HomeMy Public PortalAbout18-9535 Establishing a Property Assessed Clean Energy (PACE) Program Sponsored by: City Manager
RESOLUTION NO. 18-9535
A RESOLUTION OF THE OF THE CITY COMMISSION
OF THE CITY OF OPA-LOCKA, FLORIDA,
ESTABLISHING A PROPERTY ASSESSED CLEAN
ENERGY (PACE) PROGRAM WITHIN THE CORPORATE
LIMITS OF THE CITY OF OPA-LOCKA; APPROVING
INTERLOCAL AGREEMENTS WITH THE FLORIDA
GREEN FINANCE AUTHORITY, THE FLORIDA
RESILENCY AND ENERGY DISTRICT AND THE
FLORIDA PACE FUNDING AGENCY AUTHORIZING
THE ENTITIES TO ADMINISTER VOLUNTARY NON-AD
VALOREM FINANCING OF QUALIFING
CONSERVATION AND ENERGY EFFICIENCY,
RENEWABLE ENERGY AND WIND RESISTANCE
IMPROVEMENTS; AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID AGREEMENTS; AUTHORIZING THE
USE OF THE CITY'S LOGO; PROVIDING FOR
INCORPORATION OF RECITALS; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Section 163.08, Florida Statutes (the "Supplemental Act"), authorizes
Counties, municipalities and certain separate Local Government entities to establish and
administer financing Programs pursuant to which owners of real property may obtain funding for
energy conservation and efficiency, renewable energy and wind resistance improvements (as
referred to therein, the "Qualifying Improvements"), and repay such funding through voluntary
special assessments, sometimes referred to as non-ad valorem assessments ("Special
Assessments"), levied upon the improved property pursuant to financing agreements between the
owner thereof and the local government (the "Financing Agreements"); and
WHEREAS, the Florida Green Finance Authority, the Florida Resiliency and Energy
District and the Florida PACE Funding Agency (individually the "Agency", collectively the
"Agencies") are currently three (3) separate legal entities and units of local government within
the State of Florida which were established by separate interlocal agreements for the express
purpose of providing scalable and uniform platform to facilitate the financing of Qualifying
Improvements throughout Florida; and
WHEREAS, pursuant to the Supplemental Act or as otherwise provided by law, local
governments may enter into a partnership with other local governments for the purpose of
providing and financing Qualifying Improvements, and a Qualifying Improvement Program may
be administered by a third party for-profit entity or a not for profit organization on behalf of or at
the discretion of the local government; and
WHEREAS, the installation of Qualifying Improvements may increase energy efficiency
and improve the wind resistance of existing structures within the City of Opa-locka thereby
Resolution No. 18-9535
reducing the burdens from fossil fuel energy production and contributing to the local economy
by cost savings to property owners, enhancing property values and increasing job opportunities;
and
WHEREAS, the upfront costs of Qualifying Improvements impede installation and
existing financing options may be insufficient for property owners to access cost-effective
financing for energy-saving or wind-resistance property improvements due to requirements
associated with traditional debt or equity financing options; and
WHEREAS, the Agencies have already created the financing, levy and collection
process to implement PACE Programs through local government partners without cost to or
assumption of liability by, or demand upon the credit of the City of Opa-locka; and
WHEREAS,the City of Opa-locka is presently without adequate, currently available and
recurring funds to establish a program similar to the Agencies Programs; and recognizes that if it
does initiate its own program it may be necessary that it commit significant time, staffing and
monetary resources derived from all taxpayers, and that if it borrows the moneys necessary for
such purpose and secures repayment by the proceeds derived from non-ad valorem assessments
it imposes, it will likely face a demand from credit markets for an additional pledge of other City
revenues; however as an alternative or supplement to any other program or approach chosen by
the city, the city can concurrently an presently authorizes and approve the Agency to separately
make the Agency's non-exclusive program and funding for Qualified Improvements immediately
to property owners and the local economy; and
WHEREAS, the City of Opa-locka City Commission deems it to be in the best interest
of the citizens and residents of the City of Opa-locka to authorize the appropriate City officials to
execute agreements between the Florida Green Finance Authority, the Florida Pace Funding
Agency, the Florida Resiliency and Energy District and the City in an effort to provide an
alternative, supplemental and non-exclusive means to achieve, inter alia, immediate and careful
local economic development, commerce and job creation, as well compelling state interest and
public purposes described in the Supplemental Act.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, AS FOLLOWS:
SECTION 1. LEGISLATIVE FINDINGS AND INTENT. The City Commission
hereby adopts and incorporates into this Resolution the City staff report and City
Commission agenda memorandum relating to this Resolution. The forgoing recitals are
incorporated in this Resolution as if fully set forth herein and are approved and adopted.
