2006 Interlocal Subscription Agreement PACE Funding Agency�rUNA„
Oki �r0 �
ECONOMIC DEVELOPMENT
'T'RANSMITTAL MEMORANDUM
To: City Clerk
E: Request for Services
The item(s) noted below is/are attached and forwarded to your office for the following action(s):
❑
Development Order
❑
❑
Final Plat (original mylars)
❑
❑
Letter of Credit
❑
Maintenance Bond
❑
Ordinance
❑
❑
Performance Bond
❑
Resolution
®
ILA
Once completed, please:
Return original
Return copy
Mayor's signature
Recording
Rendering
Safe keeping (Vault)
Please advise if you have any questions regarding the above.
Thank you!
Sonia Fonseca
From
12/20/18_
Date
Nora -Exclusive Interlocal Subscription ARreetimit
City of Sanford
NON-EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT
RELATING TO THE FUNDING AND FINANCING
OF QUALIFYING IMPROVEMENTS BETWEEN THE CITY OF SANFORD AND THE
FLORIDA PACE FUNDING AGENCY
THIS NON—EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT is made and
entered into as of this 10"day of NY+'mtX'9018 (this "Subscription Agreement"), by and
between the City of Sanford, Florida (the "Subscriber"), and the Florida PACE Funding Agency,
a separate legal entity and public body and unit of local government, established pursuant to
Section 163.01(7) (g), Florida Statutes, (the "Agency"), by and through their respective governing
bodies. The purpose of the Subscription Agreement is to secure, in an efficient and uniform
manner, for the Property Owners (as hereinafter defined) within the jurisdiction and
boundaries of the Subscriber the privileges, benefits, powers and terms provided for herein and
by law, and particularly by Section 163.08, Florida Statutes, as amended (the "Supplemental
Act"), relating to the voluntary determination by affected property owners to obtain and
finance certain improvements to property for energy efficiency, renewable energy or wind
resistance.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration each to the other, receipt of which is hereby
acknowledged by each party, the Subscriber and the Agency hereby agree, stipulate and
covenant as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS. As used in this Agreement, the following
terns shall have the meanings as defined unless the context requires otherwise:
"Board of Directors" means the governing body of the Agency.
"Agency" means the Florida PACE Funding Agency, a separate legal entity and public
body and unit of local government. The name or acronym PACE is derived from the concept
commonly referred to as 'property assessed clean energy' and relates hereto to the provisions of
general law related to energy efficiency, renewable energy and wind resistance improvements
encouraged by Section 163.08, Florida Statutes.
"Agency Charter Agreement" or "Charter" means, unless the context otherwise
requires, the separate interlocal agreement which created and established the Agency, including
any amendments and supplements hereto executed and delivered in accordance with the terms
thereof.
"Financing Agreement" means the agreement authorized hereunder and by the Act
(specifically including Section 163.08(4), Florida Statutes, thereof) between the Agency and a
1
Non -Exclusive biteriocai SOscription Agreement
Citic of Sataford
Property Owner providing for the funding to finance Qualifying Improvements and the
imposition of a non -ad valorem Special Assessment against the Property Owner's assessed
property.
"Financing Documents" shall mean the resolution or resolutions duly adopted by the
Agency, as well as any indenture of trust, trust agreement, interlocal agreement or other
instrument relating to the issuance or security of any bond or Obligations of the Agency and
any agreement between the Agency and the Subscriber, pursuant to which the Subscriber and
Property Owners obtain access to funds provided by the Agency.
"Obligations" shall mean a series of bonds, obligations or other evidence of
indebtedness, including, but not limited to, notes, commercial paper, certificates or any other
obligations of the Agency issued hereunder or pursuant hereto, or under any general law
provisions, and pursuant to the Financing Documents. The term shall also include any lawful
obligation committed to by the Agency or pursuant to an interlocal agreement with another
governmental body or agency and/or warrants issued for services rendered or administrative
expenses.
"Pledged Funds" shall mean (A) the revenues derived from Special Assessments and
other moneys received by the Agency or its designee relating to some portion thereof, (B) until
applied in accordance with the terms of the Financing Documents, all moneys in the funds,
accounts and sub -accounts established thereby, including investments therein, and (C) such
other property, assets and moneys of the Agency as shall be pledged pursuant to the Financing
Documents; in each case to the extent provided by the Agency pursuant to the Financing
Documents. The Pledged Funds pledged to one series of Obligations may be different than the
Pledged Funds pledged to other series of Obligations. Pledged Funds shall not include any
general or performance assurance fund or account of the Agency.
"Program" means the program operated by the Agency to provide financing for
Qualifying Improvements undertaken within the jurisdiction of the Subscriber. Unless
determined otherwise by the Subscriber, the Agency's Program will be non-exclusive; and, the
Subscriber may embrace or authorize any similar program under the Act as the Subscriber sees
fit and in the interest of the public.
