Non-Exclusive Interlocal Subscription Agreement with Florida Pace Funding Agency a01(0 — a9 (10
NON-EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT
RELATING TO THE FUNDING AND FINANCING
OF QUALIFYING IMPROVEMENTS BY THE
FLORIDA PACE FUNDING AGENCY
Between
THE CITY OF MIAMI BEACH, FLORIDA,
and
THE FLORIDA PACE FUNDING AGENCY
IVon-Exclusive Interlocal Subscription Agreement
City of Miami Beach
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS 1
SECTION 1.02. CONSTRUCTION 3
SECTION 1.03. SECTION HEADINGS 3
SECTION 1.04. FINDINGS 3
ARTICLE II
SUBSCRIPTION
SECTION 2.01. AUTHORITY 5
SECTION 2.02. CREATION OF STATE, COUNTY
OR MUNICIPAL DEBTS PROHIBITED 5
SECTION 2.03. ADOPTION OF RATES, FEES AND CHARGES 5
SECTION 2.04. FINANCING AGREEMENTS 6
SECTION 2.05. IMPOSITION OF SPECIAL ASSESSMENTS PURSUANT TO
FINANCING AGREEMENTS 6
SECTION 2.06. COLLECTION OF SPECIAL ASSESSMENTS 7
SECTION 2.07. PLEDGE OF PROCEEDS
FROM NON-AD VALOREM ASSESSMENTS 7
SECTION 2.08. CARBON OR SIMILAR CREDITS 8
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. INTERLOCAL AGREEMENT PROVISIONS 9
SECTION 3.02. DISCLOSURE 9
SECTION 3.03. TERM OF AGREEMENT,
DURATION OF AGREEMENT; EXCLUSIVITY 9
SECTION 3.04. AMENDMENTS AND WAIVERS 10
SECTION 3.05. NOTICES 10
SECTION 3.06. QUALITY CONTROL AND COMMUNICATION 11
SECTION 3.07. IMMUNITY; LIMITED LIABILITY 12
SECTION 3.08. BINDING EFFECT 12
SECTION 3.09. SEVERABILITY 13
SECTION 3.10. EXECUTION IN COUNTERPARTS 13
SECTION 3.11. APPLICABLE LAW 13
SECTION 3.12. ENTIRE AGREEMENT 13
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 v (°k)5-1(°k)5-1 1 0 , 2016 (the "Subscription Agreement"), by and
between the City of Miami Beach, 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 mariner, for the Property Owners (as hereinafter defined) within the
jurisdiction and boundaries of the Subscriber the privileges and benefits 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" means the Florida PACE Funding Agency, a separate legal entity and public
body and unit of local government. The name or acronym PACE is derived from the concept
commonly referred to as'property assessed clean energy' and relates hereto to the provisions of
general law related to energy efficiency, renewable energy and wind resistance improvements
encouraged by Section 163.08, Florida Statutes.
"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.
Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
"Financing Agreement" means the agreement authorized hereunder and by the
Supplemental 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
instrument relating to the issuance or security of any bond or Obligations of the Agency and
any agreement, pursuant to which the 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 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.
"Pledged Funds" shall mean (A) the revenues derived from Special Assessments and
other moneys received by the Agency or its designee relating to some portion thereof, (B) until
applied in accordance with the terms of the Financing Documents, all moneys in the funds,
accounts and sub-accounts established thereby, including investments therein, and (C) such
other property, assets and moneys of the Agency as shall be pledged pursuant to the Financing
Documents; in each case to the extent provided by the Board of Directors pursuant to the
Financing Documents. The Pledged Funds pledged to one series of Obligations may be different
than the Pledged Funds pledged to other series of Obligations. Pledged Funds shall not include
any general or performance assurance fund or account of the Agency.
"Program" means the program operated by the Agency to provide financing for
Qualifying Improvements undertaken within this.State and the geographic bounds of the
Subscriber. The Agency's Program is non-exclusive; and, the Subscriber may embrace or
authorize any similar program under the Supplemental 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 Property 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 a Property Owner who has
Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
entered into a Financing Agreement with the Agency to fund the costs of Qualifying
Improvements.
"Subscriber" means the City of Miami Beach, Florida, a general purpose local
government duly organized and existing under and by virtue of the laws of the State of Florida.
"Subscription Agreement" or "Interlocal Agreement" means this interlocal agreement,
or if the context requires a similar interlocal agreement between the Agency and any
municipality, county or other government or separate legal entity permitted by the
Supplemental Act to enter into Financing Agreements as provided for therein. The term
subscription in the context simply presents a means of making available the service of funding
and financing of Qualifying Improvements by the Agency to interested private property owners
as provided by general law.