The City Commission has complied with all requirements and procedures of Florida law
in processing and noticing this Resolution.
SECTION 2. ESTABLISHMENT OF PACE PROGRAM. The City Commission
hereby establishes a Property Assessed Clean Energy (PACE) program within the City
Limits of the City of Opa-locka and requires all service providers associated with the
program to participate in a minimum of two (2) public outreach events annually.
Resolution No. 18-9535
SECTION 3. APPROVAL OF AGREEMENTS; AUTHORIZATION TO
EXECUTE, ETC.
(a). The City Commission approves the Florida Resiliency and Energy District
Agreement with the City of Opa-locka attached hereto and incorporated herein as Exhibit
«A„
(b). The City Commission hereby authorizes the City Manager to execute the
aforementioned agreement.
SECTION 4. IMPLEMENTING ADMINISTRATIVE ACTIONS; USE OF CITY
LOGO.
(a). The City Manager is hereby authorized and directed to take such actions
as he may deem necessary and appropriate in order to implement the provisions of this
Resolution. The City Manager may, as deemed appropriate, necessary and convenient,
delegate the powers of implementation as herein set forth to such City employees as
deemed effectual and prudent.
(b). Pursuant to Section 2-13 of the Code of Ordinances of the City of Opa-
locka, Florida, the City Commission hereby authorizes the use and display of the City
logo solely for communicative purposes associated with the PACE program as
determined by the City Manager.
SECTION 5. SCRIVENER'S ERRORS.
Sections of this Resolution may be renumbered or re-lettered and corrections of
typographical errors which do not affect the intent may be authorized by the City
Manager, or the City Manager's designee, without need of public hearing, by filing a
corrected or re-codified copy of same with the City Clerk.
SECTION 6. EFFECTIVE DATE.
This Resolution shall take effect immediately upon adoption and is subject to the
approval of the Governor or his designee.
PASSED AND ADOPTED THIS 12th DAY OF September, 2018.
67e, %'�
yra L. ylor
Mayor
Resolution No. 18-9535
Attest: Approved as to form and legal sufficiency:
Joan a Flores The Brown Law Group, LLC
City' Jerk City Attorney
Moved by: Vice Mayor Kelley
Second by: Commissioner Riley
Commission Vote: 5-0
Commissioner Holmes: YES
Commissioner Riley: YES
Commissioner Pigatt: YES
Vice-Mayor Kelley: YES
Mayor Taylor: YES
d:.ea�
City of Opa-Locka
Agenda Cover Memo
Department Director: Gregory Gay Department
Director
Signature:
Finance Director: Bryan Hamilton Finance
Department
Si: ature: • a
City Manager: Newall Daughtrey CM Signature:
F MN g Ifni I
Commission Meeting Date: Item Type.
09-12-18 X
(EnterX in
box)
Fiscal Impact: Ordinance Reading:
(EnterX in box) (EnterXin box)
x Public Hearing:
(EnterXin box) x g
(Enter Advertising Requirement:
Funding Source: Fund& (EnterXin box)
Dept)
Account#: Ex:
Contract/P.O.Required: RFP/RFQ/Bi#:N/A
(EnterXin box)
Strategic Plan Related Strategic Plan Priority Area: Strategic Plan
(Enter X in box) Enhance Organizational D Obj./Strategy: (list the
X Bus.&Economic Dev • specific objective/strategy this item
Public Safety will address)
Quality of Education D
Qual.of Life&City Image •
_ Communcation D
Sponsor Name City Department: Planning& City Manager
Manager Community
Development
A RESOLUTION OF THE CITY OF OPA-LOCKA, FLORIDA, ESTABLISHING A PROPERTY
ASSESED CLEAN ENERGY (PACE) PROGRAM WITHIN THE CORPORATE LIMITS OF THE
CITY OF OPA-LOCKA;APPROVING INTERLOCAL AGREEMENTS WITH THE FLORIDA GREEN
Resolution—Approving Renovate America FRED/PACE Program 8-08-18
FINANCE AUTHORITY, THE FLORIDA RESILENCY AND ENERGY DISTRICT AND THE
FLORIDA PACE FUNDING AGENCY; TO WHICH THE ENTITIES WILL ADMINISTER
VOLUNTARY NON-AD VALOREM FINANCING OF QUALIFING CONSERVATION AND ENERGY
EFFICIENCY,RENEWABLE ENERGY AND WIND RESISTANCE IMPROVEMENTS; THE MAYOR
& CITY COMMISSION AUTHORIZE THE CITY MANAGER TO EXECUTE SAID AGREEMENTS;
PROVIDING FOR THE USE OF THE CITY'S LOGO; AND PROVIDING FOR IMPLEMENTING
ADMINISTRATIVE ACTIONS, SCRIVENER'S ERRORS, CONFLICTS, SERVERABILITY, AND
EFFECTIVE DATE.
