documents to which it is a party or the transactions contemplated hereby or thereby, including the
obligations of the Borrower hereunder and thereunder, or, to the extent that the Borrower has such
immunity, the Borrower has waived such immunity pursuant to Section 14(n) (Affirmative
Covenants – Immunity).
(y) Patriot Act. The Borrower is not required to establish an anti-money
laundering compliance program pursuant to the Patriot Act.
(z) No Federal Debt. The Borrower has no delinquent federal debt (including
tax liabilities but excluding any delinquencies that have been resolved with the appropriate federal
agency in accordance with the standards of the Debt Collection Improvement Act of 1996).
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Section 13. Representations and Warranties of WIFIA Lender. The WIFIA Lender
represents and warrants that:
(a) Power and Authority. The WIFIA Lender has all requisite power and
authority to make the WIFIA Loan and to perform all transactions contemplated by the Related
Documents to which it is a party.
(b) Due Execution; Enforceability. The Related Documents to which it is a
party have been duly authorized, executed and delivered by the WIFIA Lender, and are legally
valid and binding agreements of the WIFIA Lender, enforceable in accordance with their terms.
(c) Officers’ Authorization. The officers of the WIFIA Lender executing each
of the Related Documents to which the WIFIA Lender is a party are duly and properly in office
and fully authorized to execute the same on behalf of the WIFIA Lender.
ARTICLE V
COVENANTS
Section 14. Affirmative Covenants. The Borrower covenants and agrees as follows
until the date the WIFIA Bond and the Obligations of the Borrower under this Agreement (other
than contingent indemnity obligations) are irrevocably paid in full in immediately available funds,
unless the WIFIA Lender waives compliance in writing:
(a) Rate Covenant.
(i) The Borrower shall establish and collect rates and charges for the
use or the sale of the products and services of the Water Utility System, which together
with other moneys available therefor, are expected to produce Gross Revenues for each
Borrower Fiscal Year which will be at least sufficient for such Borrower Fiscal Year to
pay the sum of (A) all amounts estimated to be required to pay Operation and Maintenance
Expenses during such Borrower Fiscal Year; (B) a sum equal to 115% of the debt service
due and payable on the Parity Lien Obligations for such Borrower Fiscal Year, (C) a sum
equal to 100% of the debt service due and payable on any Subordinate Lien Obligations
for such Borrower Fiscal Year; (D) any amount required to restore any shortfalls in the
O&M Reserve Requirement for the Borrower Fiscal Year; and (E) all other amounts
which the Borrower may be required by law or contract to pay through the Gross Revenues
for such Borrower Fiscal Year, including any amount required to be paid into any debt
service reserve account (collectively, the “Rate Covenant”).
(ii) In the event that Gross Revenues collected during a Borrower Fiscal
Year are not sufficient to meet the Rate Covenant, the Borrower shall, within 90 days of
the end of such Borrower Fiscal Year, cause a Technical and Rate Consultant to prepare a
rate study for the purpose of recommending a schedule of rates, fees and charges for the
use of the Water Utility System which in the opinion of the Technical and Rate Consultant
conducting the study will be sufficient to provide Gross Revenues to be collected in the
next succeeding Borrower Fiscal Year which will provide compliance with the Rate
Covenant. Such a study shall be delivered to the WIFIA Lender. The Borrower shall
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within six (6) months of receipt of such study, adopt rates, fees and charges for the use of
the Water Utility System, based upon the recommendations contained in such study, which
will provide for compliance with the Rate Covenant.
(b) Securing Liens. The Borrower shall at any and all times, to the extent
permitted by law, pass, make, do, execute, acknowledge and deliver, all and every such further
resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary
or desirable in connection with assuring, conveying, granting, assigning, securing and confirming
the Liens on the Pledged Property (whether now existing or hereafter arising) granted to the WIFIA
Lender for its benefit pursuant to the WIFIA Ordinance, or intended so to be granted pursuant to
the WIFIA Ordinance, or which the Borrower may become bound to grant, and the Borrower shall
at all times maintain the Pledged Property free and clear of any pledge, Lien, charge or
encumbrance thereon or with respect thereto that has priority over, or equal rank with, the Liens
created by the WIFIA Ordinance, other than as permitted by this Agreement, and all
organizational, regulatory or other necessary action on the part of the Borrower to that end shall
be duly and validly taken at all times. The Borrower shall at all times, to the extent permitted by
law, defend, preserve and protect the Liens on the Pledged Property granted pursuant to the WIFIA
Ordinance and for the benefit of the WIFIA Lender under the WIFIA Ordinance against all claims
and demands of all Persons whomsoever, subject to Permitted Liens.
(c) Use of Proceeds. The Borrower shall use the proceeds of the WIFIA Loan
for purposes permitted by applicable law and as otherwise permitted under this Agreement and the
other Related Documents.
(d) Prosecution of Work; Verification Requirements.
(i) The Borrower shall diligently prosecute the work relating to the
Project and complete the Project in accordance with the Construction Schedule, the
Governmental Approvals in connection with the Project and prudent industry practice.
(ii) The Borrower shall comply with Subpart C of 2 C.F.R. Part 180, as
supplemented by Subpart C of 2 C.F.R. Part 1532 (relating to debarment), including the
verification requirements set forth in 2 C.F.R. §§ 180.300 and 180.320, and shall include
in its contracts with respect to the Project similar terms or requirements for compliance.
(e) Operations and Maintenance. The Borrower shall (i) operate and maintain
the Water Utility System (including, but not limited to, the Project) (A) in a reasonable and prudent
manner and (B) substantially in accordance with the Updated Financial Model/Plan most recently
approved by the WIFIA Lender and (ii) maintain the Water Utility System (including the Project)
in good repair, working order and condition and in accordance with the requirements of all
applicable laws and each applicable Related Document. The Borrower shall at all times do or
cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and
effect the Governmental Approvals and any other rights, licenses, franchises, and authorizations
material to the conduct of its business.
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(f) Insurance.
(i) The Borrower shall at all times procure and maintain or cause to be
maintained insurance on the Water Utility System and the construction of the Project, with
responsible insurers, or as part of a reasonable system of self-insurance that is adequately
funded, in such amounts and against such risks (including damage to or destruction of the
Water Utility System) as are customarily maintained with respect to works and properties
of like character against accident to, loss of, or damage to such works or properties. All
policies of insurance required to be maintained herein shall, to the extent reasonably
obtainable, provide that the WIFIA Lender shall be given thirty (30) days written notice of
any intended cancellation thereof or reduction of coverage provided thereby. The Borrower
shall cause each Construction Contractor to obtain and maintain builders risk and casualty
and liability insurance in accordance with the requirements of the applicable Construction
Contract.
(ii) The Borrower shall (by self-insuring or maintaining with
responsible insurers or by a combination thereof) provide for workers’ compensation
insurance for Borrower’s workers and insurance against public liability and property
damage to the Water Utility System (including the Project) to the extent reasonably
necessary to protect the Borrower and the WIFIA Lender.
(iii) The Borrower shall cause all liability insurance policies that it
maintains, other than workers’ compensation insurance, to reflect the WIFIA Lender as an
additional insured to the extent of its insurable interest.
(iv) Promptly upon request by the WIFIA Lender, the Borrower shall
deliver to the WIFIA Lender copies of any underlying insurance policies obtained by or on
behalf of the Borrower in respect of the Project. All such policies shall be available at all
reasonable times for inspection by the WIFIA Lender, its agents and representatives.
(v) The Borrower shall comply with the insurance requirements of the
Parity Issuance Documents and shall deliver to the WIFIA Lender within thirty (30) days
after receipt thereof any certifications or opinions provided to the Borrower pursuant to the
Parity Issuance Documents with respect to the Borrower’s program of insurance or self-
insurance.
(g) Maintain Legal Structure. The Borrower shall maintain its existence as a
municipal corporation organized and existing under its Organizational Documents and the laws of
the State. The Borrower shall maintain the Water Utility System as part of its “enterprise” within
the meaning of Article X, Section 20 of the Colorado Constitution, and the meaning of Title 37,
Article 45.1, C.R.S.
(h) Water Fund; Permitted Investments.
(i) The Borrower shall maintain the Water Fund and the accounts and
subaccounts established therein in accordance with the terms hereof and the WIFIA
Ordinance. All Gross Revenues received shall be deposited into the Water Fund when and
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as received in trust for the benefit of the Bondholders, subject to the application of Gross
Revenues to Operation and Maintenance Expenses, and shall be applied in accordance with
Section 7(d) (Security and Priority; Flow of Funds).
(ii) The Borrower shall maintain a reserve equal to the O&M Reserve
Requirement. Such reserve may be in the form of an unassigned fund balance in the Water
Fund or other unobligated cash or securities (i.e. capital reserves) or may be in a separate
segregated account and shall be maintained as a continuing reserve for payment of any
lawful purpose relating to the Water Utility System. If the O&M Reserve Requirement
falls below the required amount, the shortfall shall be made up within twelve months in
accordance with Section 14(a) (Rate Covenant).
(iii) [Reserved].
(iv) Amounts on deposit in the Water Fund shall be held uninvested or
invested in Permitted Investments. Permitted Investments must mature or be redeemable
at the election of the holder at such times as may be necessary to ensure that funds will be
available within the applicable account to be applied towards the purpose for which the
applicable account has been established.
(i) Compliance with Laws.
(i) The Borrower shall, and shall require its contractors and
subcontractors at all tiers with respect to the Project, to comply with all applicable laws,
rules, regulations and requirements, including without limitation 40 U.S.C. §§3141-3144,
3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating
thereto) and 33 U.S.C. §3914 (relating to American iron and steel products).
(ii) To ensure such compliance, the Borrower shall include in all
contracts with respect to the Project (A) the contract clauses relating to the Davis-Bacon
Act requirements that are set forth in the Code of Federal Regulations, Title 29 Part 5.5
and (B) requirements that its contractor(s) (1) shall comply with all applicable laws, rules,
regulations, and requirements set forth in this Section 14(i) and follow applicable federal
guidance and (2) incorporate in all subcontracts (and cause all subcontractors to include in
lower tier subcontracts) such terms and conditions as are required to be incorporated therein
by any applicable laws, rules, regulations and requirements set forth in this Section 14(i)
(including without limitation with respect to the Davis-Bacon Act requirements).
(iii) The Borrower shall ensure that no use of proceeds of the WIFIA
Loan or any other transaction contemplated by this Agreement or any other Related
Document will violate any applicable Sanctions, Anti-Money Laundering Laws, or Anti-
Corruption Laws, or any applicable anti-drug trafficking or anti-terrorism laws.
(j) Material Obligations. The Borrower shall pay its material obligations
promptly and in accordance with their terms and pay and discharge promptly all taxes, assessments
and governmental charges or levies imposed upon it or upon the Gross Revenues or other assets
of the Water Utility System, before the same shall become delinquent or in default, as well as all
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lawful and material claims for labor, materials and supplies or other claims which, if unpaid, might
give rise to a Lien upon such properties or any part thereof or on the Gross Revenues or the Pledged
Property; provided, however, that such payment and discharge shall not be required with respect
to any such tax, assessment, charge, levy, claim or Lien so long as the validity or amount thereof
shall be contested by the Borrower in good faith by appropriate proceedings and so long as the
Borrower shall have set aside adequate reserves with respect thereto in accordance with and to the
extent required by GAAP, applied on a consistent basis.
(k) SAM Registration. The Borrower shall (i) obtain and maintain through the
Final Disbursement Date an active registration status with the federal System for Award
Management (www.SAM.gov) (or any successor system or registry) prior to the Effective Date
and provide such registration information to the WIFIA Lender and (ii) within sixty (60) days prior
to each anniversary of the Effective Date until the Final Disbursement Date, provide to the WIFIA
Lender evidence of such active registration status with no active exclusions reflected in such
registration.
(l) DUNS Number. The Borrower shall (i) obtain and maintain from Dun &
Bradstreet (or a successor entity) a Data Universal Numbering System Number (a “DUNS
Number”) prior to the Effective Date and provide such number to the WIFIA Lender and (ii)
within sixty (60) days prior to each anniversary of the Effective Date, provide to the WIFIA Lender
evidence of the continuing effectiveness of such DUNS Number, in each case until the Final
Maturity Date or to such earlier date as all amounts due or to become due to the WIFIA Lender
under this Agreement have been irrevocably paid in full in immediately available funds.
