HomeMy WebLinkAbout12-001 SDRESOLUTION NO. 2012-001
A RESOLUTION OF THE ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT RELATED TO
FINANCING OF ENERGY EFFICIENCY AND
RENEWABLE ENERGY IMPROVEMENTS AND
ENGAGEMENT OF THE SOLAR AND ENERGY LOAN
FUND OF ST. LUCIE COUNTY, INC. FOR PURPOSES OF
ADMINISTERING THE DISTRICT'S ENERGY FINANCE
PROGRAM; AUTHORIZING AND DIRECTING
EXECUTION OF AN ADMINISTRATION AGREEMENT
BETWEEN THE DISTRICT AND THE SOLAR AND
ENERGY LOAN FUND OF ST. LUCIE COUNTY, INC.;
APPROVING THE FORM OF SUCH ADMINISTRATION
AGREEMENT; APPROVING THE FORM OF
FINANCING AGREEMENT BETWEEN THE DISTRICT
AND CERTAIN OWNERS OF REAL PROPERTY
PERTAINING TO THE ACQUISITION AND
FINANCING OF ENERGY EFFICIENCY AND
RENEWABLE ENERGY IMPROVEMENTS; PROVIDING
FOR CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE GOVERNING BOARD OF THE ST. LUCIE
COUNTY SUSTAINABILITY DISTRICT AS FOLLOWS:
SECTION 1. AUTHORITY. This Resolution of the St. Lucie County
Sustainability District (the "District") is adopted pursuant to the provisions of Chapter
1-19 of the Code of Ordinances of St. Lucie County, Florida (the "County"), Chapter 189,
Florida Statutes, Section 163.08, Florida Statutes, and other applicable provisions of law.
SECTION 2. DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the meanings set forth in County Ordinance No. 10-025 (as codified in
Chapter 1-19 of the County Code of Ordinances, the "Ordinance") and County
Resolution No. 10-259 (the "Resolution").
1
SECTION 3. FINDINGS. It is hereby ascertained, determined and
declared as follows:
(A) The County enacted the Ordinance in order to create the District and
establish the Energy Financing Program pursuant to which the County and the District
may collaborate in offering qualified owners of real property an opportunity to acquire
energy efficiency and renewable energy improvements and repay the costs associated
with such improvements through voluntary special assessments imposed against the
property pursuant to Financing Agreements.
(B) The County subsequently adopted the Resolution which, among other
things, designated the Solar and Energy Loan Fund of St. Lucie County, Inc. as Program
Administrator for the Energy Financing Program and authorized and directed the
County Attorney and County Administrator to prepare an Administration Agreement
with the Program Administrator.
(C) This Resolution is adopted for purposes of approving the forms of
Administration Agreement and Financing Agreement attached hereto as Appendices A
and B, respectively, and directing and authorizing execution of same on behalf of the
District.
SECTION 4. ADMINISTRATION AGREEMENT. The form of
Administration Agreement attached hereto as Appendix A is hereby approved. The
Chair is authorized and directed to execute, and the Deputy Clerk is authorized to
attest, the Administration Agreement on behalf of the District in substantially the form
attached hereto as Appendix A, with such changes, insertions, and additions as the
Chair may approve after consultation with the County Attorney, the Chair's execution
thereof being evidence of such approval.
SECTION 5. FINANCING AGREEMENT. The form of Financing
Agreement attached hereto as Appendix B is hereby approved. The County
Administrator or designee thereof is authorized and directed to execute, and the
Deputy Clerk is authorized to attest, Financing Agreements on behalf of the District in
substantially the form attached hereto as Appendix B, with such changes, insertions,
and additions as the County Administrator may approve after consultation with the
2
County Attorney, the County Administrator's execution thereof being evidence of such
approval.
SECTION 6. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
Passed and adopted ~y the St. Lucie County Sustainability District at a regular
meeting duly called this .~ 7 ~' day of July 2012.
ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT
04 .~ t; r clRc By:
_ G Chair
~~ = ~"~ ,~
r
ATTEST: u `~i,. ' ° ~ ~ Approved as to Form:
' r r~f~ ~
:~ - ~ -~
~ ~ ~ ,.~
.Deputy Clerk / County ~ttorney
3
ADMINISTRATION AGREEMENT
This Administration Agreement (the "Agreement"), dated as of April 1, 2012, is entered
into by and between the St. Lucie County Sustainability District, a dependent special district
created by St. Lucie County, Florida ("District"), and the Solar Energy and Loan Fund of St.
Lucie County, Inc. ("Administrator") (collectively, the District and the Administrator may be
referred to herein as the "Parties" and each, singly, as a "Party").
RECITALS
WHEREAS, pursuant to Ordinance No. 10-025 (as codified in Chapter 1-19 of the Code of
Ordinances of St. Lucie County, the "Sustainability Ordinance") and Resolution No. 10-259 (as
may be amended from time to time, the "Resolution"), St. Lucie County, Florida (the "County")
established the District for purposes of accomplishing energy efficiency and renewable energy
improvements through an energy financing program providing for the levy of non-ad valorem
assessments against real property, with the consent of the owners of such property, to finance
the acquisition and construction of energy conservation, energy efficiency and renewable
energy improvements (the "Program"); and
WHEREAS, Section 1-19.16 of the Sustainability Ordinance authorizes and directs the
Board of the County and all other County officers and employees to take all actions necessary
and appropriate to effectuate the provisions of the Sustainability Ordinance; and
WHEREAS, the Resolution expressly authorizes execution of an administration
agreement pursuant to which Administrator will administer the Program on behalf of the
District; and
WHEREAS, the parties hereto wish to enter into this Agreement in order to effectuate
the policy direction set forth in the Resolution and to establish the terms and conditions
governing administration of the Program.
NOW THEREFORE, in consideration of the mutual covenants contained herein and
other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
SECTION 1. INCORPORATION OF RECITALS AND APPENDICES. The
recitals stated above are true and correct and, together with the appendices attached hereto, are
incorporated herein as a material part of this Agreement.
SECTION 2. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Sustainability Ordinance and the Resolution. As used in this
Agreement, the following terms shall have the following meanings.
"Act" means Section 163.08, Florida Statutes.
"Administration Cost" means the cost incurred by the County in administering the
Program and the Assessment contemplated hereunder, including but not limited to any costs
associated with collection of the Assessment and recording of Financing Agreements or
summary memoranda thereof in the public records of St. Lucie County, Florida.
"Annual Payment" means the annual installment of an Assessment which is due in any
given Tax Year, including interest.
