HomeMy Public PortalAboutLimited Purpose Party Membership Agreement with the Florida Resiliency and Energy District.pdfThis instrument was prepared by or under the supervision
of (and after recording should be returned to):
Joseph P. Stanton
Broad & Cassel
Bank of America Center
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 VILLAGE OF KEY BISCAYNE
This Limited Purpose Party Membership Agreement (the "Agreement") is entered
into this day of , 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 VILLAGE OF KEY BISCAYNE, a Florida Municipal Corporation (the "Village of
Key Biscayne") (collectively, the "Parties") for the purpose of providing a Property
Assessed Clean Energy ("PACE") program within the legal boundaries of the Village of
Key Biscayne.
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
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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 Village of Key Biscayne 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 Village of Key Biscayne 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 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 Village of Key Biscayne 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 Village of Key Biscayne, with the intent to be bound thereto, hereby agree
that the Village of Key Biscayne 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 Village of Key Biscayne, as more specifically described below, and in
accordance with federal, state, and local laws, rules, regulations, ordinances, and all
operational program standards of the Village of Key Biscayne.
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 property owner's voluntary participation in the PACE
program shall be levied by FRED on properties within the legal boundaries the Village of
Key Biscayne and the receipt and distribution of any non -ad valorem special assessments
imposed by FRED are purely ministerial acts.
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SECTION 5. QUALIFYING IMPROVEMENTS. FRED may provide
access to financing for Qualifying Improvements to real property within the legal
boundaries of the Village of Key Biscayne, in accordance with Section 163.08, Florida
Statutes, and subject to the terms of this Agreement, as well as applicable federal, state,
and Village of Key Biscayne law.
SECTION 6. FINANCING AGREEMENT. Before extending any
financing or subjecting any participating real property within the legal boundaries of the
Village of Key Biscayne 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 owner(s) within the legal boundaries of the Village
of Key Biscayne 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 Village of Key Biscayne, which legal boundaries may be
limited, expanded to reflect annexation, or more specifically designated from time to time
by the Village of Key Biscayne by providing written notice to FRED. Upon execution of
this Agreement and written request thereafter, the Village of Key Biscayne agrees to
provide FRED the current legal description of the legal boundaries of the Village of Key
Biscayne.
SECTION 8. ELIGIBLE PROPERTIES. Within the legal boundaries of
the Village of Key Biscayne, 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 Village of Key Biscayne 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 Village of Key Biscayne
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 Village of Key Biscayne as provided for
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FDFC I2-21-16
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 Village of Key Biscayne ("Termination Date"),
FRED shall not approve any new applications affecting property within the legal
boundaries of the Village of Key Biscayne 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.
SECTION 11. CONSENT. This Agreement, together with the resolution by
the governing board of the Village of Key Biscayne approving this Agreement, shall be
considered the Parties' consent to authorize FRED to administer the PACE program within
the legal boundaries of the Village of Key Biscayne, as required by Section 163.08, Florida
Statutes.
SECTION 12. VILLAGE OF KEY BISCAYNE COORDINATOR. The
Office of the Village Manager within the Village of Key Biscayne shall serve as the Village
of Key Biscayne's primary point of contact and coordinator. The Village of Key Biscayne
will advise FRED of any changes to the Village of Key Biscayne'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 Village of Key Biscayne,
shall be shared in equal parts between FRED and the Village of Key Biscayne.
SECTION 14. LIMITED OBLIGATIONS. Neither FRED nor FDFC is
authorized to issue bonds, or any other form of debt, on behalf of the Village of Key
Biscayne 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 Village of Key Biscayne. The issuance of such bonds shall not directly
or indirectly or contingently obligate the Village of Key Biscayne to levy or to pledge any
form of taxation whatever, or to levy ad valorem taxes on any property within their
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territorial limits to pay the bonds, and the bonds shall not constitute a lien upon any
property owned by the Village of Key Biscayne. For any such bonds, the bond disclosure
document, if any, shall include references to the fact that the Village of Key Biscayne is
not an obligated party, and also adequately disclose material attendant risks with PACE
programs.
SECTION 15. LIABILITY, INDEMNIFICATION AND SOVEREIGN
IMMUNITY.
(A) Village of Key Biscayne 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)(0), 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. Village of Key Biscayne 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. Village of Key Biscayne is
completely independent of FRED. To the extent provided by law, FRED shall indemnify,
defend and hold harmless Village of Key Biscayne 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 Village of Key Biscayne, nor the local governments who are either
or both the founders or members of the Agency, nor any subsequently joining or partici-
pating 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 Village of Key Biscayne, the local govern-
ments 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.
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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 Village of Key
Biscayne, which shall provide for the collection of any non -ad valorem special assessments
imposed by FRED within the legal boundaries of the Village of Key Biscayne. If required
by the tax collector and property appraiser, the Village of Key Biscayne 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 Village of Key Biscayne, 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:
If to FRED:
The Florida Resiliency and Energy District
c/o Florida Development Finance Corporation
William "Bill" F. Spivey, Jr.
Executive Director
156 Tuskawilla Road, Suite 2340
Winter Springs, FL 32708
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)
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FDFC 12-21-16
jstanton@broadandcassel.com
If to Village of Key Biscayne:
Andrea Agha
Village Manager
Village of Key Biscayne
Village Hall
88 West McIntyre Street
Key Biscayne, FL 33149
305.365.5511 (t)
aagha(a keybiscayne.fl.gov
with a copy to:
Chad S. Friedman, Esq.
Village Attorney
Weiss Serota Helfman Cole & Bierman, P.L.
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, FL 33134
305.854.0800 (t)
cfriedman@wsh-law.com
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 Village of Key Biscayne 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.
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.
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FDFC 12-21-16
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 Miami -Dade County and recorded in the public records of Miami -Dade County 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.
[SIGNATURE PAGES FOLLOW]
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FDFC 12-2I-16
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement
on this day of , 2018.
VILLAGE OF KEY BISCAYNE, FLOR-
IDA
By:
Date
Village of Key Biscayne Manager
Attest:
By: Date
igrr Jennifer Medina, CMC
Village of Key Biscayne Clerk
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2018, by , of the Village of Key Bis-
cayne, Florida, who is personally known to me/has produced
as identification.
Printed/Typed Name:
(SEAL) Notary Public -State of Florida
Commission Number:
9
FDFC I2-21-16
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
WI I ' SS:
ATNESS:
A\tsr- W v el
STATE OF FLORIDA
COUNTY OF 5C.f'Y7 i no le.
FLORIDA DEVEL PMENT FINANCE
CORPORAT on behalf of FLORIDA
RESILIEN ND ENERGY DISTRICT
By:
William "Bill" F. Spivey, Jr.
Executive Director
The forego `'l ent was acknowledged before me this
ril 2� .
� y y - - iam "Bill" F. S ivey, Jr., Executive Director
Development Finance Corporation, who is personally knowi nh
as identification.
(SEAL)
FDFC 12-21-I6
5-r day of
of the Florida
as produced
,„QJ
Pri d/Typer
Notary Public -State of phrida n �
Commission Number: (� J 1-
48
10
Jennifer Jenkins
eb NOTARY PUBLIC
+STATE OF FLORIDA
Comm# GG141148
Expires 9/5/2021