R16-132 1 RESOLUTION NO. R16 -132
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3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA,
4 APPROVING THE MEMBERSHIP AGREEMENT BETWEEN THE
5 CITY OF BOYNTON BEACH AND FLORIDA RESILIENCY AND
6 ENERGY DISTRICT FOR FINANCING OF QUALIFIED
7 IMPROVEMENTS; AUTHORIZING THE MAYOR TO SIGN THE
8 MEMBERSHIP AGREEMENT; AND PROVIDING AN EFFECTIVE
9 DATE.
10
11
12 WHEREAS, on September 8, 2016, the City Commission adopted Ordinance 16 -017
13 creating minimum standards for the establishment of Property Assessed Clean Energy (PACE)
14 programs within the City; and
15 WHEREAS, under Section 163.01, Florida Statutes, local governments may enter into
16 interlocal agreements for their mutual benefits and allows for the creation of a separate legal
17 or administrative entity to carry out the purposes of an interlocal agreement; and
18 WHEREAS, Section 163.08, F.S. authorizes local governments in Florida to either
19 form individual programs, or partner with other local governments to allow property owners
20 to voluntarily finance energy efficiency, renewable energy or wind resistance improvements;
21 and
22 WHEREAS, pursuant to City Ordinance 16 -017, Florida Resiliency and Energy
23 District has petitioned the City to join Florida Resiliency and Energy District as a non - voting
24 member; and
25 WHEREAS, this Membership Agreement will facilitate the financing of qualifying
• 26 improvements for property owners within the City of Boynton Beach in accordance with
27 Section 163.08, Florida Statutes.
28 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
29 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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30 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
31 being true and correct and are hereby made a specific part of this Resolution upon adoption
32 hereof.
33 Section 2. The City Commission of the City of Boynton Beach, Florida hereby
34 approves the Membership Agreement between the City of Boynton Beach and Florida
35 Resiliency and Energy District for financing of qualified improvements in accordance with
36 Section 163.08, Florida Statutes, a copy of the Membership Agreement is attached hereto as
37 Exhibit "A ".
38 Section 3. The City Commission hereby authorizes the Mayor to sign the
39 Membership Agreement as referenced as Exhibit "A" above.
40 Section 4. This Resolution shall become effective immediately upon passage.
41 PASSED AND ADOPTED this VV day of c. '; , 2016.
42 CITY OF BOYNTON BEACH, FLORIDA
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44 YES NO
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46 Mayor — Steven B. Grant
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48 Vice Mayor — Mack McCray
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50 Commissioner — Justin Katz
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52 Commissioner — Christina L. Romelus
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54 Commissioner — Joe Casello
55
57 VOTE fG)
58 AT .EST:
59 C
61 Judi. A. Pyle, CMC a
62 Cit Clerk ` .> " 1
63 J—
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This instrument was prepared by or under the supervision E-RECORDED
of(and after recording should be returned to): iD:g. 0 1ODO"7 3 9 2. IS 2.1x317 P6 9
Joseph Stanton,Esquire
County: Peri mC-e32.a.0-.
390 North Orange Avenue, Suite 1400 Date: I (2..0 A 1 Time: I :
Orlando,Florida 32801-4961
LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT BETWEEN THE
FLORIDA RESILIENCY AND ENERGY DISTRICT AND CITY OF BOYNTON
BEACH
This Limited Purpose Party Membership Agreement (the "Agreement") is entered into
this 17th day of October, 2016 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 CITY OF BOYNTON BEACH, 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.
NOW, THEREFORE, in consideration of the terms and conditions, promises and cove-
nants hereinafter set forth, the Parties agree as follows:
1. Purpose. The purpose of this Agreement is to facilitate the financing of qualifying im-
provements through a PACE program, in accordance with Section 163.08, Florida Stat-
utes (the "Qualifying Improvements"), and provide an efficient process for real property
owners within the legal boundaries of the CITY to access the Florida Development Fi-
nance Corporation (FDFC) PACE Program (the "FDFC PACE Program") and permit
FRED to levy assessments for the FDFC PACE Program within such legal boundaries.
2. Parties to the Interlocal Agreement. The Interlocal Agreement, dated September 6, 2016
(the "Interlocal Agreement") between the Town of Lake Clarke Shores, the City of Fer-
nandina 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 facili-
tating the financing of Qualifying Improvements for properties located within FRED's
aggregate legal boundaries via the levy and collection of voluntary non-ad valorem spe-
cial assessments on improved property, is hereby supplemented and amended on the date
last signed below by this Agreement, which is hereby fully incorporated into the Interlo-
cal Agreement, to include the CITY as a Party (by virtue of becoming a Subsequent Par-
ty), as those terms are defined in the Interlocal Agreement. In the event of any conflict
between the Interlocal Agreement and this Agreement, this Agreement shall control the
rights and obligations of the Parties.
