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HomeMy WebLinkAboutReso 2018-2868 RESOLUTION NO. 2018- Z' A RESOLUTION OF THE CITY OF SUNNY ISLES BEACH,FLORIDA, APPROVING INTERLOCAL AGREEMENTS WITH THE FLORIDA GREEN FINANCE AUTHORITY, THE GREEN CORRIDOR PACE DISTRICT, THE FLORIDA RESILIENCY AND ENERGY DISTRICT AND THE FLORIDA PACE FUNDING AGENCY AND APPROVING INDEMNIFICATION AGREEMENTS; AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Section 163.08, Florida Statutes (the "Supplemental Act"), authorizes counties,municipalities and certain separate Local Government entities to establish and administer p p financing Programs pursuant to which owners of real property may obtain funding for energy conservation and efficiency, renewable energy and wind resistance improvements (as referred to therein, the "Qualifying Improvements"), and repay such funding through voluntary special assessments,sometimes referred to as non-ad valorem assessments("Special Assessments"),levied upon the improved property pursuant to financing agreements between the owner thereof and the local government (the "Financing Agreements"); and WHEREAS, the Floridanan reen Finance ce A h rut o ty,the Green Corridor PACE District,the Florida Resiliency and Energy District and the Florida PACE Funding Agency (individually the "Agency",collectively the"Agencies")are currently four(4)separate legal entities and units of local government within the State of Florida which were established by separate interlocal agreements for the express purpose of providing uniform platform to facilitate the financing of Qualifying Improvements throughout Florida; and WHEREAS, pursuant to the Supplemental Act or as otherwise provided by law, local governments may enter into a partnership with other local governments for the purpose of providing and financing Qualifying Improvements, and a Qualifying Improvement Program may be administered by a third party for-profit entity or a not for profit organization on behalf of or at the discretion of the local government; and WHEREAS, the installation of Qualifying Improvements may increase energy efficiency and improve the wind resistance of existing structures within the City of Sunny Isles Beach thereby reducing the burdens from fossil fuel energy production and contributing to the local economy by cost savings to property owners, enhancing property values and increasing job opportunities; and WHEREAS, the upfront costs of Qualifying Improvements impede installation and existing financing options may be insufficient for property owners to access cost-effective financing for energy-saving or wind-resistance property improvements due to requirements associated with traditional debt or equity financing options; and WHEREAS each of the Agencies contracts with a third-party charged with administering their PACE Program. Specifically,the third party administrator for Florida Green Finance Authority is Renew Financial Group, LLC; the third party administrator for The Green Corridor Property Assessment Clean Energy (PACE) District is Ygrene Energy Fund Florida, LLC; the third party administrator for Florida Resiliency and Energy District is Florida Development and Finance Corporation; and the third party administrator for Florida PACE Funding Agency is Counterpointe Energy Solutions (FL) LLC (collectively, the "Administrators"); and WHEREAS,the Agencies have already created the financing, levy and collection process to implement PACE Programs through local government partners without cost to or assumption of liability by, or demand upon the credit of the City of Sunny Isles Beach; and WHEREAS, the Administrators have agreed to indemnify the City for acts during the administration of each of the respective PACE Programs; and WHEREAS, the City Commission deems it to be in the best interest and welfare of the resident of the City of Sunny Isles Beach. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The foregoing recital paragraphs are hereby ratified and confirmed as being true and the same are hereby made part of this Resolution. Section 2. Approval of Agreements and Authorization to Execute. The City Commission approves the following agreements: (1) The Florida Green Finance Authority and Renew Financial Group is attached hereto and incorporated herein as Exhibit "A". (2) The Green Corridor Property Assessment Clean Energy(PACE)District and Ygrene Energy Fund Florida is attached hereto and incorporated herein as Exhibit "B". (3) The Florida Resiliency and Energy District (FRED) and Florida Development and Finance Corporation is attached hereto and incorporated herein as Exhibit"C". (4) The Florida PACE Funding Agency and Counterpointe Energy Solutions is attached hereto and incorporated herein as Exhibit"D". Section 3. Authorization of City Manager and City Attorney. The City Manager and the City Attorney are hereby authorized to do all things necessary to execute agreements between the Florida Green Finance Authority and Renew Financial Group,the Green Corridor Pace District and Ygrene Energy Fund Florida, the Florida Resiliency and Energy District and Florida Development and Finance Corporation, and Florida Pace Funding Agency and Counterpointe Energy Solutions. Page 12 Section 4. Scrivener's Errors. Typographical errors and other matters of a similar nature that do not affect the intent of this Resolution, as determined by the City Clerk and City Attorney, may be corrected. Section 5. Conflicts. All Resolutions orarts of Resolutions in conflict with anyof the p provisions of this Resolution are hereby repealed. Section 6. Severability. If any Section or portion of a Section of this Resolution proves to be invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair the validity, force, or effect of any other Section or part of this Resolution. Section 7. Effective Date. This Resolution shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED this 20 day of Sept'mber 201 :. George H. :choll, Mayor ATT T: kddrild Mauricio Betan ur, CMC, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: mo ity Attorney &air", A. D/e7A Page 13 Moved by: � �� o fJ VI Seconded by: Cto,m,k‘ctoar..-¢- Vote: Mayor Scholl ✓ (yes) (no) Vice Mayor Goldman V(yes) (no) Commissioner Aeliones no (yes) ( ) Commission Gatto i(yes) (no) Commissioner Svechin V (yes) (no) Page 14 RECEIVED INDEMNIFICATION AGREEMENT BETWEEN CITY OF SUNNY ISLES BEJ II 1 2019 AND City of Sunny isles Beach YGRENE ENERGY FUND FLORIDA LLC, Office of the City Manager THIRD PARTY ADMINISTRATOR FOR THE GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE)DISTRICT THIS AGREEMENT (the "Agreement") is entered into this 19th day of December, 2018 by and between Ygrene Energy Fund Florida LLC, ("Ygrene")the third party administrator of the Green Corridor Property Assessment Clean Energy (PACE) District (the "District"), and the City of Sunny Isles Beach, a political subdivision of the State of Florida(the "City") (collectively, the "Parties"). to enter into an agreement to authorize WHEREAS,the Cityand the District have proposed � the.District to operate within the boundaries of the City for the purposes of providing a Property Assessed Clean Energy (PACE) program; and WHEREAS, Ygrene is the third-party administrator for the District, and Ygrene would be operating on behalf of the District within the City; and WHEREAS, Ygrene is a Florida limited liability corporation; and WHEREAS, Ygrene has agreed to provide the City with a separate indemnification agreement for the benefit of the City. NOW, THEREFORE, the City and Ygrene hereby enter into the following Agreement: 1. The foregoing recitals are incorporated into this Agreement and approved. 2. Ygrene shall indemnify and hold harmless the City and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the City or its officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement by Ygrene or its employees, agents, servants, partners, principals, administrators, subcontractors, or agents. Ygrene shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the City, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. Ygrene expressly understands and agrees that any insurance protection shall in no way limit the responsibility to indemnify,keep and save harmless and defend the City or its officers,employees, agents and instrumentalities as herein provided. 3. 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, a , S related to,or in connection with this Agreement shall be in the state courts of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, the United States District Court for the Southern District of Florida or United States Bankruptcy Court for the Southern District of Florida, as appropriate. IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first written above. ATTEST; CITY CL ` CITY OF S Y I`LES BEACH t • \V 1110 - % 1 1‘ 4F0111,A1 By: ., �: By: =tfi�;� Mauricio Bet+ncur, CMC, City Clerk George . Scholl, Mayor Approved as to form and legality: I di % By: i 4,e_ - '11.. .44 ��, City Attorney E4Wn124- ,k.DioM ATTEST: YGRENE ENERGY FUND FLORIDA LLC .Z By: By; ' Print NAne: Jenni er Capuano, Paralegal Print Name: Rocc•/iabiano