(m) Events of Loss; Loss Proceeds. If an Event of Loss shall occur with respect
to the Water Utility System (including the Project) or any part thereof, the Borrower shall
(i) diligently pursue all of its rights to compensation against all relevant insurers, reinsurers and
Governmental Authorities, as applicable, in respect of such Event of Loss and (ii) apply all Net
Loss Proceeds in respect of such Event of Loss to repair, reconstruct, and/or replace the portion of
the Water Utility System in respect of which the applicable Loss Proceeds were received. The
Borrower shall begin such repair, reconstruction or replacement promptly after such damage or
destruction shall occur, and shall continue and properly complete such repair, reconstruction or
replacement as expeditiously as possible, and shall pay out of such Loss Proceeds all costs and
expenses in connection with such repair, reconstruction or replacement so that the same shall be
completed and the Water Utility System shall be free and clear of all claims and Liens.
(n) Immunity. To the fullest extent permitted by applicable law, the Borrower
agrees that it will not assert any immunity (and hereby waives any such immunity) it may have as
a governmental entity from lawsuits, other actions and claims, and any judgments with respect to
the enforcement of any of the obligations of the Borrower under this Agreement or any other
WIFIA Loan Document.
(o) Accounting and Audit Procedures.
(i) The Borrower shall establish fiscal controls and accounting
procedures sufficient to assure proper accounting for all (i) Gross Revenues, operating
expenses, capital expenses, depreciation, reserves, debt issued and outstanding and debt
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payments and (ii) Project-related costs, WIFIA Loan requisitions submitted, WIFIA Loan
proceeds received, payments made by the Borrower with regard to the Project, other
sources of funding for the Project (including amounts paid from such sources for Project
costs so that audits may be performed to ensure compliance with and enforcement of this
Agreement). The Borrower shall use accounting, audit and fiscal procedures conforming
to GAAP, including, with respect to the WIFIA Loan, accounting of principal and interest
payments, disbursements, prepayments and calculation of interest and principal amounts
Outstanding.
(ii) The Borrower shall have a single or program-specific audit
conducted in accordance with 2 C.F.R. Part 200 Subpart F and 31 U.S.C. § 7502 from (and
including) the first Borrower Fiscal Year in which a Disbursement is made under this
Agreement and annually thereafter to the extent required by applicable law, except to the
extent biennial audits are permitted for the Borrower pursuant to 2 C.F.R. § 200.504 and
31 U.S.C. § 7502(b). Upon reasonable notice, the Borrower shall cooperate fully in the
conduct of any periodic or compliance audits conducted by the WIFIA Lender, or
designees thereof, pursuant to 40 C.F.R. Part 35, 31 U.S.C. § 7503(b), or 31 U.S.C.
§ 6503(h) and shall provide full access to any books, documents, papers or other records
that are pertinent to the Project or the WIFIA Loan, to the WIFIA Lender, or the designee
thereof, for any such project or programmatic audit.
(p) Access; Records.
(i) So long as the WIFIA Loan or any portion thereof shall remain
Outstanding and until five (5) years after the WIFIA Loan shall have been paid in full, the
WIF IA Lender shall have the right, upon reasonable prior notice, to visit and inspect any
portion of the Project, to examine books of account and records of the Borrower relating
to the Project, to make copies and extracts therefrom at the Borrower’s expense, and to
discuss the Borrower’s affairs, finances and accounts relating to the Project with, and to be
advised as to the same by, its officers and employees and its independent public
accountants (and by this provision the Borrower irrevocably authorizes its independent
public accountants to discuss with the WIFIA Lender the affairs, finances and accounts of
the Borrower, whether or not any representative of the Borrower is present, it being
understood that nothing contained in this Section 14(p) is intended to confer any right to
exclude any such representative from such discussions), all at such reasonable times and
intervals as the WIFIA Lender may request. The Borrower agrees to pay all out-of-pocket
expenses incurred by the WIFIA Lender in connection with the WIFIA Lender’s exercise
of its rights under this Section 14(p) at any time when an Event of Default shall have
occurred and be continuing.
(ii) The Borrower shall maintain and retain all pertinent files relating to
the Project and the WIFIA Loan, as may be necessary for the WIFIA Lender to facilitate
an effective and accurate audit and performance evaluation of the Project, until five (5)
years after the later of the date on which (i) all rights and duties under this Agreement and
under the WIFIA Bond (including payments) have been fulfilled and any required audits
have been performed and (ii) any litigation relating to the Project, the WIFIA Loan or this
Agreement is finally resolved or, if the WIFIA Lender has reasonable cause to extend such
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date, a date to be mutually agreed upon by the WIFIA Lender and the Borrower. The
Borrower shall provide to the WIFIA Lender in a timely manner all records and
documentation relating to the Project that the WIFIA Lender may reasonably request from
time to time.
Section 15. Negative Covenants. The Borrower covenants and agrees as follows until
the date the WIFIA Bond and the obligations of the Borrower under this Agreement (other than
contingent indemnity obligations) are irrevocably paid in full in immediately available funds,
unless the WIFIA Lender waives compliance in writing:
(a) Indebtedness.
(i) The Borrower may not create, incur or suffer to exist (A) any
Obligations the payments of which are senior or prior in right to the payment by the
Borrower of the Parity Lien Obligations, (B) any Obligations, the proceeds of which are
applied to the funding of Total Project Costs, that are secured by a Lien on any assets or
property of the Borrower other than the Pledged Property, or (C) while a Payment Default
or a Bankruptcy Related Event has occurred and is continuing, any Additional Obligations,
including Permitted Debt, without the prior written consent of the WIFIA Lender. All
Additional Obligations shall be payable semi-annually as to interest, on February 1 and
August 1 of each year, and as to principal, only on August 1 of any calendar year.
(ii) Except as provided in clause (iv) of this Section 15(a), the Borrower
shall not create, incur or suffer to exist any Additional Parity Lien Obligations unless the
Net Revenues for any twelve (12) consecutive months out of the eighteen (18) months
preceding the month in which such proposed Obligations are to be issued are at least equal
to the sum of (A) 115% of the Maximum Annual Debt Service of (1) all Outstanding Parity
Lien Obligations, including the WIFIA Bond and (2) such proposed Additional Parity Lien
Obligations, and (B) 100% of the Maximum Annual Debt Service of all other indebtedness
payable from the Pledged Property, including any Outstanding Subordinate Lien
Obligations. Net Revenues determined pursuant to the preceding sentence may be adjusted
to reflect any rate increases adopted prior to the issuance of such proposed Additional
Parity Lien Obligations by adding to the actual Net Revenues for the twelve (12)
consecutive month period an estimated sum equal to 100% of the estimated increase in Net
Revenues which would have been realized during such period had such rate increase been
in effect during all of such preceding period.
(iii) The Borrower shall not issue any Additional Parity Lien Obligations
that bear interest at a Variable Interest Rate, to the extent that such issuance would cause
the principal amount of all Outstanding Variable Interest Rate Obligations to exceed twenty
percent (20%) of the principal amount of all Outstanding Parity Lien Obligations. Any
hedging termination payment obligations of the Borrower shall be fully subordinate and
payable only pursuant to clause FIFTH of Section 7(d) (Security and Priority; Flow of
Funds) in respect of the WIFIA Bond.
(iv) The Borrower may issue Additional Parity Lien Obligations that
will refund Outstanding Parity Lien Obligations, without compliance with the requirements
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in clause (ii) of this Section 15(a), only if the debt service payments on such refunding
Additional Parity Lien Obligations do not exceed the debt service payments on the
refunded Parity Lien Obligations during any Borrower Fiscal Year.
(v) The Borrower shall not create, incur or suffer to exist any Additional
Subordinate Lien Obligations unless (A) the Net Revenues for any twelve (12) consecutive
months out of the eighteen (18) months preceding the month in which such proposed
Obligations are to be issued are at least equal to 100% of the Maximum Annual Debt
Service on all Outstanding Obligations, including the WIFIA Bond, and the proposed
Additional Subordinate Lien Obligations, and (B) such Additional Subordinate Lien
Obligations are fully subordinated to the Parity Lien Obligations in priority of payment (as
to both principal and interest), voting and priority of security interest in the Pledged
Property, including with respect to payment from revenues and reserves and payment upon
default of any such Additional Subordinate Lien Obligations. Net Revenues determined
pursuant to the preceding sentence may be adjusted to reflect any rate increases adopted
prior to the issuance of such proposed Additional Subordinate Lien Obligations by adding
to the actual Net Revenues for the twelve (12) consecutive month period an estimated sum
equal to 100% of the estimated increase in Net Revenues which would have been realized
during such period had such rate increase been in effect during all of such preceding period.
(vi) No Issuance Document entered into by the Borrower with respect to
any Additional Obligations shall conflict with this Agreement or the WIFIA Ordinance,
including with respect to priority, voting rights or the flow of funds set forth in Section 7(d)
(Security and Priority; Flow of Funds) and in the WIFIA Ordinance.
(b) No Lien Extinguishment or Adverse Amendments. The Borrower shall not,
and shall not permit any Person to, without the prior written consent of the WIFIA Lender, (i)
extinguish the Rate Covenant; (ii) extinguish or impair the Liens on the Pledged Property or any
dedicated source of repayment of the WIFIA Loan or any other Obligations (the proceeds of which
are applied to fund Total Project Costs), in each case granted pursuant to the Parity Issuance
Documents, (iii) amend, modify, replace or supplement any Related Document or permit a waiver
of any provision thereof in a manner that could adversely affect the WIFIA Lender or could
reasonably be expected to result in a Material Adverse Effect, or (iv) terminate, assign or replace
any Related Document in a manner that could adversely affect the WIFIA Lender or could
reasonably be expected to have a Material Adverse Effect.
(c) No Prohibited Liens. Except for Permitted Liens, the Borrower shall not
create, incur, assume or permit to exist any Lien on the Project, the Pledged Property, the Gross
Revenues, or the Borrower’s respective rights therein.
(d) Restricted Payments and Transfers. The Borrower shall not permit Gross
Revenues or other assets of the Water Utility System, or any funds in any accounts held by or on
behalf of the Borrower in respect of the Gross Revenues, including the Water Fund, to be paid or
transferred or otherwise applied for purposes other than ownership, operation or maintenance of
the Water Utility System.
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(e) No Prohibited Sale, Lease or Assignment. The Borrower shall not sell, lease
or assign its rights in and to the Water Utility System or a substantial portion of the assets included
in the Water Utility System in each case unless such sale, lease or assignment (i) could not
reasonably be expected to have a Material Adverse Effect and (ii) is made by the Borrower in the
ordinary course of business.
(f) Fiscal Year. The Borrower shall not at any time adopt any fiscal year other
than the Borrower Fiscal Year, except with thirty (30) days’ prior written notice to the WIFIA
Lender.
(g) Mergers and Acquisitions. The Borrower shall not, and shall not agree to,
reorganize, consolidate with or merge into another Person unless (i) such reorganization, merger
or consolidation is with or into another entity established by State law and such reorganization,
merger or consolidation is mandated by State law, and in each case, does not adversely affect or
impair to any extent or in any manner (A) the Gross Revenues or other elements of the Pledged
Property or (B) the availability of the Gross Revenues for the payment and security of the
obligations of the Borrower under this Agreement; and (ii) the Borrower provides to the WIFIA
Lender, no later than sixty (60) days prior to the date of reorganization, consolidation or merger,
prior written notice of such reorganization, consolidation or merger and the agreements and
documents authorizing the reorganization, consolidation or merger, satisfactory in form and
substance to the WIFIA Lender. In addition, the Borrower shall provide all information concerning
such reorganization, consolidation or merger as shall have been reasonably requested by the
WIFIA Lender.
(h) Hedging. Other than interest rate hedging transactions permitted under the
Issuance Documents, the Borrower shall not enter into any swap or hedging transaction, including
any such transaction that is speculative or creates extraordinary leverage or risk, without the prior
written consent of the WIFIA Lender.
Section 16. Reporting Requirements.
(a) Updated Financial Model/Plan.
