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HomeMy WebLinkAboutResolution No. 2017-01 RESOLUTION NO. 2017-01 A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREYARD COUNTY, FLORIDA, CREATING A PROPERTY ASSESSED CLEAN ENERGY PROGRAM WITHIN THE CITY OF CAPE CANAVERAL AND JOINING THE CLEAN ENERGY GREEN CORRIDOR PROGRAM IN ACCORDANCE WITH SECTION 163.08, FLORIDA STATUTES; AUTHORIZING AND APPROVING A NON-EXCLUSIVE MEMBERSHIP AGREEMENT BETWEEN THE CITY AND THE GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE) DISTRICT PURSUANT TO SECTION 163.01, FLORIDA STATUTES; PROVIDING FOR AUTHORIZATION, REPEAL OF PRIOR INCONSISTENT RESOLUTIONS, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, in 2010, the Florida Legislature adopted HB 7179 (Section 163.08, F.S.)(the "PACE Act"), which allows local governments to create Property Assessed Clean Energy (PACE) programs in order to provide the upfront financing for energy conservation and efficiency (i.e. energy-efficient heating, cooling or ventilation systems), renewable energy (i.e. solar panels), wind resistance (i.e. impact resistant windows) and other improvements that are not inconsistent with state law(the "Qualifying Improvements"); and WHEREAS, PACE programs not only assist residents and business owners in reducing their carbon footprint and energy costs, but also stimulate the local economy by the creation of needed construction jobs; and WHEREAS, the PACE Act authorizes local governments that create PACE programs to enter into a partnership in order to provide more affordable financing for the installation of the Qualifying Improvements; and WHEREAS, the Town of Cutler Bay, Village of Palmetto Bay, Village of Pinecrest, City of South Miami, Miami Shores Village, City of Coral Gables and the City of Miami entered into that certain Interlocal Agreement in 2012, which was recorded at Official Record Book 28217, Page 0312 of Miami Dade County, Florida (the "Interlocal Agreement), establishing the Green Corridor Property Assessment Clean Energy (PACE) District, a separate and distinct legal entity in accordance with Section 163.01(7), for the purpose of administering a PACE program; and WHEREAS, given the wide spread energy and economic benefits of PACE programs, the City Council desires to join the Clean Energy Green Corridor PACE District, a public body corporate and politic, in order to provide the upfront financing to property owners for Qualifying Improvements and to enter into an interlocal agreement with the District, pursuant to section 163.01, Florida Statutes, for the purpose of financing such improvements; and WHEREAS,the City Council finds that this Resolution is in the best interest and welfare of the residents of the City of Cape Canaveral. City of Cape Canaveral Resolution No.2017-01 Page 1 of 3 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL,FLORIDA,AS FOLLOWS: Section 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. Section 2. Creation of PACE Program. The City Council hereby creates a PACE Program pursuant to Section 163.08, Florida, for the purpose of providing upfront financing to property owners for Qualifying Improvements. Section 3. Adoption of Membership Agreement. The City Council hereby approves a non-exclusive membership agreement pursuant to Section 163.01, Florida Statutes between the City of Cape Canaveral and the Green Corridor Clean Energy Property Assessed (PACE) District in substantially the form attached hereto as Exhibit "A" relating to the Clean Energy Green Corridor (the "Membership Agreement"). The Membership Agreement shall apply within the jurisdictional limits of the City of Cape Canaveral. Further, the Membership Agreement shall be non-exclusive and shall not interfere with any other PACE Program that the City has or will create, join or participate in on or after the Effective Date of this Resolution pursuant to Section 163.08, Florida Statutes or other applicable law. Section 4. Authorization. The City Manager or designee is hereby authorized to execute the Membership Agreement and any other legal instrument necessary to implement the Membership Agreement, subject to review by the City Attorney for legal form and sufficiency. Section 5. Repeal of Prior Inconsistent Resolutions. All prior resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of the conflict. Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 7. Effective Date. This Resolution shall take effect immediately upon adoption. [Adoption Page Follows] City of Cape Canaveral Resolution No.2017-01 Page 2 of 3 ADOPTED and RESOLVED, by the City Council of the City of Cape Canaveral, Florida, this 18th day of July, 2017. Bob Hoog, Mayor ATTEST: For Against Mia Goforth, CMC Mike Brown x City Clerk Bob Hoog x Brendan McMillin x Rocky Randels Motion Betty Walsh Second Approved as to legal form and sufficiency for the City of Cape Canaveral only by: Anthony A. Garganese, City Attorney City of Cape Canaveral Resolution No. 2017-01 Page 3 of 3 Resolution No. 2017-01 Exhibit"A" MEMBERSHIP AGREEMENT BETWEEN THE GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE) DISTRICT AND CITY OF CAPE CANAVERAL This Membership Agreement(the"Membership Agreement")is entered into this day of , 2017 by and between the Green Corridor Property Assessment Clean Energy (PACE) District, a public body corporate and politic (the"Green Corridor"), and City of Cape Canaveral, Florida, a Florida municipal corporation (the "City") (collectively, the "Parties")for the purpose of providing a PACE program within the jurisdictional limits of the City of Cape Canaveral, Florida. RECITALS 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, on July 18, 2017, the City Council of the City of Cape Canaveral, Florida adopted Resolution No. 2017-01 agreeing to join the Green Corridor as a non-voting member in order to finance qualifying improvements in the City of Cape Canaveral 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 City of Cape Canaveral. 