HomeMy WebLinkAboutFlorida Resiliency and Energy District (FRED) Limited Purpose Party Membership Agreement bewtween FRED and City of Winter Springs - 2024 11 18Grant Maloy, Clerk Of The Circuit Court & Comptroller Seminole County, FL
Inst #2024108437 Book:10736 Page:1640-1650; (11 PAGES) RCD: 12/4/2024 8:18:06 AM
REC FEE $95.00
This instrument was prepared by or under the supervision o4 (and after recording should be returned to):
Ryan Bartkus
Florida Resiliency and Energy District
c/o Florida Development Finance Corporation
156 Tuskawilla Road, Suite 2340
Winter Springs, Florida 32708
LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT BETWEEN THE
FLORIDA RESILIENCY AND ENERGY DISTRICT AND
CITY OF WINTER SPRINGS
This Limited Purpose Parry Membership Agreement (the "Agreement") is entered
into this 18th day of November , 2024 by and between the FLORIDA
RESILIENCY AND ENERGY DISTRICT ("FRED"), a public body corporate and
politic created as a separate legal entity pursuant to Section 163.01(7), Florida Statutes,
and the City of Winter Springs ("CITY") (collectively, the "Parties") for the purpose of
providing a Commercial Property Assessed Clean Energy ("CPACE") program within the
legal boundaries of the City of Winter Springs.
WITNESSETH
WHEREAS, pursuant to the Florida PACE Act, codified in Section 163.08 through
Section 163.087, Florida Statutes (the "PACE Act"), property owners may voluntarily
finance improvements related to waste systems, resiliency, energy efficiency and
conservation, renewable energy and water conservation efficiency improvements
("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 initially entered into
between the Town of Lake Clarke Shores and the City of Fernandina Beach (each a
"Founding Member") and subsequent patties thereto (the "Public Agencies") and, in the
limited capacity described therein, the Florida Development Finance Corporation ("FDFC"
and together with the Public Agencies, the "Parties"), for the purpose of facilitating the
financing of Qualifying Improvements for properties located within FRED's aggregate legal
boundaries via the levy and collection of voluntary non -ad valorem special assessments on
improved property; and
WHEREAS, the City of Winter Springs finds that the financing of Qualifying
Improvements through the FRED CPACE Program provides a special benefit to
participating real property within its legal boundaries; and
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Instrument# 2024108437
WHEREAS, the Parties to this Agreement desire to supplement the Interlocal
Agreement to include the City of Winter Springs as a Limited Member, as such term is
defined in the Interlocal Agreement, on the date last signed below.
NOW, THEREFORE, in consideration of the above recitals, terms and conditions,
promises and covenants hereinafter set forth, the Parties agree as follows:
SECTION 1. DEFINITIONS. Any capitalized terms used in this
Agreement, but not otherwise defined herein, shall have the meaning specified for such
term in the Interlocal Agreement.
SECTION 2. PURPOSE. The purpose of this Agreement is to facilitate the
financing of Qualifying Improvements to commercial properties through a CPACE
program, in accordance with the PACE Act and provide an efficient process for real
property owners within the legal boundaries of the City of Winter Springs to access the
CPACE program and authorize FRED to administer the CPACE program within such legal
boundaries.
SECTION 3. RIGHTS OF PARTIES. FRED, together with its member
Parties and the City of Winter Springs, with the intent to be bound thereto, hereby agree
that the City of Winter Springs 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 Winter Springs, 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 Winter Springs. In the event of any
conflict between the Interlocal Agreement and this Agreement, this Agreement shall
control the rights and obligations of the Parties.
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 fiom a property owner's voluntary participation in the CPACE
program shall be levied by FRED on properties within the legal boundaries of the City of
Winter Springs and the receipt and distribution of any non -ad valorem special assessments
imposed by FRED are purely ministerial acts.