(i) The Borrower shall provide to the WIFIA Lender not later than one
hundred eighty (180) days after the end of each Borrower Fiscal Year, an Updated
Financial Model/Plan. The Updated Financial Model/Plan shall reflect the Borrower’s
reasonable expectations, using assumptions that the Borrower believes to be reasonable,
and include: (1) the Borrower’s capital improvement plan, major maintenance plan,
projected rates and charges, projected debt outstanding and annual debt service, projected
Gross Revenues and projected Operation and Maintenance Expenses for a reasonable
projection period consistent with the Borrower’s operating and financial planning and
demonstrating that the Borrower has developed and identified adequate revenues to
implement a plan for operating, maintaining, and repairing the Project; (2) evidence of
compliance with the Rate Covenant for the most recent Borrower Fiscal Year for which
the Borrower’s financial statements are available and the projected debt service coverage
ratios (including projected Rate Covenant coverages) through the Forecast Period; and (3)
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a written narrative identifying any material changes to the underlying assumptions from
the previous Updated Financial Model/Plan.
(b) Annual Financial Statements. The Borrower shall deliver to the WIFIA
Lender, as soon as available, but no later than one hundred eighty (180) days after the end of each
Borrower Fiscal Year, a copy of the audited income statement and balance sheet of the Borrower
as of the end of such Borrower Fiscal Year and the related audited statements of operations and of
cash flow of the Borrower for such Borrower Fiscal Year, (i) setting forth in each case in
comparative form the figures for the previous fiscal year, (ii) certified without qualification or
exception, or qualification as to the scope of the audit, by an independent public accounting firm
selected by the Borrower and (iii) which shall be complete and correct in all material respects and
shall be prepared in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein (except, with respect to the annual financial statements,
for changes approved or required by the independent public accountants certifying such statements
and disclosed therein).
(c) Final Design Specifications. The Borrower shall deliver to the WIFIA
Lender, prior to prior to bid advertisement, a copy of the final specifications relating to the
development and construction of the Project (or such sub-project or component, as the case may
be), demonstrating compliance with all applicable federal requirements and including a summary
of the scope of work thereunder.
(d) Construction Reporting. The WIFIA Lender shall have the right in its sole
discretion to monitor (or direct its agents to monitor) the development of the Project, including
environmental compliance, design, and construction of the Project. The Borrower shall be
responsible for administering construction oversight of the Project in accordance with applicable
federal, state and local governmental requirements. The Borrower agrees to cooperate in good faith
with the WIFIA Lender in the conduct of such monitoring by promptly providing the WIFIA
Lender with such reports, Construction Contracts, documentation or other information as shall be
requested by the WIFIA Lender or its agents, including any independent engineer reports,
documentation or information. During the period through Substantial Completion of the Project,
the Borrower shall furnish to the WIFIA Lender, on a quarterly basis, a report on the status of the
Project, substantially in the form of Exhibit J (Form of Quarterly Report). The report shall be
executed by the Borrower’s Authorized Representative and, for any quarter, shall be delivered to
the WIFIA Lender within thirty (30) days of the following quarter (or if such day is not a Business
Day, on the next following Business Day). If the then-current projection for the Substantial
Completion Date is a date later than the Projected Substantial Completion Date, the Borrower shall
provide in such report a description in reasonable detail to the reasonable satisfaction of the WIFIA
Lender of the reasons for such projected delay, an estimate of the impact of such delay on the
capital and operating costs of the Water Utility System (if any), and that the new date could not
reasonably be expected to result in a Material Adverse Effect.
(e) Public Benefits Report. The Borrower shall deliver to the WIFIA Lender a
report, in the form of Exhibit K (Form of Public Benefits Report) (the “Public Benefits Report”),
(i) prior to the Effective Date, (ii) within ninety (90) days following the Substantial Completion
Date and (iii) within ninety (90) days following the fifth (5th) anniversary of the Substantial
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Completion Date. The Borrower agrees that information described under this Section 16(e) may
be made publicly available by the WIFIA Lender at its discretion.
(f) Quarterly Certification of Eligible Project Costs. If requested by the WIFIA
Lender, on a basis not more frequently than quarterly, the Borrower shall submit to the WIFIA
Lender, concurrently with the delivery of the construction monitoring report pursuant to Section
16(d), a certificate, in the form of Exhibit D-2 (Form of Certification of Eligible Project Costs
Documentation), signed by the Borrower’s Authorized Representative, and attaching Eligible
Project Costs Documentation as applicable. If there are no applicable Eligible Project Costs for
such quarter, the Borrower may notify the WIFIA Lender by written confirmation of the same by
email in accordance with Section 31 (Notices) of the WIFIA Loan Agreement. Within sixty (60)
days following the receipt of such certificate and accompanying Eligible Project Costs
Documentation (if applicable), the WIFIA Lender shall notify the Borrower confirming (i) which
Eligible Project Costs incurred by the Borrower set forth in the certification have been approved
or denied (and, if denied, the reasons therefor) and (ii) the cumulative amount of Eligible Project
Costs that have been approved as of the date of such notice. Any such approved amounts of
Eligible Project Costs shall then be deemed to be available for Disbursement at such time as the
Borrower submits a Requisition in respect of such approved amounts in accordance with Section
4 (Disbursement Conditions).
(g) Operations and Maintenance. The WIFIA Lender shall have the right, in its
sole discretion, to monitor (or direct its agents to monitor) the Project’s operations and, as the
WIFIA Lender may request from time to time, to receive reporting on the operation and
management of the Project, and copies of any contracts relating to the operation and maintenance
of the Project. The Borrower agrees to cooperate in good faith with the WIFIA Lender in the
conduct of such monitoring by promptly providing the WIFIA Lender with such reports,
documentation, or other information requested by the WIFIA Lender. The WIFIA Lender has the
right, in its sole discretion, to retain such consultants or advisors, to carry out the provisions of this
Section 16(g).
(h) Notices.
(i) The Borrower shall, within fifteen (15) days after the Borrower
learns of the occurrence, give the WIFIA Lender notice of any of the following events or
receipt of any of the following notices, as applicable, setting forth details of such event:
(A) Substantial Completion: the occurrence of Substantial
Completion, such notice to be provided in the form set forth in Exhibit I (Form of Certificate of
Substantial Completion);
(B) Defaults; Events of Default: any Default or Event of Default;
(C) Litigation: (1) the filing of any litigation, suit or action, or
the commencement of any proceeding, against the Borrower before any arbitrator, Governmental
Authority, alternative dispute resolution body, or other neutral third-party that, in each case, could
reasonably be expected to have a Material Adverse Effect, and (2) any final, non-appealable
judgment related to the Pledged Property entered against Borrower;
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(D) Delayed Governmental Approvals: any failure to receive or
delay in receiving any Governmental Approval or making any required filing, notice, recordation
or other demonstration to or with a Governmental Authority, in each case to the extent such failure
or delay will or could reasonably be expected to result in a delay to any major milestone date
(including the Projected Substantial Completion Date) set forth in the Construction Schedule,
together with a written explanation of the reasons for such failure or delay and the Borrower’s
plans to remedy or mitigate the effects of such failure or delay;
(E) Environmental Notices: any material notice of violation
related to the Project or any material change to the Project that could reasonably be expected to
affect the NEPA Determination;
(F) Amendments: except as otherwise agreed by the WIFIA
Lender in writing, copies of any fully executed amendments, modifications, replacements or
supplements to any Related Document at least thirty (30) days prior to the effective date thereof;
provided, that such notice can be accomplished through the posting of the relevant documents on
EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this
Agreement;
(G) Related Document Defaults: any material breach or default
or event of default on the part of the Borrower or any other party under any Related Document;
provided that such notice can be accomplished through the posting of the relevant documents on
EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this
Agreement;
(H) Uncontrollable Force: the occurrence of any Uncontrollable
Force that could reasonably be expected to materially and adversely affect the Project;
(I) Ratings Changes: any change in the rating assigned to the
WIFIA Loan or any Parity Lien Obligations, in each case by any Nationally Recognized Rating
Agency that has provided a public rating on such Obligations, and any notices, reports or other
written materials (other than those that are ministerial in nature) received from any such rating
agencies; provided, that such notice can be accomplished through the posting of the relevant
documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA
provision of this Agreement;
(J) 2 C.F.R. § 180.350 Notices: any notification required
pursuant to 2 C.F.R. § 180.350, whether attributable to a failure by the Borrower to disclose
information previously required to have been disclosed or due to the Borrower or any of its
principals meeting any of the criteria set forth in 2 C.F.R. § 180.335;
(K) Issuance of Obligations: the issuance or incurrence of any
Obligations (including any Additional Parity Lien Obligations or Additional Subordinate Lien
Obligations), which notice shall include copies of any final issuing instrument (together with any
continuing disclosure documents, ordinances, official statement, certifications or cash flow
projections in connection therewith), prepared in connection with the incurrence of any such
Obligation, together with a confirmation by the Borrower that such additional indebtedness
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satisfies the applicable requirements under the definition of “Permitted Debt”; provided that such
notice can be accomplished through the posting of the relevant documents on EMMA under the
WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement;
(L) Postings on EMMA: the posting of any document on EMMA
in accordance with the requirements of any continuing disclosure agreement with respect to any
Outstanding Obligations relating to annual financial information and operating data and the
reporting of significant events; provided that such notice can be accomplished through the posting
of the relevant document on EMMA under the WIFIA CUSIP Number with a reference to the
relevant WIFIA provision of this Agreement; and
(M) Other Adverse Events: the occurrence of any other event or
condition, including without limitation any notice of breach from a contract counterparty or any
holder of any Obligations, that could reasonably be expected to result in a Material Adverse Effect
or have a material and adverse effect on the Project.
(i) Requested Information. The Borrower shall, at any time while the WIFIA
Loan remains Outstanding, promptly deliver to the WIFIA Lender such additional information
regarding the business, financial, legal or organizational affairs of the Borrower or regarding the
Project, the Water Utility System or the Gross Revenues as the WIFIA Lender may from time to
time reasonably request. The Borrower agrees that the delivery of any documents or information
under and pursuant to this Agreement shall not be construed as compliance with, or affect in any
manner, any obligations of the Borrower under any other contracts, agreements, decrees,
Governmental Approvals, or other documents with EPA (other than the WIFIA Loan Documents)
or the Federal Government.
ARTICLE VI
EVENTS OF DEFAULT
Section 17. Events of Default and Remedies.
(a) An “Event of Default” shall exist under this Agreement if any of the
following occurs:
(i) Payment Default. The Borrower shall fail to pay any part of the
principal amount of or interest on the WIFIA Loan (including WIFIA Debt Service
required to have been paid pursuant to the provisions of Section 8 (Payment of Principal
and Interest), and such failure continues for a period of five (5) days, when and as the
payment thereof shall be required under this Agreement or the WIFIA Bond or on the Final
Maturity Date (each such failure, a “Payment Default”).
(ii) Covenant Default. The Borrower shall fail to observe or perform
any covenant, agreement or obligation of the Borrower under this Agreement, the WIFIA
Bond or any other WIFIA Loan Document (other than in the case of any Payment Default,
any Development Default or any failure to comply with the Rate Covenant), and such
failure shall not be cured within thirty (30) days after the earlier to occur of (A) receipt by
the Borrower from the WIFIA Lender of written notice thereof or (B) the Borrower’s
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knowledge of such failure; provided, however, that if such failure is capable of cure but
cannot reasonably be cured within such thirty (30) day cure period, then no Event of
Default shall be deemed to have occurred or be continuing under this Section 17(a)(ii), and
such thirty (30) day cure period shall be extended by up to one hundred fifty (150)
additional days, if and so long as (x) within such thirty (30) day cure period the Borrower
shall commence actions reasonably designed to cure such failure and shall diligently pursue
such actions until such failure is cured and (y) such failure is cured within one hundred
eighty (180) days of the date specified in either (A) or (B) above, as applicable.
(iii) Misrepresentation Default. Any of the representations, warranties
or certifications of the Borrower made in or delivered pursuant to the WIFIA Loan
Documents (or in any certificates delivered by the Borrower in connection with the WIFIA
Loan Documents) shall prove to have been false or misleading in any material respect when
made or deemed made (or any representation and warranty that is subject to a materiality
qualifier shall prove to have been false or misleading in any respect); provided, that no
Event of Default shall be deemed to have occurred under this Section 17(a)(iii) if and so
long as (A) such misrepresentation is not intentional, (B) such misrepresentation is not a
misrepresentation in respect of Section 12(g) (Representations and Warranties of
Borrower – Security Interests), Section 12(h) (Representations and Warranties of
Borrower – No Debarment), Section 12(j) (Representations and Warranties of Borrower
– Compliance with Laws), or Section 12(y) (Representation and Warranties of Borrower
– Patriot Act), (C) in the reasonable determination of the WIFIA Lender, such
misrepresentation has not had, and would not reasonably be expected to result in, a Material
Adverse Effect, (D) in the reasonable determination of the WIFIA Lender, the underlying
issue giving rise to the misrepresentation is capable of being cured and (E) the underlying
issue giving rise to the misrepresentation is cured by the Borrower within thirty (30) days
from the date on which the Borrower first became aware (or reasonably should have
become aware) of such misrepresentation.
