HomeMy WebLinkAbout10-259RESOLUTION NO.10- X54
A RESOLUTION OF ST. LUCIE COUNTY, FLORIDA
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING
$50,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
SPECIAL ASSESSMENT IMPROVEMENT FUNDING AND
REIMBURSEMENT AGREEMENTS (ENERGY FINANCING
PROGRAM), IN ONE OR MORE INSTALLMENTS, TO
FINANCE THE COST OF QUALIFYING IMPROVEMENTS
INCLUDING ENERGY CONSERVATION AND EFFICIENCY
IMPROVEMENTS, AND RENEWABLE ENERGY
IMPROVEMENTS; AUTHORIZING THE COUNTY
ADMINISTRATOR TO EXECUTE FINANCING AGREEMENTS
WITH PROPERTY OWNERS PROVIDING FOR THE
FINANCING OF SUCH QUALIFYING IMPROVEMENTS AND
THE PROPERTY OWNER'S CONSENT TO THE IMPOSITION
OF SPECIAL ASSESSMENTS; PROVIDING FOR THE
REPAYMENT OF ADVANCES UNDER A SPECIAL
ASSESSMENT IMPROVEMENT FUNDING AND
REIMBURSEMENT AGREEMENT (ENERGY FINANCING
PROGRAM) FROM THE PROCEEDS OF THE SPECIAL
ASSESSMENTS; AUTHORIZING ENGAGEMENT OF THE
SOLAR AND ENERGY LOAN FUND OF ST. LUCIE COUNTY,
INC. TO PROVIDE SERVICES RELATED TO
ADMINISTRATION OF THE ENERGY FINANCING
PROGRAM; AUTHORIZING VALIDATION OF THE BONDS;
AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED by the Board of County Commissioners of St. Lucie County, Florida
(the "Board") as follows:
ARTICLE I
AUTHORITY, DEFINITIONS AND FINDINGS
Section 1.01. Authority for this Resolution. This Resolution of St. Lucie County, Florida
(the "County") is adopted pursuant to the provisions of Chapter 125, Part I, Florida Statutes,
County Ordinance No. 10-025 (the "Ordinance"), Section 1-19-.18 Code of Ordinances of St. Lucie
County, Florida, Section 163.08, Florida Statutes (the "Act"), and other applicable provisions of
law.
Section 1.02. Definitions. Unless the context otherwise requires, the capitalized terms
used in this Resolution shall have the meanings specified in this Section. Words importing
singular number shall include the plural number in each case and vice versa, and words
importing persons shall include firms and corporations.
"Administration Agreement" means the agreement between the County and the Program
Administrator setting forth the terms and conditions pursuant to which the Program
Administrator will administer the Energy Financing Program.
"Advance" means a draw under the revolving line of credit contemplated
hereunder to pay an Energy Financing Program Cost.
"Assessed Property" means real property subject to an Energy Special Assessment
pursuant to a Financing Agreement which is specially benefitted by alleviating energy
consumption burdens described in the Act, by the acquisition, construction and financing of one
or more Qualifying Improvements.
"Chairman' means the chair of the Board.
"County Administrator" means the chief administrative officer of the County, or his or her
designee.
"County Attorney" means the chief legal officer of the County, or his or her designee.
"Energy Financing Program" means the program established by the County in the manner
authorized by law, including the Act, to issue Special Assessment Funding Agreements, enter
into Financing Agreements with Property Owners providing for the funding, financing and
repayment of Qualifying Improvements through the levy of Energy Special Assessments, and to
pledge the proceeds from the Energy Special Assessments to repayment of the Special
Assessment Funding Agreements; together with all reasonable and necessary actions or
undertakings of any kind necessary or required to implement and administer such program.
"Energy Financing Program Costs" means all costs associated with the Energy Financing
Program contemplated hereunder, including but not limited to the provision of funds with which
to finance Qualifying Improvements pursuant to Financing Agreements; accounting and legal
fees and expenses; expenses for estimates of costs and of revenues; the fees of fiscal agents,
financial advisors, third party administrators, and consultants; administrative expenses; interest
on the Special Assessment Funding Agreements for a reasonable period of time after the date of
their delivery; reasonable reserves for the payment of debt service with respect to the Special
Assessment Funding Agreements; such other expenses as may be necessary or incidental to the
financing authorized by this Resolution and to the establishment of the Energy Financing
Program; and reimbursement to the County for any sums expended for the foregoing purposes in
anticipation of the issuance of the Special Assessment Funding Agreements.
"Energy Special Assessments" or "Special Assessments" means the non-ad valorem
assessments levied pursuant to the Ordinance and the Act and documented with a Financing
Agreement satisfying the requirements of the Act.
"Financing Agreement" means the agreement authorized hereunder and by the Act
(specifically including section 163.08(4) thereof) between the County and a Property Owner
providing for the funding to finance Qualifying Improvements and the imposition of an Energy
Special Assessment against Assessed Property.
"Fiscal Year" means the period commencing on October 1 of each year and continuing
through the next succeeding September 30, or such other period as may be prescribed by law
as the fiscal year for the County.
"Holder" or "Holders" means the counterparty to the County under any Series of Special
Assessment Funding Agreement issued hereunder.
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"Permitted Investments" means investments permitted by the County's written
investment policy and applicable law.
"Pledged Revenues" means (1) the Energy Special Assessments, (2) the money on deposit
in the funds and accounts created herein, and (3) Investment Earnings.
"Program Administrator" means the County's designee for purposes of administering the
Energy Financing Program.
"Property Owner" means, collectively, all of the record owners of real property subject to
a Financing Agreement.
"Qualifying Improvement" means the energy conservation and efficiency improvements,
and renewable energy improvements as described in and authorized by section 163.08(2)(b),
Florida Statutes (2010).
"Series" means each series or installment of a Special Assessment Funding Agreement
issued pursuant to a Series Resolution.
"Series Pledged Revenues" means, with respect to a Series, (a) the Series Special
Assessments, (b) the moneys on deposit in the Series Subaccounts in the Funds and Accounts,
and (c) the Series Investment Earnings.
"Series Resolution" means the supplemental resolution providing for the execution,
delivery and issuance of a particular Series of Special Assessment Funding Agreement for the
purposes of financing Energy Financing Program Costs.
"Series Special Assessments" means the Special Assessments specifically pledged to
secure payments due under a specified Series of Special Assessment Funding Agreement.
"Special Assessment Funding Agreement" means each Special Assessment Improvement
Funding and Reimbursement Agreement (Energy Financing Program) entered into by the
County and a Holder in installments or Series.
"State" means the State of Florida.
Section 1.03. Findings. It is hereby ascertained, determined and declared that:
(A) The County is anon-charter county and political subdivision of the State, duly
organized and operating under the Constitution and the laws of the State.
(B) The State has declared it the public policy of the State to develop energy
management programs aimed at promoting energy conservation.
(C) Home and business energy consumption accounts for approximately 70% of the
overall usage of electric energy.
(D) 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, F.S.
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(E) 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.
(F) A significant contributor to statewide and county greenhouse gas emissions is
the inefficient use of energy by existing building stock.
(G) 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.
(H) The actions authorized by the Act, section 1-19-18, Code of Ordinances of the
County and this Resolution, including the financing of Qualifying Improvements through the
execution of Financing Agreements and the related imposition of an Energy Special
Assessment are reasonable and are necessary for the prosperity and welfare of the State, the
County and to their property owners and inhabitants.
(I) 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.
(J) Facilitating the provision of Qualifying Improvements, the funding, and the
repayment by Property Owners of Energy 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 and
promoting smart and local economic activity.