"Assessed Property" means real property subject to a Financing Agreement.
"Assessment" means the non-ad valorem assessment levied by the County against
Assessed Property pursuant to Financing Agreements.
"Contract Administrator" means the County Administrator or designee thereof.
"Disbursement Amount" means the cost of the Improvements less any applicable
refunds, rebates or credits to be disbursed to the Vendor.
"Financing Agreements" means the agreements entered into between the County and the
owners of Assessed Property providing for the financing of Improvements
"Improvements" means the energy conservation, energy efficiency and renewable
energy improvements authorized by the Resolution and the Act financed pursuant to Financing
Agreements.
"Owner" means the owner of Assessed Property.
"Property Appraiser" means the St. Lucie County Property Appraiser.
"Vendor" means the contractor engaged by an Owner to provide, deliver and install
Improvements.
"Tax Collector" means the St. Lucie County Tax Collector.
"Tax Year" means the period from january 1st through the following December 31st.
SECTION 3. SERVICES ADMINISTRATOR AGREES TO PERFORM.
{A)The Administrator agrees to perform the services provided for in Appendix A,
"Description of Services," attached hereto.
2
(B) Officers, staff and employees of the County are not authorized to request, and the
District is not required to reimburse the Administrator for, services beyond those set forth in
Appendix A unless such services are authorized by amendment hereof or otherwise approved
in advance, in writing, by the District.
SECTION 4. COMPENSATION.
(A} Administrator shall be compensated for services provided hereunder solely
through (l) fees imposed upon and paid by an Owner (which may include application,
administration and/or origination fees), and (2) proceeds of the Annual Payments paid by
Owners pursuant to Financing Agreements.
(B) Officers, staff and employees of the District are not authorized to offer or promise,
nor is the District required to honor, any offered or promised additional compensation.
(C) If Administrator claims or receives payment for a service performed hereunder,
reimbursement for which is later disallowed by the State of Florida or United States
Government, Administrator shall promptly refund the disallowed amount to District upon
District's request.
SECTION 5. ELIGIBILITY. By executing this Agreement, Administrator
certifies that Administrator is not suspended, debarred or otherwise excluded from
participation in federal assistance programs. Administrator acknowledges that this certification
of eligibility to receive federal funds is a material term of the Agreement.
SECTION 6. ONGOING COMPLIANCE. Administrator agrees to comply at
all times, and to cooperate with the District as necessary to ensure compliance at all times, with
the requirements of the Act and the Resolution as they may be amended from time to time, and
to execute any amendment hereto deemed necessary or desirable by the District in order to
ensure such compliance.
SECTION 7. QUALIFIED PERSONNEL. Work under this Agreement shall be
performed only by competent personnel under the supervision of and in the employment of
Administrator. Administrator will comply with District's reasonable requests regarding
assignment of personnel, but all personnel, including those assigned at District's request, must
be supervised by Administrator.
SECTION 8. RESPONSIBILITY FOR EQUIPMENT. District shall not be
responsible for any damage to persons or property as a result of the use, misuse or failure of
any equipment used by Administrator, or by any of its employees, even though such equipment
be furnished, rented or loaned to Administrator by District.
SECTION 9. INDEPENDENT ADMINISTRATOR; PAYMENT OF TAXES
AND OTHER EXPENSES.
3
(A) Independent Administrator. Administrator or any agent or employee of
Administrator shall be deemed at all times to be an independent contractor and is wholly
responsible for the manner in which it performs the services and work requested by District
under this Agreement. Administrator or any agent or employee of Administrator shall not have
employee status with District, nor be entitled to participate in any plans, arrangements, or
distributions by District pertaining to or in connection with any retirement, health or other
benefits that District may offer its employees. Administrator or any agent or employee of
Administrator is liable for the acts and omissions of itself, its employees and its agents.
Administrator shall be responsible for all obligations and payments, whether imposed by
federal, state or local law, including, but not limited to, FICA, income tax withholdings,
unemployment compensation, insurance, and other similar responsibilities related to
Administrator's performing services and work, or any agent or employee of Administrator
providing same. Nothing in this Agreement shall be construed as creating an employment or
agency relationship between District and Administrator or any agent or employee of
Administrator.
Any terms in this Agreement referring to direction from District shall be construed as
providing for direction as to policy and the result of Administrator's work only, and not as to
the means by which such a result is obtained. District does not retain the right to control the
means or the method by which Administrator performs work under this Agreement.
(B) Payment of Taxes and Other Expenses. Should District, in its discretion, or a
relevant taxing authority such as the Internal Revenue Service, determine that Administrator is
an employee for purposes of collection of any employment taxes, the amounts payable under
this Agreement shall be reduced by amounts equal to both the employee and employer portions
of the tax due (and offsetting any credits for amounts already paid by Administrator which can
be applied against this liability). District shall then forward those amounts to the relevant
taxing authority.
Should a relevant taxing authority determine a liability for past services performed by
Administrator for District, upon notification of such fact by District, Administrator shall
promptly remit such amount due or arrange with District to have the amount due withheld
from future payments to Administrator under this Agreement (again, offsetting any amounts
already paid by Administrator which can be applied as a credit against such liability).
A determination of employment status pursuant to the preceding two paragraphs shall
be solely for the purposes of the particular tax in question, and for ail other purposes of this
Agreement, Administrator shall not be considered an employee of District. Notwithstanding
the foregoing, should any court, arbitrator, or administrative authority determine that
Administrator is an employee for any other purpose, then Administrator agrees to a reduction
in District's financial liability so that District's total expenses under this Agreement are not
greater than they would have been had the court, arbitrator, or administrative authority
determined that Administrator was not an employee.
4
SECTION 10. INSURANCE.
(A) Amounts and Coverages. Without in any way limiting Administrator's liability
pursuant to the "Indemnification" section of this Agreement, Administrator must maintain in
force, during the full term of the Agreement, insurance in the following amounts and coverages:
(1) Workers' Compensation, in statutory amounts, with Employers' Liability
Limits not less than $1,000,000 each accident as required by Florida law; and
(2) Commercial General Liability Insurance with limits not less than
$1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage,
including Contractual Liability, Personal Injury, Products and Completed Operations; and
(3) Commercial Automobile Liability Insurance with limits not less than
$1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage,
including Owned, Non-Owned and Hired auto coverage, as applicable.
(B) Required Provisions. Commercial General Liability and Commercial
Automobile Liability Insurance policies must provide the following:
(1) Name as Additional Insured the District, the County, their respective
officers, agents, and employees. To satisfy this requirement, Administrator shall submit an
additional insured endorsement in the form of ISO 2010 (11/85) or its equivalent.