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 jurisdictional limits of the City of Cape Canaveral in accordance with Section 163.08,Florida Statutes, by virtue of the City's j oining the Green Corridor as a non-voting member and utilizing the Green Corridor's existing program (the "Program"). 3. Qualifying Improvements. The City shall allow the Green Corridor to provide financing of qualifying improvements, as defined in Section 163.08, Florida Statutes, on properties within the City of Cape Canaveral. 4. Non-Exclusive. The Green Corridor Program is non-exclusive, meaning the City specifically reserves the right, at its sole discretion, to join any other entity providing a similar program under Section 163.08, Florida Statutes or other Membership Agreement Green Corridor/City of Cape Canaveral 1 Resolution No. 2017-01 Exhibit"A" applicable law, or create its own program under Section 163.08,Florida Statutes or other applicable law. 5. Program Guidelines: The Parties agree that, unless the City desires to implement its own local program guidelines as described below, the Program to be offered in the City will be wholly governed by the Green Corridor's Program Guidelines. If the City desires to implement its own local program guidelines, it may do so upon sixty (60) days written notice to the Green Corridor. Any such local program guidelines can be amended and changed only by the authorized designee of the City. These local program guidelines shall be consistent with the Green Corridor's guidelines. The City 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 City'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 City, which boundaries may be limited, expanded, or more specifically designated from time to time by the City at the City's sole discretion. The City will provide written notice to the Green Corridor of any such limitation, expansion or designation. 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 City 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 City of Cape Canaveral 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 City who obtain financing through the Green Corridor. 8. Amended and Restated Interlocal Agreement. The Parties agree that the City shall be subject to all terms, covenants and conditions of the Amended 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 City. 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 Membership Agreement Green Corridor/City of Cape Canaveral 2 Resolution No. 2017-01 Exhibit"A" assessments, the Program's financing agreements, the Program's qualifying improvements, or any other aspect of the Program. Green Corridor shall defend, indemnify and hold harmless the City, its officers, employees, attorneys and agents, from and against any and all demands, claims, losses, suits, liabilities, causes of action, judgment or damages, arising out of, related to or in any way connected with Green Corridor's, and/or any of Green Corridor's designees or agents, performance or non-performance of any provision of this Membership Agreement or the PACE Program arising from contracts between Green Corridor and/or any of Green Corridor's designees and agents and any third parties made pursuant to this Membership Agreement. In addition,the foregoing obligation shall expressly include all demands, claims, losses, suits, liabilities, causes of action, judgment or damages, arising out of or based on a challenge to whether the voluntary non-ad valorem assessment constitute a lien of equal dignity to taxes or greater priority than other recorded instruments, as authorized by the PACE enabling act under Florida law. Also, Green Corridor agrees to indemnify and hold harmless the City from and against collection risk related to the bonds issued for PACE assessments within the City. The Parties also agree that the City and its employees, officers and attorneys shall also receive the full benefits of the indemnification provided for in Section 16 of the Interlocal Agreement, and that such indemnification provision shall also apply to the City. 10. Agreements with Tax Collector,Property Appraiser and Municipalities. The Green Corridor acknowledges that the City 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. If required by the tax collector and property appraiser,the City agrees to enter into those agreements as a third-party to facilitate the collection of the non-ad valorem special assessments imposed by Green Corridor. However, Green Corridor shall be solely responsible for professionally coordinating all interface with the tax collector and property appraiser. Green Corridor shall take all action necessary for the lawful levy of the special assessments against all lands and properties specifically benefitted by the acquisition, construction and financing of qualifying improvements. The City shall not incur or ever be requested to authorize or take steps to authorize any obligations secured by special assessments associated with qualifying improvements imposed by Green Corridor. 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 City of Cape Canaveral property owners that may utilize the Program. 12. Term; Green Corridor's Obligations After Termination. This Membership Agreement shall remain in full force and effect from the date of its execution by both Parties. Any Party may terminate this Membership Agreement upon ninety Membership Agreement Green Corridor/City of Cape Canaveral 3 Resolution No. 2017-01 Exhibit"A" (90) days prior written notice. Green Corridor's obligations and responsibilities under this Membership Agreement shall survive termination in regards to financing agreements and assessments that have not been satisfied by Cape Canaveral property owners prior to the termination of the Agreement, and such obligations and responsibilities shall remain in effect until the outstanding debt has been completely satisfied. The termination of this Membership Agreement shall also constitute a termination of the City's joining the Green Corridor PACE Program and termination and release of the City from any and all duties, rights and obligations under the Interlocal Agreement and as a limited member of the Green Corridor District. 13. Consent. This Membership Agreement and any required resolution or ordinance of an individual Party shall be considered the City'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 City 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 City of Cape Canaveral: Attn: City Manager City Hall 100 Polk Avenue Cape Canaveral, Florida 32920 With a Copy to: City Attorney Anthony A. Garganese 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32802 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. Membership Agreement Green Corridor/City of Cape Canaveral 4 Resolution No. 2017-01 Exhibit"A" 17. Joint Effort. The preparation of this Membership Agreement has been a j oint 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 terms 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. Law, Jurisdiction, Venue. This Membership 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 Eighteenth Judicial Circuit in and for Brevard County,Florida,the United States District Court for the Middle District of Florida, Orlando Division, or United States Bankruptcy Court for the Middle District of Florida, Orlando Division, as appropriate. 24. Sovereign Immunity No provision of this Membership Agreement, the Interlocal Agreement, or any other legal instrument between the Parties to implement the Program, shall be construed or deemed a waiver or avoidance of any common law or statutory right to sovereign immunity or of any other defenses, privileges and immunities enjoyed by the City or Green Corridor and their respective elected and appointed officers, employees and agents under any applicable law. Nothing in this Membership Agreement is intended to inure to the benefit of any third party for the Membership Agreement Green Corridor/City of Cape Canaveral 5 Resolution No. 2017-01 Exhibit"A" purpose of allowing any claim which would otherwise be barred under the doctrine of sovereign immunity or by operation of law. This Paragraph shall survive termination. 25. Covenant Not To Impose Any Financial Obligations On The City. Green Corridor covenants and agrees for itself and its members (voting and nonvoting), directors, officers, employees, contractors and agents that Green Corridor shall not have any right or power to impose or otherwise monetarily obligate the City to pay any assessment, charge, fee, penalty, dues or any other compensation or funds arising out of or in any way concerning the City's participation in the membership, the Interlocal Agreement and this Membership Agreement. Not under any circumstances whatsoever shall the City be liable for or obligated to pay, secure or perform any debts, liabilities, conditions or obligations arising out of any financing agreement or instrument, special assessment, lien, mortgage agreed to by any property owner or its representative under the Program. Furthermore, the City shall not be responsible or obligated for paying any debts, obligations or liabilities arising out of or resulting from any acts or omissions of Green Corridor or its members, directors, officers, employees, contractors and agents. 26. Effective Date. This Membership Agreement shall become effective upon the execution by the Parties hereto. 27. Reporting to the City. On an annual basis, or upon request of the City in writing, Green Corridor shall provide the City with a written report reporting on the implementation of the PACE Program within the jurisdictional limits of the City. The report will include a summary of the properties serviced, the Qualifying Improvements made, the amount paid for the Qualifying Improvements, and such other information reasonably requested by the City. In addition, upon request by the City, Green Corridor shall provide the City with a copy of its annual audit required by Florida law. 28. Recordation. If required, this Membership Agreement shall be filed by the Authority with the Clerk of the Court in the Public Records of Miami-Dade County as an amendment to the Interlocal Agreement and recorded in the public records of the City of Cape Canaveral, Brevard County in accordance with Section 163.01(11), Florida Statutes. IN WITNESS WHEREOF, the Parties hereto have made and executed this Membership Agreement on this day of July, 2017. ATTEST: GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE)DISTRICT By: By: District Secretary Executive Director Membership Agreement Green Corridor/City of Cape Canaveral 6 Resolution No. 2017-01 Exhibit"A" APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: Weiss Serota Helfman Cole & Bierman P.L., District Attorney ATTEST: CITY OF CAPE CANAVERAL, FLORIDA By: By: Mia Goforth, CMC, City Clerk Bob Hoog, Mayor APPROVED AS TO FORM AND LEGAL SUFFICIENCY for the City of Cape Canaveral only: By: Anthony A. Garganese, City Attorney Membership Agreement Green Corridor/City of Cape Canaveral 7