(iv) Acceleration of Obligations. Any acceleration shall occur of the
maturity of any Obligation, or any such Obligation shall not be paid in full upon the final
maturity thereof.
(v) Cross Default with Other Related Documents. Any default shall
occur in respect of the performance of any covenant, agreement or obligation of the
Borrower under the Related Documents, and such default shall be continuing after the
giving of any applicable notice and the expiration of any applicable grace period specified
in the Related (as the case may be) with respect to such default, and the Borrower shall
have failed to cure such default or to obtain an effective written waiver thereof in
accordance with the terms thereof.
(vi) Material Adverse Judgment. Any final, non-appealable judgment
related to the Pledged Property shall be entered against the Borrower that results in the
impairment of (a) the ability of the Borrower to comply with any of its payment obligations
under any WIFIA Loan Document, or (b) the WIFIA Lender’s rights or remedies available
under any WIFIA Loan Document.
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(vii) Occurrence of a Bankruptcy Related Event. A Bankruptcy Related
Event shall occur with respect to the Borrower.
(viii) Invalidity of WIFIA Loan Documents. (A) Any WIFIA Loan
Document ceases to be in full force and effect (other than as a result of the termination
thereof in accordance with its terms) or becomes void, voidable, illegal or unenforceable,
or the Borrower contests in any manner the validity or enforceability of any WIFIA Loan
Document to which it is a party or denies it has any further liability under any WIFIA Loan
Document to which it is a party, or purports to revoke, terminate or rescind any WIFIA
Loan Document to which it is a party; (B) the WIFIA Ordinance ceases (other than as
expressly permitted thereunder) to be effective or to grant a valid and binding security
interest on any material portion of the Pledged Property other than as a result of actions or
a failure to act by, and within the control of, any Bondholder, and with the priority
purported to be created thereby; or (C) any event occurs that results in the impairment in
the validity, enforceability, perfection or priority of the WIFIA Lender’s security interest
in the Pledged Property or in the material value of such Pledged Property.
(ix) Failure to Satisfy Rate Covenant. The Borrower fails to satisfy the
Rate Covenant for two (2) consecutive Borrower Fiscal Years.
(x) Development Default. A Development Default shall occur.
(b) Upon the occurrence of any Bankruptcy Related Event, all obligations of
the WIFIA Lender hereunder with respect to the disbursement of any undisbursed amounts of the
WIFIA Loan shall automatically be deemed terminated.
(c) Upon the occurrence of any Event of Default, the WIFIA Lender, by written
notice to the Borrower, may exercise any or all of the following remedies:
(i) the WIFIA Lender may suspend or terminate all of its obligations
hereunder with respect to the disbursement of any undisbursed amounts of the WIFIA
Loan;
(ii) the WIFIA Lender may cease permitting interest on the WIFIA Loan
to be capitalized;
(iii) the WIFIA Lender may apply the Default Rate provisions of Section
6 (Interest Rate);
(iv) the WIFIA Lender may suspend or debar the Borrower from further
participation in any Government program administered by the WIFIA Lender and to notify
other departments and agencies of such default;
(v) the WIFIA Lender shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of any sums due and unpaid
hereunder or under the WIFIA Bond or the other WIFIA Loan Documents, and may
prosecute any such judgment or final decree against the Borrower and collect in the manner
provided by law out of the Pledged Property the moneys adjudged or decreed to be payable,
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and the WIFIA Lender shall have all of the rights and remedies of a creditor, including all
rights and remedies of a secured creditor under the Uniform Commercial Code, and may
take such other actions at law or in equity as may appear necessary or desirable to collect
all amounts payable by Borrower under this Agreement, the WIFIA Bond or the other
WIFIA Loan Documents then due and thereafter to become due, or to enforce performance
and observance of any obligation, agreement or covenant of the Borrower under this
Agreement, the WIFIA Bond or the other WIFIA Loan Documents; and/or
(vi) if any Bondholder or trustee on behalf of any Bondholder has the
right to declare immediately due and payable or otherwise accelerate any Obligations (any
such right, an “Acceleration Right”) and exercises such Acceleration Right, the WIFIA
Lender may declare the unpaid principal amount of the WIFIA Bond to be, and the same
shall thereupon forthwith become, immediately due and payable, together with the interest
accrued thereon and all fees, costs, expenses, indemnities and other amounts payable under
this Agreement, the WIFIA Bond or the other WIFIA Loan Documents, all without
presentment, demand, notice, protest or other requirements of any kind, all of which are
hereby expressly waived.
(d) No action taken pursuant to this Section 17 shall relieve Borrower from its
obligations pursuant to this Agreement, the WIFIA Bond or the other WIFIA Loan Documents, all
of which shall survive any such action.
ARTICLE VII
MISCELLANEOUS
Section 18. Disclaimer of Warranty. The WIFIA Lender makes no warranty or
representation, either express or implied, as to the value, design, condition, merchantability or
fitness for a particular purpose or fitness for use of the Project or any portion thereof or any other
warranty with respect thereto. In no event shall the WIFIA Lender be liable for any incidental,
indirect, special or consequential damages incidental to or arising out of this Agreement or the
Project or the existence, furnishing, functioning or use of the Project or any item or products or
services provided for in this Agreement.
Section 19. No Personal Recourse. No official, employee or agent of the WIFIA Lender
or the Borrower or any Person executing this Agreement or any of the other WIFIA Loan
Documents shall be personally liable on this Agreement or such other WIFIA Loan Documents by
reason of the issuance, delivery or execution hereof or thereof.
Section 20. No Third Party Rights. The parties hereby agree that this Agreement creates
no third party rights against the Borrower, the Government, or the WIFIA Lender, solely by virtue
of the WIFIA Loan, and the Borrower agrees to indemnify and hold the WIFIA Lender, the
Servicer (if any), the Administrator, and the Government harmless, to the extent permitted by law
and in accordance with Section 32 (Indemnification), from any lawsuit or claim arising in law or
equity solely by reason of the WIFIA Loan, and that no third party creditor of the Borrower shall
have any right against the WIFIA Lender with respect to the WIFIA Loan made pursuant to this
Agreement.
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Section 21. Borrower’s Authorized Representative. The Borrower shall at all times
have appointed a Borrower’s Authorized Representative by designating such Person or Persons
from time to time to act on the Borrower’s behalf pursuant to a written certificate furnished to the
WIFIA Lender and the Servicer, if any, containing the specimen signature or signatures of such
Person or Persons and signed by the Borrower.
Section 22. WIFIA Lender’s Authorized Representative. The WIFIA Lender hereby
appoints the Director of the WIFIA Program, whose notice details are set forth below in Section
31 (Notices), to serve as the WIFIA Lender’s Authorized Representative under this Agreement
until such time as a successor or successors shall have been appointed. Thereafter, the successor
in office shall serve as the WIFIA Lender’s Authorized Representative. The WIFIA Lender shall
provide notice to the Borrower within a reasonable time period following the succession.
Section 23. Servicer. The WIFIA Lender may from time to time designate another
entity or entities to perform, or assist the WIFIA Lender in performing, the duties of the Servicer
or specified duties of the WIFIA Lender under this Agreement and the WIFIA Bond. The WIFIA
Lender shall give the Borrower written notice of the appointment of any successor or additional
Servicer and shall enumerate the duties or any change in duties to be performed by any Servicer.
Any references in this Agreement to the WIFIA Lender shall be deemed to be a reference to the
Servicer with respect to any duties which the WIFIA Lender shall have delegated to such Servicer.
The WIFIA Lender may at any time assume the duties of any Servicer under this Agreement and
the WIFIA Bond. The Borrower shall cooperate and respond to any reasonable request of the
Servicer for information, documentation or other items reasonably necessary for the performance
by the Servicer of its duties hereunder.
Section 24. Amendments and Waivers. No amendment, modification, termination, or
waiver of any provision of this Agreement shall in any event be effective without the written
consent of each of the parties hereto.
Section 25. Governing Law. This Agreement shall be governed by the federal laws of
the United States of America if and to the extent such federal laws are applicable and the internal
laws of the State, if and to the extent such federal laws are not applicable.
Section 26. Severability. In case any provision in or obligation under this Agreement
shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
Section 27. Successors and Assigns. This Agreement shall be binding upon the parties
hereto and their respective permitted successors and assigns and shall inure to the benefit of the
parties hereto and their permitted successors and assigns. Neither the Borrower’s rights or
obligations hereunder nor any interest therein may be assigned or delegated by the Borrower
without the prior written consent of the WIFIA Lender.
Section 28. Remedies Not Exclusive. No remedy conferred herein or reserved to the
WIFIA Lender is intended to be exclusive of any other available remedy or remedies, but each and
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every such remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 29. Delay or Omission Not Waiver. No delay or omission of the WIFIA Lender
to exercise any right or remedy provided hereunder upon a default of the Borrower (except a delay
or omission pursuant to a written waiver) shall impair any such right or remedy or constitute a
waiver of any such default or acquiescence therein. Every right and remedy given by this
Agreement or by law to the WIFIA Lender may be exercised from time to time, and as often as
may be deemed expedient by the WIFIA Lender.
Section 30. Counterparts. This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute one and
the same instrument; signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically attached to the same
document. Electronic delivery of an executed counterpart of a signature page of this Agreement or
any document or instrument delivered in connection herewith in accordance with Section 31
(Notices) shall be effective as delivery of an original executed counterpart of this Agreement or
such other document or instrument, as applicable.
Section 31. Notices. Notices hereunder shall be (a) in writing, (b) effective as provided
below and (c) given by (i) nationally recognized courier service, (ii) hand delivery, or (iii) email,
in each case to:
If to WIFIA Lender: Environmental Protection Agency
WJC-E 7334A
1200 Pennsylvania Avenue NW
Washington, D.C. 20460
Attention: WIFIA Director
Email: WIFIA_Portfolio@epa.gov
If to Borrower: City of Englewood, Colorado
1000 Englewood Parkway
Englewood, CO 80110
Attention: City Manager
Email: CMO@englewoodco.gov
With a copy to:
City of Englewood, Colorado
1000 Englewood Parkway
Englewood, CO 80110
Attention: City Attorney
Email: CAO@englewoodco.gov
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Unless otherwise instructed by the WIFIA Lender’s Authorized Representative, all notices to the
WIFIA Lender should be made by email to the email address noted above for the WIFIA Lender.
Notices required to be provided herein shall be provided to such different addresses or to such
further parties as may be designated from time to time by a Borrower’s Authorized Representative,
with respect to notices to the Borrower, or by the WIFIA Lender’s Authorized Representative,
with respect to notices to the WIFIA Lender or the Servicer. Each such notice, request or
communication shall be effective (x) if delivered by hand or by nationally recognized courier
service, when delivered at the address specified in this Section 31 (or in accordance with the latest
unrevoked written direction from the receiving party) and (y) if given by email, when such email
is delivered to the address specified in this Section 31 (or in accordance with the latest unrevoked
written direction from the receiving party); provided, that notices received on a day that is not a
Business Day or after 5:00 p.m. Eastern Time on a Business Day will be deemed to be effective
on the next Business Day.