(2) That such policies are primary insurance to any other insurance available
to the additional insureds, with respect to any claims arising out of this Agreement, and that
insurance applies separately to each Insured against whom claim is made or suit is brought.
(C) Notice of Cancellation or Non-Renewal. All policies shall provide thirty days'
advance written notice to the District of reduction or nonrenewal of coverages or cancellation of
coverages for any reason. Notices shall be sent to the District in accordance with Section 16.
(D) Maintenance of Coverage. Should any of the required insurance be provided
under a claims-made form, Administrator shall maintain such coverage continuously
throughout the term of this Agreement and, without lapse, for a period of one year beyond the
expiration of this Agreement, to the effect that, should occurrences during the contract term
give rise to claims made after expiration of the Agreement, such claims shall be covered by such
claims-made policies.
(E) Lavsre of Required Insurance. Should any required insurance lapse during the
term of this Agreement, requests for payments originating after such lapse shall not be
processed until the District receives satisfactory evidence of reinstated coverage as required by
this Agreement, effective as of the lapse date. If insurance is not reinstated, the District may, at
its sole option, terminate this Agreement effective on the date of such lapse of insurance.
5
(F) Required Documentation. On or before the Effective Date, the Administrator
shall do the following: (a) furnish to District certificates of insurance and additional insured
policy endorsements with insurers with ratings comparable to A-, VIII or higher, that are
authorized to do business in the State of Florida, and that are satisfactory to District, in form
evidencing all coverages set forth above, and (b) furnish complete copies of policies promptly
upon District request. Failure to maintain insurance shall constitute a material breach of this
Agreement.
(G) No Effect on Liability. Approval of the insurance by District shall not relieve or
decrease the liability of Administrator hereunder.
(H) Subcontractors. If a subcontractor will be used to provide any of the services
contemplated by this Agreement, the Administrator shall ensure that the subcontractor
provides all necessary insurance and shall name the District its officers, agents and employees
and the Administrator listed as additional insureds.
SECTION 11. INDEMNIFICATION.
(A) Administrator shall indemnify and hold harmless District and its officers, agents
and employees from, and, if requested, shall defend them against any and all loss, cost, damage,
injury, liability, and claims thereof for injury to or death of a person, including employees of
Administrator or loss of or damage to property, arising directly or indirectly from
Administrator's performance of this Agreement, including, but not limited to, Administrator's
use of facilities or equipment provided by District or others, regardless of whether liability
without fault is imposed or sought to be imposed on District, except to the extent that (i),such
indemnity is void or otherwise unenforceable under applicable law in effect on or validly
retroactive to the date of this Agreement, or (ii) such loss, damage, injury, liability or claim is
the result of the negligence or willful misconduct of District and to the extent not contributed to
by any act of, or by any omission to perform some duty imposed by law or agreement on,
Administrator, its subcontractors or either's agent or employees. The foregoing indemnity shall
include, without limitation, reasonable fees of attorneys, consultants and experts and related
costs and District's costs of investigating any claims against the District.
(B) In addition to Administrator's obligation to indemnify District, Administrator
specifically acknowledges and agrees that it has an immediate and independent obligation to
defend District from any claim which actually or potentially falls within this indemnification
provision, even if the allegations are or may be groundless, false or fraudulent, which obligation
arises at the time such claim is tendered to Administrator by District and continues at all times
thereafter.
(C) Administrator shall indemnify and hold District harmless from all third party
claims of loss and liability, including attorneys' fees, court costs and all other litigation expenses
for any infringement of the patent rights, copyright, trade secret or any other proprietary right
or trademark, and all other intellectual property claims of any person or persons in consequence
6
of the use by District, or any of its officers or agents, of articles or services to be supplied in the
performance of this Agreement. In the event a third party makes a such a claim of loss or
liability, Administrator shall have the right at its cost and expense to obtain the intellectual
property rights necessary for District to use the articles and services as contemplated in this
Agreement or to replace such articles or services with non-infringing articles or services in
either case, at no additional cost to the District. Notwithstanding the foregoing, Administrator
has no liability to District for (i) any marking or branding obtained by District from third
parties; (ii) any data or content provided by the District; or (iii) modification of any deliverables
or services, where infringement would not have occurred but for such modifications and such
modifications causing infringements were not made or caused to be made by Administrator.
SECTION 12. LIABILITY OF DISTRICT. ADMINISTRATOR'S
COMPENSATION FOR THE SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO
THE SOURCES PROVIDED FOR IN SECTION 4 OF THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT
SHALL DISTRICT BE LIABLE, REGARDLESS OF WHETHER ANY CLAIM IS BASED ON
CONTRACT OR TORT, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR
INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE SERVICES PERFORMED IN CONNECTION WITH THIS
AGREEMENT.
SECTION 13. DEFAULT; REMEDIES.
(A) Events of Default. Each of the following shall constitute an event of default
("Event of Default") under this Agreement:
(1) Administrator fails or refuses to perform or observe any term, covenant
or condition contained in this Agreement.
(2) Administrator fails or refuses to perform or observe any other term,
covenant or condition contained in this Agreement, and such default continues for a period of
ten days after written notice thereof from District to Administrator.
(3) Administrator fails or refuses to perform or observe any other term,
covenant or condition contained in any bond document pertaining to the issuance of debt by the
District pursuant to the Resolution or otherwise, and such default continues for a period of ten
days after written notice thereof from District to Administrator.
(4) Administrator (a) is generally not paying its debts as they become due,
(b) files, or consents by answer or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy, insolvency or other debtors' relief law of any jurisdiction, (c)
makes an assignment for the benefit of its creditors, or (d) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers of Administrator or of any
substantial part of Administrator's property.
7
(5) A court or government authority enters an order (a) appointing a
custodian, receiver, trustee or other officer with similar powers with respect to Administrator or
with respect to any substantial part of Administrator's property, (b) constituting an order for
relief or approving a petition for relief or reorganization or arrangement or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other
debtors' relief law of any jurisdiction or (c) ordering the dissolution, winding-up or liquidation
of Administrator.
(B) Remedies. On and after any Event of Default, District shall have the right to
exercise its legal and equitable remedies, including, without limitation, the right to terminate
this Agreement or to seek specific performance of alI or any part of this Agreement. In addition,
upon Administrator's failure to cure a default after notice from District, District shall have the
right (but no obligation) to cure (or cause to be cured) on behalf of Administrator any Event of
Default; Administrator shall pay to District on demand all costs and expenses incurred by
District in effecting such cure, with interest thereon from the date of incurrence at the maximum
rate then permitted by law. District shall have the right to offset from any amounts due to
Administrator under this Agreement or any other agreement between District and
Administrator all damages, losses, costs or expenses incun ed by District as a result of such
Event of Default.