(K) Existing homeowners and business property owners may be highly leveraged
on their properties and/or the current housing market may prevent property owners from
financing Qualifying Improvements with traditional equity financing options.
(L) The expected life of energy efficiency and renewable energy Qualifying
Improvements may require alonger-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.
(M) The availability of an Energy Financing Program and the participation in the
program by Property Owners will provide an alternative financing option to finance and repay
the costs to install Qualifying Improvements.
(N) The County is willing to provide financing to a Property Owner who
participates in the Energy Funding Program through non-ad valorem assessments levied on
the property pursuant to the Act and to be collected pursuant to Chapter 197, F.S., as such
financing minimizes risk of failure for non-payment and provides a more efficient, fair and cost
effective means of enforcement of any Energy Special Assessment to both the Property Owner
and the County.
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(O) The County anticipates having options to raise capital to fund the program
through the issuance of Special Assessment Funding Agreements, federal or state grant funds,
private loans from a financial institution, state or federal loan or bond guarantee programs or
other private or not-for-profit sources of funds.
(P) Local governments within Florida and nationally have either formed, or are
contemplating the establishment of financing programs to provide alternative financing
options allowing a Property Owner to finance energy efficiency and renewable energy
improvements through non-ad valorem assessments repaid in conjunction with their property
taxes.
(Q) The County finds that local needs and conditions warrant the establishment of
the Energy Financing Program as a direct means to implement its energy efficiency and
renewable energy goals.
(R) The Ordinance authorizes the County to take advantage of the alternatives,
additional and supplemental non-ad valorem assessment provisions, and due process
procedures created by section 163.08, Florida Statutes, to provide for energy conservation and
efficiency improvements, and renewable energy improvements.
(S) It is necessary and in the interest of the health, safety, and welfare of the County
and its inhabitants that the County establish the Energy Financing Program. The County is
authorized pursuant to the provisions of the Act to undertake the Energy Financing Program.
(T) The County is without adequate, currently available funds to establish the Energy
Financing Program, and it is necessary and desirable and in the public interest that it borrows the
moneys necessary for such purpose, and secure repayment thereof by the Pledged Revenues
comprised of proceeds and derived from the Energy Special Assessments.
(U) The Pledged Revenues are not pledged or encumbered to pay any other debts or
obligations of the County; nor shall the County be obligated to pay or underwrite any Special
Assessment Funding Agreement or any payment due thereunder from any source other than the
Pledged Revenues.
(V) The Pledged Revenues are estimated to be sufficient to pay all amounts due under
each Special Assessment Funding Agreement and to make all other payments required to be
made hereunder.
(W) The payments due under each Special Assessment Funding Agreement shall be
limited obligations of the County and, except as otherwise provided herein, shall be payable from
and secured solely by a pledge of and lien on the Pledged Revenues. Neither the County, nor the
State of Florida or any political subdivision thereof or governmental authority or body therein,
shall ever be required to levy ad valorem taxes to pay any amount due under any Special
Assessment Funding Agreement, and each Special Assessment Funding Agreement shall not be
secured by a lien upon any property owned by or situated within the County other than the
Pledged Revenues in the manner provided herein.
Section 1.04. Resolution to Constitute Contract. In consideration of the acceptance of
each Special Assessment Funding Agreement authorized to be executed and delivered hereunder
by those who shall be the Holders of the same from time to time, this resolution shall be deemed
to be and shall constitute a contract between the County and such Holders. The covenants and
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agreements herein set forth to be performed by the County shall be for the equal benefit,
protection and security of the Holders of any and all of such Special Assessment Funding
Agreement, all of which shall be of equal rank and without preference, priority or distinction of
any of Special Assessment Funding Agreement over any other thereof, except as expressly
provided therein and herein.
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ARTICLE II
AUTHORIZATION OF ENERGY FINANCING PROGRAM AND
EXECUTION OF FINANCING AGREEMENTS;
AUTHORIZATION OF ISSUANCE OF ENERGY FINANCING BONDS
Section 2.01. Authorization of Energy Financing Program. The Board, through the
Ordinance, has previously designated all property within the County as eligible to participate in
the County's Energy Special Assessments authorized by the Ordinance and the Act, and does
hereby specifically confirm the authorization and establishment of the Energy Financing Program
in order to implement the Act. The Board hereby specifically ratifies and affirms all actions
previously taken in furtherance of the Energy Financing Program. This Resolution is intended to
constitute the subsequent resolution described in section 1-19-.18, Code of Ordinances of St. Lucie
County, Florida.
Section 2.02. Financing Agreements. The County Administrator is hereby authorized
to enter into Financing Agreements with Property Owners on behalf of the County. The
Financing Agreement shall be in compliance with and satisfy the requirements of the Act, shall
clearly set forth the agreement and consent of all owners of any property to the levy of an Energy
Special Assessment, and acknowledge satisfaction of any notice and due process requirements
necessary to render the Special Assessments valid and enforceable. The text of Financing
Agreements shall address and include all requirements of the Act with such insertions and
variations as may be necessary and desirable, as same are authorized or permitted by the Act, this
Resolution, or by subsequent resolution or resolutions adopted prior to the execution thereof, and
as may be necessary to reflect the characteristics of any particular installment or series of Special
Assessment Funding Agreements. Each Financing Agreement shall be recorded in the Official
Records of the County as required by the Act.
Section 2.03. Authorization of Special Assessment Funding Agreements. Subject and
pursuant to the provisions of this Resolution, obligations of the County to be known as "Special
Assessment Improvement Funding and Reimbursement Agreement (Energy Financing
Program)," in one or more series, are hereby authorized to be issued, initially as taxable
obligations, in an aggregate principal amount on original issuance of not exceeding $50,000,000
for the purpose of financing the Energy Financing Program Costs, provided, however, that the
County reserves the right to issue additional Special Assessment Funding Agreements on a parity
with the Special Assessment Funding Agreements herein authorized in the event demand for
Energy Special Assessments exceeds $50,000,000. Each Special Assessment Funding Agreement
is intended to constitute an issuance of a certificate of debt within the meaning of
section 75.02, Florida Statutes.
Section 2.04. Description of Special Assessment Funding Agreements. The Special
Assessment Funding Agreement shall be designated by a Series designation; shall be in such
denominations or maturity amounts; shall be dated; shall bear interest at not exceeding the
maximum rate allowed by law payable on such dates; shall mature on the first day of such
month, in such years, and such amounts; all as shall be determined by a Series Resolution to be
adopted by the County at or prior to the time of sale of any Series of Special Assessment Funding
Agreement.
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Each Special Assessment Funding Agreement shall be issued as a revolving line-of-credit
obligations in a nominal principal amount not to exceed the amount authorized by Section 2.03
hereof and shall bear interest only on such amounts as are actually advanced by or on behalf of
the Holder as funds are provided for the payment of Qualifying Improvements to be financed by
an Energy Special Assessment.
Section 2.05. Form of Special Assessment Funding Agreements. The text of the Special
Assessment Funding Agreement shall be in substantially the form of Exhibit A attached hereto,
with such omissions, insertions, and variations as may be necessary and desirable, and as may be
authorized or permitted by this resolution or by subsequent resolution or resolutions adopted
prior to the issuance thereof, and as may be necessary to reflect the characteristics of any
particular installment of Special Assessment Funding Agreements.