FRED shall be solely responsible for all matters associated with origination,
funding, financing, collection and administration of each of the FRED's authorized non -ad
valorem assessments. FRED's responsibilities include: (1) FRED defending,
indemnifying and holding harmless the City and its officers, attorneys and employees as
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Instrument# 2024108437
provided in the Interlocal Agreement and this Agreement; (2) FRED responding to any
complaints or inquiries by participants, tax certificate holders, lenders or others relating to
the Program's special assessments, the FDFC Pace Program's financing agreements, the
Program"s qualifying improvements, or any other aspect of the FDFC Pace Program; (3)
FRED ensuring and being responsible for compliance with all laws, rules, and regulations
in the imposition and collection of any special assessments levied upon property owned by
participating property owners who have entered into a financing agreement.
SECTION 5. QUALIFYING IMPROVEMENTS. FRED may provide
access to financing for Qualifying Improvements to real property within the legal
boundaries of the City of Winter Springs, in accordance with the PACE Act and the terms
of the Interlocal Agreement.
SECTION 6. FINANCING AGREEMENT. Before extending any
financing or subjecting any participating real property within the legal boundaries of the
City of Winter Springs to the non -ad valorem special assessment authorized therein, FR] D
and FDFC, through their designees, shall, on a non-exclusive basis pursuant to the PACE
Act and this Agreement, enter into a financing agreement (the "Financing Agrccmenf')
with property owner(s) within the legal boundaries of the City of Winter Springs 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 and shall
contain any other terms and conditions as may be required by the PACE Act. The Parties
hereto acknowledge and agree that the City of Winter Springs shall have no obligations
under any such Financing Agreements.
SECTION 7. BOUNDARIES OF THE PACE PROGRAM. For the
limited purposes of administering the CPACE 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 Winter Springs, which legal boundaries may be
limited, expanded to reflect annexation, or more specifically designated from time to time
by the City of Winter Springs by providing written notice to FRED. Upon execution of
this Agreement and written request thereafter, the City of Winter Springs agrees to provide
FRED the current legal description of the legal boundaries (if available) of the City of
Winter Springs.
SECTION S. ELIGIBLE PROPERTIES. Within the legal boundaries of
the City of Winter Springs, commercial real property may be eligible for participation in
the CPACE program within the limits otherwise prescribed in the PACE Act.
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 City of Winter Springs to help secure
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Instrument# 2024108437
the financing of costs of Qualifying Improvements constructed or acquired on such
properties based on the finding of special benefit by the City of Winter Springs. 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 the PACE Act and other applicable law. Notwithstanding termination ofthis Agreement
or notice of a change in the legal boundaries of the City of Winter Springs 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
fi-om the date of its execution by both Parties. Any Party may terminate this Agreement for
convenience upon thirty (30) days' prior written notice ("Termination Notice") in
accordance with the terms of the Interloeal Agreement. Beginning on the date FRED
receives a Termination Notice from the City of Winter Springs ("Termination Date"),
FRED shall not approve any new applications affecting property within the legal
boundaries of the City of Winter Springs referenced in the Termination Notice.
Notwithstanding termination of this Agreement, however, property owners whose
applications were received prior to the Termination Date, and who received funding
through the CPACE 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 Resolution
2024-35 by the governing board of the City of Winter Springs approving this Agreement,
shall be considered the Parties' continued consent to authorize FRED to administer the
CPACE program within the legal boundaries of the City of Winter Springs, required by
the PACE Act.
SECTION 12. COORDINATOR. The City of Winter Springs City
Manager's Office within the City of Winter Springs shall serve as the City's primary point
of contact and coordinator. The City of Winter Springs will advise FRED of any changes
to the City's own primary contact and coordinator within 30 days of such changes.
SECTION 13. LIMITED OBLIGATIONS. Neither FRED nor FDFC is
authorized to issue bonds, or any other form of debt, on behalf of the City of Winter Springs
without a separate interlocal agreement or other authority provided by State law. To the
extent that FRED or FDFC issues CPACE-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 Winter Springs. The issuance of such bonds shall not directly or
indirectly or contingently obligate the City of Winter Springs 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 Winter Springs. For any such bonds, the bond disclosure document, if any,
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Instrument# 2024108437
shall include references to the fact that the City of Winter Springs is not an obligated party,
and also adequately disclose material attendant risks with CPACE programs.