SECTION 14. TERMINATION FOR CONVENIENCE.
(A) Exercise. District shall have the option, in its sole discretion, with written notice
to Administrator, to terminate this Agreement, at any time during the term hereof, for
convenience and without cause. District shall exercise this option by giving Administrator
written notice of termination. Any such termination shall not become effective far 90 days after
delivery to Administrator of such notice.
(B) Administrator Obligations. Upon receipt of the notice, Administrator shall
commence and perform, with diligence, all actions necessary on the part of Administrator to
effect the termination of this Agreement on the date specified by District and to minimize the
liability of Administrator and District to third parties as a result of termination. Ali such actions
shall be subject to the prior approval of District. Such actions shall include, without limitation:
(1) Halting the performance of all services and other work under this
Agreement on the date(s) and in the manner specified by District; provided, however, that
Administrator shall continue to perform functions related to the collection of Assessments and
accounting for proceeds received until the earlier of 90 days from notice of termination or
release of such obligation by the District.
(2) Not placing any further orders or subcontracts for materials, services,
equipment or other items.
(3) Terminating ali existing orders and subcontracts.
8
(4) At District's direction, assigning to District any or all of Administrator's
right, title, and interest under the orders and subcontracts terminated. Upon such assignment,
District shall have the right, in its sole discretion, to settle or pay any or all claims arising out of
the termination of such orders and subcontracts.
(5) Subject to District's approval, settling all outstanding liabilities and all
claims arising out of the termination of orders and subcontracts.
(6) Completing performance of any services or work that District designates
to be completed prior to the date of termination specified by District.
(7) Taking such action as may be necessary, or as the District may direct, for
the protection and preservation of any property related to this Agreement which is in the
possession of Administrator and in which District has or may acquire an interest.
(C) District Obligations. Within 30 days after the specified termination date,
Administrator shall submit to District an invoice, which shall set forth each of the following as a
separate line item:
(1) The reasonable cost to Administrator, without profit, for all services and
other work District directed Administrator to perform prior to the specified termination date,
for which services or work District has not already tendered payment. Reasonable costs may
include a reasonable allowance for actual overhead, not to exceed a total of 10% of
Administrator's direct costs for services or other work. Any overhead allowance shall be
separately itemized Administrator may also recover the reasonable cost of preparing the
invoice.
(2) The reasonable cost to Administrator of handling material or equipment
returned to the Vendor, delivered to the District or otherwise disposed of as directed by the
District.
(3) A deduction for the cost of materials to be retained by Administrator,
amounts realized from the sale of materials and not otherwise recovered by or credited to
District, and any other appropriate credits to District against the cost of the services or other
work.
(D) In no event shall District be liable Eor costs incurred by Administrator or any of
its subcontractors after the termination date specified by District, except for those costs
specifically enumerated and described in the immediately preceding paragraph (C). Such non-
recoverable costs include, but are not limited to, anticipated profits on this Agreement, post-
termination employee salaries, post-termination administrative expenses, post-termination
overhead or unabsorbed overhead, attorneys' fees or other costs relating to the prosecution of a
claim or lawsuit, prejudgment interest, or any other expense which is not reasonable or
authorized under such paragraph (C).
9
(E) In arriving at the amount due to Administrator under this Section, District may
deduct: (1) all payments previously made by District for work or other services covered by
Administrator's final invoice; (2) any claim which District may have against Administrator in
connection with this Agreement; (3) any invoiced costs or expenses excluded pursuant to the
immediately preceding subsection (D); and (4) in instances in which, in the opinion of the
District, the cost of any service or other work performed under this Agreement is excessively
high due to costs incurred to remedy or replace defective or rejected services or other work, the
difference between the invoiced amount and District's estimate of the reasonable cost of
performing the invoiced services or other work in compliance with the requirements of this
Agreement.
(F) District's payment obligation under this Section shall survive termination of this
Agreement.
SECTION 15. RIGHTS AND DUTIES UPON TERMINATION OR
EXPIRATION.
(A) Survival of Obligations. This Section and the following Sections of this
Agreement shall survive termination or expiration of this Agreement: 5, b, 8 through 12, 14, 17,
18, 19, 25, 27 through 31 and 34.
(B) .Duties upon Termination. Subject to the immediately preceding paragraph (A),
upon termination of this Agreement prior to expiration of the term specified in Section 36, this
Agreement shall terminate and be of na further force or effect. Administrator shall transfer title
to District, and deliver in the manner, at the times, and to the extent, if any, directed by District,
any work in progress, completed work, supplies, equipment, and other materials produced as a
part of, or acquired in connection with the performance of this Agreement, and any completed
or partially completed work which, if this Agreement had been completed, would have been
required to be furnished to District. This subsection shall survive termination of this
Agreement.
SECTION 16. NOTICES TO THE PARTIES. Unless otherwise indicated
elsewhere in this Agreement, all written communications sent by the Parties may be by U.S.
mail and shall be addressed as follows:
To District: County Administrator
2300 Virginia Avenue
Ft. Pierce, Florida 34982
With a copy to: County Attorney
2300 Virginia Avenue
Ft. Pierce, Florida 34982
To Administrator: Solar Energy Loan Fund of St. Lucie County, Inc.
10
2400 Rhode Island Avenue (P.O. Box 5506)
Fort Pierce, Florida 34950 (34954)
District and Administrator shall provide one another with written notice of any change in
address for notice subsequent to the date hereof. Any notice of default must be sent by
registered mail.
SECTION 17. OWNERSHIP OF RESULTS. Subject to the other terms in this
Agreement, any non-proprietary interest of Administrator or its subcontractors, in drawings,
plans, specifications, blueprints, studies, reports, memoranda, computation sheets, computer
files and media or other documents first prepared by Administrator or its subcontractors in
connection with services to be performed under this Agreement, shall remain the property of
the Administrator. However, Administrator shall provide District with copies of any such
material upon request.
SECTION 18. WORKS FOR HIRE.
(A) Subject to the other terms in this Agreement and unless otherwise specified in
Appendix A, if, in connection with compensated services performed under this Agreement,
Administrator or its subcontractors first create artwork, copy, posters, billboards, photographs,
videotapes, audiotapes, systems designs, software, reports, diagrams, surveys, blueprints,
source codes or any other original works of authorship, such works of authorship are the
property of District. With the approval of the District, Administrator may retain and use copies
of such works.
