20-1526 Establishing PACE Program within Corporate Limits of LongwoodRESOLUTION NO.20-1526
A RESOLUTION OF LONGWOOD, FLORIDA, ESTABLISHING A PROPERTY ASSESSED
CLEAN ENERGY (PACE) PROGRAM WITHIN THE CORPORATE LIMITS OF
LONGWOOD; APPROVING AN INTERLOCAL AGREEMENT WITH THE FLORIDA
PACE FUNDING AGENCY; TO WHICH THE ENTITY WILL ADMINISTER VOLUNTARY
NON -AD VALOREM FINANCING OF QUALIFING CONSERVATION AND ENERGY
EFFICIENCY, RENEWABLE ENERGY AND WIND RESISTANCE IMPROVEMENTS;
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS; AND PROVIDING
FOR IMPLEMENTING ADMINISTRATIVE ACTIONS, SCRIVENER'S ERRORS,
CONFLICTS, SEVERABILITY, AND EFFECTIVE DATE.
WHEREAS, Section 163.08, Florida Statutes (the "Supplemental Act"), authorizes
counties, municipalities and certain separate Local Government entities to establish and
administer financing Programs pursuant to which owners of real property may obtain funding for
energy conservation and efficiency, renewable energy and wind resistance improvements (as
referred to therein, the "Qualifying Improvements"), and repay such funding through voluntary
special assessments, sometimes referred to as non -ad valorem assessments ("Special
Assessments"), levied upon the improved property pursuant to financing agreements between
the owner thereof and the local government (the "Financing Agreements"); and
WHEREAS, the Florida PACE Funding Agency is currently a legal entity and a unit of local
government within the State of Florida established through an interlocal agreement for the
express purpose of providing scalable and uniform platform to facilitate the financing of
Qualifying Improvements throughout Florida; and
WHEREAS, on February 20, 2017, the City of Longwood ("City") City Commission adopted
Resolutions No. 17-1420, 17-1421 and 17-1422 authorizing the creation of a PACE Program and
agreeing to join the Florida Green Finance Authority, the Florida Resiliency and Energy District
and the Green Corridor Clean Energy Property Assessed (PACE) District, Respectively; 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 Longwood 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
Resolution No. 20-1526
Page 1 of 3
energy -saving or wind -resistance property improvements due to requirements associated with
traditional debt or equity financing options; and
WHEREAS, the City has been informed that the Florida PACE Funding Agency has created
the financing, levy and collection process to implement PACE Programs and will cooperate with
the City, without cost to or assumption of liability by, or demand upon the credit of Longwood;
and
WHEREAS, Longwood City Commission deems it to be in the best interest of the citizens
and residents of Longwood to authorize the appropriate City officials to execute an agreement
between the Florida PACE Funding Agency and the City in an effort to provide an alternative,
supplemental and nonexclusive means to achieve, inter alia, immediate and careful local
economic development, commerce and job creation, and other goals in accordance with the
compelling state interests and public purposes described in the Supplemental Act.
NOW, THEREFORE, BE IT RESOLVED BYTHE CITY COMMISION OF LONGWOOD, FLORIDA,
AS FOLLOWS:
SECTION 1. LEGISLATIVE FINDINGS AND INTENT. The forgoing recitals are
incorporated in this Resolution as if fully set forth herein and are approved and adopted. The
City Commission has complied with all requirements and procedures of Florida law in processing
and noticing this Resolution.
SECTION 2. ESTABLISHMENT OF PACE PROGRAM. The City Commission hereby
authorizes the Florida PACE Funding Agency to administer a non-exclusive Property Assessed
Clean Energy (PACE) program within the City Limits of Longwood in accordance with the terms
of this Resolution and that certain Non -Exclusive Interlocal Subscription Agreement Relating to
the Funding and Financing of Qualifying Improvements by the Florida PACE Funding Agency, a
copy of which is attached hereto as Exhibit "A."
SECTION 3. APPROVAL OF AGREEMENT: AUTHORIZATION TO EXECUTE, ETC.
(a). The City Commission approves the following agreement:
(1). The Non -Exclusive Interlocal Subscription Agreement Relating to the Funding and
Financing of Qualifying Improvements by the Florida Pace Funding Agency,
attached hereto and incorporated herein as Exhibit "A" (the "Agreement').
(b). The City Commission hereby authorizes the Mayor to execute the aforementioned
Agreement.
SECTION 4. IMPLEMENTING ADMINISTRATIVE ACTIONS. The City Manager is hereby
authorized and directed to take such actions as he may deem necessary and appropriate in order
to implement the provisions of this Resolution. The City Manager may, as deemed appropriate,
Resolution No. 20-1526
Page 2 of 3
necessary and convenient, delegate the powers of implementation as herein set forth to such
City employees as deemed effectual and prudent.
SECTION S. SCRIVENER'S ERRORS. Typographical errors and other matters of a
similar nature that do not affect the intent or effect of this Resolution may be corrected upon
approval by the City Manager.
SECTION 6. CONFLICTS. In the event of a conflict between this Resolution and any
other resolution of the City, this Resolution shall control to the extent of the conflict, as allowable
under the law.
SECTION 7. SEVERABILITY. If any Section or portion of a Section of this
Resolution is held to be invalid, unlawful, or unconstitutional by a court of competent jurisdiction,
it shall not be held to invalidate or impair the validity, force, or effect of any other Section or part
of this Resolution.
SECTION S. LIMITATION ON CITY UABIUTY. Nothing in this Resolution shall be construed
1) to create any liability or debt on the part of the City; 2) to authorize the Florida PACE Funding
Agency or any other agency or entity to bind the City to any obligation or debt; 3) as a waiver of
the City's sovereign immunity or any other defense that the City may have under F.S. 768.28 or
any other law; or 4) as a pledge of the City's taxing power, faith, or credit.
SECTION 9. EFFECTIVE DATE. This Resolution shall become effective immediately
upon its passage and adoption.
PASSED AND ADOPTED this 16th day of March A. 020.
4-
Matt Morgan
MAYOR OF LONGWOOD, FLORIDA
ATTEST:
Michelle Longe�`CN(C, FCRM
CITY CLERK
A to form and legality for the use and reliance of the City of Longwood, Florida, only.
Daniel W. La , Ci At rney
Resolution No. 20-1526
Page 3 of 3
NON-EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT
RELATING TO THE FUNDING AND FINANCING
OF QUALIFYING IMPROVEMENTS BY THE
FLORIDA PACE FUNDING AGENCY
THIS NON—EXCLUSIVE INTERLOCAL SUBSCRIPTION AGREEMENT is made and
entered into as of March 16, 2020 (this "Subscription Agreement"), by and between City of
Longwood, 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 terms
shall have the meanings as defined unless the context requires otherwise:
"Board of Directors" means the governing body of the Agency.
"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) thereof) between the Agency and a 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
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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.
"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 owner
who has entered into a Financing Agreement with the Agency to fund the costs of Qualifying
Improvements.
SECTION 1.02 CONSTRUCTION.
(A) Words importing the singular number shall include the plural in 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
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) 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.
(C) 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.
(D) The Agency's Program has assembled open public governance and oversight,
staffing, third -party administration, third -party originators, third -party tax roll administration,
Program counsel, and an independent institutional trustee; the Agency is immediately ready to
commence origination of Special Assessments for Qualifying Improvements; and that the
Agency presently has funding in place and available under executed bond purchase agreements
and trust indentures.
(E) 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 Subscriber) and the voluntary
participation in the Program by Property Owners will provide an alternative financing option to
finance and repay the costs to provide and install Qualifying Improvements.
(F) This Agreement provides an alternative, supplemental and non-exclusive means to
achieve, inter alia, immediate and careful local economic development, commerce and job creation,
as well as the compelling State interests and public purposes described in the Supplemental Act.
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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, 189 and 197, Florida
Statutes, shall be deemed to be authorized and may be implemented by the Agency within the
boundaries of the Subscriber.
hereto.
(E) This Subscription Agreement may be amended only by written amendment
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.
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SECTION 2.03. ADOPTION OF RATES, FEES AND CHARGES.
(A) The Board of Directors may adopt from time to time such rates, fees or other
charges for the provision of the services of the Agency to be paid by the Property Owner,
pursuant to a Financing Agreement described in the Supplemental Act.
(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, 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 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.
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SECTION 2.05. IMPOSITION OF SPECIAL ASSESSMENTS PURSUANT TO
FINANCING AGREEMENTS.
(A) Upon execution by the Property Owner and the Agency of the Financing
Agreement, 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 property appraiser or tax collector of the recorded Financing
Agreement or summary memorandum 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 Subscriber. 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 tax collector and property appraiser or 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.
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. By execution hereof any such interest in mitigation credits shall be assigned by the
Subscriber to the Agency without any 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" within the
meaning of the Florida Interlocal Cooperation Act of 1969, as amended. This Subscription
Agreement shall be filed by the Agency with the Clerk of the Circuit Court of the county in which
the Subscriber is located.
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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. 2011), 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) 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.
SECTION 3.03. TERM OF AGREEMENT; DURATION OF AGREEMENT;
EXCLUSIVITY.
(A) This Subscription Agreement shall commence as of the date first above written,
and shall remain in effect until terminated as herein provided. Either party (the "non -breaching
party") may terminate this Subscription Agreement by providing the other party (the "breaching
party") 10 days prior written notice ("Termination Notice") in the event the breaching party
breaches this Subscription Agreement and such breach is not cured within thirty (30) days
following notice of such breach, or as long thereafter as reasonably necessary to cure the breach.
Beginning on the date the Agency receives from, or gives to, the Subscriber a Termination Notice
("Termination Date"), the Agency shall not approve any new applications affecting property
within the legal boundaries of the Subscriber. The initial term of this Subscription Agreement
shall be five years, and the Subscription Agreement shall automatically renew for five-year terms
unless either party provides the other with written notice of the intention not to renew at least
thirty (30) days prior to the expiration of term that is then current.
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(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).
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 evidence of
indebtedness without the consent in 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
City of Longwood
175 West Warren Ave.
Longwood, FL 32750
With a copy to: Daniel Langley
Attorney, City of Longwood
1947 Lee Rd.
Winter Park, FL 32789
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Agency: Mike Moran
Executive Director
Florida PACE Funding Agency
c/o Southern Sky Energy
4411 Bee Ridge Rd., #134
Sarasota, Florida 34233
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 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)(o), Florida Statutes, and this covenant of the parties
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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. 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.
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 Lee County. In any such action, Florida law shall apply and the parties
waive any right to jury trial.
SECTION 3.12. 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
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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.]
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IN WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to
be duly executed and entered into as of the date first above written.
CITY OF LONGWOO
(SEAL) �--�
By:
David Dowda
Acting City Manager
silc
City Clerk
Approved as to form:
Daniel Langl
City Attorney
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IN WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to
be duly executed and entered into as of the date first above written.
THE FLORIDA PACE FUNDING AGENCY
(SEAL)
By:
Mike Moran, • xecutive Director
S: \ AKA \CLIENTS\ Longwood, City of\General L324-21313\PACE Interlocal\FPFA ILA Between Florida Pace and the City of
Longwood FLorida [CLEAN].docx
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