The City Administration has had meetings with the experts of the Renovate America, who are experts of the
Florida Resiliency and Energy District("FRED")and affiliated with the Property Assessed Clean Energy(PACE)
Program. Through these meetings and correspondence, City Administration has determined that local
governments that create PACE programs and join the Clean Energy Green Corridor PACE District, as provided
in Florida Legislature HB 7179, provides for more affordable upfront financing to property owners for the
installation of qualifying improvmenets. Those improvements include energy-efficient heating, cooling or
ventilation systems, and renewable energy such as solar panels and wind resistance such as impact resistanct
windows and other omprovements that are consistent with state law, specifically, Section 163.08(1) Florida
Statutes. Resolution 16-9176 approved the use of the PACE Program, and the meetings with Renovate America
provided the inclusion of additional providers through the FRED Program also based on the legislation that
approved the PACE program, Section 163.08(1). These improvements, afforded through the FRED program, as
with PACE,not only assist residents and business owners in reducing their carbon footprint and energy costs,but
also stimulates the local economy by the creation of needed construction jobs. The qualifying improvements are
financed through the program and the cost is assessed to the property owner as a Non-Ad Valorem Tax to be
repaid through yearly property tax payments within a 20 year period.
Staff has recommended approval of this legislation.
Resolution 16-9176 PACE Program-YGREENE
Draft Resolution FRED Program-Renovate America
Supporting Documents
Section 163.08(1)F.S.
Resolution—Approving Renovate America FRED/PACE Program 8-08-18
Select Year: 2018 N Go
The 2018 Florida Statutes
Title XI Chapter 163 View Entire
COUNTY ORGANIZATION AND INTERGOVERNMENTAL Chapter
INTERGOVERNMENTAL RELATIONS PROGRAMS
163.08 Supplemental authority for improvements to real property.—
(1)(a) In chapter 2008-227, Laws of Florida, the Legislature amended the energy goat of the state
comprehensive plan to provide, in part, that the state shall reduce its energy requirements through
enhanced conservation and efficiency measures in all end-use sectors and reduce atmospheric carbon
dioxide by promoting an increased use of renewable energy resources. That act also declared it the
public policy of the state to play a leading role in developing and instituting energy management
programs that promote energy conservation, energy security, and the reduction of greenhouse gases. In
addition to establishing policies to promote the use of renewable energy, the Legislature provided for a
schedule of increases in energy performance of buildings subject to the Florida Energy Efficiency Code
for Building Construction. In chapter 2008-191, Laws of Florida, the Legislature adopted new energy
conservation and greenhouse gas reduction comprehensive planning requirements for local governments.
In the 2008 general election, the voters of this state approved a constitutional amendment authorizing
the Legislature, by general law, to prohibit consideration of any change or improvement made for the
purpose of improving a property's resistance to wind damage or the installation of a renewable energy
source device in the determination of the assessed value of residential real property.
(b) The Legislature finds that all energy-consuming-improved properties that are not using energy
conservation strategies contribute to the burden affecting all improved property resulting from fossil
fuel energy production. Improved property that has been retrofitted with energy-related qualifying
improvements receives the special benefit of alleviating the property's burden from energy
consumption. All improved properties not protected from wind damage by wind resistance qualifying
improvements contribute to the burden affecting all improved property resulting from potential wind
damage. Improved property that has been retrofitted with wind resistance qualifying improvements
receives the special benefit of reducing the property's burden from potential wind damage. Further, the
installation and operation of qualifying improvements not only benefit the affected properties for which
the improvements are made, but also assist in fulfilling the goals of the state's energy and hurricane
mitigation policies. In order to make qualifying improvements more affordable and assist property
owners who wish to undertake such improvements, the Legislature finds that there is a compelling state
interest in enabling property owners to voluntarily finance such improvements with local government
assistance.