"Property Owner" means, collectively, all of the record owners of real property subject to a
Financing Agreement.
"Qualifying Improvements" means those improvements for energy efficiency,
renewable energy, or wind resistance described in the Supplemental Act authorized to be
affixed and/or installed by the record owner of an affected property. The term does not include
similar improvements underwritten or financed by local, state or federal programs including,
but not limited to State Housing Initiatives Partnership or SHIP Program, which are not secured
by a special or non -ad valorem assessment.
"Special Assessments" means the non -ad valorem assessments authorized by the
Supplemental Act and levied by the Agency on property owned by participating property
2
Non -Exclusive biterlocal Subscription Agreement
City of Safiford
owner who has entered into a Financing Agreement with the Agency to fund the costs of
Qualifying Improvements.
"Subscriber" means the City of Sanford, Florida, a municipal corporation and general
purpose local government duly organized and existing under and by virtue of the laws of the
State of Florida.
"Subscription Agreement" means this interlocal agreement, or if the context requires a
similar interlocal agreement between the Agency and any municipality, county or other
government or separate legal entity permitted by the Supplemental. Act to enter into Financing
Agreements as provided for therein. At a minimum, each such Subscription Agreement shall
provide for (1) the authority of the Agency to act, provide its services, and conduct its affairs
within the subscribing government's jurisdiction; (2) the Agency to facilitate the voluntary
acquisition, delivery, installation or any other manner of provision of Qualifying Improvements
to record owners desiring such improvements who are willing to enter into Financing
Agreements as provided for in the Supplemental Act and agree to the imposition of non -ad
valorem assessments which shall run with the land on their respective properties; (3) the
Agency to levy, impose and collect non -ad valorem assessments pursuant to such Financing
Agreements; (4) the issuance of Obligations of the Agency to fund and finance the Qualifying
Improvements; (5) for the proceeds of such non -ad valorem assessments to be timely and
faithfully paid to the Agency; (6) the withdrawal from, discontinuance of or termination of the
Subscription Agreement by either party upon reasonable notice in a manner not detrimental to
the holders of any Obligations of the Agency or inconsistent with any Financing Documents; (7)
and such other covenants or provisions deemed necessary and mutually agreed to by the
parties to carry out the purpose and mission of the Agency.
"Supplemental Act" means the provisions of, and additional and supplemental
authority described in, Section 163.08, Florida Statutes, as amended.
SECTION 1.02 CONSTRUCTION.
(A) Words importing the singular number shall include the plural un each case and
vice versa, and words importing persons shall include firms and corporations. The terms
"herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer to this
Subscription Agreement, the term "heretofore" shall mean before the date this Subscription
Agreement is executed; and the term "hereafter" shall mean after the date this Subscription
Agreement is executed.
(B) Each recital, covenant, agreement, representation and warranty made by a party
herein shall be deemed to have been material and to have been relied on by the other party to
this Subscription Agreement. Both parties have independently reviewed this Subscription
Agreement with their own counsel and covenant that the provisions hereof shall not be
construed for or against either the Subscriber or the Agency by reason of authorship.
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts of
the several Articles and Sections of this Subscription Agreement and any table of contents or
3
Non -Exclusive hiterlocal Subscription Agreeraient
City of Sanford
marginal notes appended to copies hereof shall be solely for convenience of reference and shall
neither constitute a part of this Subscription Agreement nor affect its meaning, construction or
effect.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and declared
that:
(A) The State has declared it the public policy of the State to develop energy
management programs aimed at promoting energy conservation and wind resistance or
'hardening' programs achieving hurricane and wind damage mitigation.
(B) Home and business energy consumption accounts for approximately 70% of the
overall usage of electric energy. The State of Florida has adopted a schedule for increasing the
energy performance of buildings subject to the Florida Energy Efficiency Code for Building
Construction Chapter 553, Florida Statutes.
(C) A significant contributor to statewide and local greenhouse gas emissions is the
inefficient use of energy by existing building stock. Installing energy efficiency and renewable
energy improvements on existing structures can reduce the burdens resulting from fossil fuel
energy production, including greenhouse gas reductions and increased energy conservation.
(D) Reductions in greenhouse gas emissions will in all reasonable likelihood
contribute to improved air quality, lower fossil fuels use, energy independence and security,
promote the creation of jobs and economic development by stimulating "green industries" and
save consumers money by reducing energy consumption.
(E) Hardening improvements on properties by advancing resistance to wind damage
is smart and proactive hurricane mitigation and attracts sustainable long term employment and
uniquely Local commerce. Such actions serve to avoid huge unbudgeted expenditures in
reacting to climatic disasters such as hurricanes and storms, reduce insurance claims, reduce
insurance rates, reduce risk and liability, and protect persons, and property, and improvements
to real property.