(B) The District acknowledges that the services performed hereunder (as further
described in Appendix A) will include development, revision and maintenance of a web
platform using District or County content such as logos and trademarks. Accordingly, as
between the Administrator and the District, the Administrator shall retain all rights, including
intellectual property rights, in any preexisting technology and software, including without
limitation the platform and related functionality for data gathering, integration, transmission or
otherwise underlying the website and subject to the County or District's rights in the Content
(as described below) any modifications made thereto pursuant to this Agreement. The County
shall retain all rights, including the intellectual property rights, in and to the County logo,
trademarks and any content developed by Administrator for the County, and the County shall
own all Program participant data obtained through the website provided by the County to
Administrator in connection with the services and the website ("Content"). Subject to the
County's rights in the Content, Administrator shall own all rights, including all intellectual
property rights in the look and feel of the website; provided however that the Administrator
shall not be entitled to develop similar websites that may create confusion or otherwise be
detrimental to the Program.
(C) Notwithstanding anything herein to the contrary, the Parties acknowledge that
Administrator may now and in the future maintain its own website, separate and apart from
11
any website or portal maintained by the District or the County pertaining to the Program.
Administrator assumes no obligation hereunder to develop or host a website on behalf of the
District. Administrator may offer a link to the District or County website from its own, and to
the extent Administrator includes material related to the Program on Administrator's website
for purposes of disseminating information concerning the Program, District shall have the right
to approve of such material, and to request revisions to or removal of such material from
Administrator's website.
SECTION 19. AUDIT AND INSPECTION OF RECORDS. Administrator
agrees to maintain and make available to the District, during regular business hours, accurate
books and accounting records relating to its work under this Agreement. Administrator will
permit District to audit, examine and make excerpts and transcripts from such books and
records, and to make audits of all invoices, materials, payrolls, records or personnel and other
data related to all other matters covered by this Agreement, whether funded in whole or in part
under this Agreement. Administrator shall maintain such data and records in an accessible
location and condition for a period of not less than three years after final payment under this
Agreement or until after final audit has been resolved, whichever is later. The State of Florida
or any federal agency having an interest in the subject matter of this Agreement shall have the
same rights conferred upon District by this Section. Administrator and District agree to
develop policies as to the appropriate scope and form of the records to be kept, particularly in
relation to information provided by applicants.
SECTION 20. SUBCONTRACTING. The parties hereto acknowledge that
Administrator may subcontract with third parties for the performance of various
responsibilities assumed by Administrator hereunder; provided, however, that neither party
shall, on the basis of this Agreement, contract on behalf of or in the name of the other party. An
agreement made in violation of this provision shall confer no rights on any party and shall be
null and void.
SECTION 21. ASSIGNMENT. The services to be performed by Administrator
are personal in character and this Agreement may not be assigned by the Administrator unless
first approved by District by written instrument executed and approved in the same manner as
this Agreement.
SECTION 22. NON-WAIVER OF RIGHTS. The omission by either party at
any time to enforce any default or right reserved to it, or to require performance of any of the
terms, covenants, or provisions hereof by the other party at the time designated, shall not be a
waiver of any such default or right to which the party is entitled, nor shall it in any way affect
the right of the party to enforce such provisions thereafter.
SECTION 23. DRUG-FREE WORKPLACE POLICY. Administrator
acknowledges that pursuant to the Federal Drug-Free Workplace Act of 1989, the unlawful
manufacture, distribution, dispensation, possession, or use of a controlled substance is
prohibited on District or County premises. Administrator agrees that any violation of this
12
prohibition by Administrator, its employees, agents or assigns will be deemed a material breach
of this Agreement.
SECTION 24. COMPLIANCE WITH AMERICANS WITH DISABILITIES
ACT. Administrator acknowledges that, pursuant to the Americans with Disabilities Act
("ADA"), programs, services and other activities provided by a public entity to the public,
whether directly or through the Administrator, must be accessible to the disabled public.
Administrator shall provide the services specified in this Agreement in a manner that complies
with the ADA and any and all other applicable federal, state and local disability rights
legislation. Administrator agrees not to discriminate against disabled persons in the provision
of services, benefits or activities provided under this Agreement and further agrees that any
violation of this prohibition on the part of Administrator, its employees, agents or assigns will
constitute a material breach of this Agreement.
SECTION 25. PUBLIC RECORDS. In accordance with Chapter 119, Florida
Statutes, contracts, bids, responses to solicitations and all other records of communications
between the Parties and persons or firms seeking contracts, shall be public record and open to
inspection as required by law.
SECTION 26. PUBLIC ACCESS TO RECORDS AND MEETINGS. By
executing this Agreement, the Administrator acknowledges responsibility for complying with
the requirements of the State of Florida's public records and open meeting laws, including
Chapter 119 and Section 286.011, Florida Statutes, respectively, or their successors in function;
provided, however, that the dissemination of public records shall be subject in all respects to
any withholding or redaction requirements and/or privacy or other exemptions to public
records disclosure required or allowed by state and federal law. Administrator acknowledges
that its failure to comply with such laws shall constitute a material breach of this Agreement.
The Administrator further acknowledges that such material breach shall be grounds for the
District to terminate and/or not renew this Agreement.
SECTION 27. MODIFICATION OF AGREEMENT. This Agreement may not
be modified, nor may compliance with any of its terms be waived, except by written instrument
executed and approved in the same manner as this Agreement.
SECTION 28. ADMINISTRATIVE REMEDY FOR AGREEMENT
INTERPRETATION. Should any question arise as to the meaning and intent of this
Agreement, the question shall, prior to any other action or resort to any other legal remedy, be
referred to the County Administrator or designee who shall decide the true meaning and intent
of the Agreement.
SECTION 29. AGREEMENT MADE IN FLORIDA; VENUE. The formation,
interpretation and performance of this Agreement shall be governed by the laws of the State of
Florida. Venue for all litigation relative to the formation, interpretation and performance of this
Agreement shall be in St. Lucie County, Florida.
13
SECTION 30. CONSTRUCTION. All paragraph captions are for reference
only and shall not be considered in construing this Agreement.
SECTION 31. ENTIRE AGREEMENT. This contract sets forth the entire
Agreement between the Parties, and supersedes all other oral or written provisions. This
contract maybe modified only as provided in Section 27.
SECTION 32. COMPLIANCE WITH LAWS; COMPLIANCE WITH
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009.