Approved as to form and legality: By: SY Print Name: Sven Kaludzinski, General Counsel MEMBERSHIP AGREEMENT BETWEEN THE GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE) DISTRICT AND THE CITY OF SUNNY ISLES BEACH, FLORIDA This Membership Agreement (the "Membership Agreement") is entered into this }day of Wk. , 2019 by and between the Green Corridor Property Assessment Clean Energy (PACE) District, a public body corporate and politic (the "Green Corridor"), and The City of Sunny Isles Beach, a municipal corporation of the State of Florida(the "City") (collectively, the "Parties") for the purpose of providing a PACE program within the City. RECITALS WHEREAS, on August 6, 2012, the Green Corridor was created as a separate legal entity pursuant to Section 163.01(7),Florida Statutes,to finance qualifying improvements in accordance with Section 163.08, Florida Statutes; and 2018 WHEREAS, on $.Z44he City adopted Resolution No. Ube agreeing to join the Green Corridor as a non-voting member in order to finance qualifying improvements in the City in accordance with Section 163.08, Florida Statutes; and WHEREAS, the Parties have determined that entering into this Membership Agreement is in the best interest and welfare of the property owners within the Green Corridor.and City. NOW, THEREFORE, in consideration of the terms and conditions, promises and covenants hereinafter set forth, the Parties agree as follows: Section 1. Recitals Incorporated. The above recitals are true and correct and incorporated herein. Section 2. Purpose. The purpose of this Membership Agreement is to facilitate the financing of qualifying improvements for property owners within the City in accordance with Section 163.08,Florida Statutes,by virtue of the City's joining the Green Corridor as a non-voting member and utilizing the Green Corridor's existing program (the "Program"). Section 3. Qualifying Improvements. The City shall allow the Green Corridor to provide financing of qualifying improvements, as defined in Section 163.08, Florida Statutes, on properties within the City. Section 4. Non-Exclusive. The Green Corridor Program is non-exclusive, meaning the City specifically reserves the right to join any other entity providing a similar program under Section 163.08,Florida Statutes, or create its own program under Section 163.08,Florida Statutes. Section 5. Program Guidelines. The Parties agree that, unless the City desires to implement its own local program guidelines as described below, the Program to be offered in the City will be wholly governed by the Green Corridor's Program Guidelines. If the City desires to implement its own local program guidelines, it may do so upon sixty (60) day's written notice to the Green Corridor. Any such local program guidelines can be amended and changed only by the Page 1 of 6 Membership Agreement—Green Corridor Property Assessment Clean Energy(PACE)District authorized designee of the City. The City may adopt more restrictive guidelines than that of the Green Corridor. Section 6. Consumer.Protections. (A) Confirmation of Terms. The Green Corridor must confirm, by telephone with the property owner, each Program financing term listed below before the property owner signs the telephonic confirmation maybe recorded. A voicemail shall cin Agreement. Such PACE Financing gr thisrequirement.ment. When confirmingterms of a Program Financing Agreement with a not satisfy q , homeowner,the Program Administrator will request the property owner to describe the Qualifying t Improvements beingfinanced using the Program financing and terms under the Financing P Agreement. (B) Language Translation Services. The Green Corridor shall provide capabilities to assist property owners seeking to participate in the Green Corridor who may have difficulty understanding the PACE materials. The Green Corridor shall provide language translation services, upon request, to ensure that the property owner understands the terms and conditions when entering into a PACE Financing Agreement. (C) Property Owner Consent. The Green Corridor is required to obtain written consent from the listed property owner to enter into the PACE Financing Agreement. If property is owned by multiple owners (i.e. joint tenancy, tenancy by the entirety etc.), the Green Corridor shall be required to obtain written consent of all owners prior to the execution of the PACE Financing Agreement. Section 7. Boundaries. Pursuant to this Membership Agreement, the boundaries of the Green Corridor shall include the legal boundaries of the City,which boundaries