(F) There exists a vast quantity of existing structures with many years of remaining
life before replacement, and these structures are not nearly as energy efficient as typical newly
constructed buildings, nor do many existing buildings have renewable energy systems installed
to provide some or all of their electric energy needs, nor are these structures as well protected
from wind and storm damage as they could be.
(G) The State Legislature has determined there is a compelling state interest in
enabling property owners to voluntarily finance Qualifying Improvements with local
government assistance. The actions authorized by the Supplemental Act, including the
financing of Qualifying Improvements through the execution of Financing Agreements and the
related imposition of a Special Assessment, are reasonable and are necessary for the prosperity
and welfare of the State, the Subscriber and its property owners and inhabitants.
0
Non -Exclusive Interlocal Subscription Agreemmt
City of Sanford
(H) The expected life of energy efficiency, renewable energy, and wind resistance
Qualifying Improvements may require a longer-term cost recovery period than offered by
traditional equity financing may afford, necessitating an alternative financing option to pay the
costs to install the Qualifying Improvements while sharing the costs of the Qualifying
Improvements over the useful life of the Qualifying Improvements.
(I) Existing homeowners and business property owners may find it not cost
effective to refinance their properties to install Qualifying Improvements and/or the lending
markets may effectively discourage property owners from financing Qualifying Improvements
with traditional. equity financing options.
(J) Facilitating the provision of Qualifying Improvements, the funding, and the
repayment by participating property owners through the use of Special Assessments not only
will relieve burdens emanating from and provide benefits to assessed property in terms of
increased value, use and enjoyment, but will serve the public interest by preserving and
protecting the environment, implementing hurricane mitigation, and promoting reasonable,
smart and local economic activity.
(K) The Agency has secured a binding final judgment, binding and only advantageous
to the Agency, which has statewide effect. Such judgment carefully relieves the Subscriber from
cost and liability associated with implementation of the Agency's Program.
(L) The Agency has provided evidence to the Subscriber that: (1) the Agency's
Program has assembled, at the Agency's sole cost and expense, open public governance and
oversight, staffing in the form of qualified third -party administration, active funding provider
servicing oversight, dedicated Program counsel, and an independent institutional trustee, (2)
that the Agency is immediately ready to commence origination of Special Assessments for
Qualifying Improvements, and (3) that the Agency presently has large scale funding in place
and available under an executed bond purchase agreement and trust indenture.
(M) The availability of the non-exclusive Program offered by the Agency (without
cost to, assumption of liability by or demand upon the credit of the City of Sanford) and the
voluntary participation in the Program by Property Owners will provide a heretofore
unavailable or alternative financing option to finance and repay the costs to provide and install
Qualifying Improvements in the City of Sanford. In no event shall any obligation of the City
under this Agreement be or constitute a general obligation or indebtedness of the City, a pledge
of the ad valorem taxing power of the City or a general obligation or indebtedness of the City
within the meaning of the Constitution of the State of Florida or any other applicable laws, but
shall be payable solely from legally available revenues and funds. No persons or enitty shall have
the right to compel the exercise of the ad valorem taxing power of the City.
(N) The provision of financing to a Property Owner who decides to participate in the
Program requires by law using non -ad valorem assessments levied by the Agency on the
property pursuant to the Supplemental Act which must be collected pursuant to Chapter 197,
Florida Statutes. Such collection method minimizes risk of failure for non-payment and provides
5
Non -Exclusive Interlocal Subscription Agreement
Citi/ of Sanford
a more efficient, fair and cost effective means of enforcement of any Special Assessment to both
the Property Owner and the Agency's funding providers. In addition, the Agency now, by an
through its funding provider, employs a second and redundant Qualifying Improvement
review process to avoid fraud, Program misuse, or improvident funding. This additional review
process is required by and not only serves the risk concerns of the funding provider, but serves
to accomplish more careful, sober and proper use of this financing alternative in achieving the
purposes of the Property Owner, the Agency, the Subscriber and the compelling State interests
involved.
(0) Given other priorities, the Subscriber does not wish to deploy currently available
and recurring funds or to incur debt to establish a program similar to the Agency's Program; and
recognizes that if it does initiate its own program it may be necessary that it commit time, staffing
and monetary resources and that it may be necessary to borrow the moneys necessary for such
purpose and secure repayment thereof by the proceeds derived from non -ad valorem assessments
it imposes and likely also pledge other sources of revenue. However, regardless of any other
approach which could be chosen by the Subscriber, the Subscriber can concurrently and presently
authorize and approve the Agency to separately make the Agency's non-exclusive Program and
independent funding for Qualified Improvements immediately available to Property Owners and
the local economy of the City.