Section 2.06. Series Resolutions. The County shall adopt one or more Series
Resolutions setting forth the specific terms and conditions applicable to each respective Series of
Special Assessment Funding Agreements, and shall specify in such Series Resolution, the
maximum principal amount of such Series, the payment dates and interest rates applicable to
such Series, the debt service reserve requirement for such Series, if any, and the paying agent and
registrar, if any, for such Series. 'The Series Resolution may also specify any additional terms and
conditions applicable to such Series, including but not limited to the redemption provisions
applicable to such Series.
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ARTICLE III
COVENANTS OF THE COUNTY; SECURITY FOR SPECIAL ASSESSMENT
FUNDING AGREEMENTS; EVENTS OF DEFAULT; REMEDIES
Section 3.01 Covenants Of The County. So long as any of the Special Assessment
Funding Agreements shall be outstanding, or until (a) there shall have been set apart in the Debt
Service Fund and accounts therein, a sum sufficient to pay when due, the entire principal amount
of the Special Assessment Funding Agreements remaining unpaid, together with the premium, if
any, with respect thereto and the interest accrued and to accrue thereon, or (b) provision for
payment of the Special Assessment Funding Agreements shall have been made in accordance
with the provisions hereof, the County covenants with the Holders as follows:
(A) Financing Agreements. The County shall comply with all requirements of the Act
pertaining to execution and enforcement of Financing Agreements.
(B) Books and Records: Annual Audit. The County will keep books and records of the
Pledged Revenues, in which complete and correct entries shall be made in accordance with
generally accepted accounting principles applicable to governmental entities, of all transactions
relating to the Pledged Revenues; any Holder shall have the right at all reasonable times to
inspect all books, records, accounts and data of the County relating thereto.
The County shall, within one hundred and eighty (180) days after the close of each
Fiscal Year (or such other date as shall be specified by State law), cause the books, records and
accounts of the County for such preceding Fiscal Year to be properly audited by independent
certified public accountants, and the County shall mail upon written request, and make available
generally, the audit report, or a reasonable summary thereof, to any Holder.
(C) Perfection of Special Assessments. The County will take such actions as are
necessary for the lawful levy of the Energy 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 County shall be satisfied that any such
assessment is so irregular or defective that the same cannot be enforced or collected, the County
covenants that it will take all necessary steps to cause a new assessment to be made for the whole
or any part of any Qualifying Improvement or against any property specially benefitted by such
improvement, to the extent and in the manner provided by law.
(D) Collection of Special Assessments. The County will collect the Special
Assessments in the manner provided in Section 163.08, Florida Statutes. The County will take or
cause to be taken all actions necessary to diligently enforce the payment of all of the Special
Assessments and all of the installments thereof, interest thereon and penalties therefrom, in the
manner prescribed by this Resolution and the laws of the State pertaining thereto.
(E) Issuance of Other Debt Obli,~;ations Payable Out Of Pledged Revenues. The
County will not issue any obligations other than the Special Assessment Funding Agreements
secured by a lien upon and pledge of the Pledged Revenues, nor voluntarily create or cause to be
created any debt, lien, pledge, assignment, encumbrance or any other charge having priority to or
being on a parity with the lien of the Special Assessment Funding Agreements and the interest
thereon, upon the Pledged Revenues. Any obligations secured by a lien upon and pledge of the
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Pledged Revenues issued by the County other than the Special Assessment Funding Agreements
shall contain an express statement that such obligations are junior, inferior, and subordinate in all
respects to the Special Assessment Funding Agreements as to lien on and source and security for
payment from the Pledged Revenues, and in all other respects.
(F) Payment of Special Assessment Funding_A~;reements. The County will pay from
Pledged Revenues, the repayment of any principal advanced thereunder and interest on the
Special Assessment Funding Agreement when due.
Section 3.02. Security for Special Assessment Funding Agreements. Each Series of
Special Assessment Funding Agreements shall be secured forthwith equally and ratably by a
pledge of and lien upon the Series Pledged Revenues. The Special Assessment Funding
Agreements shall not be or constitute general obligations or an indebtedness of the County 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 Pledged Revenues as provided herein. No Holder shall
ever have the right to compel the exercise of the ad valorem taxing power of the County or
taxation in any form of property therein to pay any amount due under any Special Assessment
Funding Agreement. The Special Assessment Funding Agreements shall not constitute a lien
upon any property of or in the County except the Pledged Revenues in the manner provided
herein.
Section 3.03. Events of Default; Remedies. The following shall constitute Events of
Default:
(A) If the County fails to make any payment of principal under any Special
Assessment Funding Agreement as the same becomes due and payable;
(B) If the County defaults in the performance or observance of any covenant or
agreement contained in this Resolution or the Special Assessment Funding Agreements (other
than as set forth in (a) above) and fails to cure the same within thirty (30) days; or
(C) The filing of a petition by or against the County relating to bankruptcy,
reorganization, arrangement or readjustment of debt of the County or for any other relief relating
to the County under the United States Bankruptcy Code, as amended, or any other insolvency act
or law now or hereafter existing, or the involuntary appointment of a receiver or trustee for the
County, and the continuance of any such event for 90 days undismissed or undischarged.
Upon the occurrence and during the continuation of any Event of Default, any Holder
may, in addition to any other remedies set forth in this Resolution or the Special Assessment
Funding Agreements, either at law or in equity, by suit, action, mandamus or other proceeding in
any court of competent jurisdiction, protect and enforce any and all rights under the laws of the
State of Florida, or granted or contained in this Resolution, and may enforce and compel the
performance of all duties required by this Resolution, or by any applicable statutes to be
performed by the Issuer or by any officer thereof.
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ARTICLE IV
ESTABLISHMENT OF FUNDS AND ACCOUNTS;
APPLICATION OF BOND PROCEEDS AND PLEDGED REVENUES
Section 4.01. Funds and Accounts.
(A) Creation. There are hereby created and established by the County the following
special Funds and Accounts: a fund designated "Special Assessment Funding Agreement
Account" (hereinafter the "Assessment Account"), separate accounts in which shall be
established for each Series; the "Special Assessment Funding Agreements Qualified
Improvement Fund" (hereinafter, the "Improvement Fund"), separate accounts in which shall
be established for each Series, together with any accounts therein; and "Energy Financing
Program Administration Fund" (hereinafter the "Administration Fund"). Amounts on deposit
in the Improvement Fund shall be used to finance, refinance and/or reimburse Energy Financing
Program Costs. Amounts on deposit in the Improvement Fund may be invested in Permitted
Investments. The Improvement Fund is a trust fund created for the benefit of the Holders and is
subject to a lien in favor of the Holders. Amounts on deposit in the Administration Fund shall be
used to pay or reimburse the County for any administration costs incurred in operating the
Energy Financing Program or paid pursuant to the Administration Agreement.
(B) Maintenance. The designation and establishment of the Funds and Accounts in
and by this Resolution shall not be construed to require the establishment of any completely
independent, self-balancing funds or accounts, as such terms are commonly defined and used
in governmental accounting, but rather is intended solely to constitute an earmarking of
specified Pledged Revenues for certain purposes and to establish certain priorities for
application of such specified Pledged Revenues as provided herein and as more particularly
provided in any supplemental resolution authorizing a particular Series. Cash and investments
required to be accounted for in each of the Funds and Accounts may be deposited in a single
bank account, provided that standard accounting records are maintained to reflect control or
restricted allocation of the moneys therein for the various purposes of such Funds and
Accounts.
(C) The foregoing provisions notwithstanding, the Funds and Accounts shall
constitute restricted funds for the purposes provided herein and shall be maintained on the
books of the County as separate and distinct from all other Funds and Accounts of the County, in
the manner provided in this Resolution and in a supplemental resolution authorizing a particular
Series. All moneys in such Funds and Accounts shall be continuously secured in the same manner as
County deposits are required to be secured by the laws of the State.