(A) Administrator shall keep itself fully informed of the District's resolutions and the
County's codes, ordinances and resolutions and of all state and federal laws and regulations in
any manner affecting the performance of this Agreement, and must at all times comply with
such local codes, ordinances, and resolutions and all applicable state and federal laws and
regulations as they may be amended from time to time, including but not limited to any
applicable provisions of the Federal Drug Free Workplace Act of 1989, the Davis-Bacon Act and
the ADA.
(B) Administrator acknowledges that work performed under this Agreement may be
funded, in whole or in part, with funds appropriated through the American Recovery and
Reinvestment Act of 2009, Pub. L. 111-5 (the "Recovery Act" or "ARRA") and an award by the
U.S. Department of Energy ("DOE") through an Energy Efficiency and Conservation Block
Grant ("EECBG"), in which case Administrator acknowledges responsibility for ensuring
compliance by Administrator and any subcontractor thereof with applicable terms and
conditions contained therein, if any.
SECTION 33. SERVICES PROVIDED BY ATTORNEYS. Any services to be
provided by a law firm or attorney must be reviewed and approved in writing in advance by
the County Attorney. No invoices for services provided by law firms or attorneys, including,
without limitation, as subcontractors of Administrator, may be paid unless the provider
received advance written approval from the County Attorney.
SECTION 34. SEVERABILITY. Should the application of any provision of this
Agreement to any particular facts or circumstances be found by a court of competent
jurisdiction to be invalid or unenforceable, then (a) the validity of other provisions of this
Agreement shall not be affected or impaired thereby, and (b) such provision shall be enforced to
the maximum extent possible so as to effect the intent of the Parties and shall be reformed
without further action by the Parties to the extent necessary to make such provision valid and
enforceable.
SECTION 35. COOPERATIVE DRAFTING. This Agreement has been drafted
through a cooperative effort of both Parties, and both Parties have had an opportunity to have
the Agreement reviewed and revised by legal counsel. No Party shall be considered the drafter
of this Agreement, and no presumption or rule that an ambiguity shall be construed against the
14
Party drafting the clause shall apply to the interpretation or enforcement of this Agreement.
SECTION 36. EFFECTIVE DATE; TERM; RENEWAL.
(A) This Agreement shall be effective as of April 1, 2012.
(B) The term of this Agreement shall be from April 1, 2012, through April 1, 2014.
(C) The Parties expect that the Program will continue beyond the expiration date set
forth in paragraph (B) above. Unless either Party delivers a written notice of nonrenewal to the
other Party on or before the date that is 60 days prior to the then-effective expiration date, this
Agreement shall be deemed renewed for an additional two years.
IN WITNESS WHEREOF, District and Administrator have entered into this Agreement
as of the effective date set forth above.
ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT
(SEAL)
By:
Chair
ATTEST:
Deputy Clerk
Approved as to Form:
County Attorney
SOLAR AND ENERGY LOAN FUND OF
ST. LUCIE COUNTY, INC.
By:
Name:
Title:
15
APPENDIX A
Description of Services to be Provided by Administrator
A. Pro~am Desi~ Services, Program design services include alignment with local goals
and policies, integration with existing programs, stakeholder engagement, and development of
program guidelines.
Administrator will participate in meetings and facilitate the creation of documents with District
staff and consultants:
1. To ensure full integration of the Program with existing federal, state, utility, and
local renewable energy incentives.
2. To collaborate with the District in developing guidelines, policies and procedures
for the Program.
3. To develop strategies for implementing and administering the Program.
4. To assist in drafting procedures, manuals and guidebooks in connection with the
Program. (This task is also part of the Program Implementation Services.)
B. Program Implementation Services. Program implementation services include finalizing
and integrating the tasks outlined in the program design services to create a program that is
ready to process applications and fund Improvements. In addition, these services include the
following key areas:
1. Web Portal
a. At District's direction, Administrator will assist in developing, revising and/or
maintaining a web platform and related content in order to develop a County or District
'branded" website that serves as an interface between applicants and Administrator.
Administrator will provide reasonable assistance in this regard but will not assume
responsibility for developing or hosting any County or District website.
b. The secure website will manage distribution of program application, application
filing, the tracking of the application progress, and notice of application approval. Data
collected includes:
i. The number and locations of persons submitting an application;
ii. The number of person approved for financing;
iii. The type, size and dollar value of Improvement projects;
iv. The time between application and installation of Improvements; and
A-1
v. The Vendor selected by the applicant to install the Improvements.
c. Through the website, Administrator will develop, implement and administer
software and models that:
i. processes applications and funding requests
ii. provides loan repayment projections and bond debt service schedules
provides real-time reports on program progress
2. Marketing and Communications
a. Administrator will assist the District in the development of a marketing and
education campaign to inform the local community and stakeholders about the program.
b. Administrator will assist the District in developing content for print materials
and workshops deemed desirable by the District.
c. Administrator will assist the District in the establishment of a branding and
marketing plan and the coordination of District and local resources to maximize marketing
impacts.
d. During the first year of the Program, Administrator will facilitate or assist in the
facilitation of a reasonable number of workshops (not to exceed 12 workshops) with contractors,
prospective participants and/or other interested parties in order to educate them about the
program terms and application process.
e. Administrator will arrange and prepare presentation materials for the public,
legislative and policy-making bodies, credit rating agencies, and credit enhancement and
liquidity providers, as required.
3. Program Documentation. Administrator will collaborate with District staff and
consultants to develop the following documents for Program administration:
a. Program Terms and Policies
b. Property Underwriting Criteria
c. Authorized Improvements List
d. Landowner Application(s)
e. Financing Agreement and related summary memorandum for recording
f. Marketing materials
C. Program Administration Services. Program administration services include all tasks
necessary to administer the Program on an ongoing basis, with assistance from and oversight
A-2
by the District.
1. Apylication Processing Request, and Payment
a. Administrator will develop underwriting guidelines and provide required
underwriting services, including those mandated by the Act for eligibility and required by
credit markets for quality control.
b. Administrator will conduct property and project screening to ensure compliance
with the terms and conditions of the Program and the Act. Administrator will complete
screening in no more than five (5) business days from receipt of the application.
c. When funding is requested, Administrator will verity the project installation
through review of appropriate documents including estimates provided by Vendors.