(P) The Subscriber finds that local needs and conditions warrant the establishment of
the Agency's non-exclusive Program within the jurisdiction of the Subscriber as a direct and
immediate means to non -exclusively implement and advance positive local economic activity,
job creation, energy efficiency, renewable energy and wind resistant activities.
(Q) It is reasonable and in the interest of the health, safety, and welfare of the Subscriber
and its inhabitants that the Subscriber subscribe to the availability of the Program within the
Subscriber's jurisdiction. The Agency is authorized hereby, by law and pursuant to the provisions
of the Supplemental Act to undertake the Program.
(R) This Agreement provides an alternative, supplemental and non-exclusive means to
achieve, inter alfa, immediate and careful local economic development, conunerce and job creation,
as well as the compelling State interests and public purposes described in the Supplemental Act.
(S) The City of Sanford also requests and encourages the Seminole County Board of
County Commissioners to adopt a similar resolution immediately approving the availability of the
Agency's non-exclusive and scalable program county -wide. Such action would be without cost or
liability and make these storm hardening, environmental, economic development and job -creating
benefits uniformly available to businesses, property owners and constituents throughout our entire
County.
6
Noii-Exclusive Interlocal Subscriptioii Agreement
City of Samford
ARTICLE II
SUBSCRIPTION
SECTION 2.01. AUTHORITY.
(A) The execution hereof has been duly authorized by the resolution of the
governing bodies of each party hereto.
(B) The Agency by this Subscription Agreement is hereby authorized to act to
provide its services, and conduct its affairs, within the boundaries of the Subscriber's
jurisdiction.
(C) The execution of this Subscription Agreement evidences the express authority
and concurrent transfer of all necessary powers to the Agency, and the covenant to reasonably
cooperate by the Subscriber, so that the Agency may facilitate, administer, implement and
provide Qualifying Improvements, facilitate Financing Agreements and non -ad valorem
assessments only on properties subjected to same by the record owners thereof, develop
markets, structures and procedures to finance same, and to take any actions associated.
therewith or necessarily resulting there from, as contemplated by the Supplemental Act as the
same may be amended from time to time.
(D) By resolution of the governing bodies of each of the parties and as implemented
pursuant by this Subscription Agreement, all power and authority available to the Agency
under its Charter and general law, including without limitation, Chapters 163, 1.89 and 197,
Florida Statutes, shall be deemed to be authorized and may be implemented by the Agency
within the boundaries of the Subscriber.
(E) This Subscription Agreement may be amended only by written amendment
hereto.
SECTION 2.02. CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS
PROHIBITED. The Agency shall not be empowered or authorized in any manner to
create a debt as against the State, county, or any municipality, and may not pledge the full faith
and credit of the State, any county, or any municipality. All revenue bonds or debt obligations
of the Agency shall contain on the face thereof a statement to the effect that the State, county or
any municipality shall not be obligated to pay the same or the interest and that they are only
payable from Agency revenues or the portion thereof for which they are issued and that neither
the full faith and credit nor the taxing power of the State or of any political subdivision thereof
is pledged to the payment of the principal of or the interest on such bonds. The issuance of
revenue or refunding bonds under the provisions of law, the Charter Agreement, or this
Subscription Agreement shall not directly or indirectly or contingently obligate the State, or any
county or municipality to levy or to pledge any form of ad valorem taxation whatever therefore
or to make any appropriation for their payment.
7
Norz-Exclusive Interlocal Subscription Agreement
City of Sanford
SECTION 2.03. ADOPTION OF RATES, FEES AND CHARGES.
(A) The Board of Directors may adopt from time to time by resolution such rates,
fees or other charges for the provision of the services of the Agency to be paid by the record
owner of any property, pursuant to a Financing Agreement described in the Supplemental Act.
The City shall be notified as to such resolution in a timely manner.
(B) Such rates, fees and charges shall be adopted and revised so as to provide
moneys, which, with other funds available for such purposes, shall be at least sufficient at all
times to pay the expenses of administering, managing, and providing for the services and
administration of the activities of the Agency, to pay costs and expenses provided for by law or
the Charter Agreement and the Financing Documents, and to pay the principal and interest on
the Obligations as the same shall become due and reserves therefore, and to provide for
necessary administration and reasonable margin of safety over and above the total amount of
such payments. Notwithstanding any other provision in the Charter Agreement or this
Subscription Agreement, such rates, fees and charges shall always be sufficient to comply fully
with any covenants contained in the Financing Documents.
(C) Such rates, fees and charges may vary from jurisdiction to jurisdiction, but shall
be just and equitable and uniform at the time of imposition for the record owners in the same
class of or within each subscribing local governmental jurisdiction electing to enter into any
Financing Agreement described in the Supplemental Act and may be based upon or computed
upon any factor (including, by way of example and not limitation, competitive or market
conditions, distinguishing between residential and non-residential properties or uses,
distinguishing between variable costs of administrative services over time) or combination of
factors affecting the demand or cost of the services furnished or provided to administer the
services and affairs of the Agency as may be determined by the Board of Directors from time to
time.
