Limited Purpose Party Agreement with FRED ad' s- 30270
E-RECORDED
Io: OK 9149 P6-81rt
County: SP.w".-nVo
This instrument was prepared by or Date: ko\tt\ tY Time: D% . 2t Mi
under the supervision of (and after recording
should be returned to):
P-RECORDED
Joseph B.Stanton 16'F An3G.�7. 7 PL,RiNi
Broad&Cassel
13/83
Bank of America Center Coontyt IA t0.(ylt ST'",ole
390 North Orange Avenue Suite 1400 �/i91Ig CP��P
Orlando,FL 32801-4961 got 144 TS, 4i
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 70 day of/try / , 2018, by and between the FLORIDA RESILIENCY AND
ENERGY DISTRICT ("FRED"), a public body corporate and politic created as a separate
legal entity pursuant to Section 163.01(7), Florida Statutes, and the CITY OF 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.
SECTIONS. 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
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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.
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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 163.08, 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
levy or to pledge any form of taxation whatever, or to levy ad valorem taxes on any property
within their territorial limits to pay the bonds,and the bonds shall not constitute a lien upon any
property owned by the CITY. 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
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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:
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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)
j stanton@broadandcassel.com
If to CITY:
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.
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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 Interlocal
Agreement, in accordance with Section 163.01(11), Florida Statutes.
SECTION 27. SEVERABILITY. In the event a portion of this Agreement is
found to be unenforceable by a court of competent jurisdiction, that part shall be deemed
severed from this Agreement and the remaining provisions of this Agreement shall remain in
full force and effect.
SECTION 28. EFFECTIVE DATE. This Agreement shall become effective
upon the execution by both Parties hereto.
SECTION 29. LAW, JURISDICTION, AND VENUE. This Agreement shall
be interpreted and construed in accordance with and governed by the laws of the state of
Florida. The Parties agree that the exclusive venue for any lawsuit arising from, related to, or in
connection with this Agreement shall be in the state courts of the 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.
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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]
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[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
IN WITNESS WHEREOF, the Parties he eto have made and executed this
Agreement on this /7+k day of r Ay , 2018.
ATTEST: CITY OF M AMI BEAt1, FLORIDA
7-375-4745-
Ra E. Granado, City ClerkEj`' ,.. "''. P•°.°1, orate , City Manager
‘0D.
APPROVED AS TO FORM ��,aTED;
AND LEGAL SUFFICIENCY: ', 4s ` ItZOR' i ,� j tq
r
/ / C��
N
By. Saliaair 5/ gFl2634
171 A•uila, Cit A omey
STATE OF FLORIDA
COUNTY OF
The, foregoing instrument was acknowledged before me this "7 day of
4h , 2018, by Jimmy Morales, City Manager of the City of Miami Beach, Florida, who is
penallyknown to me/has produced � - as as identification.
Printed/Typed Name:
(SEAL) Notary Public-State of Florida Commission Number:
❑aA CPADRLC
wyc MissI #FF155322
. at wmWEs Arts:12w2OIB
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[SI NATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
WI: r ESS FLORIDA DEV OPMENT
( FINANCE CO' 'ORATION on
fl . 1/4. behalf of FLO'� ►A RESILIENCY
AND ENE' I p DISTRICT
I rint Name: l` Idp.t,) / d4f:
FCTJ5 By:
Y William` Bill" F. Spivey, Jr.
Executive Director
Print Name:Al6hnX EYVH(yri,
STATE OF FLORIDA `.1
COUNTY OFcc innVP. qq
The foregoing instrument was acknowledged before me this�'8ay of Apra I ,
2018, by William " Bill" F. Spivey, Jr., Executive Director of the Florida Development Finance
Corporation, who is personally known known to me/has roduced, City Manager of the City of
Miami Beach, Florida,Cwho is personally known to n74has produced as
identification.
9.-4(42.1.; ,
Printed/Typed Name: x fp,nrl?-R rt. )pm hens
(SEAL) �t �1 �p
Notary Public-State of Florida Commission Number:`j{y'.L4�-70
Jennifer Jenkins
t NOTARY PUBLIC
a _STATE OF FLORIDA
:Cann)*GGI41148
Ota[ ele Expires 9/5/2021
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