2017-R-45 - PACE Agreement PackageRESOLUTION 2017-R- 45
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF EDGEWATER, FLORIDA, EXPRESSING THE CITY'S
SUPPORT AND INTENTION TO CREATE WITHIN ITS
BOUNDARIES, A PROPERTY ASSESSED CLEAN
ENERGY (PACE) PROGRAM" A VOLUNTARY
PROGRAM PROVIDING INTERESTED PROPERTY
OWNERS WITH THE OPPORTUNITY TO FINANCE
ENERGY EFFICIENCY, RENEWABLE ENERGY AND
WIND RESISTANCE IMPROVEMENTS ON THEIR
PROPERTY BY REPAYMENT THROUGH NON -AD
VALOREM ASSESSMENTS ON THEIR PROPERTY TAX
BILL; AUTHORIZING THE MAYOR OF EDGEWATER
TO EXECUTE NONEXCLUSIVE INTERLOCAL
AGREEMENTS WITH THE FLORIDA GREEN FINANCE
AUTHORITY, THE GREEN CORRIDOR PACE DISTRICT,
THE FLORIDA RESILIENCY AND ENERGY DISTRICT,
THE FLORIDA PACE FUNDING AGENCY AND OTHER
QUALIFIED PACE FUNDING AGENCIES; TO WHICH
THE ENTITIES WILL ADMINISTER THE VOLUNTARY
PACE PROGRAM IN THE CITY OF EDGEWATER;
REPEALING RESOLUTIONS IN CONFLICT HEREWITH;
PROVIDING FOR SEVERABILITY AND APPLICABILITY
AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, home and business energy consumption accounts for a large portion of the
overall usage of energy in a community; and
WHEREAS, there is a vast quantity of existing structures with many years of remaining
life before replacement, and these structures are not as energy efficient as today's standards, nor
do many existing buildings have renewable energy systems installed to provide some or all of
their electric energy needs and many buildings are in need of improvements to protect them
against damage from storm events; and
WHEREAS, installing energy efficiency, renewable energy and wind resistance
improvements on existing structures can provide significant progress towards increased energy
conservation and protection of properties in the City of Edgewater and statewide; and
WHEREAS, the upfront costs of these improvements are a hurdle to installing them and
existing financing options may be insufficient for property owners to access cost-effective
financing for energy-saving or wind -resistance property improvements due to requirements
associated with traditional debt or equity financing options; and
WHEREAS, the expected life of energy efficiency, renewable energy or wind resistance
projects may require a longer term payback period than offered by traditional financing, which
may necessitate alternative options to fund installation of the improvements; and
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Resolution #2017-R-45
WHEREAS, local governments within Florida and nationally have either formed, or are
contemplating the formation of, programs to provide alternative financing options allowing a
property owner to voluntarily finance energy efficiency and renewable energy improvements
through payment of non -ad valorem assessments; and
WHEREAS, the State of Florida has declared it the public policy of the State to develop
energy management programs aimed at promoting energy conservation and protecting properties
from wind damage; and
WHEREAS, the financing provided to these participating property owners will be repaid
though non -ad valorem assessments and only those property owners who request to participate
will be levied the assessments; and
WHEREAS, the benefits of these energy financing programs include improved air
quality, lowered fossil fuels use, creating energy independence and security, promoting the
creation of jobs and economic development by stimulating "green industries" and saving citizens
money by reducing energy consumption; and
WHEREAS, Section 163.08, F.S. authorizes local governments in Florida to either form
individually, or in partnership with other local governments, programs to allow property owners
to voluntarily finance energy efficiency, renewable energy or wind resistance improvements; and
WHEREAS, the City of Edgewater has formed a PACE program which is an energy
financing program created pursuant to Section 163.08, F.S.; and
WHEREAS, the Florida Green Finance Authority, the Green Corridor PACE District,
the Florida Resiliency and Energy District and the Florida PACE Funding District has already
created the financing, levy and collection process to implement the PACE program through the
local government partners; and
WHEREAS, the PACE program will provide significant benefits including property
owner cost savings, enhancing property values, economic development and job opportunities and
the City of Edgewater believes that it is in the best interests of the health, safety and welfare of
its citizens to participate in the program; and
WHEREAS, this was originally placed on the December 4, 2017 City Council Agenda
but was continued that evening at the City Manager's request.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF EDGEWATER, FLORIDA, as follows:
Section 1. The above declarations are true and accurate, and are incorporated herein.
Section 2. The City Council of the City of Edgewater, a political subdivision of the
State of Florida, hereby authorizes participation in the Florida Green Finance Authority, the
Green Corridor PACE District, the Florida Resiliency and Energy District and the Florida
PACE Funding District to implement the PACE program.
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Resolution #2017-R-45
Section 3. The City Council hereby directs the Mayor of the City of Edgewater to
execute Membership Agreements joining the Florida Green Finance Authority, the Green
Corridor PACE District, the Florida Resiliency and Energy District and the Florida PACE
Funding District and other qualified PACE funding agencies on behalf of the City.
Section 4. If any section, subsection, clause or provision of this resolution is held invalid,
the remainder shall not be affected by such invalidity.
Section 5. All resolutions or parts of resolutions in conflict herewith shall be hereby
repealed.
Section 6. This resolution shall take effect immediately upon adoption.
• r.
After a motion to approve by �-�:z _�` -�f , Ki'; �.e with Second
by 1 "'� _`Yi `r_tl_a. �-Lr.. the vote on this resolution held on May 7,
:J
2018 was as follows:
AYE
Mayor Mike Ignasiak
Councilwoman Christine Power •s
Councilwoman Amy Vogt �4
Councilman Dan Blazi
Councilman Gary Conroy
PASSED AND DULY ADOPTED this 7"' day of May, 2018.
ATTEST:
Robin Matusick
City Clerk/Paralegal
For the use and reliance only by the City of Edgewater,
Florida. Approved as to form and legality by:
Aaron R. Wolfe, Esquire
City Attorney
Doran, Sims, Wolfe & Ciocchetti
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Resolution #2017-R-45
NAY
CITY COUNCIL OF THE
CITY OF EDGEWATER, FLORIDA
Michael Ignasiak
Mayor
Approved by the City Council of the City of Edgewater
at a meeting held on this 7"' day of May, 2018 under
Agenda Item No 8
This instrument was prepared by or under the supervision
of (and after recording should be returned to):
Joseph P. Stanton
Broad & Cassel
Bank of America Center
390 North Orange Avenue
Suite 1400
Orlando, FL 32801-4961
SPACE reserved for Clerk of(
LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT BETWEEN THE
FLORIDA RESILIENCY AND ENERGY DISTRICT AND THE CITY OF
EDGEWATER
This Limited Purpose Party Membership Agreement (the "Agreement") is entered
into this'`I"",day of n` 20 i; by and between the FLORIDA RESILIENCY AND
ENERGY DISTRICT ( FRED"), a public body corporate and politic created as a
separate legal entity pursuant to Section 163.01(7), Florida Statutes, and the City of
Edgewater, a political subdivision of the State of Florida (the "City of Edgewater")
(collectively, the "Parties") for the purpose of providing a Property Assessed Clean
Energy ("PACE") program within the legal boundaries of the City of Edgewater.