(D) Notwithstanding anything in this Subscription Agreement to the contrary, the
Agency may establish a general fund and/or performance assurance account into which moneys
may be deposited from an annual surcharge upon the Special Assessments imposed, pledged to
or collected by the Agency. Any moneys deposited to such general fund account from such a
surcharge shall be considered legally available for any lawful purpose approved by the Board of
Directors. Moneys in such general fund and/or performance assurance account may be used to
pay for or reimburse initial costs and expenses advanced or associated with start-up costs,
feasibility studies, economic analysis, financial advisory services, program development or
implementation costs or enhancements, public education, energy audits, administration, quality
control, vendor procurement, and any other purpose associated with the purpose or mission of
the Agency approved by the Board of Directors.
SECTION 2.04. FINANCING AGREEMENTS.
(A) The Agency shall prepare and provide to each participating property owner the
form of the Financing Agreement which complies with the Supplemental Act and is in
M
Non -Exclusive Interlocal Subscription Agreowilt
City of Sanford
accordance with the Financing Documents as designated by the Board of Directors from time to
time.
(B) The Agency, not the Subscriber, shall be solely responsible for all matters
associated with origination, funding, financing, collection and administration of each of the
Agency's authorized non -ad valorem assessments.
SECTION 2.05. IMPOSITION OF SPECIAL ASSESSMENTS PURSUANT TO
FINANCING AGREEMENTS.
(A) Upon execution by the record owners and the Agency, the Financing Agreement
or a summary or memorandum thereof shall be recorded by the Agency within five (5) days of
execution as required by Section 163.08(8), Florida Statutes. The recorded Financing Agreement,
or summary or memorandum thereof, provides constructive notice that the non -ad valorem
assessment to be levied on the subject property constitutes a lien of equal dignity to ad valorem
taxes and assessments from the date of recordation.
(B) In a reasonably cooperative and uniform manner the Agency is authorized to
and shall provide a digital copy to the Seminole County Property Appraiser and Seminole
County Tax Collector of the recorded Financing Agreement or summary thereof, the most
recent property identification number and annual amount of the non -ad valorem assessment
along with such other efficient and reasonable information necessary for the tax collector to
collect such amounts on behalf of the Agency pursuant to Sections 197.3632 and 163.08, Florida
Statutes, as a non -ad valorem assessment.
SECTION 2.06. COLLECTION OF SPECIAL ASSESSMENTS.
(A) The Agency shall be solely responsible for professionally coordinating all
interface with the tax collector or property appraiser, and minimize to the greatest extent
reasonably possible the time, effort and attention of these public officials to accomplish the
public purposes and direction of the Supplemental Act subscribed to by the City. Subscriber
hereby respectfully requests and encourages the tax collector or property appraiser to only
impose, charge, or deduct the minimum amount allowed by general law for the collection or
handling of the Special Assessments which are the subject of this Subscription Agreement.
(B) To advance Program acceptance and to minimize Program participation costs,
and because each Property Owner is voluntarily undertaking to achieve and underwrite the
unique and compelling State interests described in the Supplemental Act, the Subscriber urges
either the waiver of such fees by the Seminole County Property Appraiser and Seminole County
Tax Collector a flat five dollar ($5) fee per year per tax parcel for such purposes which shall be
paid by the Agency via deduction, by the institutional trustee required by the Financing
Documents, or as otherwise reasonably agreed to by the Agency and these parties.
9
Non -Exclusive Interlocal Subscription Agreement
City of Samford
SECTION 2.07. PLEDGE OF PROCEEDS FROM NON AD VALOREM
ASSESSMENTS.
(A) The Agency will take such actions as are necessary for the lawful levy of the
Special Assessments against all lands and properties specially benefitted by the acquisition,
construction and financing of Qualifying Improvements. If any assessment made with respect
to any property shall be either in whole or in part annulled, vacated or set aside by the
judgment of any court, or if the Agency or Subscriber shall be satisfied that any such assessment
is so irregular or defective that the same cannot be enforced or collected, the Agency is
authorized to take all necessary steps to cause a new assessment to be made for the whole or
any part of any Qualifying Improvements or against any property specially benefitted by such
improvement, to the extent and in the manner provided by law.
(B) Pursuant to the Financing Documents and this Subscription Agreement, the
Agency shall irrevocably pledge and, to the fullest extent permitted by law, pledge and assign
any and all revenues derived from Special Assessments to the repayment of any debt obligation
issued by the Agency pursuant to the Financing Documents.
(C) The Subscriber shall not incur or ever be requested to authorize any obligations
secured by Special Assessments associated with Qualifying Improvements imposed by the
Agency.