Section 32. Indemnification. The Borrower shall, to the extent permitted by law,
indemnify the WIFIA Lender and any official, employee, agent or representative of the WIFIA
Lender (each such Person being herein referred to as an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities, fines, penalties, costs
and expenses (including the fees, charges and disbursements of any counsel for any Indemnitee
and the costs of environmental remediation), whether known, unknown, contingent or otherwise,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of
(a) the execution, delivery and performance of this Agreement or any of the other Related
Documents, (b) the WIFIA Loan or the use of the proceeds thereof, or (c) the violation of any law,
rule, regulation, order, decree, judgment or administrative decision relating to the environment,
the preservation or reclamation of natural resources, the management, release or threatened release
of any hazardous material or to health and safety matters; in each case arising out of or in direct
relation to the Project; provided, that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities, fines, penalties, costs or related expenses
are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee. In case any action
or proceeding is brought against an Indemnitee by reason of any claim with respect to which such
Indemnitee is entitled to indemnification hereunder, the Borrower shall be entitled, at its expense,
to participate in the defense thereof; provided, that such Indemnitee has the right to retain its own
counsel, at the Borrower’s expense, and such participation by the Borrower in the defense thereof
shall not release the Borrower of any liability that it may have to such Indemnitee. Any Indemnitee
against whom any indemnity claim contemplated in this Section 32 is made shall be entitled, after
consultation with the Borrower and upon consultation with legal counsel wherein such Indemnitee
is advised that such indemnity claim is meritorious, to compromise or settle any such indemnity
claim. Any such compromise or settlement shall be binding upon the Borrower for purposes of
this Section 32. Nothing herein shall be construed as a waiver of any legal immunity that may be
available to any Indemnitee. To the extent permitted by applicable law, neither the Borrower nor
the WIFIA Lender shall assert, and each of the Borrower and the WIFIA Lender hereby waives,
any claim against any Indemnitee or the Borrower, respectively, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any of the other Related
Documents, the other transactions contemplated hereby and thereby, the WIFIA Loan or the use
of the proceeds thereof, provided, that nothing in this sentence shall limit the Borrower’s indemnity
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obligations to the extent such damages are included in any third party claim in connection with
which an Indemnitee is entitled to indemnification hereunder. All amounts due to any Indemnitee
under this Section 32 shall be payable promptly upon demand therefor. The obligations of the
Borrower under this Section 32 shall survive the payment or prepayment in full or transfer of the
WIFIA Bond, the enforcement of any provision of this Agreement or the other Related Documents,
any amendments, waivers (other than amendments or waivers in writing with respect to this
Section 32) or consents in respect hereof or thereof, any Event of Default, and any workout,
restructuring or similar arrangement of the obligations of the Borrower hereunder or thereunder.
Section 33. Sale of WIFIA Loan. The WIFIA Lender shall not sell the WIFIA Loan at
any time prior to the Substantial Completion Date. After such date, the WIFIA Lender may sell
the WIFIA Loan to another entity or reoffer the WIFIA Loan into the capital markets only in
accordance with the provisions of this Section 33. Such sale or reoffering shall be on such terms
as the WIFIA Lender shall deem advisable. However, in making such sale or reoffering the WIFIA
Lender shall not change the terms and conditions of the WIFIA Loan without the prior written
consent of the Borrower in accordance with Section 24 (Amendments and Waivers). The WIFIA
Lender shall provide, at least sixty (60) days prior to any sale or reoffering of the WIFIA Loan,
written notice to the Borrower of the WIFIA Lender’s intention to consummate such a sale or
reoffering; provided, however, that no such notice shall be required during the continuation of any
Event of Default. The provision of any notice pursuant to this Section 33 shall not (x) obligate the
WIFIA Lender to sell nor (y) provide the Borrower with any rights or remedies in the event the
WIFIA Lender, for any reason, does not sell the WIFIA Loan.
Section 34. Effectiveness. This Agreement shall be effective on the Effective Date.
Section 35. Termination. This Agreement shall terminate upon the irrevocable payment
in full in immediately available funds by the Borrower of the WIFIA Loan Balance, together with
all accrued interest, fees and expenses with respect thereto; provided, however, that the
indemnification requirements of Section 32 (Indemnification), the reporting and record keeping
requirements of Section 14(p) (Affirmative Covenants – Access; Records) and the payment
requirements of Section 10 (Fees and Expenses) shall survive the termination of this Agreement
as provided in such Sections.
Section 36. Integration. This Agreement constitutes the entire contract between the
parties relating to the subject matter hereof and supersedes any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
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[Signature Page to Englewood One Water Modernization Program – Water Utility System Project –
WIFIA Loan Agreement]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as of the date first
written above.
CITY OF ENGLEWOOD,
by its authorized representative
By: ______________________________
Name:
Title:
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[Signature Page to Englewood One Water Modernization Program – Water Utility System Project –
WIFIA Loan Agreement]
3671586.4 045485 CTR
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and
through the Administrator of the
Environmental Protection Agency
By: ______________________________
Name: Michael S. Regan
Title: Administrator
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SCHEDULE I
PROJECT BUDGET 2
SOURCES OF FUNDS AMOUNT ($ USD) PERCENTAGE (%)
[___]
Total Sources of Funds
USES OF FUNDS AMOUNT ($ USD) PERCENTAGE (%)
[___]
Total Uses of Funds
Total Eligible Project Costs
Total Project Costs
2 WIFIA Underwriting to work with Borrower to complete.
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SCHEDULE II
CONSTRUCTION SCHEDULE
[To be provided by Borrower]3
3 The schedule should clearly specify the projected substantial completion date, which should match up with the
WLA’s definition of “Projected Substantial Completion Date” and also be reflected accordingly in the Base Case
Financial Model. Schedule should be confirmed with WIFIA Engineering that it is reasonable and in line with
WIFIA’s understanding.
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SCHEDULE III
EXISTING INDEBTEDNESS
A. Parity Lien Obligations
Agreement/Series Outstanding
Principal
1. None.
B. Subordinate Lien Obligations
Agreement/Series Outstanding
Principal
1. None.
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SCHEDULE IV
PROJECT DESCRIPTION 4
The Project is the Englewood One Water Modernization Program – Water Utility System Project,
which consists of a combination of sub-projects for the modernization of drinking water treatment
and conveyance systems, the replacement of outdated electrical and control systems, the
replacement of lead pipe, the modernization of metering processes, and the initiation of a water
reuse program, located in or nearby Englewood, Colorado.
The Project includes the following components:
• Allen Water Treatment Plant Reliability Improvements and Process
Modernization: replacement of aging infrastructure, addition/improvement of chemical
redundancy, installation of new facilities to address water aesthetics (including a new water
softening system and improved raw water delivery systems), and incorporation of safety
improvements.
• Pump Station Efficiency, Safety, and Controls Improvement: improvements at four
remote pumping facilities to address aging assets, performance, operations efficiency, and
safety issues.
• Electrical, Controls, and Instrumentation Modernization: replacement of aging parts
of electrical supply and control systems and installation of remote monitoring and valve
actuation.
• Lead Service Line Replacement: improvements for compliance with regulatory
requirements, including improvements of sampling and notification, preparation of
inventory, and replacement of lead service lines.
• Metering Modernization: conversion of the Borrower’s remaining flat rate, non-metered
water services to meter services and replacement of certain commercial meters.
• Raw Water Augmentation: planning and evaluation of indirect potable water reuse,
including assessing alternatives and options, reviewing water rights, identifying
constructability restraints, reviewing environmental impact, evaluating permitting
requirements, developing public outreach plan, and developing an implementation plan and
schedule.
• Utilities Operations Complex: construction of a new building within the existing Utilities
Operations Center and related works to address space limitations.
4 To be confirmed by WIFIA Engineer and Borrower.
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Schedule 12(f)-1
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SCHEDULE 12(f)
LITIGATION 5
No. Parties Date Initiated Description Venue
5 To be completed by Borrower.
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Schedule 12(n)-1
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SCHEDULE 12(n)
EXISTING CONSTRUCTION CONTRACTS 6
Existing Construction Contracts
Contract Date Parties Description
6 To be completed by Borrower.
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Schedule 12(p)-1
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SCHEDULE 12(p)
ENVIRONMENTAL MATTERS 7
[To be provided by Borrower]
7 Delete if not applicable.
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EXHIBIT A
FORM OF WIFIA BOND
CITY OF ENGLEWOOD
ENGLEWOOD ONE WATER MODERNIZATION PROGRAM – WATER UTILITY
SYSTEM PROJECT
(WIFIA ID – 20113CO)
WIFIA BOND
Maximum Principal Amount: $[38,416,490]
(excluding the maximum amount of capitalized interest that has been authorized)
Effective Date: [_____] [__], 2021 Due: August 1, 2062
CITY OF ENGLEWOOD, a municipal corporation duly organized and operating as a
home rule city under Article XX of the Constitution of the State of Colorado, acting by and through
its Water Utility Enterprise (the “Borrower”), for value received, hereby promises to pay to the
order of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, acting by
and through the Administrator of the United States Environmental Protection Agency, or its
assigns (the “WIFIA Lender”), the lesser of (x) the Maximum Principal Amount set forth above
and (y) the aggregate unpaid principal amount of all disbursements (the “Disbursements”) made
by the WIFIA Lender (such lesser amount, together with any interest that is capitalized and added
to principal in accordance with the provisions of the WIFIA Loan Agreement (as defined below)
(such capitalized interest amount not to exceed $8,083,510), being hereinafter referred to as the
“Outstanding Principal Sum”), together with accrued and unpaid interest (including, if
applicable, interest at the Default Rate, as defined in the WIFIA Loan Agreement) on the
Outstanding Principal Sum and all fees, costs and other amounts payable in connection therewith,
all as more fully described in the WIFIA Loan Agreement. The principal hereof shall be payable
in the manner and at the place provided in the WIFIA Loan Agreement in accordance with Exhibit
F (WIFIA Debt Service) to the WIFIA Loan Agreement, as revised from time to time in accordance
with the WIFIA Loan Agreement, until paid in full (which Exhibit F, as modified from time to
time in accordance with the terms of the WIFIA Loan Agreement, is incorporated in and is a part
of this WIFIA Bond). The WIFIA Lender is hereby authorized to modify the Loan Amortization
Schedule included in Exhibit F to the WIFIA Loan Agreement from time to time in accordance
with the terms of the WIFIA Loan Agreement to reflect the amount of each disbursement made
thereunder and the date and amount of principal or interest paid by the Borrower thereunder.
Absent manifest error, the WIFIA Lender’s determination of such matters as set forth on Exhibit
F to the WIFIA Loan Agreement shall be conclusive evidence thereof; provided, however, that
neither the failure to make any such recordation nor any error in such recordation shall affect in
any manner the Borrower’s obligations hereunder or under any other WIFIA Loan Document.
This WIFIA Bond is a Parity Lien Obligation (as such term is defined in the WIFIA Loan
Agreement), and the Borrower has pledged, assigned and granted to the WIFIA Lender for its
benefit, liens on the Pledged Property (as such term is defined in the WIFIA Loan Agreement)
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pursuant to the WIFIA Ordinance (as such term is defined in the WIFIA Loan Agreement). This
WIFIA Bond is secured by the liens on the Pledged Property on parity with the Parity Lien
Obligations and senior to all other Obligations (as such term is defined in the WIFIA Loan
Agreement).
Payments of WIFIA Debt Service (as such term is defined in the WIFIA Loan Agreement)
hereon are to be made in accordance with Section 8(d) (Payment of Principal and Interest –
Manner of Payment) and Section 31 (Notices) of the WIFIA Loan Agreement as the same become
due. Principal of and interest on this WIFIA Bond shall be paid in immediately available funds
on or before the due date and in any lawful coin or currency of the United States of America that
at the date of payment is legal tender for the payment of public and private debts.
This WIFIA Bond has been executed under and pursuant to that certain WIFIA Loan
Agreement, dated as of the date hereof, between the WIFIA Lender and the Borrower (the “WIFIA
Loan Agreement”) and is issued to evidence the obligation of the Borrower under the WIFIA
Loan Agreement to repay the loan made by the WIFIA Lender and any other payments of any kind
required to be paid by the Borrower under the WIFIA Loan Agreement or the other WIFIA Loan
Documents referred to therein. Reference is made to the WIFIA Loan Agreement for all details
relating to the Borrower’s obligations hereunder. All capitalized terms used in this WIFIA Bond
and not defined herein shall have the meanings set forth in the WIFIA Loan Agreement.
This WIFIA Bond may be prepaid at the option of the Borrower (i) in full on any date or
(ii) in part on any Payment Date (and, if in part, the principal installments and amounts thereof to
be prepaid are to be determined in accordance with the WIFIA Loan Agreement; provided, that
such prepayments shall be in principal amounts of at least $1,000,000 or any integral multiple of
$1.00 in excess thereof), in each case from time to time on a Payment Date, but not more than once
annually, in accordance with 33 U.S.C. § 3908(c)(4)(A), without penalty or premium, by paying
to the WIFIA Lender such principal amount of the WIFIA Bond in accordance with the WIFIA
Loan Agreement.
Any delay on the part of the WIFIA Lender in exercising any right hereunder shall not
operate as a waiver of any such right, and any waiver granted with respect to one default shall not
operate as a waiver in the event of any subsequent default.
All acts, conditions and things required by the Constitution and laws of the State to happen,
exist, and be performed precedent to and in the issuance of this WIFIA Bond have happened, exist
and have been performed as so required. This WIFIA Bond is issued with the intent that the federal
laws of the United States of America shall govern its construction to the extent such federal laws
are applicable and the internal laws of the State shall govern its construction to the extent such
federal laws are not applicable.
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IN WITNESS WHEREOF, CITY OF ENGLEWOOD has caused this WIFIA Bond to be
executed in its name and its seal to be affixed hereto and attested by its duly authorized officer, all
as of the Effective Date set forth above.
(SEAL)
CITY OF ENGLEWOOD,
by its authorized representative
By ______________________________
Name:____________________________
Title:_____________________________
ATTEST:
_________________________
Secretary
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(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the Undersigned hereby unconditionally sells, assigns
and transfers unto
(Please Insert Social Security or other identifying number of Assignee(s)):
the within note and all rights thereunder.
Dated: ________________
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within note in every
particular, without alteration or enlargement or
any change whatever.
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EXHIBIT B
ANTICIPATED WIFIA LOAN DISBURSEMENT SCHEDULE8
Federal Fiscal Year Amount
$
8 WIFIA Underwriting to work with Borrower to provide.
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EXHIBIT C
FORM OF NON-DEBARMENT CERTIFICATE
The undersigned, on behalf of CITY OF ENGLEWOOD, hereby certifies that CITY OF
ENGLEWOOD has fully complied with its verification obligations under 2 C.F.R. § 180.320 and
hereby further confirms, based on such verification, that, to its knowledge, the Borrower and its
principals (as defined in 2 C.F.R. § 180.995 and supplemented by 2 C.F.R. 1532.995):
(a) Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded by any federal department or agency;
(b) Have not within a three (3) year period preceding the Effective Date been convicted
of or had a civil judgment rendered against them for commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or performing a public (federal, state or local)
transaction or contract under a public transaction; violation of federal or state antitrust statutes or
commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a
governmental entity (federal, state or local) with commission of any of the offenses enumerated in
paragraph (b) of this certification; and
(d) Have not within a three (3) year period preceding the Effective Date had one or
more public transactions (federal, state or local) terminated for cause or default.
Dated: _________________
CITY OF ENGLEWOOD,
by its authorized representative
By: _______________________________________
Name:
Title:
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EXHIBIT D-1
REQUISITION PROCEDURES
This Exhibit D-1 sets out the procedures which the Borrower agrees to follow in
submitting Requisitions for any disbursement of the WIFIA Loan. The Borrower expressly agrees
to the terms hereof, and further agrees that (i) the rights of the WIFIA Lender contained herein are
in addition to (and not in lieu of) any other rights or remedies available to the WIFIA Lender under
the WIFIA Loan Agreement, and (ii) nothing contained herein shall be construed to limit the rights
of the WIFIA Lender to take actions including administrative enforcement action and actions for
breach of contract against the Borrower if it fails to carry out its obligations under the WIFIA Loan
Agreement during the term thereof.
PART A. General Requirements.
(a) Manner of Request: All requests by the Borrower for a Disbursement shall be made
in writing by electronic submission to the WIFIA Lender, in accordance with Section 31 (Notices)
of the WIFIA Loan Agreement.
(b) Required Documentation: Any request by the Borrower should include the
submission of:
(i) a Requisition, in the form attached as Appendix One to this Exhibit D-1
(Form of Requisition), completed and executed by the Borrower’s Authorized Representative, and
otherwise in form and substance satisfactory to the WIFIA Lender; and
(ii) all Eligible Project Costs Documentation that has not otherwise been
provided to the WIFIA Lender in accordance with Section 16 (Reporting Requirements) of the
WIFIA Loan Agreement.
(c) Timing: Any request for a Disbursement must be received by the WIFIA Lender
and the Servicer (if any) at or before 5:00 P.M. (Eastern Time) on either:
(i) the first (1st) Business Day of a calendar month in order to obtain the
requested Disbursement by the fifteenth (15th) day of such calendar month;
(ii) the fifteenth (15th) day of a calendar month, in order to obtain the requested
Disbursement by the first (1st) day of the immediately following calendar month;
provided, that, (x) if any such day is not a Business Day, the Disbursement request
or payment (as the case may be) shall be made by the next succeeding Business Day; (y) the
Borrower shall not request to receive more than one (1) Disbursement per month or every thirty
(30) days (whichever is longer); and (z) no Disbursements shall be made after the Final
Disbursement Date.
PART B. WIFIA Lender Review Process.
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(a) The WIFIA Lender shall review the Requisition and the Eligible Project Costs
Documentation for compliance with WIFIA Disbursement requirements.
(b) If a Requisition is approved by the WIFIA Lender, the WIFIA Lender will notify
the Borrower of such approval and of the amount so approved. A Requisition containing an
apparent mathematical error will be corrected by the WIFIA Lender, after telephonic or email
notification to the Borrower, and will thereafter be treated as if submitted in the corrected amount.
If the amount requested for Disbursement in the Requisition exceeds the available balance of the
WIFIA Loan proceeds remaining to be disbursed, the Disbursement request will be treated as if
submitted in the amount of the balance so remaining, and the WIFIA Lender will so notify the
Borrower.
(c) The WIFIA Lender shall be entitled to withhold approval (in whole or in part) of
any pending or subsequent requests for the Disbursement of WIFIA Loan proceeds if: (i) a Default
or an Event of Default shall have occurred and be continuing or (ii) the Borrower (1) knowingly
takes any action, or omits to take any action, amounting to fraud or violation of any applicable
law, in connection with the transactions contemplated hereby; (2) prevents or materially impairs
the ability of the WIFIA Lender to monitor compliance by the Borrower with applicable law
pertaining to the Project or with the terms and conditions of the WIFIA Loan Agreement; (3) fails
to observe or comply with any applicable law, or any term or condition of the WIFIA Loan
Agreement; (4) fails to satisfy the conditions set forth in Section 4 (Disbursement Conditions) and
Section 11(b) (Conditions Precedent to Disbursements) of the WIFIA Loan Agreement; or (5) fails
to deliver Eligible Project Costs Documentation satisfactory to the WIFIA Lender at the times and
in the manner specified by the WIFIA Loan Agreement; provided, that in such case of sub-clause
(5) above, the WIFIA Lender may, in its sole discretion, partially approve a Requisition in respect
of any amounts for which adequate Eligible Project Costs Documentation has been provided and
may, in its sole discretion, disburse in respect of such properly documented amounts. The WIFIA
Lender will notify the Borrower of any withholding, and the reasons therefor.
(d) A Requisition may be rejected in whole or in part by the WIFIA Lender if it is: (i)
submitted without signature; (ii) submitted under signature of a Person other than a Borrower’s
Authorized Representative; (iii) submitted after prior Disbursement of all proceeds of the WIFIA
Loan; or (iv) submitted without adequate Eligible Project Costs Documentation. The WIFIA
Lender will notify the Borrower of any Requisition so rejected, and the reasons therefor. Any
Requisition rejected for the reasons specified under this paragraph (d) must be resubmitted in
proper form in order to be considered for approval.
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APPENDIX 1
FORM OF REQUISITION
United States Environmental Protection Agency 9
1200 Pennsylvania Avenue NW
WJC-W 6201A
Washington, D.C. 20460
Attention: WIFIA Director
Re: Englewood One Water Modernization Program – Water Utility System Project (WIFIA ID – 20113CO)
Ladies and Gentlemen:
Pursuant to Section 4 (Disbursement Conditions) of the WIFIA Loan Agreement, dated as of [_____] [__], 2022 (the “WIFIA Loan
Agreement”), by and between CITY OF ENGLEWOOD (the “Borrower”) and the UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and through the Administrator (the “WIFIA Lender”), the Borrower hereby requests disbursement
in the amount set forth below in respect of Eligible Project Costs paid or incurred by the Borrower. Capitalized terms used but not
defined herein have the meaning set forth in the WIFIA Loan Agreement.
In connection with this Requisition the undersigned, as the Borrower’s Authorized Representative, hereby represents and certifies the
following:
1. Project name Englewood One Water Modernization
Program – Water Utility System Project
2. Borrower name City of Englewood
3. WIFIA reference number WIFIA ID – 20113CO
4. Requisition number [___]
5. Requested disbursement amount $[___]
9 If there is a Servicer for the WIFIA Loan, provide a copy to the Servicer as well and include its notice details here.
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6. Requested disbursement date
(the “Disbursement Date”)
[___]
7. Total amounts previously disbursed
under the WIFIA Loan Agreement
$[___]
8. Wire instructions [___]
9. The amounts hereby requisitioned have been paid or incurred and approved for payment by or on behalf of the Borrower for
Eligible Project Costs and have not been paid for or reimbursed by any previous disbursement from WIFIA Loan proceeds. No
portion of the amounts requisitioned will be applied to pay for Eligible Project Costs that have been previously paid, or are
expected to be paid, with proceeds of debt of the Borrower that is not the WIFIA Loan (“Other Debt”)[.][, except as set forth
below:
Source of Other Debt Amount of Other Debt
[___] $[___]
Total Amount of Other Debt $[___]
The portion of the amount requisitioned equal to the total amount of the Other Debt set forth above will be promptly applied by
the Borrower to either (i) discharge a like principal amount of such Other Debt or (ii) reimburse the applicable fund or account
from which the proceeds of such Other Debt were spent.]10
10. The aggregate amount of all disbursements of the WIFIA Loan (including the amount requested under this Requisition but
excluding any interest that is capitalized in accordance with the WIFIA Loan Agreement) does not exceed (a) the amount of the
WIFIA Loan, (b) the amount of Eligible Project Costs paid or incurred by the Borrower, and (c) the cumulative disbursements
through the end of the current Federal Fiscal Year as set forth in the Anticipated WIFIA Loan Disbursement Schedule.
10 This paragraph should be included when the Eligible Project Costs for which the proceeds of the requisition are to be applied were previously funded with bond
anticipation notes or other short-term interim financing by the Borrower on a temporary basis with the intent of redeeming the bond anticipation notes or other
obligations with proceeds of the WIFIA Loan as permanent financing, or reimbursing the applicable funds of the other obligations such that they become available
for payment of other Project costs.
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11. The Borrower has sufficient available funds committed to the Project, which together with funds that remain available and not
yet drawn under the WIFIA Loan, will be sufficient to pay the reasonably anticipated remaining Total Project Costs.
12. The total federal assistance provided to the Project, including the maximum principal amount of the WIFIA Loan (excluding any
interest that is capitalized in accordance with the terms hereof), does not exceed eighty percent (80%) of Total Project Costs.
13. The Borrower has all Governmental Approvals necessary as of the date hereof and as of the Disbursement Date (immediately
after giving effect to the above-requested disbursement of WIFIA Loan proceeds), for the development, construction, operation
and maintenance of the Project and each such Governmental Approval has been issued and is in full force and effect (and is not
subject to any notice of violation, breach or revocation).
14. Each of the insurance policies obtained by the Borrower in satisfaction of Section 14(f) (Affirmative Covenants – Insurance) of
the WIFIA Loan Agreement is in full force and effect, and no notice of termination thereof has been issued by the applicable
insurance provider.
15. As of the date hereof and on the Disbursement Date (immediately after giving effect to the above-requested disbursement of
WIFIA Loan proceeds), (i) no Default or Event of Default, (ii) no event of default under any other Related Document and no
event that, with the giving of notice or the passage of time or both, would constitute an event of default under any Related
Document, in each case, has occurred and is continuing, and (iii )no Material Adverse Effect, or any event or condition that could
reasonably be expected to have a Material Adverse Effect, has occurred or arisen since the Effective Date.
16. (1) The Borrower, and each of its contractors and subcontractors at all tiers with respect to the Project, has complied with all
applicable laws, rules, regulations and requirements, including without limitation 40 U.S.C. §§ 3141–3144, 3146, and 3147
(relating to Davis-Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C. § 3914 (relating to American iron
and steel products), and (2) supporting documentation, such as certified payroll records and certifications for all iron and steel
products used for the Project, are being maintained and are available for review upon request by the WIFIA Lender.
17. The representations and warranties of the Borrower set forth in the WIFIA Loan Agreement and in each other Related Document
are true and correct as of the date hereof and as of the Disbursement Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case, such representations and warranties shall be true and correct as of such earlier
date).
18. Each Parity Issuance Document that has been delivered by the Borrower to the WIFIA Lender pursuant to Section 11(b)
(Conditions Precedent – Conditions Precedent to Disbursements) is complete, fully executed and in full force and effect.
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19. The current estimated percentage of physical completion of the Project is [___]%. The Borrower is in compliance with Section
16(d) (Reporting Requirements – Construction Reporting) and no change has occurred since the date of the most recently
delivered quarterly construction progress report that could reasonably be expected to cause a Material Adverse Effect.11
20. All documentation evidencing the Eligible Project Costs to be reimbursed to the Borrower [or to be used to pay Eligible Project
Costs previously paid from proceeds of Other Debt] by the above-requested disbursement has been delivered by the Borrower
to the WIFIA Lender at the times and in the manner specified by the WIFIA Loan Agreement, including the details set forth [in
the attachment hereto, which is in form satisfactory to the WIFIA Lender][below:
WIFIA USE ONLY
Vendor or
Contractor
Name 12
Invoice
Number 13
Invoice Date Payment
Date
Invoice
Amount
WIFIA
Requested
Amount 14
Activity
Type 15
Description
of Activity 16
Approved
Amount
Notes
The undersigned acknowledges that if the Borrower makes a false, fictitious, or fraudulent claim, statement, submission, or certification
to the Government in connection with the Project, the Government reserves the right to impose on the Borrower the penalties of 18
U.S.C. § 1001, to the extent the Government deems appropriate.
11 The most recent quarterly progress report should set out a summary of the progress of construction of the Project, as well as a general description of the work
done for which the funds being requisitioned are being applied and a summary of any material changes/risks. If not, PM should request additional information
(including a risk register, if applicable), pursuant to Section 11(b)(vii) (Conditions Precedent – Conditions Precedent to Disbursement),
12 If seeking reimbursement for internal costs, enter “Internally financed activities.”
13 Vendor’s number indicated on the invoice sent to the Borrower.
14 If the amount requested for reimbursement by the WIFIA Lender is less than the total amount of the invoice, include an explanation for the difference.
15 Specify whether activity is: (a) Development phase activity, which includes planning, preliminary engineering, design, environmental review, revenue
forecasting and other pre-construction activities; (b) Construction, which includes construction, reconstruction, rehabilitation and replacement activities; (c)
Acquisition of real property, which includes acquiring an interest in real property, environmental mitigation, construction contingencies and acquisition of
equipment; (d) Carrying costs, including capitalized interest, as necessary to meet market requirements, reasonably required reserve funds, capital issuance
expenses and other carrying costs during construction; (e) WIFIA fees, including for application and credit processing; or (f) Other, with an explanation in
the ”Description of Activity” column.
16 Provide a brief description of the activities included in the invoice for which WIFIA funds are being requested and any other notes that will aid in the review of
the disbursement request.
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Date: _______________________ CITY OF ENGLEWOOD,
by its authorized representative
By: _______________________________
Name:
Title:___________________________
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EXHIBIT D-2
CERTIFICATION OF ELIGIBLE PROJECT COSTS DOCUMENTATION
[Date]
United States Environmental Protection Agency 17
1200 Pennsylvania Avenue NW
WJC-W 6201A
Washington, D.C. 20460
Attention: WIFIA Director
Re: Englewood One Water Modernization Program – Water Utility System Project (WIFIA ID – 20113CO)
Ladies and Gentlemen:
Pursuant to Section 4 (Disbursement Conditions) of the WIFIA Loan Agreement, dated as of [_____] [__], 2022 (the “WIFIA Loan
Agreement”), by and between CITY OF ENGLEWOOD (the “Borrower”) and the UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and through the Administrator (the “WIFIA Lender”), we hereby present this certificate in
connection with the Borrower’s delivery of Eligible Project Costs Documentation to the WIFIA Lender. Capitalized terms used but not
defined herein have the meaning set forth in the WIFIA Loan Agreement.
The undersigned does hereby represent and certify the following:
1. This certificate is being delivered to the WIFIA Lender in connection with the Eligible Project Costs Documentation and is
applicable to the period between [__________] and [__________].
2. Documentation evidencing the Eligible Project Costs to be reimbursed to the Borrower is set forth [in the attachment hereto,
which is in form satisfactory to the WIFIA Lender][below:
17 If there is a Servicer for the WIFIA Loan, provide a copy to the Servicer as well and include its notice details here.
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WIFIA USE ONLY
Vendor or Contractor
Name 18
Invoice
Number 19
Invoice Date Payment
Date
Invoice
Amount
Activity
Type 20
Description of
Activity 21
Approved Amount Notes
3. The sources of funding for such Eligible Project Costs are [listed below / set forth in Exhibit [__] to this certificate].
4. [The funds for which reimbursement will be sought were expended solely in connection with the payment or reimbursement of
Eligible Project Costs.]
Date: _______________________ CITY OF ENGLEWOOD 22
By: _______________________________
Name:
Title:___________________________
18 If seeking reimbursement for internal costs, enter “Internally financed activities.”
19 Vendor’s number indicated on the invoice sent to the Borrower.
20 Specify whether activity is: (a) Development phase activity, which includes planning, preliminary engineering, design, environmental review, revenue
forecasting and other pre-construction activities; (b) Construction, which includes construction, reconstruction, rehabilitation and replacement activities; (c)
Acquisition of real property, which includes acquiring an interest in real property, environmental mitigation, construction contingencies and acquisition of
equipment; (d) Carrying costs, including capitalized interest, as necessary to meet market requirements, reasonably required reserve funds, capital issuance
expenses and other carrying costs during construction; (e) WIFIA fees, including for application and credit processing; or (f) Other, with an explanation in
the ”Description of Activity” column.
21 Provide a brief description of the activities included in the invoice for which WIFIA funds are being requested and any other notes that will aid in the review of
the documentation.
22 To be executed by the Borrower’s Authorized Representative.
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EXHIBIT E
FORM OF NON-LOBBYING CERTIFICATE
The undersigned, on behalf of CITY OF ENGLEWOOD, hereby certifies, to the best of
his or her knowledge and belief, that:
(a) No Federal appropriated funds have been paid or will be paid, by or on behalf of
the Borrower, to any person for influencing or attempting to influence an officer or employee of
an agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the making of the WIFIA Loan and the amendment or
modification of the WIFIA Loan Agreement.
(b) If any funds other than proceeds of the WIFIA Loan have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with the WIFIA Loan, the Borrower shall complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(c) The Borrower shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
Capitalized terms used in the certificate and not defined shall have the respective meanings
ascribed to such terms in the WIFIA Loan Agreement, dated as of [_____] [__], 2022 (the “WIFIA
Loan Agreement”), by and between the United States Environmental Protection Agency, acting
by and through the Administrator (the “WIFIA Lender”), and the Borrower, as the same may be
amended from time to time.
This certification is a material representation of fact upon which reliance was placed when the
WIFIA Lender entered into the WIFIA Loan Agreement. Submission of this certification is a
prerequisite to the effectiveness of the WIFIA Loan Agreement imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such failure.
Dated: _________________
CITY OF ENGLEWOOD,
by its authorized representative
By: _______________________________________
Name:
Title:
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EXHIBIT F
WIFIA DEBT SERVICE 23
23 WIFIA Underwriting to work with Borrower to provide an initial amortization schedule. This will need to be
finalized on the day of closing to account for the final interest rate.
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EXHIBIT G-1
OPINIONS REQUIRED FROM COUNSEL TO BORROWER
An opinion of the counsel of the Borrower, dated as of the Effective Date, to the effect that:
(a) the Borrower is a municipal corporation duly organized and operating as a home rule
city under Article XX of the Constitution of the State of Colorado and the Charter of the City of
Englewood;
(b) the Borrower has all requisite power and authority to conduct its business and to execute
and deliver, and to perform its obligations under the Related Documents to which it is a party;
(c) the execution and delivery by the Borrower of, and the performance of its respective
obligations under, the Related Documents to which it is a party, have been duly authorized by all
necessary organizational or regulatory action;
(d) the Borrower has duly executed and delivered each Related Document to which it is a
party and each such Related Document constitutes the legal, valid and binding obligation of such
party; enforceable against such party in accordance with their respective terms;
(e) no authorization, consent, or other approval of, or registration, declaration or other filing
with any Governmental Authority of the United States of America or of the State is required on
the part of the Borrower for the execution and delivery by such party of, and the performance of
such party under, any Related Document to which it is a party other than authorizations, consents,
approvals, registrations, declarations and filings that have already been timely obtained or made
by the Borrower;
(f) the execution and delivery by the Borrower of, and compliance with the provisions of,
the Related Documents to which it is a party in each case do not (i) violate the Organizational
Documents of the Borrower, (ii) violate the law of the United States of America or of the State or
(iii) conflict with or constitute a breach of or default under any material agreement or other
instrument known to such counsel to which the Borrower is a party, or to the best of such counsel’s
knowledge, after reasonable review, any court order, consent decree, statute, rule, regulation or
any other law to which the Borrower is subject;
(g) the Borrower is not an investment company required to register under the Investment
Company Act of 1940, as amended; and
(h) to our knowledge after due inquiry, there are no actions, suits, proceedings or
investigations against the Borrower by or before any court, arbitrator or any other Governmental
Authority in connection with the Related Documents or the Project that are pending.24
24 Other opinions to be added as appropriate for the specific project or transaction.
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EXHIBIT G-2
OPINIONS REQUIRED FROM BOND COUNSEL
An opinion of bond counsel, dated as of the Effective Date, to the effect that:
(a) The Borrower is a municipal corporation duly organized and operating as a home rule
city under Article XX of the Constitution of the State of Colorado and the Charter of the City of
Englewood (the “Borrower Act”), with good right and power to issue the WIFIA Bond.
(b) The Borrower has the right and power under the laws of the State, including the
Borrower Act, to enter into the WIFIA Ordinance, the Related Documents and the WIFIA Bond,
and each has been duly authorized, executed and delivered by the Borrower, is in full force and
effect, and constitutes a legal, valid and binding agreement of the Borrower enforceable against
the Borrower in accordance with its respective terms and conditions.
(c) the WIFIA Bond is (i) secured by Liens on the Pledged Property pursuant to the WIFIA
Ordinance, (ii) enforceable under the laws of the State without any further action by the Borrower
or any other Person, and (iii) ranks pari passu in right of payment and right of security with all
Parity Lien Obligations and is senior in right of payment and right of security to all Subordinate
Lien Obligations;
(d) the WIFIA Ordinance authorizes the execution and delivery of the WIFIA Loan
Agreement, authorizes the issuance of the WIFIA Bond, irrespective of whether any party has
notice of the pledge and without the need for any physical delivery, recordation, filing or further
act, and pledges the Pledged Property for the benefit of the WIFIA Loan and all other Parity Lien
Obligations;
(e) all actions by the Borrower that are required for the application of Gross Revenues as
required under the WIFIA Ordinance and under the WIFIA Loan Agreement have been duly and
lawfully made; and
(f) the Borrower has complied with the requirements of State law to lawfully pledge the
Pledged Property and use the Gross Revenues as required by the terms of the WIFIA Ordinance
and the WIFIA Loan Agreement.
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EXHIBIT H
FORM OF CLOSING CERTIFICATE
Reference is made to that certain WIFIA Loan Agreement, dated as of [_____] [__], 2022
(the “WIFIA Loan Agreement”), by and among City of Englewood (the “Borrower”) and the
United States Environmental Protection Agency, acting by and through the Administrator (the
“WIFIA Lender”). Capitalized terms used in this certificate and not defined shall have the
respective meanings ascribed to such terms in the WIFIA Loan Agreement.