WITNESSETH
WHEREAS, pursuant to Section 163.08(1), Florida Statutes, the legislature
determined that access to financing for certain renewable energy, energy efficiency and
conservation and wind resistance improvements ("Qualifying Improvements") through
voluntary assessment programs such as the PACE program provides a special benefit to
real property by alleviating the property's burden from energy consumption and/or
reducing the property's burden from potential wind damage; and
WHEREAS, in order to make such Qualifying Improvements more affordable
and assist property owners who wish to undertake such improvements, the legislature
also determined that there is a compelling state interest in enabling property owners to
voluntarily finance such Qualifying Improvements with the assistance of local
governments, through the execution of financing agreements and the related imposition
of voluntary, non -ad valorem special assessments; and
WHEREAS, an Interlocal Agreement, dated September 6, 2016, as amended and
supplemented from time to time (the "Interlocal Agreement") was entered into between
the Town of Lake Clarke Shores, the City of Fernandina Beach, and any subsequent
parties thereto (the "Public Agencies") and, in the limited capacity described therein, the
Florida Development Finance Corporation ("FDFC" and, together with the Public
Agencies, the "Parties"), for the purpose of facilitating the financing of Qualifying
Improvements for properties located within FRED's aggregate legal boundaries via the
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FDFC 12-21-16
levy and collection of voluntary non -ad valorem special assessments on improved
property; and
WHEREAS, the City of Edgewater agrees with such legislative determinations
and finds that the financing of Qualifying Improvements through the PACE program
provides a special benefit to participating real property within its legal boundaries; and
WHEREAS, the Parties to this Agreement desire to supplement the Interlocal
Agreement to include the City of Edgewater as a Limited Member, as such term is
defined in the Interlocal Agreement, on the date last signed below.
NOW, THEREFORE, in consideration of the above recitals, terms and
conditions, promises and covenants hereinafter set forth, the Parties agree as follows:
SECTION 1. DEFINITIONS. Any capitalized terms used in this
Agreement, but not otherwise defined herein, shall have the meaning specified for such
term in the Interlocal Agreement.
SECTION 2. PURPOSE. The purpose of this Agreement is to facilitate
the financing of Qualifying Improvements through a PACE program, in accordance with
Section 163.08, Florida Statutes, and provide an efficient process for real property
owners within the legal boundaries of the City of Edgewater to access the PACE program
and permit FRED to administer the PACE program within such legal boundaries.
SECTION 3. RIGHTS OF PARTIES. FRED, together with its member
Parties, and the City of Edgewater, with the intent to be bound thereto, hereby agree that
the City of Edgewater shall become a Party to the Interlocal Agreement together with
only those rights and obligations of Parties to the Interlocal Agreement as are necessary
to fulfill the purposes described in this Agreement, including access to financing and
processing of non -ad valorem special assessments by FRED, within the legal boundaries
of the City of Edgewater, as more specifically described below, and in accordance with
federal, state, and local laws, rules, regulations, ordinances, and all operational program
standards of the City of Edgewater.
SECTION 4. INCORPORATION OF RECITALS AND LEVY OF
SPECIAL ASSESSMENTS. The Parties hereby acknowledge and agree with each
recital to this Agreement and incorporate such findings herein as their own. The non -ad
valorem special assessments arising from a property owner's voluntary participation in
the PACE program shall be levied by FRED on properties within the legal boundaries the
City of Edgewater and the receipt and distribution of any non -ad valorem special
assessments imposed by FRED are purely ministerial acts.
SECTION 5. QUALIFYING IMPROVEMENTS. FRED may provide
access to financing for Qualifying Improvements to real property within the legal
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FDFC 12-21-16
boundaries of the City of Edgewater, in accordance with Section 163.08, Florida Statutes,
and subject to the terms of this Agreement, as well as applicable federal, state, and City
of Edgewater law.
SECTION 6. FINANCING AGREEMENT. Before extending any
financing or subjecting any participating real property within the legal boundaries of the
City of Edgewater to the non -ad valorem special assessment authorized therein, FRED
and FDFC, through their designees, shall, on a non-exclusive basis pursuant to the
Section 163.08, Florida Statutes and this Agreement, enter into a financing agreement
(the "Financing Agreement") with property owner(s) within the legal boundaries of the
City of Edgewater who qualify for financing through FRED. The Financing Agreement
shall include a thorough explanation of the PACE financing process and specify at what
point in the process the special assessment will be added to the real property's owner's
property tax bills (after completion of the project(s), permit approval, and approval by the
property owner).
SECTION 7. BOUNDARIES OF THE PACE PROGRAM. For the
limited purposes of administering the PACE program and imposing non -ad valorem
special assessments as described in this Agreement, the legal boundaries of FRED shall
include the legal boundaries of the City of Edgewater, which legal boundaries may be
limited, expanded to reflect annexation, or more specifically designated from time to time
by the City of Edgewater by providing written notice to FRED. Upon execution of this
Agreement and written request thereafter, the City of Edgewater agrees to provide FRED
the current legal description of the legal boundaries of the City of Edgewater.
SECTION 8. ELIGIBLE PROPERTIES. Within the legal boundaries of
the City of Edgewater, improved real property, including any residential, commercial,
agricultural and industrial use may be eligible for participation in the PACE program
within the limits otherwise prescribed in Section 163.08, Florida Statutes.
SECTION 9. SURVIVAL OF SPECIAL ASSESSMENTS. During the
term of this Agreement, FRED may levy voluntary non -ad valorem special assessments
on participating properties within the legal boundaries of the City of Edgewater to help
secure the financing of costs of Qualifying Improvements constructed or acquired on
such properties based on the finding of special benefit by the City of Edgewater
incorporated into Section 3 hereof. Those properties receiving financing for Qualifying
Improvements shall be assessed by FRED until such time as the financing for such
Qualified Improvement is repaid in full, in accordance with Section 163.08, Florida
Statutes, and other applicable law. Notwithstanding termination of this Agreement or
notice of a change in the legal boundaries of the City of Edgewater as provided for
herein, those properties that have received financing for Qualifying Improvements shall
continue to be a part of FRED, until such time that all outstanding debt has been satisfied.
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FDFC 12-21-16
SECTION 10. TERM. This Agreement shall remain in full force and effect
from the date of its execution by both Parties. Any Party may terminate this Agreement
for convenience upon ninety (90) days' prior written notice ("Termination Notice") in
accordance with the terms of the Interlocal Agreement. Beginning on the date FRED
receives a Termination Notice from the City of Edgewater ("Termination Date"), FRED
shall not approve any new applications affecting property within the legal boundaries of
the City of Edgewater referenced in the Termination Notice. Notwithstanding termination
of this Agreement, however, property owners whose applications were approved prior to
the Termination Date, and who received funding through the PACE program, shall
continue to be a part of FRED, for the sole purpose of FRED imposing assessments for
the repayment of such property's outstanding debt, until such time that all outstanding
debt has been satisfied.
SECTION 11. CONSENT. This Agreement, together with the resolution by
the governing board of the City of Edgewater approving this Agreement, shall be
considered the Parties' consent to authorize FRED to administer the PACE program
within the legal boundaries of the City of Edgewater, as required by Section 163.08,
Florida Statutes.
SECTION 12. THE CITY OF EDGEWATER COORDINATOR. The
Developmental Services Department within the City of Edgewater shall serve as the City
of Edgewater's primary point of contact and coordinator. The City of Edgewater will
advise FRED of any changes to the City of Edgewater's primary contact and coordinator
within 30 days of such changes.
SECTION 13. CARBON OR SIMILAR CREDITS. To the extent
permitted by law, in the event that the Financing Agreement or any other PACE
agreement with the property owner provides for the transfer of any carbon or similar
mitigation credits derived from Qualifying Improvements to FRED, any such carbon or
similar mitigation credits derived from properties within the legal boundaries of the City
of Edgewater, shall be shared in equal parts between FRED and the City of Edgewater.
SECTION 14. LIMITED OBLIGATIONS. Neither FRED nor FDFC is
authorized to issue bonds, or any other form of debt, on behalf of the City of Edgewater
without a separate interlocal agreement or other authority provided by State law. To the
extent that FRED or FDFC issues PACE -related bonds under its own authority in
connection with this Agreement, the security for such bonds may be secured by non -ad
valorem special assessments imposed by FRED on participating properties within the
legal boundaries of the City of Edgewater. The issuance of such bonds shall not directly
or indirectly or contingently obligate the City of Edgewater to levy or to pledge any form
of taxation whatever, or to levy ad valorem taxes on any property within their territorial
limits to pay the bonds, and the bonds shall not constitute a lien upon any property owned
by the City of Edgewater. For any such bonds, the bond disclosure document, if any,
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FDFC 12-21-16
shall include references to the fact that the City of Edgewater is not an obligated party,
and also adequately disclose material attendant risks with PACE programs.