(c) The Legislature determines that the actions authorized under this section, including, but not
limited to, the financing of qualifying improvements through the execution of financing agreements and
the related imposition of voluntary assessments are reasonable and necessary to serve and achieve a
compelling state interest and are necessary for the prosperity and welfare of the state and its property
owners and inhabitants.
I
(2) As used in this section, the term:
(a) "Local government"means a county, a municipality, a dependent special district as defined in s.
189.012, or a separate legal entity created pursuant to s. 163.01(7).
(b) "Qualifying improvement"includes any:
1. Energy conservation and efficiency improvement, which is a measure to reduce consumption
through conservation or a more efficient use of electricity, natural gas, propane, or other forms of
energy on the property, induding, but not limited to, air sealing; installation of insulation; installation
of energy-efficient heating, cooling, or ventilation systems; building modifications to increase the use of
daylight; replacement of windows; installation of energy controls or energy recovery systems;
installation of electric vehicle charging equipment; and installation of efficient lighting equipment.
2. Renewable energy improvement, which is the installation of any system in which the electrical,
mechanical, or thermal energy is produced from a method that uses one or more of the following fuels
or energy sources: hydrogen, solar energy, geothermal energy, bioenergy, and wind energy.
3. Wind resistance improvement, which includes, but is not limited to:
a. Improving the strength of the roof deck attachment;
b. Creating a secondary water barrier to prevent water intrusion;
c. Installing wind-resistant shingles;
d. Installing gable-end bracing;
e. Reinforcing roof-to-wall connections;
f. Installing storm shutters; or
g. Installing opening protections.
(3) A local government may levy non-ad valorem assessments to fund qualifying improvements.
(4) Subject to local government ordinance or resolution, a property owner may apply to the local
government for funding to finance a qualifying improvement and enter into a financing agreement with
the local government. Costs incurred by the local government for such purpose may be collected as a
non-ad valorem assessment. A non-ad valorem assessment shall be collected pursuant to s. 197.3632
and, notwithstanding s. 197.3632(8)(a), shall not be subject to discount for early payment. However,
the notice and adoption requirements of s. 197.3632(4)do not apply if this section is used and complied
with, and the intent resolution, publication of notice, and mailed notices to the property appraiser, tax
collector, and Department of Revenue required by s. 197.3632(3)(a) may be provided on or before
August 15 in conjunction with any non-ad valorem assessment authorized by this section, if the property
{ appraiser, tax collector, and local government agree.
(5) Pursuant to this section or as otherwise provided by law or pursuant to a local government's
home rule power, a local government may enter into a partnership with one or more local governments
for the purpose of providing and financing qualifying improvements.
(6) A qualifying improvement program may be administered by a for-profit entity or a not-for-profit
organization on behalf of and at the discretion of the local government.
(7) A local government may incur debt for the purpose of providing such improvements, payable
from revenues received from the improved property, or any other available revenue source authorized
by law.
(8) A local government may enter into a financing agreement only with the record owner of the
affected property. Any financing agreement entered into pursuant to this section or a summary
memorandum of such agreement shall be recorded in the public records of the county within which the
property is located by the sponsoring unit of local government within 5 days after execution of the
agreement. The recorded agreement shall provide constructive notice that the assessment to be levied
on the property constitutes a lien of equal dignity to county taxes and assessments from the date of
recordation.
(9) Before entering into a financing agreement, the local government shalt reasonably determine
that all property taxes and any other assessments levied on the same bill as property taxes are paid and
have not been delinquent for the preceding 3 years or the property owner's period of ownership,
whichever is less; that there are no involuntary liens, including, but not limited to, construction liens on
the property; that no notices of default or other evidence of property-based debt delinquency have
been recorded during the preceding 3 years or the property owner's period of ownership, whichever is
less; and that the property owner is current on all mortgage debt on the property.