"Supplemental Act" means the provisions of, and additional and supplemental
authority described in, Section 163.08, Florida Statutes, as amended.
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.
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts of
the several Articles and Sections of this interlocal 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 Legislature has determined there is a compelling state interest in
enabling private 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, and its property owners and inhabitants.
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
(B) The Agency has provided to the Subscriber a binding Final Judgment that
expressly evidences the Agency is distinct from the Subscriber and that the Subscriber shall not
in any manner be obligated to pay any debts, obligations or liabilities arising as a result of any
actions of the Agency or its agents, and the Agency has no independent power to obligate the
Subscriber.
(C) Nothing in this Agreement does, nor shall be construed to empower the Agency
to obligate or foist any liability upon the Subscriber in any manner, without the express written
permission of both parties; and no such permission is included in this Agreement.
(D) 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 City of Miami Beach) and
the voluntary participation in the Program by Property Owners provides an alternative
financing option to private property owners to finance and repay the costs to provide and
install Qualifying Improvements.
(E) The Agency is authorized by law pursuant to the provisions of the Supplemental
Act to undertake the Program.
(F) This Agreement provides an alternative, supplemental and non-exclusive means to
encourage and achieve, inter alia, immediate local economic development in a manner provided by
the Legislature, provide for local commerce and job creation, as well as achieving the compelling
State interest and public purposes described in the Supplemental Act.
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
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 approved to act to provide its
lawful services, and lawfully conduct its affairs,within the City of Miami Beach.
(C) 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 or other county or
municipal revenues or to make any appropriation for their payment.
SECTION 2.03. ADOPTION OF RATES,FEES AND CHARGES.
(A) The Board of Directors necessarily must adopt or authorize 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 Property Owner 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.
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
(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 Property Owners within the
same class, or within each subscribing local governmental jurisdiction, 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.
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
Special Assessments.
SECTION 2.05. IMPOSITION OF SPECIAL ASSESSMENTS PURSUANT TO
FINANCING AGREEMENTS.
(A) Upon execution by the Property 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 or as required by Section 163.08(8), Florida Statutes, as amended. 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 a lien
of equal dignity to ad valorem taxes and assessments from the date of recordation.
(B) In a reasonably cooperative and uniform manner the Agency will 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 as a non-ad valorem assessment on behalf
of the Agency pursuant to Sections 197.3632 and 163.08, Florida Statutes.
(C) By law the Special Assessments must be collected pursuant to Sections 197.3632
and 163.08, Florida Statutes; and, are not imposed by the Subscriber, the property appraiser or
the tax collector. The Special Assessments are levied and imposed solely by the Agency, and
only then upon voluntary application of a private property owner as expressly enabled,
authorized and encouraged by the Supplemental Act to accomplish a compelling state interest
with local government assistance. The statutory duties of the property appraiser and the tax
collector in each county, under section 197.3632, Florida Statutes, are ministerial and the
property appraiser and tax collector are by law without discretion with regard to the collection
of the Special Assessments on the tax notice once the affected private property owner has
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
voluntarily entered into a Financing Agreement with the Agency, and the Agency complies
with the requirements of Sections 197.3632 and 163.08, Florida Statutes.
SECTION 2.06. COLLECTION OF SPECIAL ASSESSMENTS.
(A) The Agency as a local government authorized by law to impose the Special
Assessments, is also required by law to use the uniform method of collecting such Special
Assessments, and 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.
(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 interest and public purposes 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 shall be satisfied that any such assessment is so
irregular or defective that the same cannot be enforced or collected, the Agency will 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
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
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 other 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's jurisdiction 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 will 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.
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. INTERLOCAL AGREEMENT PROVISIONS. This Subscription
Agreement is deemed to be an "interlocal agreement" within the meaning of the Florida
Interlocal Cooperation Act of 1969, as amended. This Interlocal 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. The Agency shall provide to the City reports and updates of the
Program's success every six months, which report shall include in an excel sheet the number of
new contracts, installations, types of installations, location of installations, energy and monetary
savings, and number of certified contractors utilized.
(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 by private property owners desirous of also
achieving, a compelling state interest and stimulate a substantial and meaningful flow of
private sector economic activity and new job creation. In doing so under this Interlocal
Agreement, the Subscriber authorizes the non-exclusive availability of the Agency's funding
and financing 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.
This conflict waiver does not apply to litigation or other adversarial proceedings filed against
the Subscriber.
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
SECTION 3.03. TERM OF AGREEMENT; DURATION OF AGREEMENT;
EXCLUSIVITY.
(A) The term of this Interlocal Agreement shall commence as of the date first above
written.