SECTION 15. LIABILITY, INDEMNIFICATION AND SOVEREIGN
IMMUNITY.
(A) The City of Edgewater and FRED are and shall be subject to Sections
768.28 and 163.01(9)(c), Florida Statutes, and any other provisions of Florida law
governing sovereign immunity. Pursuant to Section 163.01(5)(0), Florida Statutes, and
this covenant of the parties hereto, the local governments who are either or both the
founders or members of FRED shall not be held jointly liable for the torts of the officers
or employees of the FRED, or any other tort attributable to FRED, and that FRED alone
shall be liable for any torts attributable to it or for torts of its officers, employees or
agents, and then only to the extent of the waiver of sovereign immunity or limitation of
liability as specified in Section 768.28, Florida Statutes. City of Edgewater and FRED
acknowledge and agree that FRED shall have all of the applicable privileges and
immunities from liability and exemptions from laws, ordinances, rules and common law
which apply to the municipalities and counties of the State. City of Edgewater is
completely independent of FRED. To the extent provided by law, FRED shall
indemnify, defend and hold harmless City of Edgewater from any and all damages,
claims, and liability arising from the negligence or intentional misconduct of FRED
relating to operation of the PACE program. Nothing in this Agreement is intended to
inure to the benefit of any third -party for the purpose of allowing any claim, which would
otherwise be barred under the doctrine of sovereign immunity or by operation of law.
(B) Neither the City of Edgewater, nor the local governments who are either or
both the founders or members of the Agency, nor any subsequently joining or participat-
ing local government as members of FRED shall in any manner be obligated to pay any
debts, obligations or liabilities arising as a result of any actions of FRED, the governing
board of FRED or any other agents, employees, officers or officials of FRED, except to
the extent otherwise mutually and expressly agreed upon, and neither FRED, the govern-
ing board of FRED or any other agents, employees, officers or officials of FRED have
any authority or power to otherwise obligate either the City of Edgewater, the local gov-
ernments who are either or both the founders or members of FRED, nor any subsequently
subscribing or participating local government in the business of FRED in any manner.
(C) All of the privileges and immunities from liability and exemptions from
laws, ordinances and rules which apply to the activity of officials, officers, agents or
employees of the parties shall apply to the officials, officers, agents or employees thereof
when performing their respective functions and duties under the provisions of this
Agreement.
SECTION 16. AGREEMENTS WITH TAX COLLECTOR AND
PROPERTY APPRAISER. This Agreement shall be subject to the express condition
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FDFC 12-21-16
precedent that FRED enter into separate agreement(s) with the tax collector and the
property appraiser having jurisdiction over the legal boundaries of the City of Edgewater,
which shall provide for the collection of any non -ad valorem special assessments
imposed by FRED within the legal boundaries of the City of Edgewater. If required by
the tax collector and property appraiser, the City of Edgewater agrees to enter into those
agreements as a third -party to facilitate the collection of the non -ad valorem special
assessments imposed by FRED.
SECTION 17. OPINION OF BOND COUNSEL. FRED warrants, based
on counsel's review of the bond validation judgment and the underlying bond documents
that the FDFC PACE program's structure complies with the bond validation judgment
and the underlying bond documents.
SECTION 18. AGENTS OF FRED. FRED shall ensure that its agents,
administrators, subcontractors, successors and assigns are, at all times, in compliance
with the terms of this Agreement and applicable City of Edgewater, state and federal
laws.
SECTION 19. NOTICES. Any notices to be given hereunder shall be in
writing and shall be deemed to have been given if sent by hand delivery, recognized
overnight courier (such as Federal Express), or by written certified U.S. mail, with return
receipt requested, or by electronic mail, addressed to the Party for whom it is intended, at
the place specified. For the present, the Parties designate the following as the respective
places for notice purposes:
If to FRED:
The Florida Resiliency and Energy District
c/o Florida Development Finance Corporation
William "Bill" F. Spivey, Jr.
Executive Director
800 N. Magnolia Avenue, Suite 1100
Orlando, Florida 32803
407.956.5695 (t)
bspivey@fdfcbonds.com
and Issuer's Counsel with Broad and Cassel
Joseph Stanton, Esq.
Bank of America Center
390 North Orange Avenue
Suite 1400
Orlando, FL 32801-4961
407.839.4200 (t)
jstanton@broadandcassel.com
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FDFC 12-21-16
If to City of Edgewater:
Darren Lear, Development Services Director
PO BOX 100
Edgewater, FL 32132
386.424.2400 Ext. 1502
DLear@cityofedgewater.org
SECTION 20. AMENDMENTS. No modification, amendment or
alteration in the terms or conditions contained herein shall be effective unless contained
in a written document prepared with the same or similar formality as this agreement and
executed by the City of Edgewater and FRED or other delegated authority authorized to
execute same on their behalf.
SECTION 21. JOINT EFFORT. The preparation of this Agreement has
been a joint effort of the Parties hereto and the resulting document shall not, solely as a
matter of judicial construction, be construed more severely against one of the Parties than
the other.
SECTION 22. MERGER. This Agreement represents the final and
complete understanding of the Parties regarding the subject matter hereof and supersedes
all prior and contemporaneous negotiations, correspondence, agreements, or
understandings applicable to the matters contained herein; and the Parties agree that there
are no commitments, agreements, or understandings concerning the subject matter of this
Agreement that are not contained in this document. Accordingly, the Parties agree that
no deviation from the terms hereof shall be predicated upon any prior representations or
agreements, whether oral or written.
SECTION 23. ASSIGNMENT. The respective obligations of the Parties set
forth in this Agreement shall not be assigned, in whole or in part, without the written
consent of the other Party hereto.
SECTION 24. THIRD PARTY BENEFICIARIES. None of the Parties
intend to directly or substantially benefit a third party by this Agreement. Therefore, the
Parties acknowledge that there are no third party beneficiaries to this Agreement and that
no third party shall be entitled to assert a right or claim against either of them based upon
this Agreement; provided, however, that counsel to the Parties may rely on this
Agreement for purposes of providing any legal opinions required by the issuance of debt
to finance the Qualifying Improvements.
SECTION 25. RECORDS. The Parties shall each maintain their own
respective records and documents associated with this Agreement in accordance with the
requirements for records retention set forth in Chapter 119, Florida Statutes.
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FDFC 12-21-16
SECTION 26. RECORDING. This Limited Purpose Party Membership
Agreement shall be filed by FRED with the Clerk of the Circuit Court in the Public
Records of the City of Edgewater and recorded in the public records of the City of
Edgewater as an amendment to the Interlocal Agreement, in accordance with Section
163.01(11), Florida Statutes.
SECTION 27. SEVERABILITY. In the event a portion of this Agreement
is found to be unenforceable by a court of competent jurisdiction, that part shall be
deemed severed from this Agreement and the remaining provisions of this Agreement
shall remain in full force and effect.
SECTION 28. EFFECTIVE DATE. This Agreement shall become
effective upon the execution by both Parties hereto.
SECTION 29. LAW, JURISDICTION, AND VENUE. This Agreement
shall be interpreted and construed in accordance with and governed by the laws of the
state of Florida. The Parties agree that the exclusive venue for any lawsuit arising from,
related to, or in connection with this Agreement shall be in the state courts of the Seventh
Judicial Circuit in and for Volusia County, Florida, the United States District Court for
the Middle District of Florida or United States Bankruptcy Court for the Middle District
of Florida, as appropriate.
[SIGNATURE PAGES FOLLOW]
FDFC 12-21-16
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement
on this 4�� day of 52011S
ci
[NAME OF LOCALITY], FLORIDA
BDate JNIE�
City of Edgdwater
Mayor or Designee
For the [ ] of City of Edgewater [NAME
OF LOCALITY],
Attest:
By:
Deputy- Clerk Date
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this' day of
20 byN__�IVV__ ,,.of the [INSERT PUBLIC
AGENC , Florida, who is personally _known_ to me/has produced
r_J" as identification.