(10) A qualifying improvement shall be affixed to a building or facility that is part of the property
and shall constitute an improvement to the building or facility or a fixture attached to the building or
facility. An agreement between a local government and a qualifying property owner may not cover
wind-resistance improvements in buildings or facilities under new construction or construction for which
a certificate of occupancy or similar evidence of substantial completion of new construction or
improvement has not been issued.
(11) Any work requiring a license under any applicable law to make a qualifying improvement shall
be performed by a contractor properly certified or registered pursuant to part I or part II of chapter
489.
(12)(a) Without the consent of the holders or loan servicers of any mortgage encumbering or
otherwise secured by the property, the total amount of any non-ad valorem assessment for a property
under this section may not exceed 20 percent of the just value of the property as determined by the
county property appraiser.
(b) Notwithstanding paragraph (a), a non-ad valorem assessment for a qualifying improvement
defined in subparagraph (2)(b)1. or subparagraph (2)(b)2. that is supported by an energy audit is not
subject to the limits in this subsection if the audit demonstrates that the annual energy savings from the
qualified improvement equals or exceeds the annual repayment amount of the non-ad valorem
assessment.
(13) At least 30 days before entering into a financing agreement, the property owner shall provide
to the holders or loan servicers of any existing mortgages encumbering or otherwise secured by the
property a notice of the owner's intent to enter into a financing agreement together with the maximum
principal amount to be financed and the maximum annual assessment necessary to repay that amount. A
verified copy or other proof of such notice shall be provided to the local government. A provision in any
agreement between a mortgagee or other lienholder and a property owner, or otherwise now or
hereafter binding upon a property owner, which allows for acceleration of payment of the mortgage,
note, or lien or other unilateral modification solely as a result of entering into a financing agreement as
provided for in this section is not enforceable. This subsection does not limit the authority of the holder
or loan servicer to increase the required monthly escrow by an amount necessary to annually pay the
qualifying improvement assessment.
(14) At or before the time a purchaser executes a contract for the sale and purchase of any property
for which a non-ad valorem assessment has been levied under this section and has an unpaid balance
due, the seller shall give the prospective purchaser a written disclosure statement in the following form,
which shall be set forth in the contract or in a separate writing:
QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE ENERGY, OR WIND RESISTANCE.
—The property being purchased is located within the jurisdiction of a local government that has
placed an assessment on the property pursuant to s. 163.08, Florida Statutes. The assessment is for
a qualifying improvement to the property relating to energy efficiency, renewable energy, or wind
resistance, and is not based on the value of property. You are encouraged to contact the county
property appraiser's office to learn more about this and other assessments that may be provided by
law.
(15) A provision in any agreement between a local government and a public or private power or
energy provider or other utility provider is not enforceable to limit or prohibit any local government
from exercising its authority under this section.
(16) This section is additional and supplemental to county and municipal home rule authority and
not in derogation of such authority or a limitation upon such authority.
History.—s. 1,di.2010-139;s. 1,ch.2012-117;s.64,ch.2014-22.
1
Copyright®1995-2018 The Florida Legislature •
legis Privacy Statement • Contact Us
1
1',Instrument Prepared by:
incent T.Brown,Esq.
ity Attorney
ity of Opa-locks
80 Fisherman Street
1 8--locks,Florida 33054
instrument was prepared by or under the supervision
1 (and after recording should be returned to):
oseph P.Stanton
road&Cassel
i: of America Center
490 North Orange Avenue
' • 1400
1 : , 8 o,FL 32801-4961 (SPACE reserved for Clerk of Court)
LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT
BETWEEN THE FLORIDA RESILIENCY AND ENERGY DISTRICT
AND THE CITY OF OPA-LOCKA
This Limited Purpose Party Membership Agreement (the "Agreement") is entered
into this day of 20_ 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 16101(7), Florida Statutes, and City of Opa-
locka, a political subdivision of the State of Florida (the "Opa-locka/Miami-Dade
County") (collectively, the "Parties") for the purpose of providing a Property Assessed
Clean Energy ("PACE") program within the legal boundaries of the City of Opa-locka.
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 fmancing 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 of Opa-locka agrees with such legislative determinations
and fords 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 of Opa-locka 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 I. 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 City of Opa-locka 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 of Opa-locka, with the intent to be bound thereto, hereby agree that
the City of Opa-locka 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 of
Opa-locka, as more specifically described below, and in accordance with federal, state, and
local laws, rules, regulations, ordinances, and all operational program standards of the City
of Opa-locka.