E-RECORDED
ID: E 2011 ODD B2Lci
1 County:&e��e,
Date:VI 20 -I Time:SI 12-PIM
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 ac-
cordance with federal, state, and local laws, rules, regulations, ordinances, and all opera-
tional program standards of the CITY.
4. Finding of Special Benefit and Levy of Special Assessments. The CITY hereby finds
and acknowledges that access to financing for Qualifying Improvements through the
FDFC PACE Program provides a special benefit to real property within its legal bounda-
ries which special benefit is secured by the imposition, levy, apportionment and collec-
tion of non -ad valorem special assessments consistent with the common powers provided
in this Agreement. FRED and the CITY acknowledge and agree that the non -ad valorem
special assessments arising from a property owner's voluntary participation in the FDFC
PACE Program shall be levied by FRED on behalf of the CITY and the receipt and dis-
tribution of any non -ad valorem special assessments imposed by FRED are purely minis-
terial acts.
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.
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, pursuant to the
Section 163.08, Florida Statutes and this Agreement, shall enter into a financing
agreement (the "Financing Agreement ") with property owner(s) within the legal
boundaries of the CITY who qualify for financing through FRED.
7. Boundaries of the FDFC PACE Program. For the limited purposes of administering the
FDFC 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, or more specifically designated
from time to time by the CITY. Notice of such changes shall conform to procedures des-
ignated by the District.
8. Eligible Properties. Within the legal boundaries of the CITY, improved real property, in-
cluding any residential, commercial, agricultural and industrial use may be eligible for
participation in the FDFC PACE Program within the limits otherwise prescribed in Sec -
tion 163.08, Florida Statutes.
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
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constructed or acquired on such properties based on the finding of special benefit by the
CITY described in paragraph 4 above. Those properties receiving financing for Qualify-
ing 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 Stat-
utes, 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.
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 appli-
cations were approved prior to the Termination Date, and who received funding through
the FDFC 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.
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 exercise its powers pursuant to Section 163.08, Florida States and to provide
access for the FDFC PACE Program to operate within the legal boundaries of the CITY,
as required by Section 163.08, Florida Statutes.
12. CITY Coordinator. The City Manager's 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.
13. Limited Obligations. Neither FRED nor FDFC is authorized to issue bonds, or any other
form of debt, on behalf of the CITY. To the extent that FRED or FDFC issues 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 the FDFC PACE Program.
14. 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
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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.
15. Opinion of Bond Counsel. FRED warrants, based on counsel's review of the bond valida-
tion judgment and the underlying bond documents that the FDFC PACE Program's struc-
ture complies with the bond validation judgment and the underlying bond documents.
16. Agents of FRED. FRED shall ensure that its agents, administrators, subcontractors, suc-
cessors and assigns are, at all times, in compliance with the terms of this Agreement and
applicable CITY, state and federal laws.
17. 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, 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
800 N. Magnolia Avenue, Suite 1100
Orlando, Florida 32803
407.956.5695 (t)
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)
jstanton@broadandcassel.com
If to CITY:
CITY Coordinator,
Lori LaVerriere
City Manager
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
561.742.6010 (t)
LaVerriereL @bbfl.us
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18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. Effective Date. This Agreement shall become effective upon the execution by both
Parties hereto.
27. 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
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Agreement shall be in the state courts of the Judicial Circuit in and for
Palm Beach, 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.
28. Sovereign Immunity. Nothing herein shall constitute a waiver of Section 768.28 of the
Florida Statutes or shall be construed as impacting or modifying the protections set forth
therein.
[SIGNATURE PAGES FOLLOW]
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[SIGNTATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement
on this /7" day of 6> 4ep , 2016.
CITVOFBO TO N BEACH, FLORIDA
By:
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Steven B. Grant, Mayor Date 4
CITY OF BOYNTON BEACH,
Attest
Y� ,
B
Caf Clerk Date
tO FO
7
r
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
FLORIDA DEVEL / ENT FINANCE CORPO-
RATION ., . alf of FLORIDA RESILI-
ENCY A ,1 VDDr r, ERGY DISTRICT
i :
By: L
William "Bill" F. Spivey, Jr.
Executive Director
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The City of Bo Beach
City Clerk's Office
100 E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
(561) 742 -6060
FAX: (561) 742 -6090
e -mail: cityclerk @bbfl.us
www.boynton- beach.org
October 18, 2016
The Florida Resiliency And Energy District
C/O Florida Development Finance Corporation
William F. Spivey, Jr.
Executive Director
800 N. Magnolia Avenue
Suite 1100
Orlando, Florida 32803
Re: R16 -132 Membership Agreement
Dear Mr. Spivey:
Attached for your handling is the original agreement and a copy of the Resolution
mentioned above. Once the agreement has been signed, please return the original to
the City Clerk's Office for Central File.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
CITY OF BOYNTON BEACH
J dith A. Pyle, GN(C
City Clerk
Attachments
c: Central File
S: \CC \WP \AFTER COMMISSION \Other Transmittal Letters After Commission \2016 \R16 -131 Florida Pace Funding Agency.doc
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