(D) Each series of Financing Documents shall be secured forthwith equally and
ratably by a pledge of and lien upon the Special Assessments. The obligations of the Agency
under and pursuant to the Financing Documents shall not be or constitute general obligations
or an indebtedness of the Subscriber as "bonds" within the meaning of the Constitution of
Florida, but shall be payable from and secured solely by a lien upon and pledge of the Special
Assessments as provided herein. Neither the Agency nor any holder of any debt obligation
issued by the Agency pursuant to the Financing Documents shall ever have the right to compel
the exercise of the ad valorem taxing power of the Subscriber or taxation in any form of
property therein to pay any amount due under any Financing Documents or any Special
Assessment. The Financing Documents shall not constitute a lien upon any property of or in the
Subscriber except as to the respective Special Assessments in the manner provided herein and by
law.
SECTION 2.08. CARBON OR SIMILAR CREDITS. The form of
Financing Agreement in each instance shall provide for the transfer of any carbon or similar
mitigation credits derived from Qualifying Improvements to the Agency, with such revenues
therefrom, if any ever materialize, to be used by the Agency to underwrite generally its
operation, mission and purpose. The Financing Agreement, in each instance, shall separately
and expressly confirm that consideration therefore is in the form and substance of economies of
scale provided by the Agency and its programs and one dollar ($1) and other good and valuable
consideration provided to and received by the Property Owner, or such other statement of
consideration as shall be appropriate under the circumstances. By execution hereof any such
interest in mitigation credits shall be assigned by the Subscriber to the Agency without any
10
Non -Exclusive Interlocal Subscription Agreement
City of Sanford
future action by the parties. Provided, however, the Subscriber shall upon request from time to
time execute and deliver all such documents as may be reasonably required to further evidence
the assignment and transfer of such interests to the Agency. Such credits expressly exclude
investment tax credits available under the Internal Revenue Code or monetary rebates available to
the Property Owner.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. INTERLOCAL AGREEMENT PROVISIONS. This Subscription
Agreement constitutes a joint exercise of power, privilege or authority by and between the
Subscriber and the Agency and shall be deemed to be an "interlocal agreement" withal the
meaning of the Florida Interlocal Cooperation Act of 1969, as amended. This Subscription
Agreement shall be filed/recorded by the Agency with the Clerk of the Circuit Court of
Seminole County.
SECTION 3.02. DISCLOSURE.
(A) The Agency has provided a copy of (1) the Supplemental. Act, (2) the Agency's
Charter Agreement, (3) the Final Judgment in Fla. PACE Funding Agency v. State, No. 2011 -CA -
1824 (Fla. 2d Cir. Ct. 201.1), and (4) other relevant disclosure information and background
materials to the Subscriber prior to execution hereof. Subscriber, through its own staff and
advisors, has independently reviewed and considered the foregoing and other relevant
information of its choosing.
(B) The objective of the Agency's mission is to offer a uniform, standardized and
scalable approach that provides efficiencies and economies of scale intended to attract
voluntary financing of Qualifying Improvements and stimulate a substantial and meaningful
flow of private sector economic activity and new job creation. In doing so, each subscribing
local government by entering into a subscription agreement of this nature authorizes the
availability of the Agency's uniform program to property owners in the subscribing jurisdiction.
Accordingly, the Agency has engaged, and may engage in the future, various advisors,
consultants, attorneys or other professionals or firms with recognized expertise necessary to
accomplish the Agency's mission.
(C) Each of the various advisors, consultants, attorneys or other professionals
engaged by the Agency has been, and shall in the future be, disclosed to the Subscriber. The
Subscriber and Agency recognize, consider and acknowledge the fact or possibility that one or
more of the various professionals or firms may serve as the advisor to the Agency in its mission,
and to the Subscriber or another client in providing other similar professional services, outside
of the provision, funding and financing of Qualifying Improvements. Such circumstance is
acceptable and will not be construed as a conflict, be objected to unreasonably, nor be used as
the basis for its disqualification of such professionals or firms from any continued or future
representation of either party hereto which can otherwise be resolved by a reasonable waiver.
11
Non-Exchisive Interlocal Subscription Agreement
Citic of Sanford
SECTION 3.03. TERM OF AGREEMENT; DURATION OF AGREEMENT;
EXCLUSIVITY.
(A) The term of this Subscription Agreement shall commence as of the date first
above written, and initially continue for the next three (3) full fiscal years (ending September 30)
following execution hereof. The term of this Agreement shall then be renewed for successive
three-year periods, unless either party provides notice to the other in writing of intent to
terminate not later than one hundred and eighty (180) days prior to the end of any three-year
term, or as otherwise agreed to by the parties in writing.; provided, however either party may
unilaterally terminate this Agreement prior to any Financing Agreements being executed or, if
earlier, the issuance of any Obligations of the Agency secured by Pledged Revenues derived.
from within the jurisdiction or boundaries of the Subscriber.
(B) In the event of any termination hereunder, and so long as the Agency has
Obligations outstanding which are secured by Pledged Revenues derived from Financing
Agreements relating to any properties within the jurisdiction or boundaries of the Subscriber, or
the Agency has projects for Qualified Improvements underway therein, the applicable
provisions, authority and responsibility under this Agreement reasonably necessary to carry out
the remaining aspects of the Program and responsibilities of Agency then underway, shall
remain in effect and survive such termination until such time as those obligations and all
associated remaining Program responsibilities are fulfilled (including, but not limited to the
collection of assessments in due course).
(C) In light of the unique nature of the Agency's program and in recognition of the
capital investment made by the Agency and its contracting parties, and in order to maximize
the benefits of a uniform implementation of a program under the Supplemental. Act, the
Subscriber covenants that it will not terminate this Agreement without cause. Provided,
however, the Agency's powers to be employed and exercised hereunder shall be non-exclusive,
and the Subscriber is free to and reserves the right to enter into or otherwise commence another
program for financing Qualified Improvements using non -ad valorem assessments either under
the Supplemental Act or pursuant to its home rule powers upon written notice to the Agency of
its decision to do so.
SECTION 3.04. AMENDMENTS AND WAIVERS.
(A) Except as otherwise provided herein, no amendment, supplement, modification
or waiver of this Subscription. Agreement shall be binding unless executed in writing by the
Subscriber and Agency.
(B) To the extent the Agency has no outstanding bonds, Obligations or other
evidence of indebtedness, this Subscription Agreement may be amended or modified or
provisions hereto waived upon the written consent of all parties hereto.
(C) To the extent the Agency has outstanding bonds, Obligations or other evidence
of indebtedness arising from Financing Agreements relating to properties within the
jurisdiction or boundaries of the Subscriber, this Subscription Agreement may not be amended
or modified in any way that is materially adverse to holders of such bonds, Obligations or other
WJ
Non -Exclusive Interlocal Subscription. Agreement
City of Sanford
evidence of indebtedness without the consent nz writing of the holders of at least two-thirds
(2/3) or more in principal amount of such bonds, Obligations or other evidence of indebtedness
(exclusive of any warrants issued by the Agency) then outstanding, or any insurer duly
authorized to provide such consent on behalf of such holders.
SECTION 3.05. NOTICES.
(A) All notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given when hand delivered (or confirmed electronic facsimile
transmission) or mailed by registered or certified mail, postage prepaid, or sent by nationally
recognized overnight courier (with delivery instructions for "next business day" service) to the
parties at the following addresses:
Subscriber: City Manager
Sanford City Hall
City of Sanford, Florida
300 North Park Avenue
Sanford, Florida 32771
Agency: Executive Director
Florida PACE Funding Agency
c/o Counterpointe Energy Solutions
2600 Maitland Center Blvd., Suite 163
Maitland, FL 32751
With a copy to: Program Counsel for the Florida PACE Funding Agency
P.O. Box 14043
Tallahassee, Florida 32317-4043
(B) Any of the parties may, by notice in writing given to the other, designate any
further or different addresses to which subsequent notices, certificates or other communications
shall be sent. Any notice shall be deemed given on the date such notice is delivered by hand (or
confirmed electronic facsimile transmission) or three days after the date mailed.
SECTION 3.06. QUALITY CONTROL AND COMMUNICATION. For quality
control purposes the Agency and Subscriber desire, and the Agency covenants to develop,
implement and employ policies, systems and procedures which are within industry standards;
with such standards being reasonably expected to change and evolve over time. An ongoing
positive and informal line of communication between staff and agents for the parties is
encouraged. At any time, notwithstanding lack of default or lack of material breach hereunder,
the Subscriber is encouraged to objectively and specifically communicate to the Agency in
writing as provided for herein any concerns, suggestions or disapproval with performance,
policies, systems or procedures being employed by the Agency. The Agency through its
administrator, Executive Director, or a duly authorized designee, will promptly respond in
13
Nan -Exclusive Interlocal Subscriptioit Agreemeiit
Citi/ of Sanford
writing to all such communications (reasonably within fifteen (15) days of receipt of any such
written communication, but sooner if necessary) and follow-up accordingly; and, also promptly
communicate any such response, follow-up, and all related communication to the Board of
Directors for review.
SECTION 3.07. IMMUNITY; LIMITED LIABILITY.
(A) 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 Subscription Agreement.