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 City of Opa-locka 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 of Opa-locka, in accordance with Section 163.08, Florida
Statutes, and subject to the terms of this Agreement, as well as applicable federal, state,
and City of Opa-locka law.
SECTION 6. FINANCING AGREEMENT. Before extending any
financing or subjecting any participating real property within the legal boundaries of the
City of Opa-locka 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
City of Opa-locka 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 of Opa-locka, which legal boundaries may be
limited, expanded to reflect annexation, or more specifically designated from time to
time by the City of Opa-locka by providing written notice to FRED. Upon execution of
this Agreement and written request thereafter, the City of Opa-locka agrees to provide
FRED the current legal description of the legal boundaries of the City of Opa-locka.
SECTION 8. ELIGIBLE PROPERTIES. Within the legal boundaries of
the City of Opa-locka, 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 of Opa-locka 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 of Opa-locka
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 of Opa-locka 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 of Opa-locka ("Termination Date"), FRED
shall not approve any new applications affecting property within the legal boundaries of
the City of Opa-locka 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 City of Opa-locka approving this Agreement, shall be
considered the Parties' consent to authorize FRED to administer the PACE program
within the legal boundaries of the City of Opa-locka, as required by Section 163.08,
Florida Statutes.
SECTION 12. CITY OF OPA-LOCKA COORDINATOR. The
[Planning & Community Development Department/ Building & License Department]
within the City of Opa-locka shall serve as the City of Opa-locka's primary point of
contact and coordinator. The City of Opa-locka will advise FRED of any changes to the
City of Opa-locka'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
of Opa-locka, shall be shared in equal parts between FRED and the City of Opa-locka.
SECTION 14. LIMITED OBLIGATIONS. Neither FRED nor FDFC is
authorized to issue bonds, or any other form of debt, on behalf of the City of Opa-locka
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 of Opa-locka. The issuance of such bonds shall not directly
or indirectly or contingently obligate the City of Opa-locka 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 of Opa-locka. For any such bonds, the bond disclosure document, if any, shall
include references to the fact that the City of Opa-locka is not an obligated party, and also
adequately disclose material attendant risks with PACE programs.
SECTION 15. LIABILITY, INDEMNIFICATION AND SOVEREIGN
IMMUNITY.
(A) The City of Opa-locka 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. The City of Opa-locka 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. The City of Opa-locka is
completely independent of FRED. To the extent provided by law, FRED shall
indemnify, defend and hold harmless the City of Opa-locka 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 the City of Opa-locka, 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 the City of
Opa-locka, 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 of Opa-
locka, which shall provide for the collection of any non-ad valorem special assessments
imposed by FRED within the legal boundaries of the City of Opa-locka. If required by
the tax collector and property appraiser, the City of Opa-locka 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 of Opa-locka, 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 do
Florida Development Finance Corporation
William "Bill" F. Spivey,
Jr. Executive Director
156 Tuskawilla Road, Suite 2340
Winter Springs, FL 32708
bspivey(Odfcbonds.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 of Opa-locka:
City of Opa-locka Coordinator,
780 Fisherman Street P&CD/
Bldg. &Lic. Department
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 of Opa-locka 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.
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 of Opa-locka and recorded in the public records of the City of Opa-
locka 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
[First...Twentieth] 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]
[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.
City of Opa-locka,FLORIDA
By: Date
City of Opa-locka
Mayor or Designee
For the CITY of
Opa-locka,
Attest:
By:
Deputy Clerk Date
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
,20_,by of the [INSERT PUBLIC
AGENCY],Florida, who is personally known to me/has produced
Printed/Typed Name:
(SEAL) Notary Public-State of Florida
Commission Number:
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
WITNESS: FLORIDA DEVELOPMENT FINANCE
CORPORATION on behalf of FLORIDA
RESILIENCY AND ENERGY DISTRICT
By:
William "Bill" F. Spivey,Jr.
WITNESS: Executive Director
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
,20 by William "Bill" F. Spivey,Jr.,Executive Director of the Florida
Development Finance Corporation, who is personally known to me/has produced as
identification.
Printed/Typed Name:
(SEAL) Notary Public-State of Florida
Commission Number: