Loading...
HomeMy WebLinkAboutFRED PACE Agreement - 07-18-2017 Orange Co Recorded DOC#20170414213 07/26/2017 07:49 AM Page 1 of 10 This instrument was prepared by or under the supervision Rec Fee: $86.50 of(and after recording should be returned to): Deed Doc Tax: $0.00 Mortgage Doc Tax: $0.00 Joseph P. Stanton Intangible Tax: $0.00 Broad&Cassel Phil Diamond, Comptroller Orange County, FL Bank of America Center Ret To: SIMPLIFILE LC 390 North Orange Avenue Suite 1400 Orlando,FL 32801-4961 (SPACE reserved for Clerk of Court) LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT BETWEEN THE FLORIDA RESILIENCY AND ENERGY DISTRICT AND THE CITY OF CAPE CANAVERAL This Limited Purpose Party Membership Agreement (the "Agreement") is entered into this ieday of 2017 by and between the FLORIDA RESILIENCY AND ENERGY DIS ("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 CAPE CANAVERAL, a Florida municipal corporation (the "City") (collectively, the "Parties") for the purpose of providing a Property Assessed Clean Energy ("PACE") program within the legal boundaries of the City. NOW,THEREFORE, in consideration of the above recitals,terms and conditions, promises and covenants hereinafter set forth, the Parties agree as follows: SECTION 1. 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 Cape Canaveral to access the Florida Development Finance Corporation (FDFC) PACE program and permit FRED to administer the FDFC PACE program within such legal boundaries. SECTION 2. PARTIES TO THE INTERLOCAL AGREEMENT. The Interlocal Agreement, dated September 6, 2016 (the "Interlocal Agreement") between the Town of Clarke Shores, the City of Fernandina Beach, the Florida Development Finance Corporation (FDFC) in the limited capacity described therein and any subsequent parties thereto is incorporated herein by this reference. The City is hereby deemed a party to the Interlocal Agreement by virtue of becoming a "limited member" under the Interlocal Agreement, as 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 Cape Canaveral, 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 Cape Canaveral. In the event of any conflict between the Interlocal Agreement and this Agreement, this Agreement shall control the rights and obligations of the Parties. I FDFC-12-21-16 20170414213 Page 2 of 10 SECTION 3. FINDING OF SPECIAL BENEFIT AND LEVY OF SPECIAL ASSESSMENTS. The City hereby finds and acknowledges that access to financing for Qualifying Improvements through the FDFC PACE Program provides a special benefit to real property within its legal boundaries which special benefit is secured by the imposition, levy, apportionment and collection of non-ad valorem special assessments consistent with the common powers provided in this Agreement, FRED and the City acknowledge and agree that the non-ad valorem special assessments arising from a property owner's voluntary participation in the FDFC PACE Program shall be levied by FRED on behalf of the City and the receipt and distribution of any non-ad valorem special assessments imposed by FRED are purely ministerial acts. FRED shall be solely responsible for all matters associated with origination, funding, financing, collection and administration of each of the FRED's authorized non-ad valorem assessments. FRED's responsibilities include: (1) FRED defending, indemnifying and holding harmless the City and its officers, attorneys and employees as provided in the Interlocal Agreement and this Agreement; (2) FRED responding to any complaints or inquiries by participants, tax certificate holders, lenders or others relating to the Program's special assessments, the FDFC Pace Program's financing agreements, the Program's qualifying improvements or any other aspect of the FDFC Pace Program; (3) FRED ensuring and being responsible for compliance with all laws, rules and regulations in the imposition and collection of any special assessments levied upon property owned by participating property owners who have entered into a financing agreement. SECTION 4. QUALIFYING IMPROVEMENTS. FRED may provide Access to financing for Qualifying Improvements to real property within the legal boundaries of the City of Cape Canaveral, in accordance with Section 163.08, Florida Statutes, and subject to the terms of this Agreement, as well as applicable federal, state and City law. SECTION 5. FINANCING AGREEMENT. Before extending any financing or subjecting any participating real property within the legal boundaries of the City to the non-ad valorem special assessment authorized therein, FRED, for itself and any FRED designee or agent, shall, on a non-exclusive basis pursuant to 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 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 6. 