Administrator will conduct this review in no more than five (5) business days from the date all
required documents are received, including any required verifications from the District.
d. Once project is verified, Administrator will notify the District and provide the
property owner with required legal documents including the Financing Agreement.
e. Administrator will verify completion of the legal documents after receipt from
property owners.
f. Administrator will interface between the Program and all mortgage lenders
(where notice or approvals are necessary).
g. Upon receipt of complete documents, Administrator will notify the District of an
approved funding request and provide the documents necessary to record the lien (which
recording may take the form of a memorandum summarizing the Financing Agreement).
Administrator will record the lien on behalf of the District, if needed.
h. Administrator will ensure the reasonably prompt disbursement of the
Disbursement Amount as provided in the Financing Agreement.
i. Administrator will collaborate with the District on establishing and
implementing appropriate procedures and timelines for applications filed in paper copy as
opposed to the Internet.
j. All of the timelines listed above are subject to revision by mutual agreement of
the Parties in conjunction with the establishment and maintenance of Program terms and
conditions.
k. Monitor and catalogue available rebate programs and take all necessary steps to
make sure they are available for use in the Program, including, where feasible, arranging for
direct payment of rebate to offset Assessments.
A-3
1. Identify methods to maximize available rebate programs, and work with
participating property owners to maximize any applicable energy credits for the Improvements,
and to the extent practicable, establish procedures to capture any cash rebates as down
payments in the overall Assessment amount.
2. Contractor and Vendor Responsibilities
a. Administrator shall perform all outreach efforts to the contractor and vendor
communities and maintain and update regularly a list of "approved" contractors and vendors
that meet all required State licensing requirements and that demonstrate specific knowledge
and experience with installing the qualifying improvements.
b. Develop training/certification programs for Vendors to increase level of expertise
and efficiency in operation of Program, coordinate with existing job training/retraining centers
to create workforce or expand quality of existing workforce (pool of contractors).
c. Oversee installation of Improvements and warranty program.
d. Develop methodologies and procedures to assure correct completion of
improvements with ali applicable warranties in place, including methods to provide timely
audits of improvements made and completed.
e. Coordinate all inspections of the Improvements (some improvements will
require building permits and inspections) among vendor and local building inspectors
f. Conduct periodic inspections of each Improvement to assure the Improvements
were installed properly and are in working order.
g. If an Improvement is not installed properly or is not in working order,
coordinate with original Vendor to rectify the situation or to bring in an alternate contractor to
correct the installation.
h. Establish and operate a tandem warranty program to make sure improvements
function as intended.
i. Identify potential service providers, initially consisting of licensed and qualified
installers, equipment vendors and parties who can provide energy and wind resistance
inspections.
3. Assessment Services
a. Data Collection. Administrator will coordinate with District staff to track the tax
parcels that will be subject to Assessments in each fiscal year. For each parcel, Administrator
will confirm the current tax parcel identification or folio number; determine whether the parcel
has been subdivided or is the result of a subdivision and allocate the maximum special tax
accordingly, if applicable; and calculate the amount to be levied to pay the parcel's debt service
(if any).
A-4
b. Payment Calculation and Roll Preparation. Administrator will calculate the total
amount of the Assessment due from each tax parcel and the Annual Payment due each year and
will coordinate with District staff to ensure that aII Administration Costs, interest and any
capitalized interest associated with the Improvements for a given tax parcel are included in the
Assessment levied against such parcel. Administrator will assist District staff, the Tax Collector
and/or the Property Appraiser with preparation and certification of the annual Assessment roll.
c. Prepayments and Release of Assessment Liens. Upon request, Administrator
will provide homeowners, property owners, title agents and other interested parties with an
estimate of the amount required to prepay the Assessment. If an owner makes a prepayment,
Administrator will facilitate filing of a release of Iien in the public records as necessary to
remove the lien of the Assessment from the Assessed Property.
d. Answer Inquiries from Various Parties. Administrator will respond to
homeowners, property owners, realtors, title companies, appraisers and other parties regarding
the Assessment and other issues related to the Program.
4. Pro am Reporting
a. Administrator will prepare an annual administration report for the District
which will summarize (i) number of parcels subject to an Assessment each year and the amount
to be levied on each parcel; (ii) Assessment roll changes from the prior year, including parcels
added or removed from the Assessment roll and bonds secured by each new parcel (if any), (iii)
prepayments that have been received in the past year; (iv) delinquencies that have occurred and
efforts that have been made to collect the past due amounts; and (v) any other event or statistic
pertaining to the general fiscal health of the Program.
b. Administrator will assist the District with reporting requirements as part of the
allocation of ARRA funds, if applicable.
c. Administrator will prepare reports, schedules, and documents to support the
issuance and underwriting of bond documents such as disclosure documents for IRS, SEC,
and/or any other regulatory body purposes; cash flows analysis; debt service and loan
repayment projections; substantiation of revenue and expenditure estimates and project costs;
verification of cash flows; and project or market feasibility, as needed.
d. Administrator shall submit written reports as requested or required by any state
or federal governmental entity. The timely submission of such report is a necessary and
material term and condition of this Agreement. The reports shall be submitted electronically;
hard copies, if required, shall be on recycled paper and printed on double-sided pages to the
maximum extent possible.
5. Customer Service
a. Administrator will provide direct customer service to the community via the
A-5
web, email and phone.
b. Administrator will provide a local staff presence to permit walk-ins during
critical program periods, depending on Program and District needs.
D. Services Related to Issuance of Debt. In the event the District issues or proposes to
issue any debt obligations pursuant to the Resolution or otherwise for purposes of obtaining
funds for purposes of funding and/or administering the Program, Administrator shall:
1. Meet with District staff, and the District's bond counsel and financial advisor to
understand the proposed structure for the proposed debt.
2. Assist the District with preparation of any boundary maps that will be needed
for issuance of the debt.
3. Be available as needed to provide information or analysis for disclosure
documents prepared for the initial issuance or remarketing of the debt. Parcel-by-parcel
breakdowns, aggregate totals by land use category, or any other data associated with
Assessments expected to be levied can be provided to facilitate accurate dissemination of
information regarding projected revenues pledged to the debt.
4. Attend meetings with District staff, bond counsel, financial advisor, and other
consultants to acquire information and review applicable documentation.
E. Services Related to Grants. Administrator shall identify and seek, or assist the District
with identifying and seeking, any grant funding which may be available for purposes of
funding and/or administering the Program. Administrator shall be responsible for application,
accounting, tracking and/or reporting requirements associated with any grant funding received.
Notwithstanding anything herein to the contrary, the Parties may enter into separate
agreements providing for the administration of particular grants.
F. Attend District Meetings. Administrator shall attend District meetings as requested by
the Contract Administrator for purposes of presenting information and answering questions
concerning the Program.