Printed/Type6l(Tame:
(SEAL) Notary Public -State of Florida
Commission Number:
:.aY' KELSEYD.ARCIERI
Commission # GG 132663
Expires August 6, 2021
Bonded Thru Troy Fain Insurance 800 as ion
9
FDFC 12-21-16
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
WITNESS:
FLORIDA DEVEL
CORPORATIC
RESILIENCY)
ME
ENT FINANCE
behalf of FLORIDA
ENERGY DISTRICT
William 'Bill" F. Spivey, Jr.
Executive Director
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this 2,6 da of
N r , 201r7, by William "Bill" F. Spivey, Jr., Executive Director of the Florida
Development Finance Corporation, who is ersonally known to me has produced
as identification.
P ted/Typ Na
(SEAL) Notary Public -State of Florida ,{
Commission Number: t4r 14-1'
Jennifer Jenkins
o� O, NOTARY PUBLIC
ESTATE OF FLORICf
Comm#GG141148
s11VCE 191_ Expires 9/5!2021
10
FDFC 12-21-I6
MEMBERSHIP AGREEMENT
BETWEEN THE
GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE) DISTRICT
AND
THE CITY OF EDGEWATER, FLORIDA
This Membership Agreement (the "Membership Agreement") is entered into this
day of 2018 by and between the Green Corridor Property Assessment Clean
Energy (PAC istrict, a public body corporate and politic (the "Green Corridor"), and the City
of Edgewater, Florida, a municipality of the State of Florida (the "Municipality") (collectively,
the "Parties") for the purpose of providing a PACE program within the Municipality.
RVA CITAIN
WHEREAS, on August 6, 2012, the Green Corridor was created as a separate legal
entity pursuant to Section 163.01(7), Florida Statutes, to finance qualifying improvements in
accordance with Section 163.08, Florida Statutes; and
WHEREAS, oni 1 the Municipality adopted Resolution)'.►�.�jS
agreeing to join the Green Co •idor as a non-voting member in order to finance qualifying
improvements in the Municipality in accordance with Section 163.08, Florida Statutes; and
WHEREAS, the Parties have determined that entering into this Membership Agreement
is in the best interest and welfare of the property owners within the Green Corridor and
Monicipality.
NOW, THEREFORE, in consideration of the terms and conditions, promises and
covenants hereinafter set forth, the Parties agree as follows:
1. Recitals Incorporated. The above recitals are true and correct and incorporated
herein.
2. Purpose. The purpose of this Membership Agreement is to facilitate the financing
of qualifying improvements for property owners within the Municipality in accordance with
Section 163.08, Florida Statutes, by virtue of the Municipality's joining the Green Corridor as a
non-voting member and utilizing the Green Corridor's existing program (the "Program").
3. Qualifying Improvements. The Municipality shall allow the Green Corridor to
provide financing of qualifying improvements, as defined in Section 163.08, Florida Statutes, on
properties within the Municipality.
4. Non -Exclusive. The Green Corridor Program is non-exclusive, meaning
Municipality specifically reserves the right to join any other entity providing a similar program
under Section 163.08, Florida Statutes, or create its own program under Section 163.08, Florida
Statutes.
5. Program Guidelines: The Parties agree that, unless the Municipality desires to
implement its own local program guidelines as described below, the Program to be offered in the
1
Municipality will be wholly governed by the Green Corridor's Program Guidelines. If the
Municipality desires to implement its own local program guidelines, it may do so upon sixty (60)
day's written notice to the Green Corridor. Any such local program guidelines can be amended
and changed only by the authorized designee of the Municipality. These local program
guidelines shall be consistent with the Green Corridor's guidelines. The Municipality may adopt
more restrictive guidelines than that of the Green Corridor. However, if there is a conflict
between the Green Corridor's guidelines and the Municipality's guidelines, the Green Corridor's
guidelines shall control.
6. Boundaries. Pursuant to this Membership Agreement, the boundaries of the Green
Corridor shall include the legal boundaries of the Municipality, which boundaries may be
limited, expanded, or more specifically designated from time to time by the Municipality by
providing written notice to the Green Corridor. As contemplated in the Interlocal Agreement (as
defined in Section 8) and as supplemented by this Membership Agreement, the Green Corridor
will, on a non-exclusive basis, levy voluntary non ad valorem special assessments on the
benefitted properties within the boundaries of the Municipality to help finance the costs of
qualifying improvements for those individual properties. Those properties receiving financing
for qualifying improvements shall be assessed from time to time, in accordance with Section
163.08, Florida Statutes and other applicable law. Notwithstanding termination of this
Membership Agreement or notice of a change in boundaries by the Municipality as provided for
above, those properties that have received financing for qualifying improvements shall continue
to be a part of the Green Corridor, until such time that all outstanding debt has been satisfied.
7. Financing Agreement. The Parties agree that the Green Corridor may enter into a
financing agreement, pursuant to Section 163.08, Florida Statutes, with property owner(s) within
the Municipality who obtain financing through the Green Corridor.
8. Amended and Restated Interlocal Agreement. The Parties agree that the
Municipality shall be subject to all terms, covenants, and conditions of the Amended and
Restated Interlocal Agreement recorded in the Official Records of Miami -Dade County at
Official Records Book 28217, Page 0312, which created the Green Corridor (the "Interlocal
Agreement"). In the event of any conflict between the Interlocal Agreement and this
Membership Agreement, this Membership Agreement shall control the rights and obligations of
the Municipality.
9. Responsibilities of the Green Corridor; Indemnification. The Green Corridor
shall be solely responsible for all matters associated with origination, funding, financing and
administration of each of the Green Corridor's authorized non -ad valorem assessments, including
responding to any complaints or inquiries by participants, tax certificate holders, lenders or
others relating to the Program's special assessments, the Program's financing agreements, the
Program's qualifying improvements, or any other aspect of the Program. The Parties understand
that indemnification of the Green Corridor members is provided for in Section 16 of the
Interlocal Agreement, and that such provisions shall apply to the Municipality.
10. Agreements with Tax Collector Property ppraiser and Municipalities. The
Green Corridor acknowledges that the Municipality has no authority to bind the County Tax
Collector and the County Property Appraiser, and the Green Corridor will be required to enter
into separate agreement(s) with the County Tax Collector and/or the County Property Appraiser,
which shall establish the fees (if any) to be charged by the Tax Collector and Property Appraiser
for the collection or handling of the Program's special assessments.
11. Resale or Refinancing of a Property. The Green Corridor recognizes that some
lenders may require full repayment of the Program's special assessments upon resale or
refinancing of a property subject to the Program's special assessments. The Green Corridor
agrees to provide written disclosure of this matter to all Municipality property owners that may
utilize the Program.
12. Term. This Membership Agreement shall remain in frill force and effect from the
date of its execution by both Parties. Any Party may terminate this Membership Agreement
upon ninety (90) days prior written notice.
13. Consent. This Membership Agreement and any required resolution or ordinance
of an individual Party shall be considered the Municipality's consent to joining the Green
Corridor and participation therein, as required by Section 163. 08, Florida Statutes.
14. Voting Rights. The Parties agree that the Municipality shall be a non-voting
member of the Green Corridor for the term of this Membership Agreement.
15. Notices. Any notices to be given hereunder shall be in writing and shall be
deemed to have been given if sent by hand delivery, recognized overnight courier (such as
Federal Express), or by written certified U.S. mail, with return receipt requested, addressed to the
Party for whom it is intended, at the place specified. For the present, the Parties designate the
following as the respective places for notice purposes:
If to Green Corridor:
Paul Winkeljohn, Executive Director
Green Corridor
5385 Nob Hill Rd.
Sunrise, FL 33351
If to the City of Edgewater:
Darren Lear, Development Services Director
Post Office Box 100
Edgewater, FL 32132
(386) 424-2400 ext. 1502
DLear@cityofedgewater.org
With a Copy to:
Tracey Barlow, City Manager
Post Office Box 100
Edgewater, FL 32132
(386) 424-2400 ext. 1203
ttbarlow@cltyofedgewater.org
91
16. Amendments. It is further agreed that no modification, amendment or alteration
in the terms or conditions herein shall be effective unless contained in a written document
executed by the Parties hereto.