In connection with Section 11(a) (Conditions Precedent – Conditions Precedent to Effectiveness)
of the WIFIA Loan Agreement, the undersigned, [___], as Borrower’s Authorized Representative,
does hereby certify on behalf of the Borrower and not in his/her personal capacity, as of the date
hereof:
(a) pursuant to Section 11(a)(viii), attached hereto as Annex A is an incumbency
certificate that lists all persons, together with their positions and specimen
signatures, who are duly authorized by the Borrower to execute the Related
Documents to which the Borrower is or will be a party, and who have been
appointed as a Borrower’s Authorized Representative in accordance with Section
21 (Borrower’s Authorized Representative) of the WIFIA Loan Agreement;
(b) pursuant to Section 11(a)(iii), the Borrower has delivered to the WIFIA Lender
copies of each Existing Construction Contract, together with any amendments,
waivers or modifications thereto, and each such document is complete, fully
executed, and in full force and effect;
(c) pursuant to Section 11(a)(iv), the Borrower has delivered to the WIFIA Lender a
copy of the Borrower’s Organizational Documents, as in effect on the Effective
Date (and certified by the Secretary of State of the State, to the extent applicable),
which Organizational Documents are in full force and effect. Other than the WIFIA
Ordinance, there are no additional instruments or documents necessary for the
Borrower to execute and deliver, or to perform its obligations under, the WIFIA
Loan Documents to which it is a party and to consummate and implement the
transactions contemplated by the WIFIA Loan Documents;
(d) pursuant to Section 11(a)(viii)(1), the aggregate of all funds committed to the
development and construction of the Project as set forth in the Base Case Financial
Model and in the Project Budget are sufficient to carry out the Project, pay all Total
Project Costs anticipated for the Project and achieve Substantial Completion by the
Projected Substantial Completion Date;
(e) pursuant to Section 11(a)(viii)(2), the Borrower has obtained all Governmental
Approvals necessary (i) as of the Effective Date in connection with the Project and
(ii) to execute and deliver, and perform its obligations under the WIFIA Loan
Documents, and each such Governmental Approval is final, non-appealable and in
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full force and effect (and is not subject to any notice of violation, breach or
revocation);
(f) pursuant to Section 11(a)(viii)(3), (i) the maximum principal amount of the WIFIA
Loan (excluding any interest that is capitalized in accordance with the terms
hereof), together with the amount of any other credit assistance provided under the
Act to the Borrower, does not exceed forty-nine percent (49%) of reasonably
anticipated Eligible Project Costs and (ii) the total federal assistance provided to
the Project, including the maximum principal amount of the WIFIA Loan
(excluding any interest that is capitalized in accordance with the terms hereof), does
not exceed eighty percent (80%) of Total Project Costs;
(g) pursuant to Section 11(a)(viii)(4), the Borrower is in compliance with NEPA and
any applicable federal, state or local environmental review and approval
requirements with respect to the Project, and, if requested by the WIFIA Lender,
has provided evidence satisfactory to the WIFIA Lender of such compliance;
(h) pursuant to Section 11(a)(viii)(5), the Borrower has developed, and identified
adequate Gross Revenues to implement, a plan for operating, maintaining and
repairing the Project during its useful life;
(i) pursuant to Section 11(a)(viii)(6), (i) the Borrower’s Federal Employer
Identification Number is 84-6000583 (as evidenced by a signed W-9), (ii) the
Borrower’s Data Universal Numbering System number is 075750133, and (iii) the
Borrower has registered with, and obtained confirmation of active registration
status from, the federal System for Award Management (www.SAM.gov), which
confirmation is attached hereto as Annex B;
(j) pursuant to Section 11(a)(viii)(7), the CUSIP number for the WIFIA Loan is [___];
(k) pursuant to Section 11(a)(viii)(8), the representations and warranties of the
Borrower set forth in the WIFIA Loan Agreement and in each other Related
Document to which the Borrower is a party are true and correct on and as of the
date hereof, except to the extent that such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties were true
and correct as of such earlier date;
(l) pursuant to Section 11(a)(viii)(9), no Material Adverse Effect, or any event or
condition that could reasonably be expected to have a Material Adverse Effect, has
occurred or arisen since September 22, 2021;
(m) pursuant to Section 11(a)(ix), no rating letter relating to the Parity Lien Obligations
then Outstanding and any Parity Lien Obligations proposed to be issued for the
Project (including the WIFIA Loan) delivered to the WIFIA Lender pursuant to
such Section 11(a)(ix) has been reduced, withdrawn or suspended as of the
Effective Date; and
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(n) pursuant to Section 11(a)(x), the Borrower has delivered to the WIFIA Lender the
Base Case Financial Model, which (i) demonstrates that projected Gross Revenues
are sufficient to meet the Loan Amortization Schedule, (ii) demonstrates
compliance with the Rate Covenant for each Borrower Fiscal Year through the
Final Maturity Date, (iii) reflects principal amortization and interest payment
schedules acceptable to the WIFIA Lender, (iv) demonstrates that the Borrower has
developed, and identified adequate revenues to implement, a plan for operating,
maintaining and repairing the Project over its useful life, and (v) otherwise meets
the requirements of such Section 11(a)(x).
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first
mentioned above.
CITY OF ENGLEWOOD,
by its authorized representative
By: _______________________________
Name:
Title:
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ANNEX A TO EXHIBIT H
INCUMBENCY CERTIFICATE
The undersigned certifies that he/she is the [Secretary] of City of Englewood a municipal
corporation (the “Borrower”), and as such he/she is authorized to execute this certificate and
further certifies that the following persons have been elected or appointed, are qualified, and are
now acting as officers or authorized persons of the Borrower in the capacity or capacities indicated
below, and that the signatures set forth opposite their respective names are their true and genuine
signatures. He/She further certifies that any of the officers listed below is authorized to sign
agreements and give written instructions with regard to any matters pertaining to the WIFIA Loan
Documents as the Borrower’s Authorized Representative (each as defined in that certain WIFIA
Loan Agreement, dated as of the date hereof, between the Borrower and the United States
Environmental Protection Agency, acting by and through the Administrator):
Name Title Signature
[_______________] [___________________] ________________________
[_______________] [___________________] ________________________
[_______________] [___________________] ________________________
[_______________] [___________________] ________________________
[_______________] [___________________] ________________________
IN WITNESS WHEREOF, the undersigned has executed this certificate as of this _____
day of [___], 20[__].
CITY OF ENGLEWOOD,
by its authorized representative
By: _______________________________
Name:
Title:
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EXHIBIT I
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
[Letterhead of Borrower]
[Date]
WIFIA Program Office
[Insert Proper Address]
Attention: Administrator
Project: Englewood One Water Modernization Program – Water Utility System Project (WIFIA
ID – 20113CO)
Dear Director:
This Notice is provided pursuant to Section 16(a)(i)(A) (Affirmative Covenants – Notice –
Substantial Completion) of that certain WIFIA Loan Agreement (the “WIFIA Loan
Agreement”), dated as of [_____] [__], 2022, by and between City of Englewood (the
“Borrower”) and the United States Environmental Protection Agency, acting by and through its
Administrator (the “WIFIA Lender”).
Unless otherwise defined herein, all capitalized terms in this Notice have the meanings assigned
to those terms in the WIFIA Loan Agreement.
I, the undersigned, in my capacity as the Borrower’s Authorized Representative and not in my
individual capacity, do hereby certify to the WIFIA Lender that:
(a) on [insert date Substantial Completion requirements were satisfied], the Project satisfied
each of the requirements for Substantial Completion set forth in the [Insert reference to the
concession agreement, design-build or similar agreement for the Project];
(b) Substantial Completion has been declared under each of the above-referenced agreements
and copies of the notices of Substantial Completion under such agreements are attached to
this certification; and
(c) Substantial Completion, as defined in the WIFIA Loan Agreement, has been achieved.
CITY OF ENGLEWOOD,
by its authorized representative
By: _______________________________
Name:
Title:
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EXHIBIT J
FORM OF QUARTERLY REPORT
United States Environmental Protection Agency
WIFIA Director
WJC-W 6201A
1200 Pennsylvania Avenue NW
Washington, DC 20460
WIFIA_Portfolio@epa.gov
Re: Englewood One Water Modernization Program – Water Utility System Project (WIFIA ID –
20113CO)
This Quarterly Report for the period of [insert relevant quarterly period] is provided pursuant to
Section 16(d) (Reporting Requirements – Construction Reporting) of the WIFIA Loan Agreement,
dated as of [_____] [__], 2022 (the “WIFIA Loan Agreement”), by and between the City of
Englewood (the “Borrower”) and the United States Environmental Protection Agency, acting by
and through the Administrator of the Environmental Protection Agency (the “WIFIA Lender”).
Unless otherwise defined herein, all capitalized terms in this Quarterly Report have the meanings
assigned to those terms in the WIFIA Loan Agreement.
(i) Project Status. Provide a narrative summary of the Project’s construction progress
since the last quarterly reporting period, including project components where
appropriate. Complete the table in Appendix A to update the Project scope, schedule,
and costs with the latest information.
Current projection of Substantial Completion Date: _____________________________
If the current projection for the substantial completion date is later than previously reported in the
prior Quarterly Report, provide a description in reasonable detail for such projected delay:
(ii) Material Problems (if any)
Note any problems encountered or anticipated during the construction of the Project during the
preceding quarter that (1) impedes project completion within the scope, costs, and schedule
outlined in the WIFIA Loan Agreement or (2) relates to unforeseen complications in connection
with the construction of the Project. This may include commissioning/start-up issues,
constructability issues for the project as planned, adverse impacts to project surroundings, change
in or issues with meeting environmental compliance requirements, and unanticipated or abnormal
permit approval timelines. Include an assessment of the impact and any current plans to address
the problems.
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(iii) Other matters related to the Project
Date: _______________________ CITY OF ENGLEWOOD,
by its authorized representative or agent
By: _______________________________
Name: _____________________________
Title:_______________________________
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APPENDIX A OF SCHEDULE J 25
Project Scope Project Schedule Project Costs
Project
Component
Completed
(Y/N)
Contract/
Vendor
Bid
Advertisem
ent Date
Contract
Award Date
NTP
Effective
Date
Original
Substantial
Completion
Date
Estimated
Substantial
Completion
Date
Original
Contract
Amount
Estimated
Costs to
Complete
Costs
Earned or
Paid to
Date
Total
Table Definitions:
Project Component – project name or ID as tracked by the borrower
Complete (Y/N) – indication that project is complete, and no additional updates will be provided
Contract/Vendor – the contract identifier and contractor that is/will be completing the project construction.
Bid Advertisement Date – the date the bid was advertised
Contract Award date – the date the contract was awarded
NTP Effective date – the effective date to proceed with the construction in the Notice to Proceed
Original Substantial Completion Date – the substantial completion date for the given project as noted in the original contract award
Estimated Substantial Completion Date – the latest date estimate for substantial completion for the given project component
Original Contract Amount – the original contract award amount
Estimated Costs to Complete – the latest cost estimates to complete the given project component
Costs Earned or Paid to Date – the latest incurred contract costs for the given project component
Total – Total the cost amounts across all project components and contracts
25 Appendix A summarizes all project components that will be bid in the next quarter, are currently under construction, or have completed construction. It should be
a cumulative list of projects that is updated each quarter. A Microsoft Excel spreadsheet with similar table format is acceptable.
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EXHIBIT K
FORM OF PUBLIC BENEFITS REPORT
Pursuant to Section 11(a)(xi) and Section 16(e) of the WIFIA Loan Agreement, the City of
Englewood (the “Borrower”) is providing this Public Benefits Report in connection with the
Englewood One Water Modernization Program – Water Utility System Project (WIFIA ID –
20113CO). Capitalized terms used in this certificate and not defined shall have the respective
meanings ascribed to such terms in the WIFIA Loan Agreement dated as of the date hereof (the
“WIFIA Loan Agreement”), between the Borrower and the United States Environmental
Protection Agency, acting by and through the Administrator.
Reporting Period: [Prior to the Effective Date][within ninety (90) days following the Substantial
Completion Date][within ninety (90) following the fifth (5th) anniversary of the Substantial
Completion Date]
(i) The number of total jobs and direct jobs projected to be created by the Project during
the period between the Effective Date and the Substantial Completion Date:
WIFIA projects that the Project will create [__] total jobs, of which the Borrower projects
[__] will be direct jobs.
(ii) Indicate (yes or no) whether the Project will assist the Borrower in complying with
applicable regulatory requirements, and if yes, describe how the project assists with
regulatory compliance:
Yes ☐
If yes, additional description: [___]
No ☐
(iii) The Project will assist the Borrower with the following environmental measure:26
[___].
26 NTD: WIFIA Engineering to provide type of measure required.
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