SECTION 14. LIABILITY, INDEMNIFICATION AND SOVEREIGN
IMMUNITY.
(A) The City of Winter Springs 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 Winter Springs and FRED acknowledge and agree that, to the
extent allowed by law, 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 Winter Springs is completely
independent of FRED. To the extent provided by law, FRED shall defend, indemnify and
hold harmless the City, its officers, employees, attorneys, and agents, from and against any
and all demands, claims, losses, suits, liabilities, causes of action, judgment or damages,
arising out of, related to, or in any way connected with FRED's, and/or any of FRED's
designees or agents, performance or non-performance of any provision of this Agreement or
the CPACE Program arising from contracts between FRED and/or any of FRED's designees
and agents and any third parties made pursuant to this Agreement. In addition, the foregoing
obligation shall expressly include all demands, claims, losses, suits, liabilities, causes of
action, judgment or damages, arising out of or based on a challenge to whether the voluntary
non -ad valorem assessment constitute a lien of equal dignity to taxes, or greater priority than
other recorded instruments, as authorized by the PACE enabling act under Florida law. Also,
FRED agrees to indemnify and hold harmless the City from and against collection risk related
to the bonds issued for CPACE assessments within the City. Further, the Parties understand
that the City and its employees, officers and attorneys shall also receive the full benefit of any
indemnification of the members under the Interlocal Agreement, and that such provisions
shall fully apply to the City as if specifically set forth herein. 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 Winter Springs, 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,
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Instrument# 202-4108437
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 Winter Springs, 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 15. 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 (if requested) having jurisdiction over the legal boundaries of the City
of Winter Springs, which shall provide for the collection of any non -ad valorem special
assessments imposed by FRED within the legal boundaries of the City of Winter Springs.
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. FRED shall be solely responsible for professionally
coordinating all interface with the tax collector and property appraiser. FRED shall take
all action necessary for the lawful levy of the special assessments against all lands and
properties specifically beneftted by the acquisition, construction and financing of
qualifying improvements. The City shall not incur or ever be requested to authorize or take
steps to authorize any obligations secured by special assessments associated with
qualifying improvements imposed by FRED.
SECTION 16. AGENTS OF FRED. FRED shall ensure that its agents,
administrators, subcontractors, successors and assigns are, at all times, in compliance with
the terms of this Agreement and applicable City, state and federal laws.
SECTION 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, or by electronic mail, addressed to the Party for whom it is intended, at
the place specified. For the present, the Parties designate the following as the respective
places for notice purposes:
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Instrument# 2024108437
If to FRED:
The Florida Resiliency and Energy District
c/o Florida Development Finance Corporation
156 Tuskawilla Road, Suite 2340
Winter Springs, FL 32708
info cfdfcbonds.com
and Issuer's Counsel with Nelson Mullins Riley & Scarborough LLP
Joseph Stanton, Esq.
Nelson Mullins Riley & Scarborough LLP
390 North Orange Avenue, Suite 1400
Orlando, FL 32801-4961
407.839.4200 (t)
j stanton@nelsonmullins.com
If to City of Winter Springs:
City of Winter Springs
Attn: City Manager
1126 E State Road 434
Winter Springs, FL 32708
With a Copy to:
Anthony A. Garganese, Esq.
Garganese, Weiss, D'Agresta & Salzman, P.A.
11 I N Orange Avenue, Suite 2000
Orlando, FL 32801
SECTION 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 of Winter Springs and FRED or other delegated authority authorized to execute
same on their behalf.
SECTION 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.
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Instrument# 202-4108437
SECTION 20. 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 21. 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 22. 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 23. RECORDING. This Limited Purpose Party Membership
Agreement shall be filed by FRED with the Cleric of the Circuit Court in the Public Records
of Seminole County and recorded in the public records of Seminole County, as an amendment
to the lnterlocal Agreement, in accordance with Section 163.01(11), Florida Statutes.