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 Cape Canaveral,which legal boundaries may be limited, 2 FDFC-12-21-16 20170414213 Page 3 of 10 expanded to reflect annexation, or more specifically designated from time to time by the City by providing written notice to FRED. Upon execution of this Agreement and written request thereafter, the City agrees to provide FRED the current legal description of the legal boundaries of the City of Cape Canaveral. SECTION 7. ELIGIBLE PROPERTIES. Within the legal boundaries of the City, improved real property, including any residential, commercial, agricultural and industrial use may be eligible for participation in the FDFC PACE program within the limits otherwise prescribed in Section 163.08, Florida Statutes. SECTION 8. 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 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 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 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. SECTION 9. 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 ("Termination Date"), FRED shall not approve any new applications affecting property within the legal boundaries of the City 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 FDFC 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.The termination of this Agreement shall also constitute a termination of the City's joining FRED's 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 FRED. SECTION 10. CONSENT. This Agreement, together with Resolution No. 2017-12 adopted by the City Council of Cape Canaveral approving this Agreement, shall be considered the Parties' consent to authorize FRED to exercise its powers pursuant to Section 163.08, Florida Statutes and to provide access for the FDFC PACE program to operate within the legal boundaries of the City, as required by Section 163.08, Florida Statutes. 3 FDFC-12-21-16 20170414213 Page 4 of 10 SECTION 11. CITY COORDINATOR. The City's Community Development Director or such other City employee or agent designated by the City Manager in writing, shall serve as the City's primary point of contact and coordinator. The City will advise FRED of any changes to the City's primary contact and coordinator within 30 days of such changes. SECTION 12. 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, shall be shared in equal parts between FRED and the City. SECTION 13. LIMITED OBLIGATIONS. Neither FRED nor any of FRED's designees or agents thereof is authorized to issue bonds, or any other form of debt, on behalf of the City. To the extent that FRED or any of FRED's designees or agents thereof 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. The issuance of such bonds shall not directly or indirectly or contingently obligate the City to levy or to pledge any form of taxation whatsoever, 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 or any pledge of City revenues. For any such bonds, the bond disclosure document, if any, shall include reference to the fact that the City is not an obligated party, and also adequately disclose material attendant risks with the FDFC PACE Program. SECTION 14. RESPONSIBILITIES OF FRED; INDEMNIFICATION. FRED shall be solely responsible for all matters associated with origination, funding, financing and administration of each of the authorized non-ad valorem assessments, including responding to any complaints or inquiries by participants, tax certificate holders, lenders or others relating to the FDFC Program's special assessments, financing agreements, qualifying improvements or any other aspect of the FDFC PACE Program. FRED 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 FRED's and/ or any of FRED's designees or agents, performance or non-performance of any provision of this Agreement or the FDFC PACE Program arising from contracts between FRED and/or any of FRED's designees and agents and any third parties made pursuant to this 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, FRED agrees to indemnify and hold harmless the City from and against collection risk related to the bonds issued for PACE assessments within the City. 4 FDFC-12-21-16 20170414213 Page 5 of 10 Further, the Parties understand that the City and its employees, officers and attorneys shall also receive the full benefit of any indemnification of the members under the Interlocal Agreement, and that such provisions shall fully apply to the City as if specifically set forth herein. The City shall promptly notify FRED of any claim giving rise to a right to indemnify and shall fully cooperate with FRED in defense of such claims. This Section 14 shall survive termination of this Agreement. SECTION 15. AGREEMENTS WITH TAX COLLECTOR AND PROPERTY APPRAISER. This Agreement shall be subject to the express condition 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, which shall provide for the collection of any non-ad valorem special assessments imposed by FRED within the legal boundaries of the City. 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 FRED. FRED shall be solely responsible for professionally coordinating all interface with the tax collector and property appraiser. FRED 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 FRED. SECTION 16. OPINION OF BOND COUNSEL. FRED warrants, based on FRED's legal 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 17. 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, state and federal laws. FRED acknowledges and agrees that FDFC is an agent of FRED pursuant to the Interlocal Agreement. SECTION 18. 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 5 FDFC-12-2l.-16 20170414213 Page 6 of 10 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 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 SECTION 19. 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 and FRED or other delegated authority authorized to execute same on their behalf. SECTION 20. 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 21. 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 6 FDFC 12-21-16 20170414213 Page 7 of 10 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 22. 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 23. 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 24. 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. SECTION 25. RECORDING. This Limited Purpose Party Membership Agreement shall be filed by FRED as an amendment to the Interlocal Agreement with the Clerk of the Circuit Court in the Public Records of the County where FRED maintains its principal place of business, and in Brevard County, in accordance with Section 163.01(11), Florida Statutes. SECTION 26. 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 27. EFFECTIVE DATE. This Agreement shall become effective upon the execution by both Parties hereto, and recordation in accordance with Section 25 herein. SECTION 28. 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 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. 7 FDFC 12-21-16 20170414213 Page 8 of 10 SECTION 29. SOVEREIGN IMMUNITY. No provision of this Agreement, the Interlocal Agreement, or any other legal instrument between the Parties to implement the FDFC PACE 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 FRED and their respective elected and appointed officers, employees and agents under any applicable law. 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. This Paragraph shall survive termination. SECTION 30. COVENANT NOT TO IMPOSE ANY FINANCIAL OBLIGATIONS ON THE CITY. FRED covenants and agrees for itself and its members (voting and nonvoting), directors, officers, employees, contractors and agents that FRED 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 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 FDFC PACE 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 FRED or its members, directors, officers, employees, contractors and agents. SECTION 31. REPORTING TO THE CITY. On an annual basis, or upon request of the City in writing, FRED shall provide the City with a written report reporting on the implementation of the FDFC 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, FRED shall provide the City with a copy of its annual audit required by Florida law. [SIGNATURE PAGES FOLLOW] 8 FDFC-12-21-16 20170414213 Page 9 of 10 [SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement on thisday of , 2017. CITY OF CA CANAVERAL By: Bob Hoog Mayor For the City of Cape Canaveral, Florida Attest: By: Mia Gofort , CM , City Cler Date: 711 k1l 7 STATE OF FLORI A COUNTY OF v"?-�Jrn✓� The foregoing instrument was acknowledged before me this7� day of Z1_ , 2017, by Bob Hoog, Mayor of the City of Cape Canaveral, Florida, who is personally known to me or has produced - as identification. Mia Goforth Printed/T ped Name: (SEAL) NOTARY PUBLIC Notary Public-State of Florida STATE OF FLORIDA Commission Number: W Comm##GG083783 s1nCE Expires 6/16/2021 9 FDFC 12-21-16 20170414213 Page 10 of 10 [SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT] WI SS: FLORIDA DEVE PMENT FINANCE CORPORA on behalf of FLORIDA RESILIE AND ENERGY DISTRICT By: William "Bill" F. Spivey, Jr. W TNESS: Executive Director C�,V 4*_ Adin STATE OF FLORIDA COUNTY OF Or Ccs e The foregoing instrument was acknowledged before me this 'A of 2017, by William "Bill" F. Spivey, Jr YA"udvcDirector of the Florida Development Finance Corporation, who is personally known to /has produced as identification. Pri ed/Typed Name: lA (t ct b Wyt S (SEAL) Notary Public-State of Florida Commission Number: Y 4nrv�,rwNotary Pubft State of Florida Juba S DownsMy Commission GG 074164 Expires OM20/2021 10 FDFC 12-21-16