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Limited Purpose Party Membership Agreement with FREDThis instrument was prepared by or under the supervision of (and after recording should be returned to): Joseph B. Stanton Broad & Cassel Bank of America Center 390 North Orange Avenue Suite 1400 Orlando, FL 32801 -4961 oIs _302'70 LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT BETWEEN THE FLORIDA RESILIENCY AND ENERGY DISTRICT AND CITY OF MIAMI BEACH, FLORIDA This Limited Purpose. Party Membership Agreement (the "Agreement ") is entered into this Z day of y- / , 2018, by and between the FLORIDA RESILIENCY AND ENERGY DISTRII T ( "FRED "), a public body corporate politic orate and olitic created as a separate p legal entity pursuant to Section 163.01(7), Florida Statutes, and the CITY OF MIAMI BEACH, FLORIDA a political subdivision of the State of Florida (the "CITY ") (collectively, the "Parties ") for the purpose of providing a Property Assessed Clean Energy ( "PACE ") program within the legal boundaries of the CITY. 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 levy and collection of voluntary non -ad valorem special assessments on improved property; and WHEREAS, the CITY 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 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 non - exclusive 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 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, with the intent to be bound thereto, hereby agree that the CITY 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, 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. 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 participant property owner's voluntary participation in the PACE program shall be levied by FRED on participant properties within the legal boundaries the CITY 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 boundaries of the CITY, 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 6. 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 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 2 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 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, which legal boundaries may be limited, 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. Notwithstanding termination of this Agreement or notice of a change in boundaries by the City, those properties that have received financing for qualifying improvements shall continue to be a part of the FRED PACE program, until such time that all outstanding debt has been satisfied. SECTION 8. 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 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 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 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 ( "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 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. 3 SECTION 11. CONSENT. This Agreement, together with the resolution by the governing board of the CITY approving this Agreement, shall be considered the Parties' consent to authorize FRED to administer the PACE program within the legal boundaries of the CITY, as required by Section 163008, Florida Statutes. SECTION 12. CITY COORDINATOR. The Environmental and Sustainability Office within the CITY 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 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, shall be shared in equal parts between FRED and the CITY. SECTION 14. LIMITED OBLIGATIONS. Neither FRED nor FDFC is authorized to issue bonds, or any other form of debt, on behalf of the CITY 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. The issuance of such bonds shall not directly or indirectly or contingently obligate the CITY to i.evy 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. For any such bonds, the bond disclosure document, if any, shall include references to the fact that the CITY is not an obligated party, and also adequately disclose material attendant risks with PACE programs. SECTION 15. LIABILITY, INDEMNIFICATION AND SOVEREIGN IMMUNITY. (A) CITY 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)(o), 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 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 is completely independent of FRED. To the extent provided by law, FRED shall indemnify, defend and hold harmless 4 CITY 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 CITY, nor the local governments who are either or both the founders or members of the Agency, nor any subsequently joining or participating 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 governing board of FRED or any other agents, employees, officers or officials of FRED have any authority or power to otherwise obligate either CITY, the local governments 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 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. 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, 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: 5 If to FRED: Florida Development Finance Corporation 156 Tuscawilla Road, Suite 2340 Winter Springs, Florida 32708 407.712.6355 - Direct 407.369.4260 — FAX 407.271.9540 — Mobile bspivey @fdfcbonds.com www.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 CITYY: CITY Coordinator, Elizabeth Wheaton, Environmental & Sustainability 1700 Convention Center Drive — 4th Floor Miami Beach, FL 33139 With a Copy to: Raul Aguila, City Attorney 1700 Convention Center Drive — 4th Floor Miami Beach, FL 33139 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 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. 6 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. 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 and recorded in the public records of the CITY as an amendment to the lnterlocal 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 Eleventh Judicial Circuit in and for Miami -Dade County, Florida, the United States District Court for the Southern District of Florida or United States Bankruptcy Court for the Southern District of Florida, as appropriate. 7 SECTION 30. NON - EXCLUSIVE. The FRED PACE program is non- exclusive, meaning City 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. SECTION 31. REPORTING. FRED shall provide to the City reports and updates of the Program's success every six months, for the duration of the program, which report should include the number of contracts, number of installations, type of installations, energy and monetary savings, and the number of certified contractors utilized. SECTION 31. RESALE OR REFINANCING OF A PROPERTY. FRED 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. FRED agrees to provide written disclosure of this matter to all City property owners that may utilize the Program. SECTION 32. REPORTING. FRED shall provide to the City reports and updates of the Program's success every six months, for the duration of the program, which report should include the number of contracts, number of installations, type of installations, energy and monetary savings, and the number of certified contractors utilized. FDFC shall promptly provide to the City FDFC' s audited financial statements and such additional records or information in FDFC's possession that are related to financings of Qualifying Improvements within the legal boundaries of the City under the PACE program as the City may request from time to time. SECTION 33. 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 upon ninety (90) days prior written notice. [SIGNATURE PAGES FOLLOW] 8 [SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement on this A ~ ° day of /7 , 2018. ATTEST: By: Rael. E. G . nado, City Clerk CITY OF M MI BEA , FLORIDA APPROVED AS TO FORM AND LEGAL SUFFICIENC By' 1 Ag ila, City STATE COUNTY OF OF orney / 67 FLORIDA ity Manager APPROVED AS TO FORM & LAN A E & FOR EXEC TION pit ✓A `.�_ CI Attor Dote The foregoing instrument was acknowledged before me this /7 day of Q , 2018, by Jimmy Morales, City Manager of the City of Miami Beach, Florida, who is Fpe onally known to me /has produced as identification. Printed /Typed Name: (SEAL) Notary Public -State of Florida Commission Number: 9 LIUA CARDILLO MY COMMISSION # FF 155322 EXPIRES: August 27, 2018 Bonded Thru Notary Public Underwriters [SI NATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT] Print Name: OeiNea r&i STATE OF FLORIDA COUNTY OF h e FLORIDA DEVELOPMENT FINANCE CO (RATION on behalf of FLO °'7T A RESILIENCY AND ENE j ISTRICT By: William " Bill" F. Spivey, Jr. Executive Director The foregoing instrument was acknowledged before me thislilay of 2018, by William " Bill" F. Spivey, Jr., Executive Director of the Florida Development Finance Corporation, who is personall known known to me/has produced, City Manager of the City of Miami Beach, Florida, who is personally known to me as produced as identifi cation. (SEAL) II ., , 1 / 'Tinted /T ed Name: YP �i.e,iln t'Pe- e-c_, e�f'1i„,! 11S Notary Public -State of Florida Commission Number: . -4 Li4 ' 10 �o\ Jennifer Jenkins k{ . '90 NOTARY PUBLIC STATE OF FLORIDA Commit 00141148 Expires 9/5/2021