may be limited, expanded, or more specifically designated from time to time by the City by providing written notice to the Green Corridor. As contemplated in the Interlocal Agreement (as defined in Section 9) and as supplemented by this Membership Agreement, the Green Corridor will, on a non- exclusive basis, levy voluntary non ad valorem special assessments on the benefitted properties within the boundaries of the City to help finance the costs of qualifying improvements for those individual properties. Those properties receiving financing for qualifying improvements shall be assessed from time to time, in accordance with Section 163.08, Florida Statutes and other applicable law. Notwithstanding termination of this Membership Agreement or notice of a change in boundaries by the City as provided for above, those properties that have received financing for qualifying improvements shall continue to be a part of the Green Corridor, until such time that all outstanding debt has been satisfied. Section 8. - Financing Agreement. The Parties agree that the Green Corridor may enter into a financing agreement, pursuant to Section 163.08, Florida Statutes, with property -. . _ __. —_ .owner(s) within the City who obtain financing through the Green Corridor. Section 9. Amended and Restated Interlocal Agreement. The Parties agree that the City shall be subject to all terms,covenants,and conditions of the Amended and Restated Interlocal Agreement recordedin the Official .Records of Miami-Dade County at Official Records Book 28217, Page 0312, which created the Green Corridor (the "Interlocal Agreement"). In the event Page2of6 Membership Agreement—Green Corridor Property Assessment Clean Energy(PACE)District of any conflict between the .Interlocal Agreement and this Membership Agreement, this Membership Agreement shall control the rights and obligations of the City. Section 10. Responsibilities of the Green Corridor; Indemnification. The Green Corridor shall be solely responsible for all matters associated with origination, funding, financing and administration of each of the Green Corridor's authorized non-ad valorem assessments, including responding to any complaints or inquiries by participants,tax certificate holders, lenders or others relating to the Program's special assessments, the Program's financing agreements, the Program's qualifying improvements, or any other aspect of the Program. The Parties understand that indemnification of the Green Corridor members is provided for in Section 16 of the Interlocal Agreement, and that such provisions shall apply to the City. In addition to the indemnification provided pursuant to the Interlocal Agreement, the Green Corridor will directly indemnify and hold harmless the City, its respective officers, agents and employees, 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 performance or nonperformance by the Green Corridor, its officers, contractors and agents for all matters associated with origination, funding, financing and administration of each of the Green Corridor's authorized non-ad valorem assessments, including responding to any complaints or inquiries by participants,tax certificate holders, lenders or others relating to the Program's special assessments, the Program's financing agreements, the Program's qualifying improvements, or any other aspect of the Program. This grant of indemnification shall not be deemed or treated as a waiver by the Green Corridor of any immunity to which it is entitled by law, including butnot limited to the District's sovereign immunity as set 1, forth in Section 768.28, Florida Statutes. This Section shall survive termination of this Agreement. Section 11. Agreements with Tax Collector, Property Appraiser and Municipalities. The Green Corridor acknowledges. that the City has no authority to bind the County Tax Collector and the County Property Appraiser, and the Green Corridor will be required to enter into separate agreement(s) with the County Tax Collector and/or the County Property Appraiser, which shall establish the fees (if any) to be charged by the Tax Collector and Property Appraiser for the collection or handling of the Program's special assessments. Section 12. Resale or Refinancing of a Property. The Green Corridor recognizes that • some lenders may require full repayment of the Program's special assessments upon resale or refinancing of a property subject to the Program's special assessments.The Green Corridor agrees to provide written disclosure of this matter to all City property owners that may utilize the Program. Section 