SECTION 24. 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 25. EFFECTIVE DATE. This Agreement shall become effective
upon the execution by both Parties hereto and recordation in accordance with Section 23
herein..
SECTION 26. LAW, JURISDICTION, AND VENUE. This Agreement shall be
interpreted and construed in accordance with and governed by the laws ofthe 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 Eighteenth Judicial Circuit in and for Seminole County, Florida, the United States
District Court for the Middle District of Florida, Orlando Division, or United States Bankruptcy Court for the
Middle District of Florida, as appropriate.
SECTION 27. SOVEREIGN IMMUNITY. No provision of this
Agreement, the Interlocal Agreement, or any other legal instrument between the Parties to
implement the FDFC PACE Program, shall be construed or deemed a waiver or avoidance
of any common law or statutory right to sovereign immunity or of any other defenses,
privileges and immunities enjoyed by the City or FRED and their respective elected and
appointed officers, employees and agents under any applicable law. Nothing in this
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Instrument# 202-4108437
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. This Paragraph shall survive termination.
SECTION 28. COVENANT NOT TO IMPOSE ANY FINANCIAL
OBLIGATIONS ON THE CITY. FRED covenants and agrees for itself and its
members (voting and nonvoting), directors, officers, employees, contractors, and agents
that FRED shall not have any right or power to impose or otherwise monetarily obligate
the City to pay any assessment, charge, fee, penalty, dues, or any other compensation or
funds arising out of or in any way concerning the City's participation in the membership,
the Interlocal Agreement and this Agreement. Not under any circumstances whatsoever
shall the City be liable for or obligated to pay, secure or perform any debts, liabilities,
conditions or obligations arising out of any financing agreement or instrument, special
assessment, lien, mortgage agreed to by any property owner or its representative under the
FDFC PACE Program. Furthermore, the City shall not be responsible or obligated for
paying any debts, obligations or liabilities arising out of or resulting from any acts or
omissions of FRED or its members, directors, officers, employees, contractors and agents.
SECTION 29. REPORTING TO THE CITY. On an annual basis, or upon
request of the City in writing, FRED shall provide the City with a written report reporting on the
implementation of the FDFC PACE Program within the jurisdictional limits of the City. The report
will include a summary of the properties serviced, the Qualifying Improvements made, the amount
paid for the Qualifying Improvements, and such other information reasonably requested by the
City. In addition, upon request by the City, FRED shall provide the City with a copy of its annual
audit required by Florida law.
[SIGNATURE PAGES FOLLOW]
Book 10736 Page 1649
Instrument# 2024108437
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf
of the City by its Mayor, its seal affixed hereto, as attested by its Clerk as of the
day of _ il/o vim awl 12024.
City of Winter Springs
By:
Kevin M Cann, Mayor
APPROVED AS TO FORM:
By:
Anthony A. Garganese, Esq., City Attorney
ATTEST:
By:
Christian Gowan, MPA, City Clerk
A-
• io
p' Ir
Book 10736 Page 1650
Instrument# 2024108437
[SIGNATURE PAGE TO LIMITED PURPOSE PARTY MEMBERSHIP AGREEMENT]
I ESS FLORIDA SILIENCY NERGY DISTRICT
f.
igna re By: //0
�an `gar} Y,�
TWO
Address: 156 Tuskawilla Road, Suite 2340
Winter Springs, Florida 32708
WITNESS:
I
cl • r
Signature
Print Name
Address: 156 Tuskawilla Road, Suite 2340
Winter Springs, Florida 32708
STATE of FLORIDA
COUNTY OFm,n ail
The foregoing instrument was acknowledged before me by means ofgphysical presence
or [ ] RRnline notarization, this �`e �day of •e i , 2024, by
v5ar-�k,js , of the Florida
Resiliency and Energy District, who is personally known to me/has produced
as identification.
Notary Public State of Florida
Christopher Bryan
i My Commission HH 291043
Expires 712IJ2026
LPL /J
Printed/Typed Name: el, ate.
Notary Public — State of Florida
Commission Number: 2gt0u3