Series Subaccounts shall be maintained for each Series of Special Assessment Funding
Agreements and identified by the appropriate designation, and deposits into the subaccounts for
each such Series of Special Assessment Funding Agreements shall be separate and independent
from the deposits, if any, into the corresponding Series Subaccount for each other Series of
Special Assessment Funding Agreements; provided that moneys on deposit in the Series
Subaccount established for a particular Series may be specified by resolution of the County to
be available to be used for payments required to be made from the corresponding accounts for
any other Series.
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Section 4.02. Application of Special Assessment Funding Agreement Proceeds. All
moneys received from an Advance under any Special Assessment Funding Agreement
authorized and issued under the authority of this Resolution shall be disbursed as provided in a
subsequent resolution or resolution adopted at or prior to the time of delivery of such Special
Assessment Funding Agreements to pay the cost of Energy Financing Program Costs.
Section 4.03. Application of Pledged Revenues. For as long as the Special Assessment
Funding Agreements of any Series shall be Outstanding or until (a) there shall have been set
apart in the Series Subaccounts in the Assessment Account, a sum sufficient to pay when due the
reimbursement of the principal of all Advances thereunder and any accrued but unpaid interest
on such Series, or (b) provision for payment of the Special Assessment Funding Agreements of
such Series shall have been made in accordance with the provisions of this Resolution and the
Special Assessment Funding Agreements of such Series are deemed to have been paid and
discharged, the County covenants with the Holders of such Series as follows:
(A) A~~plication of Special Assessments. All Series Special Assessments shall,
immediately upon receipt thereof, be deposited and applied as follows:
(1) First, into the Series Subaccount in the Assessment Account to the extent of the
payments due on such Series for such year;
(2) Second, into the Administration Account to pay any administration expenses
incurred to operate the Energy Financing Program or pursuant to the Administration Agreement;
(3) Third, to reimburse the County for any advances made for previous deposits into
the Series Subaccount in the Debt Service Account or in the Reserve Account therein; and
(4) Fourth, into the Series Subaccount in the Assessment Account for the prepayment
of amounts due under the related Series.
The amounts to be deposited into the Series Subaccount in the Assessment Account shall
be adjusted in the months prior to the first Interest Payment Date and prior to any Redemption
Date so as to ensure that sufficient funds will be on hand to make the payments then required.
Credit shall be allowed against the required deposit amounts prescribed above to the extent of
any other funds on deposit and available for such purpose in the applicable Series Subaccount in
the Assessment Account, including (i) accrued interest received from the sale of such Series, (ii)
capitalized interest provided from the proceeds of such Series and (iii) any Investment Earnings
transferred into the Series Subaccount and available for such purposes.
The foregoing provisions notwithstanding, no further deposits shall be required to be
made into the Series Subaccounts for a Series when (1) there shall be on deposit in the Series
Subaccounts in the Assessment Account, an amount of money and Permitted Investments equal
to all principal and interest due on the Special Assessment Funding Agreements of such Series to
the final maturity thereof, and (2) the County shall have been reimbursed for all sums advanced,
if any, to make the required deposits into the Series Subaccount in the Assessment Account and
accounts therein.
Any moneys remaining in the Series Subaccounts in the Assessment after retirement or
provision for payment of all Special Assessment Funding Agreements of any Series shall be used
by the County for any lawful purpose related to the providing of any Qualified Improvement.
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(B) Application of Investment Earn1nQS.
(1) Assessment Account. Series Investment Earnings realized in the Series Subaccount
in the Assessment Account for a particular Series shall be retained therein to the extent necessary
to provide for the reimbursement of any Advance and the accrued but unpaid interest thereon in
the current year and, to the extent of any excess, shall be used to prepay amount due under the
respective Series Special Assessment Funding Agreement.
(2) Administration Fund. Series Investment Earnings realized in the Administration
Fund shall be retained in such Fund.
(C) Application of Moneys on Deposit in Funds and Accounts Moneys on deposit in
the Series Subaccounts in the Funds and Accounts shall be used and applied in each year only as
follows:
(1) Assessment Account. Moneys on deposit in the Series Subaccounts in the
Assessment Account shall be applied:
(a) First, to pay the interest on the Special Assessment Funding Agreements of such
Series coming due during such year; and
(b) Second, to pay the principal of the Special Assessment Funding Agreements of
such Series maturing in such year, and any prepayments of principal.
(2) Administration Fund. Moneys on deposit in the Administration Fund shall be used
to pay or reimburse the County for the payment of administration costs incurred under the
Energy Financing Program or to pay amounts due under the Administration Agreement.
Section 4.04. Investment of Moneys in Funds and Accounts. All moneys on deposit in
the Funds and Accounts created hereunder may be invested and reinvested only in Permitted
Investments; such Permitted Investments shall mature or be redeemable at par at the option of the
County not later than the respective dates when such moneys will be required for the purposes of
such Funds and Accounts.
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ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01. Program Administration.
(A) The County may engage a Program Administrator from time to time for purposes
of administering the Energy Financing Program established hereunder. Such Program
Administrator shall have primary responsibility for all aspects of the Energy Financing Program,
including but not limited to administering the process pursuant to which Property Owners may
apply for the financing of Qualifying Improvements, facilitating execution and recording of
Financing Agreements, approval of Qualifying Improvements, oversight of private vendors
providing construction and installation services for Qualifying Improvements, assignment of any
rebates available for the Qualifying Improvements, annual maintenance and certification of
assessment rolls, and such other functions or services as may be necessary to the operation and
administration of the Energy Financing Program.
(B) The County hereby designates the Solar and Energy Loan Fund of St. Lucie
County, Inc., a community development financial institution (the "CDFI") as Program
Administrator.
(C) The County Attorney and County Administrator are authorized and directed to
prepare and execute an Administration Agreement with the Program Administrator.
(D) Grant funding from the United States Department of Energy or any other source
obtained by the County in furtherance of the Energy Financing Program may, in the sole
discretion of the County, be distributed to the County and/or Program Administrator as a
resource for payment of start-up costs and initial assessment financing needs.
Section 5.02. Validation Authorized. The County's bond counsel, with the assistance
and advice of the County Attorney, is hereby authorized to institute on behalf of the County
validation proceedings in the Circuit Court for St. Lucie County pursuant to the provisions of
Chapter 75, Florida Statutes, for validation of the Special Assessment Funding Agreements, the
revenues to be pledged for repayment thereof and all matters necessary or incidental thereto.
Section 5.03. Sale of Special Assessment Funding Agreements. The Special
Assessment Funding Agreements shall be issued and sold at public sale, private placement, or
negotiated sale at one time or in installments from time to time and at such price or prices
consistent with the provisions of the Act, the laws of the State, and the requirements of this
Resolution and a Series Resolution to be adopted prior to the issuance of and Series of Special
Assessment Funding Agreements.
Section 5.04. Declaration of Official Intent. The County Administrator, with the advice
of Bond Counsel, is authorized to execute a "Declaration of Official Intent" with respect to
reimbursement to the County of costs of the Energy Financing Program expended prior to the
issuance of the Special Assessment Funding Agreements.
Section 5.05. Authorizing Public Hearing. The County Administrator is hereby
authorized to take such actions as may be required by Section 197.3632(3)(a), Florida Statutes, in
order to effectuate the process set forth therein providing for collection of the Special
14
Assessments on the annual property tax bill, including but not limited to facilitating the
publication of notice.
Section 5.06. Severability of Invalid Provisions. If any one or more of the covenants,
agreements or provisions of this resolution should be held to be contrary to any express provision
of law or to be contrary to the policy of express law, though not expressly prohibited, or to be
against public policy, or should for any reason whatsoever be held invalid, then such covenants,
agreements, or provisions shall be null and void and shall be deemed separate from the
remaining covenants, agreements, or provisions of, and in no way affect the validity of, all the
other provisions of this resolution or of the Special Assessment Funding Agreements.
Section 5.07. Repealing Clause. All resolutions of the County, or parts thereof, in
conflict with the provisions of this resolution are to the extent of such conflict hereby superseded
and repealed.
Section 5.08. Effective Date. This resolution shall take effect immediately upon the final
approval hereof.
Passed and Adopted by the Board of County Commit} rs of 5t. Lucie Lounty, rionaa
at a regular meeting duly called and held this S day of V~ 2010
c~r r r 1CIE COUNTY,
nan, Board of~ounty Commissioners
AS TO FORM AND
County Attorney
15
SERIES
SPECIAL ASSESSMENT IMPROVEMENT
FUNDING AND REIMBURSEMENT AGREEMENT
(ENERGY FINANCING PROGRAM)
Dated as of . 2U
By and Between
ST. LUCIE COUNTY, FLORIDA
and
TABLE OF CONTENTS
(The Table of Contents for this Agreement is for convenience of reference only and is not
intended to define, limit or describe the scope or intent of any provisions of this Agreement.
P-~
ARTICLE I -- DEFINITION OF TERMS .................................................... ............................................. 2
Section 1.01. Definitions .......................................................................... ............................................. 2
Section 1.02. Interpretation ..................................................................... ............................................. 4
Section 1.03. Titles and Headings .......................................................... ............................................. 4
REPRESENTATIONS AND WARRANTIES OF THE PARTIES; CONSENT OF THE BANK...... 5
Section 2.01. Representations and Warranties of City ........................ ............................................. 5
Section 2.02. Representations and Warranties of Bank ...................... ............................................. 5
ARTICLE III -- ADVANCES ....................................................................... ............................................. 7
Section 3.01. The Line of Credit; Purpose and Use ............................. ............................................. 7
Section 3.02. The Loan ............................................................................. ............................................. 7
Section 3.04. Compliance with Section 215.84, Florida Statutes ........ ............................................. 8
Section 3.05. Conditions Precedent to Initial Advance ....................... ............................................. 9
Section 3.05. Nature of Obligations under Agreement ................................................................... 9
Section 3.06. Transfer or Assignment of Agreement ..................................................................... 10
ARTICLE IV -- COVENANTS OF THE COUNTY ............................................................................. 11
Section 4.01. Performance of Covenants .............................................. ............................................ 11
Section 4.02. Payment of Loan .............................................................. ............................................ 11
Section 4.03. Compliance with Laws and Regulations ...................... ............................................ 12
Section 4.04. Issuance of Other Debt .................................................... ............................................ 12
Section 4.05. Application of Advances ................................................ ............................................ 12
ARTICLE V -- EVENTS OF DEFAULT AND REMEDIES ..................... ............................................ 13
Section 5.01. Events of Default .............................................................. ............................................ 13
Section 5.02. Remedies ........................................................................... ............................................ 13
Section 5.03. Remedies Not Exclusive .................................................. ............................................ 13
Section 5.04. Waivers, Etc ...................................................................... ............................................ 13
ARTICLE VI -- MISCELLANEOUS PROVISIONS ............................................................................. 15
Section 6.01. Covenants of City, Etc.; Successors ........................................................................... 15
Section 6.02. Term of Agreement ...................................................................................................... 15
Section 6.03. Notice of Changes in Fact ........................................................................................... 15
Section 6.04. Amendments and Supplements ................................................................................. 15
Section 6.05. Notices ........................................................................................................................... 15
Section 6.06. Benefits Exclusive ........................................................................................................ 15
i
Section 6.07. Severability ................................................................................................................... 16
Section 6.08. Counterparts ................................................................................................................. 16
Section 6.09. Applicable Law ............................................................................................................ 16
Section 6.10. No Personal Liability ................................................................................................... 16
Exhibit A Form of Advance Request .......................................................................................... A-1
ii
SERIES
SPECIAL ASSESSMENT IMPROVEMENT
FUNDING AND REIMBURSEMENT AGREEMENT
(ENERGY FINANCING PROGRAM)
This SERIES SPECIAL ASSESSMENT IMPROVEMENT FUNDING AND
REIMBURSEMENT AGREEMENT (ENERGY FINANCING PROGRAM) (the Agreement'), is
made and entered into this day of 20 by and between ST. LUCIE
COUNTY, FLORIDA (the "County"),apolitical subdivision of the State of Florida, and
a [national banking association/community development financial institution]
authorized to do business in Florida, and its successors (the "Holder").
WITNESETH:
WHEREAS, capitalized terms used in these recitals and not otherwise defined shall have
the meanings specified in Article I of this Agreement or in the Resolution hereinafter defined;
and
WHEREAS, the County, pursuant to the provisions of the Chapter 125, Part I, Florida
Statutes, County Ordinance No. 10-025 (the "Ordinance"), Section 1-19-.18 Code of Ordinances of
St. Lucie County, Florida, Section 163.08, Florida Statutes (the "Act"), and other applicable
provisions of law, and Resolution No. 2010- adopted by the Board of County
Commissioners (the "Board") on , 2010 (the "Master Resolution") as supplemented by
Resolution No. 20= (the "Series Resolution," and together with the Master Resolution, the
"Resolution"), the County is authorized to enter into Special Assessment Funding Agreements
in order to establish a revolving line of credit with which to pay the costs of Qualifying
Improvements pursuant to Financing Agreements; and
WHEREAS, the Holder has proposed the financing evidenced by this Agreement in
accordance with the terms of the proposal of the Holder, dated 20 (the
"Commitment"); and
WHEREAS, it is estimated that the Pledged Revenues will be available in amounts
sufficient to provide for reimbursement of Advances, including the payment of interest thereon;
and
WHEREAS, the County has accepted the Commitment and the Holder is willing to fund
Advances, but only upon the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITION OF TERMS
Section 1.01. Definitions. Capitalized terms used in this Agreement and not otherwise
defined shall have the respective meanings ascribed thereto in the Senior Lien Bond Resolution
or as follows:
"Act" shall have the meaning assigned to that term in the recitals hereof.
"Advance" means a draw under the revolving line of credit contemplated hereunder to
pay an Energy Financing Program Cost.
"Annual Payment Date" means the 1st day of each (unless not a Business Day, in
which case the Annual Payment Date shall be the next succeeding Business Day).
"Assessed Property" means each parcel of real property subject to an Energy Special
Assessment pursuant to a Financing Agreement which is specially benefitted by mitigating
burdens described in the Act, through the acquisition and construction of one or more Qualifying
Improvements.
"Board" means the Board of County Commissioners acting as the governing body of the
County.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which the
payment office of the Holder is lawfully closed.
"Chairman" means the chair of the Board, or in the absence of the chair, the vice-chair.
"County Administrator" means the chief administrative officer of the County, or his or her
designee.
"Energy Financing Program" means the program established by the County in accordance
with the Act and the Master Resolution pursuant to which the County is authorized to enter into
Special Assessment Funding Agreements, to enter into Financing Agreements with Property
Owners providing for the funding, financing and repayment of Qualifying Improvements through
the levy of Energy Special Assessments, and to pledge the proceeds from the Energy Special
Assessments to repayment of Advances made under Special Assessment Funding Agreements;
together with all reasonable and necessary actions or undertakings of any kind necessary or
required to implement and administer such program.
"Energy Financing Program Costs" means all costs associated with the Energy Financing
Program, including but not limited to the provision of funds with which to finance Qualifying
Improvements pursuant to Financing Agreements; accounting and legal fees and expenses;
2
expenses for estimates of costs and of revenues; the fees of fiscal agents, financial advisors, third
party administrators, and consultants; administrative expenses; interest on Special Assessment
Funding Agreements for a reasonable period of time after the date of their delivery; reasonable
reserves for the payment of debt service with respect to the Special Assessment Funding
Agreements; such other expenses as may be necessary or incidental to the financing authorized by
this Resolution and to the establishment of the Energy Financing Program; and reimbursement to
the County for any sums expended for the foregoing purposes in anticipation of execution of
Special Assessment Funding Agreements.
"Energy Special Assessments" or "Special Assessments" means the non-ad valorem
assessments levied pursuant to the Ordinance, the Resolution and the Act and documented with a
Financing Agreement satisfying the requirements of the Act.
"Event of Default" shall mean an Event of Default as defined in Section 5.01 of this
Agreement.
"Finance Director" means the County's Finance Director, or his or her designee, or such
other County official designated by the County Administrator (which could be the Program
Administrator) to provide services as Finance Director under this Agreement.
"Financing Agreement" means an agreement between the County and a Property Owner
providing for the funding to finance Qualifying Improvements and the imposition of an Energy
Special Assessment against Assessed Property.
'Fiscal Year means the period commencing on October 1 of each year and continuing
through the next succeeding September 30, or such other period as may be prescribed by law as
the fiscal year for the County.
"Holder" shall mean ,and its successors and assigns.
"Interest Rate" means the rate of interest to be borne on the principal amount of all
Advances made hereunder, as adjusted from time to time in accordance with section 3.02
hereof.
"Loan" shall collectively refer to the obligation of the County to reimburse amounts
equal to the outstanding and unpaid Advances made hereunder, together with unpaid interest
which has accrued at the Interest Rate, made under the revolving line of credit contemplated
hereunder in the aggregate principal amount of $ granted by the Holder to the
County pursuant to and in accordance with this Agreement.
"Maturity Date" means the date on which the final reimbursement of Advances, together
with all accrued but unpaid interest is made, but in no event later than forty (40) years
following the initial Advance hereunder.
3
"Permitted Investments" means investments permitted by the County's written
investment policy and applicable law.
"Pledged Revenues" shall mean the Series Energy Special Assessments funded
through Advances made hereunder.
"Program Administrator" means the County's designee for purposes of administering the
Energy Financing Program.
"Property Owner" means, collectively, all of the record owners of real property subject to a
Financing Agreement.
"Qualifying Improvement" means the energy conservation and efficiency improvements,
and renewable energy improvements as described in and authorized by the Ordinance, Master
Resolution, and section 163.08(2)(b), Florida Statutes (2010).
"Series Energy Special Assessments" means the proceeds of non-ad valorem
assessments received by the County pursuant to Energy Special Assessment levied in
accordance with Financing Agreements pertaining to Qualifying Improvements which were
funded with Advances under this Agreement.
Section 1.02. Interpretation. Unless the context clearly requires otherwise, words of
masculine gender shall be construed to include correlative words of the feminine and neuter
genders and vice versa, and words of the singular number shall be construed to include
correlative words of the plural number and vice versa. Any capitalized terms used in this
Agreement not herein defined shall have the meaning ascribed to such terms in the Resolution.
This Agreement and all the terms and provisions hereof shall be construed to effectuate the
purpose set forth herein and to sustain the validity hereof.
Section 1.03. Titles and Headings. The titles and headings of the Articles and Sections
of this Agreement, which have been inserted for convenience of reference only and are not to be
considered a part hereof, shall not in any way modify or restrict any of the terms and provisions
hereof, and shall not be considered or given any effect in construing this Agreement or any
provision hereof or in ascertaining intent, if any question of intent should arise.
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4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Section 2.01. Representations and Warranties of the County. The County represents
and warrants to the Holder as follows:
(a) Existence. The County is a political subdivision of the State of Florida, duly
created and validly existing under the laws of the State of Florida, with full power to enter into
this Agreement, to pledge the Series Energy Special Assessments in the mariner and to the
extent described herein, to perform its obligations hereunder, including specifically the
obligation to reimburse all Advances made hereunder together with interest thereon at the
Interest Rate. The making, execution and performance of this Agreement on the part of the
County has been duly authorized by all necessary action on the part of the County and will not
violate or conflict with the Act or any other provision of law, or any agreement, indenture or
other instrument by which the County or any of its material properties is bound.
(b) Validity, Etc. This Agreement and the reimbursement obligations of the County
evidenced hereby are and will be valid and binding obligations of the County enforceable
against the County in accordance with their respective terms, except to the extent that
enforceability may be subject to valid bankruptcy, insolvency, financial emergency,
reorganization, moratorium or similar laws relating to or from time to time affecting the
enforcement of creditors' rights and except to the extent that the availability of certain remedies
may be precluded by general principles of equity.
Section 2.02. Representations and Warranties of Holder. The Holder represents and
warrants to the County as follows:
(a) Existence. The Holder is a [national banking association/community
development financial institution], authorized to do business in the State of Florida, with full
power to enter into this Agreement, to perform its obligations hereunder and to make the Loan.
The performance of this Agreement on the part of the Holder and the making of the Loan have
been duly authorized by all necessary action on the part of the Holder and will not violate or
conflict with applicable law or any material agreement, indenture or other instrument by which
the Holder or any of its material properties is bound.
(b) Validi This Agreement is a valid and binding obligation of the Holder
enforceable against the Holder in accordance with its terms, except to the extent that
enforceability may be subject to valid bankruptcy, insolvency, financial emergency,
reorganization, moratorium or similar laws relating to or from time to time affecting the
enforcement of creditors' rights (and specifically creditors' rights as the same relate to banks)
and except to the extent that the availability of certain remedies may be precluded by general
principles of equity.
5
ARTICLE III
ADVANCES
Section 3.01. The Line of Credit; Purpose and Use. Crn the date of this
Agreement, the Holder shall make available to the County the Loan in the aggregate principal
amount of Dollars ($ ). The proceeds of Advances made as part of
the Loan from time to time shall be used to pay the costs of Qualifying Improvements pursuant
to Financing Agreements.
From the date hereof until the Maturity Date, or such future date to which the Maturity
Date of the Loan may be extended (any such extension to be at the Holder's sole discretion and
evidenced by a writing executed by the Holder), subject to the terms and conditions of this
Agreement, and so long as there exists no Event of Default as defined in Section 5.02 hereof, the
Holder agrees to extend to the County a revolving line of credit in an amount not to exceed
Dollars ($ ) at any one time outstanding[; provided, however, that in
no event shall the aggregate sum of all principal advances made by the Holder to the County
hereunder exceed the sum of $ ]. Within such limits and subject to the terms of this
Agreement, the County may borrow, repay without penalty or premium, and reborrow
hereunder, from the date of this Agreement until the Maturity Date. It is expressly understood
and agreed that the Holder shall have no obligation to make an Advance hereunder if the
amount of such Advance together with the amount outstanding under the Loan exceeds or
would exceed $
If at any time the County is not entitled to any Advances by the terms of this Agreement,
the Holder may, in its sole discretion, make requested advances; however, it is expressly
acknowledged and agreed that, in such event, the Holder shall have the right, in its sole
discretion, to decline to make any requested Advance and to require any payment required
under the terms of the Agreement without prior notice to the County and the making of any
such Advances shall not be construed as a waiver of such right by the Holder.
Section 3.02. The Loan. The general terms of the Loan shall be as follows:
(a) Amount of Loan. The Loan shall have a maximum principal amount equal to
Dollars ($ ).
(b) Interest. The Loan shall bear interest at the Interest Rate. Accrued but unpaid
interest on the amount of outstanding and non-reimbursed Advances under the Loan (herein
sometimes referred to as the "Principal") shall be payable semi-annually on each 1 and
the Annual Payment Date from the interest portion of each respective Series Energy
Special Assessment in accordance with the respective Financing Agreement received by the
County on each Series Energy Special Assessment, by check mailed to the Holder at the
address designated in writing by the Holder for purposes of payment or by bank wire or bank
transfer as such Holder may specify in writing to the County or otherwise as the County and
7
the Holder may agree. Interest on the amount of outstanding and non-reimbursed Advances
under the Loan shall be computed on the basis of a 360-day year.
(c) Principal. The principal amount of each Advance shall be reimbursed on each
Annual Payment Date from the principal portion of each respective Series Energy Special
Assessment in accordance with the respective Financing Agreement received by the County on
each Series Energy Special Assessment since the immediately preceding Annual Payment
Date.
(d) Advances under the Loan. On or before the Final Maturity Date, the Loan may
be drawn upon in multiple Advances under the following terms:
(i) each Advance must be requested by the County (an "Advance Request")
in writing and executed by the Finance Director, from the Holder, no later than one (1)
Business Day prior to such Advance, in substantially the form attached hereto as Exhibit
A;
(ii) each Advance Request must indicate which Financing Agreement it
pertains to;
(iii) each Advance Request must state that the County remains in full
compliance with the terms of this Agreement, and the agreements which are
incorporated herein by reference, that no Event of Default currently exists and that no
Event of Default would exist with the passage of time or the giving of notice;
(iv) no Advance Request shall be honored after the occurrence of an Event of
Default;
(v) the conditions set forth in Section 3.04 of this Agreement must have been
satisfied prior to the first Advance; and
(vi) the Advance must be for Energy Financing Program Costs.
(e) Prepayments. The Loan shall be subject to prepayment by the County prior to
maturity, [on any date] [on each Annual Payment Date] in an amount equal to prepayments
received by the County under any Series Energy Special Assessment, together with any
accrued but unpaid interest on the Principal prepaid.
Section 3.03. Compliance with Section 215.84, Florida Statutes. The County
represents, warrants, and covenants that the Interest Rate, as currently calculated in accordance
with Section 215.84, Florida Statutes, is in compliance with Section 215.84, Florida Statutes.
8
Section 3.04. Conditions Precedent to Initial Advance. Prior to or simultaneously
with the delivery of the Advance Request hereunder by the County in connection with the
initial Advance, there shall be filed with the Holder the following, each in form and substance
reasonably acceptable to the Holder:
(a) an opinion of counsel to the County to the effect that (i) this Agreement has been
duly authorized, executed and delivered by the County and each constitutes a valid, binding
and enforceable agreement of the County in accordance with its respective terms, except to the
extent that the enforceability of the rights and remedies set forth herein may be limited by
bankruptcy, insolvency, financial emergency or other laws affecting creditors' rights generally
or by usual equity principles; (ii) the County's execution, delivery and performance of this
Agreement is not subject to any authorization, consent, approval or review of any
governmental body, public officer or regulatory authority not heretofore obtained or effected,
and no taxes are payable in connection therewith; (iii) the execution, issuance and delivery of
this Agreement has been duly and validly authorized by the County, and this Agreement
constitutes a valid and binding special obligation of the County enforceable in accordance with
its terms; (iv) the County (A) is a political subdivision of the State of Florida, and (B) has power
and authority to execute and deliver this Agreement and to consummate the transactions
contemplated by such instrument; (v) the execution, delivery and performance of this
Agreement, and compliance with the terms hereof, under the circumstances contemplated
hereby, do not and will not in any material respect conflict with, or constitute on the part of the
County a breach or default under, any indenture, mortgage, deed of trust, agreement or other
instrument to which the County or to which its properties are subject or conflict with, violate or
result in a breach of any existing law, administrative rule or regulation, judgment, court order
or consent decree to which the County or its properties are subject; (vi) to the best of such
counsel's knowledge, there is no claim, action, suit, proceeding, inquiry, investigation, litigation
or other proceeding, at law or in equity, pending or threatened in any court or other tribunal,
state or federal (W) restraining or enjoining, or seeking to restrain or enjoin, the issuance, sale,
execution or delivery of this Agreement, (X) in any way questioning or affecting the validity or
enforceability of any provision of this Agreement, (Y) in any way questioning or affecting the
validity of any of the proceedings or authority for the authorization, execution or delivery of
this Agreement, or of any provision made or authorized for the payment thereof, or (Z)
questioning or affecting the organization or existence of the County or the right of any of its
officers to their respective offices; and (vii) all conditions contained in the ordinances and
resolutions of the County precedent to the issuance of this Agreement have been complied
with; and
(b) such other documents as the Holder reasonably may request.
Section 3.05. Nature of Obligations under Agreement. This Agreement is intended to
constitute an issuance of a certificate of debt within the meaning of section 75.02, Florida
Statutes.
9
Section 3.06. Transfer or Assignment of Agreement. "This Agreement may not be
transferred or assigned without the express written consent of the County.
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10
ARTICLE IV
COVENANTS OF THE COUNTY
Section 4.01. Performance of Covenants. The County covenants that it will perform
faithfully at all times its covenants, undertakings and agreements contained in this Agreement
or in any proceedings of the County relating to the Loan.
Section 4.02. Payment of Loan.
(a) The County covenants that it will promptly pay the principal of and interest on
the Loan at the place, on the dates and in the manner provided herein, in accordance with the
terms hereof.
(b) The Loan will be a special obligation of the County secured solely by the Pledged
Revenues, and is payable solely from the Pledged Revenues, in the manner and to the extent
described in Section 4.02(a) hereof. The Loan will not constitute a general debt, liability or
obligation of the County or the State of Florida or any political subdivision thereof within the
meaning of any constitutional or statutory provision. Neither the faith and credit nor the taxing
power of the County or of the State of Florida or any political subdivision thereof is pledged to
the payment of the principal of or interest on the Loan and the Holder shall never have the right
to compel any exercise of any ad valorem taxing power of the County or of the State of Florida
or any political subdivision thereof, directly or indirectly to enforce such payment. The Loan
shall not constitute a lien upon any property of the County except upon the Pledged Revenues
in the manner and to the extent described herein.
(c) Upon execution hereof, the County will establish an account to be known as the
"Series Special Assessment Funding Agreement Account" (the "Assessment Account").
The County will deposit proceeds of the Series Special Assessments into the Assessment
Account upon receipt. The Assessment Account shall constitute a trust fund for the benefit of
the Holder. Such account shall be continuously secured in the same manner as municipal
deposits of funds are required to be secured by the laws of the State of Florida. Moneys on
deposit in the Assessment Account created hereunder may be invested pursuant to applicable
law and the County's investment policy and shall mature not later than the dates on which such
moneys shall be needed to make payments on the applicable interest payment date and Annual
Payment Date in the manner herein provided. The securities so purchased as an investment of
funds shall be deemed at all times to be a part of the Assessment Account, and the interest
accruing thereon and any profit realized therefrom shall be credited to the Assessment Account,
except as expressly provided herein, and any loss resulting from such investment shall likewise
be charged to said fund or account.
11
Section 4.03. Compliance with Laws and Regulations. The County shall maintain
compliance with all federal, state and local laws and regulations regarding the
Energy Financing Program.
Section 4.04. Issuance of Other Debt. The County is not permitted to incur
indebtedness other than the Loan secured by the Pledged Revenues without the prior written
consent of the Holder.
Section 4.05. Application of Advances. At the time of delivery of each Advance herein
authorized, proceeds thereof shall be used to pay the costs of Qualifying Improvements
(including any administrative expenses incurred in connection therewith) acquired and
constructed pursuant to a Financing Agreement and to reimburse the County for funds
advanced in anticipation thereof.
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12
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
Section 5.01. Events of Default. The following shall constitute Events of Default:
(A) If the County fails to make any payment of principal under any Special Assessment
Funding Agreement as the same becomes due and payable;
(B) If the County defaults in the performance or observance of any covenant or
agreement contained in the Resolution or this Special Assessment Funding Agreement (other than
as set forth in (a) above) and fails to cure the same within thirty (30) days; or
(C) The filing of a petition by or against the County relating to bankruptcy,
reorganization, arrangement or readjustment of debt of the County or for any other relief relating
to the County under the United States Bankruptcy Code, as amended, or any other insolvency act
or law now or hereafter existing, or the involuntary appointment of a receiver or trustee for the
County, and the continuance of any such event for 90 days undismissed or undischarged.
Section 5.02. Remedies . Upon the occurrence and during the continuation of any Event
of Default, any Holder may, in addition to any other remedies set forth herein or in the Resolution,
either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent
jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted
or contained herein or in the Resolution, and may enforce and compel the performance of all duties
required herein or by the Resolution, or by any applicable statutes to be performed by the Issuer or
by any officer thereof.
Section 5.03. Remedies Not Exclusive. No remedy herein conferred upon or reserved
to the Holder is intended to be exclusive of any other remedy or remedies herein provided, and
each and every such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder.
Section 5.04. Waivers, Etc. No delay or omission of the Holder to exercise any right or
power accruing upon any default shall impair any such right or power or shall be construed to
be a waiver of any such default or any acquiescence therein; and every power and remedy
given by this Agreement to the Holder may be exercised from time to time and as often as may
be deemed expedient.
The Holder may waive any default which, in its opinion, shall have been remedied
before the entry of final judgment or decree in any suit, action or proceeding instituted by it
under the provisions of this Agreement or before the completion of the enforcement of any
other remedy under this Agreement, but no such waiver shall be effective unless in writing and
no such waiver shall extend to or affect any other existing or any subsequent default or defaults
or impair any rights or remedies consequent thereon.
13
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Covenants of County, Etc.; Successors. All of the covenants, stipulations,
obligations and agreements contained in this Agreement shall be deemed to be covenants,
stipulations, obligations and agreements of the County to the full extent authorized or
permitted by law, and all such covenants, stipulations, obligations and agreements shall be
binding upon the successor or successors thereof from time to time, and upon any officer,
board, commission, authority, agency or instrumentality to whom or to which any power or
duty affecting such covenants, stipulations, obligations and agreements shall be transferred by
or in accordance with law.
Section 6.02. Term of Agreement. This Agreement shall be in full force and effect from
the date hereof until the Loan and all other sums payable to the Holder hereunder have been
paid in full.
Section 6.03. Notice of Changes in Fact. Promptly after the County becomes aware of
the same, the County will notify the Holder of any default under this Agreement, specifying in
each case the nature thereof and what action the County has taken, is taking and/or proposes to
take with respect thereto.
Section 6.04. Amendments and Supplements. This Agreement may be amended or
supplemented from time to time only by a writing duly executed by each of the County and the
Holder.
Section 6.05. Notices. Any notice, demand, direction, request or other instrument
authorized or required by this Agreement to be given to or filed with the County or the Holder,
shall be deemed to have been sufficiently given or filed for all purposes of this Agreement if
and when sent by certified mail, return receipt requested:
(a) As to the County: [to come]
(b) As to the Holder: [to come]
Either party may, by notice sent to the other, designate a different or additional address to
which notices under this Agreement are to be sent.
Section 6.06. Benefits Exclusive. Except as herein otherwise provided, nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer upon any person,
firm or corporation, other than the County and the Holder, any right, remedy or claim, legal or
equitable, under or by reason of this Agreement or any provision hereof, this Agreement and all
15
its provisions being intended to be and being for the sole and exclusive benefit of the County
and the Holder.
Section 6.07. Severability. In case any one or more of the provisions of this Agreement,
any amendment or supplement hereto shall for any reason be held to be illegal or invalid, such
illegality or invalidity shall not affect any other provision of this Agreement, any amendment or
supplement hereto, but this Agreement, any amendment or supplement hereto shall be
construed and enforced at the time as if such illegal or invalid provisions had not been
contained therein, nor shall such illegality or invalidity or any application thereof affect any
legal and valid application thereof from time to time. In case any covenant, stipulation,
obligation or agreement contained in this Agreement shall for any reason be held to be in
violation of law, then such covenant, stipulation, obligation, or agreement shall be deemed to be
the covenant, stipulation, obligation or agreement of the County to the full extent from time to
time permitted by law.
Section 6.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement, and, in making proof of
this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
Section 6.09. Applicable Law. This Agreement shall be governed exclusively by and
construed in accordance with the applicable laws of the State of Florida.
Section 6.10. No Personal Liability. Notwithstanding anything to the contrary
contained herein, or in any other instrument or document executed by or on behalf of the
County in connection herewith, no stipulation, covenant, agreement or obligation of any
present or future member of the Board, officer, employee or agent of the County, officer,
employee or agent of a successor to the County, in any such person's individual capacity, and
no such person, in his or her individual capacity, shall be liable personally for any breach or
non-observance of or for any failure to perform, fulfill or comply with any such stipulations,
covenants, agreements or obligations, nor shall any recourse be had for the payment of the
principal of or interest on the Loan or for any claim based thereon or on any such stipulation,
covenant, agreement or obligation, against any such person, in his or her individual capacity,
either directly or through the County or any successor to the County, under any rule or law or
equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise
and all such liability of any such person, in his or her individual capacity, is hereby expressly
waived and released.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first set forth herein.
(SEAL)
ATTEST:
By:
[Deputy] County Clerk
ST. LUCIE COUNTY, FLORIDA
By:
Chairman
[HOLDER]
By:_
Name:
Title:
17
EXHIBIT A
FORM OF ADVANCE REQUEST
[Holder and address]
St. Lucie County, Florida (the "County") does hereby request the following Advance
Request made pursuant to the Series Special Assessment Improvement Funding and
Reimbursement Agreement (Energy Financing Program) by and between the County and
(the "Holder") dated , 20 (the "Agreement").
1. This advance shall be designated as the "St. Lucie County, Florida Series
Special Assessment Improvement Funding and Reimbursement Agreement (Energy Financing
Program) -Draw No.
2. The principal amount of this advance shall be $ and the advance
date shall be .The wire instructions for the transfer are as follows:
[To Come]
3. The County warrants and represents that (a) it remains in full compliance with
the terms of the Agreement and the agreements which are incorporated therein by reference, (b)
that no Event of Default under the Agreement currently exists, and (c) that no Event of Default
would exist with the passage of time or the giving of notice.
4. Following this advance, the remaining principal amount of advances the County
may draw upon pursuant to the requirements of the Agreement is $
Dated (must be at least one Business Day prior to advance)
ST. LUCIE COUNTY, FLORIDA
By:_
Name:
Title:
A-1