13. Term. This Membership Agreement shall remain in full force and effect from the date of its execution by both Parties. Any Party may terminate this Membership Agreement upon sixty(60)days prior written notice. Notwithstanding such termination,however, property owners whose applications were approved prior to the termination date,and who received funding through the PACE Program, shall continue to be a part of the Green Corridor, for the sole purpose of paying their outstanding assessment payments, until such time that all outstanding assessment payments have been satisfied. _ Section 14. _ Consent. This Membership Agreement and any required resolution or ordinance of an individual- Party shall be considered the City's consent to joining the Green Corridor and participation therein, as required by Section 163.08, Florida Statutes. Section 15. Voting Rights. The Parties agree that the City shall be a non-voting member of the Green Corridor for the term of this Membership Agreement. Page3of6 Membership Agreement—Green Corridor Property Assessment Clean Energy(PACE)District C . Section 16. 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 Green Corridor: Paul Winkeljohn, Executive Director Green Corridor 5385 Nob Hill Rd. Sunrise, FL 33351 If to City: Christopher J. Russo, City Manager Sunny Isles Beach Government Center 18070 Collins Ave., Sunny Isles Beach, FL 33160 With a Copy to: Edward A. Dion, Esq., City Attorney Sunny Isles Beach Government Center 18070 Collins Ave., Sunny Isles Beach, FL 33160 Section 17. Amendments. It is further agreed that no modification, amendment or alteration in the terms or conditions herein shall be effective unless contained in a written document executed by the Parties hereto. Section 18. Joint Effort. The preparation of this Membership Agreement has been a joint effort of the Parties hereto and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the Parties than the other. Section 19. Merger. This Membership Agreement incorporates and includes all prior 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 Membership 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. It is further agreed that no change,.amendment, alteration, or modification in the terms and conditions contained herein shall be effective unless contained in a written document,executed with the same formality, and of equal dignity herewith by all Parties to this Membership Agreement. - Section 20.`- Assignment. The respective obligations of the Parties set forth in this Membership Agreement shall not be assigned, in whole or in part, without the written consent of the other Party hereto. Section 21. Records. The Parties shall each maintain their own respective records and documents associated with this Membership Agreement in accordance with the requirements for records retention set forth in Chapter 119, Florida Statutes. Page 4 of 6 Membership Agreement—Green Corridor Property Assessment Clean Energy(PACE)District • Section 22. No Third Party Beneficiaries. It is the intent and agreement of the Parties that this Agreement is solely for the benefit of the Parties and no person not a party hereto shall have any rights'or privileges hereunder. Section 23. Severability. In the event a portion of this Membership Agreement is found by a:court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective. Section 24. Venue. The exclusive venue of any legal or equitable action against the City that arises out of or relates to this Membership Agreement shall be the appropriate state court in Miami-Dade County. Y Section 25. Effective Date. This Membership Agreement shall become effective upon the execution by the Parties hereto. [This space intentionally left blank. Signature page follows.] • Page 5 of 6 Membership Agreement—Green Corridor Property Assessment Clean Energy(PACE)District IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement on the day first written above. _ ATTEST: GREEN CORRIDOR PROPERTY ASSESSMENT CLEAN ENERGY (PACE) DISTRICT By: ,, By: V - 01 I•strict Sect-.'r E e `cutive Director APPROVED AS TO FORM AND LEGAL SUFFICI CY: . B • • ,``� ` Y� Weiss Serot He1fm. Cole & Bierman P.L., District Attorney I ATTEST.' THE CITY OF SUNNY ISLES BEACH, {- r FLORIDA • i .,"By. i {' .ni�d9 By: `�'• !Maurici s B tan. ur, CMC, CityClerk George . Scholl, Mayor s • APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: a.1161414t ab.:,y, Edward A. Dion, City Attorney [SIGNATURE PAGE TO MEMBERSHIP AGREEMENT] Page6of6 Membership Agreement-Green Corridor Property Assessment Clean Energy(PACE)District