17. Joint Effort. The preparation of this Membership Agreement has been a joint
effort of the Parties hereto and the resulting document shall not, solely as a matter of judicial
construction, be construed more severely against one of the Parties than the other.
18. Merger. This Membership Agreement incorporates and includes all prior
negotiations, correspondence, agreements, or understandings applicable to the matters contained
herein; and the Parties agree that there are no commitments, agreements, or understandings
concerning the subject matter of this Membership Agreement that are not contained in this
document. Accordingly, the Parties agree that no deviation from the teens hereof shall be
predicated upon any prior representations or agreements, whether oral or written. It is further
agreed that no change, amendment, alteration, or modification in the terms and conditions
contained herein shall be effective unless contained in a written document, executed with the
same formality, and of equal dignity herewith by all Parties to this Membership Agreement.
19. Assignment. The respective obligations of the Parties set forth in this
Membership Agreement shall not be assigned, in whole or in part, without the written consent of
the other Party hereto.
20. Records. The Parties shall each maintain their own respective records and
documents associated with this Membership Agreement in accordance with the requirements for
records retention set forth in Chapter 119, Florida Statutes.
21. No Third Party Beneficiaries. It is the intent and agreement of the Parties that this
Agreement is solely for the benefit of the Parties and no person not a party hereto shall have any
rights or privileges hereunder.
22. Severability. In the event a portion of this Membership Agreement is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue to be
effective.
23. Venue. The exclusive venue of any legal or equitable action against the
Municipality that arises out of or relates to this Membership Agreement shall be the appropriate
state court in Miami -Dade County
24. Effective Date. This Membership Agreement shall become effective upon the
execution by the Parties hereto.
[signature page follows]
4
IN WITNESS WHEREOF, the Parties hereto have made and executed this Membership
Agreement on this 'day of 12018.
ATTEST:
IM
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By:
Weiss Serota Helfinan
Cole & Bierman P.L., District Attorney
ATTEST:
Robin Matusick, Clerk
GREEN CORRIDOR PROPERTY
ASSESSMENT CLEAN ENERGY
(PACE) DI RIOT
Y
B : ��
ecutive Director
CITY OF EDGEWATER, FLORIDA
By: < ! ��� ✓
Michael Ignasiak, ayor
[SIGNATURE PAGE TO MEMBERSHIP AGREEMENT]
5
NON-EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT
RELATING TO THE FUNDING AND FINANCING
OF QUALIFYING IMPROVEMENTS BY THE
FLORIDA PACE FUNDING AGENCY
THIS NON—EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT is made and
entered into as of December 4, 2017 (this "Subscription Agreement"), by and between the City
of Edgewater, Florida (the "Subscriber"), and the Florida PACE Funding Agency, a separate
legal entity and public body and unit of local government, established pursuant to Section
163.01(7)(g), Florida Statutes, (the "Agency"), by and through their respective governing bodies.
The purpose of the Subscription Agreement is to secure, in an efficient and uniform mamler, for
the Property Owners (as hereinafter defined) within the jurisdiction and boundaries of the
Subscriber the privileges, benefits, powers and terms provided for herein and by law, and
particularly by Section 163.08, Florida Statutes, as amended (the "Supplemental Act"), relating
to the voluntary determination by affected property owners to obtain and finance certain
improvements to property for energy efficiency, renewable energy or wind resistance.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration each to the other, receipt of which is hereby
acknowledged by each party, the Subscriber and the Agency hereby agree, stipulate and
covenant as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings as defined unless the context requires otherwise:
"Board of Directors" means the governing body of the Agency.
"Agency Charter Agreement" or "Charter" means, unless the context otherwise
requires, the separate interlocal agreement which created and established the Agency, including
any amendments and supplements hereto executed and delivered in accordance with the terms
thereof.
"Financing Agreement" means the agreement authorized hereunder and by the Act
(specifically including section 163.08(4) thereof) between the Agency and a Property Owner
providing for the funding to finance Qualifying Improvements and the imposition of a non -ad
valorem Special Assessment against the Property Owner's assessed property.
"Financing Documents" shall mean the resolution or resolutions duly adopted by the
Agency, as well as any indenture of trust, trust agreement, interlocal agreement or other
1
instrument relating to the issuance or security of any bond or Obligations of the Agency and
any agreement between the Agency and the Subscriber, pursuant to which the Subscriber and
Property Owners obtain access to funds provided by the Agency.
"Obligations" shall mean a series of bonds, obligations or other evidence of
indebtedness, including, but not limited to, notes, commercial paper, certificates or any other
obligations of the Agency issued hereunder or pursuant hereto, or under any general law
provisions, and pursuant to the Financing Documents. The term shall also include any lawful
obligation committed to by the Agency or pursuant to an interlocal agreement with another
governmental body or agency and/or warrants issued for services rendered or administrative
expenses.
"Program" means the program operated by the Agency to provide financing for
Qualifying Improvements undertaken within the jurisdiction of the Subscriber. Unless
determined otherwise by the Subscriber, the Agency's Program will be non-exclusive; and, the
Subscriber may embrace or authorize any similar program under the Act as the Subscriber sees
fit and in the interest of the public.
"Property Owner" means, collectively, all of the record owners of real property subject to a
Financing Agreement.
"Qualifying Improvements" means those improvements for energy efficiency,
renewable energy, or wind resistance described in the Supplemental Act authorized to be
affixed and/or installed by the record owner of an affected property. The term does not include
similar improvements underwritten or financed by local, state or federal programs including,
but not limited to State Housing Initiatives Partnership or SHIP Program, which are not secured
by a special or non -ad valorem assessment.
"Special Assessments" means the non -ad valorem assessments authorized by the
Supplemental Act and levied by the Agency on property owned by participating property
owner who has entered into a Financing Agreement with the Agency to fund the costs of
Qualifying Improvements.
SECTION 1.02 CONSTRUCTION.
(A) Words importing the singular number shall include the plural in each case and
vice versa, and words importing persons shall include firms and corporations. The terms
"herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer to this
Subscription Agreement; the term "heretofore" shall mean before the date this Subscription
Agreement is executed; and the term "hereafter" shall mean after the date this Subscription
Agreement is executed.
(B) Each recital, covenant, agreement, representation and warranty made by a party
herein shall be deemed to have been material and to have been relied on by the other party to
this Subscription Agreement. Both parties have independently reviewed this Subscription
Agreement with their own counsel and covenant that the provisions hereof shall not be
construed for or against either the Subscriber or the Agency by reason of authorship.
2
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts of
the several Articles and Sections of this Subscription Agreement and any table of contents or
marginal notes appended to copies hereof shall be solely for convenience of reference and shall
neither constitute a part of this Subscription Agreement nor affect its meaning, construction or
effect.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and declared
that:
(A) The State has declared it the public policy of the State to develop energy
management programs aimed at promoting energy conservation and wind resistance or
'hardening' programs achieving hurricane and wind damage mitigation.
(B) The State Legislature has determined there is a compelling state interest in
enabling property owners to voluntarily finance Qualifying Improvements with local
government assistance. The actions authorized by the Supplemental Act, including the
financing of Qualifying Improvements through the execution of Financing Agreements and the
related imposition of a Special Assessment, are reasonable and are necessary for the prosperity
and welfare of the State, the Subscriber and its property owners and inhabitants.
(C) The Agency has secured a binding final judgment, binding and only advantageous
to the Agency, which has statewide effect. Such judgment carefully relieves the Subscriber from
cost and liability associated with implementation of the Agency's Program.
(D) The Agency has provided evidence to the Subscriber that: (1) the Agency's
Program has assembled, at the Agency's sole cost and expense, open public governance and
oversight, staffing in the form of qualified third -party administration, active funding provider
servicing oversight, dedicated Program counsel, and an independent institutional trustee, (2)
that the Agency is immediately ready to commence origination of Special Assessments for
Qualifying Improvements, and (3) that the Agency presently has large scale funding in place
and available under an executed bond purchase agreement and trust indenture.