(B) The Subscriber and Agency 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 incorporators or members of the
Agency shall not be held jointly liable for the torts of the officers or employees of the Agency, or
any other tort attributable to the Agency, and that the Agency 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 Subscriber and Agency acknowledge and agree that the Agency shall have all of
the privileges and immunities from liability and exemptions from laws, ordinances, rules and
common law which apply to the municipalities and counties of the State as may be provided by
law, but, in any event, the City shall have no liability arising from this Subscription Agreement
or its implementation or any other associated agreement or document as well as their
implementation. Nothing in this Subscription 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.
(C) Neither the Subscriber, nor the local governments who are either or both the
incorporators or members of the Agency, nor any subsequently subscribing or participating
local government in the affairs of the Agency shall in any manner be obligated to pay any debts,
obligations or liabilities arising as a result of any actions of the Agency, the Board of Directors
or any other agents, employees, officers or officials of the Agency, except to the extent otherwise
mutually and expressly agreed upon, and neither the Agency, the Board of Directors or any
other agents, employees, officers or officials of the Agency have any authority or power to
otherwise obligate either the Subscriber, the local governments who are either or both the
incorporators or members of the Agency, nor any subsequently subscribing or participating
local government in the affairs of the Agency in any manner.
SECTION 3.08. BINDING EFFECT. This Subscription Agreement shall be
binding upon the parties, their respective successors and assigns and shall inure to the benefit
of the parties, their respective successors and assigns.
14
Non -Exclusive Interlocal Subscriptior2 Agreemeut
City of Sajzford
SECTION 3.09. SEVERABILITY In the event any provision of this
Subscription Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 3.10. EXECUTION IN COUNTERPARTS. This Subscription
Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
SECTION 3.11. APPLICABLE LAW. The exclusive venue of any legal or
equitable action that arises out of or relates to this Subscription Agreement shall be the
appropriate State Court in Seminole County. In any such action, Florida law shall apply and the
parties waive any right to jury trial.
SECTION 3.12. RECORDS.
(a). IF THE CONTRACTOR/THE AGENCY HAS QUESTIONS
REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE CONTRACTOR'S (THE AGENCY'S) DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (407) 688-
5012, TRACI HOUCHIN, CITY CLERK, CITY OF SANFORD, CITY
HALL, 300 NORTH PARK AVENUE, SANFORD, FLORIDA 32771,
TRACI.HOUCHIN@SANFORDFL.GOV.
(b). In order to comply with Section 119.0701, Florida Statutes, public records laws, the
Agency must:
(i). Keep and maintain public records that ordinarily and necessarily would be
required by the City in order to perform the service.
(ii). Provide the public with access to public records on the same terms and
conditions that the City would provide the records and at a cost that does not exceed the cost
provided in Chapter 119, Florida Statutes, or as otherwise provided by law.
(iii). Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by law.
(iv). Meet all requirements for retaining public records and transfer, at no cost, to the
City all public records in possession of the Agency upon termination of the contract and destroy
any duplicate public records that are exempt or confidential and exempt from public records
15
Non -Exclusive Interlocal Subscription Agreenierzt
City of Sanford
disclosure requirements. All records stored electronically must be provided to the City in a
format that is compatible with the information technology systems of the City.
(c). If the Agency does not comply with a public records request, the City shall
enforce the contract provisions in accordance with this Agreement.
(d). Failure by the Agency to grant such public access and comply with public
records requests shall be grounds for immediate unilateral cancellation of this Agreement by
the City. The Agency shall promptly provide the City with a copy of any request to inspect or
copy public records in possession of the Agency and shall promptly provide the City with a
copy of Agency's response to each such request.
SECTION 3.13. ENTIRE AGREEMENT. This Subscription Agreement
constitutes the entire agreement among the parties pertaining to the subject matter hereof, and.
supersedes all prior and contemporaneous agreements, understandings, negotiations and
discussions of the parties, whether oral or written, and there are no warranties, representations
or other agreements among the parties in connection with the subject matter hereof, except as
specifically set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK AND SIGNATURE PAGES
FOLLOW.]
16
Non -Exclusive hiterlocal Siibscriptioii Agreeineiit
City of Saiaford
IN WITNESS WHEREOF, the undersigned have caused this Non -Exclusive
Subscription Agreement to be duly executed and entered into as of the date first above written.
Attest.- City Of Sanford
�W dj[LjC ,_0 H 0 iFWNt By:
Traci Houchin, City Clerk SANpO� Jeff Triplett,
1
Approved as to form and legal su
William L. Colbert, City Attorney
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK AND ADDITIONAL
SIGNATURE PAGE FOLLOWS.]
17
IN WITNESS WHEREOF, the undersigned have caused this Interlocal Agreement to be
duly executed and entered into as of the date first above written.
,att;fitIIIII
c. ; ..... 9 9
SEAL = ou ssYVE
ATTEST:
Donald T. Smallwood, Assistant Secretary
The Florida Pace Funding Agency
By:
Michael H. Steigerwald, Executive Director
18