(B) The term shall continue 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
any 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). Provided, however, the Agency's powers to be employed and exercised hereunder
shall be non-exclusive, and the Subscriber is free to and reserves the right to enter into or
otherwise commence another program for financing Qualified Improvements using non-ad
valorem assessments either under the Supplemental Act or pursuant to its home rule powers
upon written notice to the Agency of its decision to do so.
(C) Notwithstanding subsection (B), Subscriber may terminate this Interlocal
Agreement upon ninety (90) days written notice provided as required by Section 3.05.
Provided,however, no termination of this Interlocal Agreement shall preclude the Agency from
exercising any of its power or authority after any termination, including without limiting the
generality of the foregoing that is specifically associated with collection of any of its Obligations
outstanding which are secured by pledged revenues derived from Financing Agreements
relating to any properties within the jurisdiction or boundaries of the Subscriber. In the event,
the Agency's rights under this Interlocal Agreement to impose new non-ad valorem
assessments shall ever end, then as of the effective date of the termination, all rights and
obligations of the parties shall continue as specified in subsection (B) until such time as all
Agency's 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. 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.
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:
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
Subscriber: The City of Miami Beach
ATTN: City Manager
401 Clematis Street (P.O. Box 3366)
Miami Beach, Florida 33401-5319 (33402-3366)
With a copy to: The City of Miami Beach
ATTN: City Attorney
200 Second Street
Miami Beach, Florida 33401
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 set or reflect 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,
each party is encouraged to objectively and specifically communicate to the other in writing as
provided for herein any concerns, suggestions or disapproval with performance, policies,
systems or procedures being employed by each party concerning the funding and financing of
Qualified Improvements. 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)
from the Subscriber and follow-up accordingly; and, also promptly communicate any such
response, follow-up, and all related communication to the Board of Directors for review. This
paragraph shall not be construed as containing any obligation for the Subscriber to receive
complaints or concerns about the Agency's performance, policies, systems, or procedures, and
the Subscriber is requested to and specifically authorized to refer all such complaints or
concerns directly to the Agency for a response.
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Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
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)(o), Florida Statutes, that certain final judgment in Fla.
PACE Funding Agency v. State, No. 2011-CA-1824 (Fla. 2d Cir. Ct. 2011), and this covenant of the
parties hereto, the local governments who are either the incorporators, or members of the
Agency, or any subsequently participating or subscribing local government 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 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.
(C) To the extent provided by law, the Agency agrees to indemnify, defend and hold
harmless the Subscriber from any and all damages, claims, and liabilities arising from the gross
negligence or intentional misconduct of the Agency relating to operation of the Program.
Nothing in this Subscription Agreement is intended to inure to the benefit of any third-party or
for the purpose of allowing any claim, which would otherwise be barred under the doctrine of
sovereign immunity or by operation of law.
(D) The Agency presents an independent local government funding and financing
instrumentality. Neither the Subscriber, nor the local governments who are either or both the
incorporators or Subscribers 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 in writing, 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
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City of Miami Beach
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.
SECTION 3.11. APPLICABLE LAW.
(A) A breach of this Subscription Agreement shall mean a material failure to comply
with the Supplemental Act or any covenants or provisions of this Agreement. If any party
breaches any obligation herein, then, upon receipt of written notice by the non-breaching party,
the breaching party shall proceed diligently and in good faith to take all reasonable actions to
cure such breach, and shall continue to take all such actions until such breach is cured, or be
subject to termination for cause.
(B) At all times the parties may proceed at law or in equity to enforce their rights
under this Agreement using all available remedies.
(C) The 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.]
13
Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
IN WITNESS WHEREOF, the undersigned have caused this Non-Exclusive Interlocal
Subscription Agreement to be duly executed and entered into as of the date first above written.
,-_ ' ro. THE CITY OF MIAMI BEACH
(SEAL) 4'56 ,%' % 'f
� i1f�, Philip Levine, Mayor, /
i. 'I �
•
' `� 1 .I ,Ex-Officio Chai- 'of the City
Commission
Attest: Approved as to form:
A/ 510 ifD r )4,
Rafa- E. Grana•o, City Cler R 1Y. Aguila, City Attorney
14
Non-Exclusive Interlocal Subscription Agreement
City of Miami Beach
IN WITNESS WHEREOF, the undersigned have caused this Interlocal Agreement to be
duly executed and entered into as of the date first above written.
`v\,,�•� Fund�, ,,����' THE FLORIDA PACE FUNDING AGENCY
I I i a I . =
(SEAL) E-
S. .4 11111
By:
Michael H. Steigerwald, Execu ve Director
iihllllllll ita0��
ATTEST:
tr
Donald T. Smallwood, Assistant Secretary
15