(E) The availability of the non-exclusive Program offered by the Agency (without
cost to, assumption of liability by or demand upon the credit of the Subscriber) and the
voluntary participation in the Program by Property Owners will provide an alternative
financing option to finance and repay the costs to provide and install Qualifying Improvements.
(F) This Agreement provides an alternative, supplemental and non-exclusive means to
achieve, inter alfa, immediate and careful local economic development, commerce and job creation,
as well as the compelling State interests and public purposes described in the Supplemental Act.
3
ARTICLE II
SUBSCRIPTION
SECTION 2.01. AUTHORITY.
(A) The execution hereof has been duly authorized by the resolution of the
governing bodies of each party hereto.
(B) The Agency by this Subscription Agreement is hereby authorized to act to
provide its services, and conduct its affairs, within the boundaries of the Subscriber's
jurisdiction.
(C) The execution of this Subscription Agreement evidences the express authority
and concurrent transfer of all necessary powers to the Agency, and the covenant to reasonably
cooperate by the Subscriber, so that the Agency may facilitate, administer, implement and
provide Qualifying Improvements, facilitate Financing Agreements and non -ad valorem
assessments only on properties subjected to same by the record owners thereof, develop
markets, structures and procedures to finance same, and to take any actions associated
therewith or necessarily resulting there from, as contemplated by the Supplemental Act as the
same may be amended from time to time.
(D) By resolution of the governing bodies of each of the parties and as implemented
pursuant by this Subscription Agreement, all power and authority available to the Agency
under its Charter and general law, including without limitation, Chapters 163, 189 and 197,
Florida Statutes, shall be deemed to be authorized and may be implemented by the Agency
within the boundaries of the Subscriber.
(E) This Subscription Agreement may be amended only by written amendment
hereto.
SECTION 2.02. CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS
PROHIBITED. The Agency shall not be empowered or authorized in any manner to
create a debt as against the State, county, or any municipality, and may not pledge the full faith
and credit of the State, any county, or any municipality. All revenue bonds or debt obligations
of the Agency shall contain on the face thereof a statement to the effect that the State, county or
any municipality shall not be obligated to pay the same or the interest and that they are only
payable from Agency revenues or the portion thereof for which they are issued and that neither
the full faith and credit nor the taxing power of the State or of any political subdivision thereof
is pledged to the payment of the principal of or the interest on such bonds. The issuance of
revenue or refunding bonds under the provisions of law, the Charter Agreement, or this
Subscription Agreement shall not directly or indirectly or contingently obligate the State, or any
county or municipality to levy or to pledge any form of ad valorem taxation whatever therefore
or to make any appropriation for their payment.
4
SECTION 2.03. ADOPTION OF RATES, FEES AND CHARGES.
(A) The Board of Directors may adopt from time to time by resolution such rates,
fees or other charges for the provision of the services of the Agency to be paid by the record
owner of any property, pursuant to a Financing Agreement described in the Supplemental Act.
(B) Such rates, fees and charges shall be adopted and revised so as to provide
moneys, which, with other funds available for such purposes, shall be at least sufficient at all
times to pay the expenses of administering, managing, and providing for the services and
administration of the activities of the Agency, to pay costs and expenses provided for by law or
the Charter Agreement and the Financing Documents, and to pay the principal and interest on
the Obligations as the same shall become due and reserves therefore, and to provide for
necessary administration and reasonable margin of safety over and above the total amount of
such payments. Notwithstanding any other provision in the Charter Agreement or this
Subscription Agreement, such rates, fees and charges shall always be sufficient to comply fully
with any covenants contained in the Financing Documents.
(C) Such rates, fees and charges may vary from jurisdiction to jurisdiction, but shall
be just and equitable and uniform at the time of imposition for the record owners in the same
class of or within each subscribing local governmental jurisdiction electing to enter into any
Financing Agreement described in the Supplemental Act and may be based upon or computed
upon any factor (including, by way of example and not limitation, competitive or market
conditions, distinguishing between residential and non-residential properties or uses,
distinguishing between variable costs of administrative services over time) or combination of
factors affecting the demand or cost of the services furnished or provided to administer the
services and affairs of the Agency as may be determined by the Board of Directors from time to
time.
(D) Notwithstanding anything in this Subscription Agreement to the contrary, the
Agency may establish a general fund and/or performance assurance account into which moneys
may be deposited from an annual surcharge upon the Special Assessments imposed, pledged to
or collected by the Agency. Any moneys deposited to such general fund account from such a
surcharge shall be considered legally available for any lawful purpose approved by the Board of
Directors. Moneys in such general fund and/or performance assurance account may be used to
pay for or reimburse initial costs and expenses advanced or associated with start-up costs,
feasibility studies, economic analysis, financial advisory services, program development or
implementation costs or enhancements, public education, energy audits, administration, quality
control, vendor procurement, and any other purpose associated with the purpose or mission of
the Agency approved by the Board of Directors.
SECTION 2.04. FINANCING AGREEMENTS.
(A) The Agency shall prepare and provide to each participating property owner the
form of the Financing Agreement which complies with the Supplemental Act and is in
accordance with the Financing Documents as designated by the Board of Directors from time to
time.
(B) The Agency, not the Subscriber, shall be solely responsible for all matters
associated with origination, funding, financing, collection and administration of each of the
Agency's authorized non -ad valorem assessments.
SECTION 2.05. IMPOSITION OF SPECIAL ASSESSMENTS PURSUANT TO
FINANCING AGREEMENTS.
(A) Upon execution by the record owners and the Agency, the Financing Agreement
or a summary or memorandum thereof shall be recorded by the Agency within five (5) days of
execution as required by Section 163.08(8), Florida Statutes. The recorded Financing
Agreement, or summary or memorandum thereof, provides constructive notice that the non -ad
valorem assessment to be levied on the subject property constitutes alien of equal dignity to ad
valorem taxes and assessments from the date of recordation.
(B) In a reasonably cooperative and uniform manner the Agency is authorized to
and shall provide a digital copy to the property appraiser or tax collector of the recorded
Financing Agreement or summary thereof, the most recent property identification number and
annual amount of the non -ad valorem assessment along with such other efficient and
reasonable information necessary for the tax collector to collect such amounts on behalf of the
Agency pursuant to Sections 197.3632 and 163.08, Florida Statutes, as a non -ad valorem
assessment.
SECTION 2.06. COLLECTION OF SPECIAL ASSESSMENTS.
(A) The Agency shall be solely responsible for professionally coordinating all
interface with the tax collector or property appraiser, and minimize to the greatest extent
reasonably possible the time, effort and attention of these public officials to accomplish the
public purposes and direction of the Supplemental Act subscribed to by the Subscriber.
Subscriber hereby respectfully requests and encourages the tax collector or property appraiser
to only impose, charge, or deduct the minimum amount allowed by general law for the
collection or handling of the Special Assessments which are the subject of this Subscription
Agreement.
(B) To advance Program acceptance and to minimize Program participation costs,
and because each Property Owner is voluntarily undertaking to achieve and underwrite the
unique and compelling State interests described in the Supplemental Act, the Subscriber urges
either the waiver of such fees by the tax collector and property appraiser or a flat five dollar ($5)
fee per year per tax parcel for such purposes which shall be paid by the Agency via deduction,
by the institutional trustee required by the Financing Documents, or as otherwise reasonably
agreed to by the Agency and these parties.
SECTION 2.07. PLEDGE OF PROCEEDS FROM NON AD VALOREM
ASSESSMENTS.
(A) The Agency will take such actions as are necessary for the lawful levy of the
Special Assessments against all lands and properties specially benefitted by the acquisition,
construction and financing of Qualifying Improvements. If any assessment made with respect
to any property shall be either in whole or in part annulled, vacated or set aside by the
judgment of any court, or if the Agency or Subscriber shall be satisfied that any such assessment
is so irregular or defective that the same cannot be enforced or collected, the Agency is
authorized to take all necessary steps to cause a new assessment to be made for the whole or
any part of any Qualifying Improvements or against any property specially benefitted by such
improvement, to the extent and in the manner provided by law.
(B) Pursuant to the Financing Documents and this Subscription Agreement, the
Agency shall irrevocably pledge and, to the fullest extent permitted by law, pledge and assign
any and all revenues derived from Special Assessments to the repayment of any debt obligation
issued by the Agency pursuant to the Financing Documents.
(C) The Subscriber shall not incur or ever be requested to authorize any obligations
secured by Special Assessments associated with Qualifying Improvements imposed by the
Agency.
(D) Each series of Financing Documents shall be secured forthwith equally and
ratably by a pledge of and lien upon the Special Assessments. The obligations of the Agency
under and pursuant to the Financing Documents shall not be or constitute general obligations
or an indebtedness of the Subscriber as "bonds" within the meaning of the Constitution of
Florida, but shall be payable from and secured solely by a lien upon and pledge of the Special
Assessments as provided herein. Neither the Agency nor any holder of any debt obligation
issued by the Agency pursuant to the Financing Documents shall ever have the right to compel
the exercise of the ad valorem taxing power of the Subscriber or taxation in any form of
property therein to pay any amount due under any Financing Documents or any Special
Assessment. The Financing Documents shall not constitute a lien upon any property of or in the
Subscriber except as to the respective Special Assessments in the manner provided herein and by
law.
SECTION 2.08. CARBON OR SIMILAR CREDITS. The form of Financing
Agreement in each instance shall provide for the transfer of any carbon or similar mitigation
credits derived from Qualifying Improvements to the Agency, with such revenues therefrom, if
any ever materialize, to be used by the Agency to underwrite generally its operation, mission
and purpose. By execution hereof any such interest in mitigation credits shall be assigned by
the Subscriber to the Agency without any future action by the parties. Provided, however, the
Subscriber shall upon request from time to time execute and deliver all such documents as may
be reasonably required to further evidence the assignment and transfer of such interests to the
Agency. Such credits expressly exclude investment tax credits available under the Internal
Revenue Code or monetary rebates available to the Property Owner.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. INTERLOCAL AGREEMENT PROVISIONS. This Subscription
Agreement constitutes a joint exercise of power, privilege or authority by and between the
7
Subscriber and the Agency and shall be deemed to be an "interlocal agreement" within the
meaning of the Florida Interlocal Cooperation Act of 1969, as amended. This Subscription
Agreement shall be filed by the Agency with the Clerk of the Circuit Court of the county in
which the Subscriber is located.
SECTION 3.02. DISCLOSURE.
(A) The Agency has provided a copy of (1) the Supplemental Act, (2) the Agency's
Charter Agreement, (3) the Final Judgment in Fla. PACE Funding Agency v. State, No. 2011 -CA -
1824 (Fla. 2d Cir. Ct. 2011), and (4) other relevant disclosure information and background
materials to the Subscriber prior to execution hereof. Subscriber, through its own staff and
advisors, has independently reviewed and considered the foregoing and other relevant
information of its choosing.
(B) The objective of the Agency's mission is to offer a uniform, standardized and
scalable approach that provides efficiencies and economies of scale intended to attract
voluntary financing of Qualifying Improvements and stimulate a substantial and meaningful
flow of private sector economic activity and new job creation. In doing so, each subscribing
local government by entering into a subscription agreement of this nature authorizes the
availability of the Agency's uniform program to property owners in the subscribing jurisdiction.
Accordingly, the Agency has engaged, and may engage in the future, various advisors,
consultants, attorneys or other professionals or firms with recognized expertise necessary to
accomplish the Agency's mission.
(C) Each of the various advisors, consultants, attorneys or other professionals
engaged by the Agency has been, and shall in the future be, disclosed to the Subscriber. The
Subscriber and Agency recognize, consider and acknowledge the fact or possibility that one or
more of the various professionals or firms may serve as the advisor to the Agency in its mission,
and to the Subscriber or another client in providing other similar professional services, outside
of the provision, funding and financing of Qualifying Improvements. Such circumstance is
acceptable and will not be construed as a conflict, be objected to unreasonably, nor be used as
the basis for its disqualification of such professionals or firms from any continued or future
representation of either party hereto which can otherwise be resolved by a reasonable waiver.
SECTION 3.03. TERM OF AGREEMENT; DURATION OF AGREEMENT;
EXCLUSIVITY.
(A) This Subscription Agreement shall commence as of the date first above written,
and shall remain in effect until terminated as herein provided. Either party (the "non -breaching
party") may terminate this Subscription Agreement by providing the other party (the
"breaching party") 10 days prior written notice ("Termination Notice") in the event the
breaching party breaches this Subscription Agreement and such breach is not cured to the
reasonable satisfaction of the non -breaching party within a reasonable period of time following
notice of such breach. Beginning on the date the Agency receives from, or gives to, the
Subscriber a Termination Notice ("Termination Date"), the Agency shall not approve any new
8
applications affecting property within the legal boundaries of the Subscriber. Provided,
however either party may unilaterally terminate this Agreement prior to any Financing
Agreements being executed or, if earlier, the issuance of any Obligations of the Agency secured
by pledged revenues derived from within the jurisdiction or boundaries of the Subscriber.
(B) In the event of any termination hereunder, and so long as the Agency has
Obligations outstanding which are secured by pledged revenues derived from Financing
Agreements relating to any properties within the jurisdiction or boundaries of the Subscriber, or
the Agency has projects for Qualified Improvements underway therein, the applicable
provisions, authority and responsibility under this Agreement reasonably necessary to carry out
the remaining aspects of the Program and responsibilities of Agency then underway, shall
remain in effect and survive such termination until such time as those obligations and all
associated remaining Program responsibilities are fulfilled (including, but not limited to the
collection of assessments in due course).
SECTION 3.04. AMENDMENTS AND WAIVERS.
(A) Except as otherwise provided herein, no amendment, supplement, modification
or waiver of this Subscription Agreement shall be binding unless executed in writing by the
Subscriber and Agency.
(B) To the extent the Agency has no outstanding bonds, Obligations or other
evidence of indebtedness, this Subscription Agreement may be amended or modified or
provisions hereto waived upon the written consent of all parties hereto.
(C) To the extent the Agency has outstanding bonds, Obligations or other evidence
of indebtedness arising from Financing Agreements relating to properties within the
jurisdiction or boundaries of the Subscriber, this Subscription Agreement may not be amended
or modified in any way that is materially adverse to holders of such bonds, Obligations or other
evidence of indebtedness without the consent in writing of the holders of at least two-thirds
(2/3) or more in principal amount of such bonds, Obligations or other evidence of indebtedness
(exclusive of any warrants issued by the Agency) then outstanding, or any insurer duly
authorized to provide such consent on behalf of such holders.
SECTION 3.05. NOTICES.
(A) All notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given when hand delivered (or confirmed electronic facsimile
transmission) or mailed by registered or certified mail, postage prepaid, or sent by nationally
recognized overnight courier (with delivery instructions for "next business day" service) to the
parties at the following addresses:
Subscriber:
With a copy to:
Darren Lear, Development Services Director
PO Box 100
Edgewater, FL32132
(386) 424-2400 Ext. 1502
DLear@cityofedgewater.org
Tracey Barlow, City Manager
PO Box 100
Edgewater, FL 32132
(386) 424-2400 Ext. 1203
TTBarlow@cityofedgewater.org
Agency: Executive Director
Florida PACE Funding Agency
c/o City of Kissimmee
101 North Church Street, Fifth Floor
Kissimmee, Florida 34741
With a copy to: Program Counsel for the Florida PACE Funding Agency
P.O. Box 14043
Tallahassee, Florida 32317-4043
(B) Any of the parties may, by notice in writing given to the other, designate any
further or different addresses to which subsequent notices, certificates or other communications
shall be sent. Any notice shall be deemed given on the date such notice is delivered by hand (or
confirmed electronic facsimile transmission) or three days after the date mailed.
SECTION 3.06. QUALITY CONTROL AND COMMUNICATION. For quality
control purposes the Agency and Subscriber desire, and the Agency covenants to develop,
implement and employ policies, systems and procedures which are within industry standards;
with such standards being reasonably expected to change and evolve over time. An ongoing
positive and informal line of communication between staff and agents for the parties is
encouraged. At any time, notwithstanding lack of default or lack of material breach hereunder,
the Subscriber is encouraged to objectively and specifically communicate to the Agency in
writing as provided for herein any concerns, suggestions or disapproval with performance,
policies, systems or procedures being employed by the Agency. The Agency through its
administrator, Executive Director, or a duly authorized designee, will promptly respond in
writing to all such communications (reasonably within fifteen (15) days of receipt of any such
written communication, but sooner if necessary) and follow-up accordingly; and, also promptly
communicate any such response, follow-up, and all related communication to the Board of
Directors for review.
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SECTION 3.07. IMMUNITY; LIMITED LIABILITY.
(A) All of the privileges and immunities from liability and exemptions from laws,
ordinances and rules which apply to the activity of officials, officers, agents or employees of the
parties shall apply to the officials, officers, agents or employees thereof when performing their
respective functions and duties under the provisions of this Subscription Agreement.
(B) The Subscriber and Agency are and shall be subject to Sections 768.28 and
163.01(9)(c), Florida Statutes, and any other provisions of Florida law governing sovereign
immunity. Pursuant to Section 163.01(5)(0), Florida Statutes, and this covenant of the parties
hereto, the local governments who are either or both the incorporators or members of the
Agency shall not be held jointly liable for the torts of the officers or employees of the Agency, or
any other tort attributable to the Agency, and that the Agency alone shall be liable for any torts
attributable to it or for torts of its officers, employees or agents, and then only to the extent of
the waiver of sovereign immunity or limitation of liability as specified in Section 768.28, Florida
Statutes. The Subscriber and Agency acknowledge and agree that the Agency shall have all of
the privileges and immunities from liability and exemptions from laws, ordinances, rules and
common law which apply to the municipalities and counties of the State. Nothing in this
Subscription Agreement is intended to inure to the benefit of any third -party for the purpose of
allowing any claim, which would otherwise be barred under the doctrine of sovereign
immunity or by operation of law.
(C) Neither the Subscriber, nor the local governments who are either or both the
incorporators or members of the Agency, nor any subsequently subscribing or participating
local government in the affairs of the Agency shall in any manner be obligated to pay any debts,
obligations or liabilities arising as a result of any actions of the Agency, the Board of Directors
or any other agents, employees, officers or officials of the Agency, except to the extent otherwise
mutually and expressly agreed upon, and neither the Agency, the Board of Directors or any
other agents, employees, officers or officials of the Agency have any authority or power to
otherwise obligate either the Subscriber, the local governments who are either or both the
incorporators or members of the Agency, nor any subsequently subscribing or participating
local government in the affairs of the Agency in any manner.
SECTION 3.08. BINDING EFFECT. This Subscription Agreement shall be
binding upon the parties, their respective successors and assigns and shall inure to the benefit
of the parties, their respective successors and assigns.
SECTION 3.09. SEVERABILITY In the event any provision of this
Subscription Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 3.10. EXECUTION IN COUNTERPARTS. This Subscription
Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
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SECTION 3.11. APPLICABLE LAW. The exclusive venue of any legal or
equitable action that arises out of or relates to this Subscription Agreement shall be the
appropriate state court in Leon County. In any such action, Florida law shall apply and the
parties waive any right to jury trial.
SECTION 3.12. ENTIRE AGREEMENT. This Subscription Agreement
constitutes the entire agreement among the parties pertaining to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings, negotiations and
discussions of the parties, whether oral or written, and there are no warranties, representations
or other agreements among the parties in connection with the subject matter hereof, except as
specifically set forth herein.
[Remainder of page intentionally left blank.]
12
IN WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to
be duly executed and entered into as of the date first above written.
THE CITY OF EDGEWATER
1
(SEAL)
Y
Michael Ignasiak, May
Mayor
Attest:
Robin Matusick,
City Clerk/Paralegal
13
IN WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to
be duly executed and entered into as of the date first above written.
THE FLORIDA PACE FUNDING, AGENCY
'(SEAj
M-
ATTE ST -
Donald T. Smallwood, Assistant Secretary
H. Steigerwald, Executive
14
Party Membership Agreement
To The Florida Green Finance Authority
WHEREAS, Section 163.01, F.S., the "Florida Interlocal Cooperation Act of 1969,"
authorizes local government units to enter into interlocal agreements for their mutual benefit; and
WHEREAS, the Town of Lantana, Florida, a Florida municipal corporation ("Lantana")
and the Town of Mangonia Park, Florida, a Florida municipal corporation, ("Mangonia Park")
entered into an Interlocal Agreement, dated June 11, 2012, first amended on August 11, 2014 and
second amended on April 7, 2016 with document execution May 9, 2016, establishing the Florida
Green Finance Authority as a means of implementing and financing a qualifying improvements
program for energy and water conservation and efficiency, renewable energy and wind -resistance
improvements, and to provide additional services consistent with law; and
WHEREAS, the City of Edgewater desires to become a member of the Florida Green
Finance Authority in order to facilitate the financing of qualifying improvements for properties
located within the City of Edgewater.
NOW, THEREFORE, it is agreed as follows:
1. The Interlocal Agreement between the Florida Green Finance Authority, the Town of
Lantana and the Town of Mangonia Park, entered into on June 11, 2012 and as amended on August
11, 2014 and April 7, 2016 with document execution May 9, 2016 (the "Interlocal Agreement"),
for the purpose of facilitating the financing of qualifying improvements for properties located
within the Authority's jurisdiction via the levy and collection of voluntary non -ad valorem
assessments on improved property, is hereby supplemented and amended on the date last signed
below by this Party Membership Agreement, which is hereby fully incorporated into the Interlocal
Agreement, to include the City of Edgewater.
2. The Florida Green Finance Authority, together with its member Parties, and the City of
Edgewater, with the intent to be bound thereto, hereby agree that the City of Edgewater shall
become a Party to the Interlocal Agreement together with all of the rights and obligations of Parties
to the Interlocal Agreement.
3. The Service Area of the Florida Green Finance Authority shall include the legal boundaries
of the City of Edgewater, as the same may be more specifically designated by the City of
Edgewater or amended from time to time.
4. The City of Edgewater designates the following as the respective place for any notices to
be given pursuant to the Interlocal Agreement Section 27:
City of Edgewater: Attn: City Manager, City of Edgewater
104 North Riverside Drive
Edgewater, FL 32132
With a copy to: City Attorney, City of Edgewater
Doran, Sims, Wolfe, & Ciocchetti
104 North Riverside Drive
Edgewater, FL 32132
5. This Party Membership Agreement shall be recorded by the Authority with the Clerk of
the Court in the Public Records of Palm Beach County as an amendment to the Interlocal
Agreement and recorded in the public records of the City of Edgewater, in accordance with Section
163.01 (11), Florida Statutes.
IN WITNESS WHEREOF, the Parties hereto subscribe their names to this Interlocal
Agreement by their duly authorized officers.
ATTEST:
By: q7ma44t---
Secretary
of the Authority
Approved by Authority Attorney
as to form and legal sufficiency
ATTEST:
Robin Matusick
City Clerk/Paralegal
Clerk of the City Council of the
City of Edgewater, Florida
{SEAL}
The Florida Green Finance Authority, a separate
legal entity established pursuant to Section 163.01(7),
Florida Statutes
By:
VILe,
CITY OF EDGEWATER, through its
CITY CO CIL
By.
Michael Ignasia
Mayor
day of !� , 20 1-q.
hN L14-11 % -A Cx
Approved as to form by:
City of Edgewater, City Attorney
Doran, Sims, Wolfe, & Ciocchetti
X