G. General Advice and Cooperation on Operational Matters.
(1) Provide ongoing feedback and advice to the District and its advisors on the
operational aspects of the Program, for the exclusive benefit of the District.
(2) Receive and timely act on reasonable advice and direction from the Contract
Administrator.
A-6
FINANCING AGREEMENT
This Financing Agreement (the "Agreement") is made and entered into on
by and between the ST. LUCIE COUNTY SUSTAINABILITY DISTRICT {the "District") and
[OWNER(S)] ([collectively,] the "Owner").
RECITALS
WHEREAS, pursuant to Ordinance No. 10-025 (as codified in Chapter 1-19 of the Code of
Ordinances of St. Lucie County, the "Sustainability Ordinance") and Resolution No. 10-259 (as
may be amended from time to time, the "Resolution") and Section 163.08, Florida Statutes (the
"Act"), St. Lucie County, Florida (the "County") established the District for purposes of
accomplishing energy efficiency and renewable energy improvements through an energy
financing program providing for the levy of non-ad valorem assessments against real property,
with the consent of the owners of such property, to finance the acquisition and construction of
energy conservation, energy efficiency and renewable energy improvements (the "Program");
and
WHEREAS, Owner is the owner of that certain real property described in Appendix A
attached hereto (the "Assessed Property"); and
WHEREAS, Owner wishes to participate in the Program by entering into this
Agreement with the District, thereby providing for the acquisition, construction, installation
and financing of the improvements described in Appendix B hereto which will provide a
special benefit to the Assessed Property (the "Improvements"); and
WHEREAS, the District has determined that the Improvements are energy efficient
improvements, renewable energy improvements or broader sustainability improvements as
those terms are defined in Section 1-19.10 of the Sustainability Ordinance.
NOW THEREFORE, in consideration of the mutual covenants contained herein and
other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. INCORPORATION OF RECITALS AND APPENDICES. The
recitals stated above are true and correct and, together with the appendices attached hereto, are
incorporated herein as a material part of this Agreement.
SECTION 2. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Resolution. As used in this Agreement, the following terms
shall have the following meanings.
1
"Administration Cost" means the cost incurred by the District in administering the
Program and the Assessment contemplated hereunder, including but not limited to any costs
associated with recording of this Agreement or a summary memorandum in the public records
of St. Lucie County, Florida, in the amount set forth in Appendix C.
"Annual Payment" means the annual installment of the Assessment levied hereunder
which is due in any given Tax Year, including interest.
"Assessment" means the non-ad valorem assessment levied by the District hereunder
against the Assessed Property pursuant to the Act and collected pursuant to Section 197.3632,
Florida Statutes, as more particularly described in Section 6 hereof.
"Business Day" means any day the County is open for business.
"Capitalized Interest" means the amount of interest accruing from the date of
disbursement of the Disbursement Amount through August 31st of the first Tax Year during
which the District collects an Annual Payment.
"Collection Costs" means the annual costs associated with collection of Annual
Payments on the property tax bill, which costs may include administrative expenses incurred by
the District, fees imposed by the St. Lucie County property appraiser and tax collector pursuant
to Section 197.3632, Florida Statutes, and such amount as necessary to account for the maximum
statutory discount for early payment of ad valorem taxes and non-ad valorem assessments, if
any.
"Contract Administrator" means the County Administrator or designee thereof.
"Disbursement Amount" means the cost of the Improvements to be disbursed to the
Vendor IOR, IF DESIRED FOR RESIDENTIAL PROPERTYS, TO THE OWNER], as
evidenced by the binding written invoice provided by the Vendor, a copy of which has been
received by the District.
"Program Administrator" means the Solar Energy and Loan Fund of St. Lucie County,
Inc.
"Vendor" means the contractor engaged by the C-wner to provide, deliver and install the
Improvements.
"Tax Year" means the period from January 1st through the following December 31st.
SECTION 3. ASSESSMENT AND LIEN.
(A) Owner agrees that upon execution of this Agreement, the Assessed Property
shall be subject to an Assessment levied by the District in the principal amount of $
2
Such amount is the sum of the Disbursement Amount, the Administration Cost and Capitalized
Interest, as shown in Appendix C.
(B) Owner hereby expressly consents to the imposition of the Assessment against the
Assessed Property in order to finance the Improvements.
(C) Upon execution, the District will cause this Agreement or a summary
memorandum to be recorded in the public records of St. Lucie County, Florida.
(D) Upon recordation, the entire balance of the Assessment (including interest
thereon) shall constitute a legal, valid and binding non-ad valorem assessment and a resulting
lien upon the Assessed Property, equal in rank and dignity with the lien of all state, county,
district and municipal taxes and superior in dignity to all other liens, titles and claims, until
paid.
(E) The execution and recordation of this Agreement (or summary memorandum
thereof) by the parties constitutes the levy of the Assessment against the Assessed Property
without any further action required by the parties.
SECTION 4. OWNER REPRESENTATIONS AND ACKNOW-
LEDGEMENTS. By execution hereof, Owner represents, warrants, acknowledges, consents
and declares as follows:
(A) Owner and no other person is vested with fee simple title of record to the
Assessed Property.
(B) Owner acknowledges that the Improvements confer direct special benefits to the
Assessed Property equal to or in excess of any amounts due hereunder, and that such amounts
due hereunder represent a fair and reasonable apportionment, in all respects, of the costs and
charges attributed to the Assessed Property in association with the acquisition, construction and
financing of the Improvements.
(C) Owner waives all rights to subsequently challenge the Assessment on the basis of
procedural irregularities, notice or due process claims, insufficient benefits, improper or unfair
apportionment or any other basis, and acknowledges that this Agreement provides an
alternative and extraordinary payment opportunity and is fundamental consideration given by
the District in exchange for resolving all questions about the validity, appropriateness, and
enforceability of the Assessment and upon execution of this Agreement any question or
controversy regarding the Assessment shall forever be conclusively resolved.
(D) Owner acknowledges that the Assessment may be pledged to the repayment of
bonds or other debt obligations issued by the District.
(E) Owner agrees and covenants to timely pay each Annual Payment and
acknowledges that failure to pay any Annua] Payment may result in loss of title.
(F) Owner acknowledges that this Agreement or a summary memorandum will be
recorded in the public records of St. Lucie County, Florida.
3
(G) Owner acknowledges and covenants that this Agreement shall run with, touch
and concern the Assessed Property and shall be binding on such property and the Owner and
ail successors in interest.
(I-I) Owner agrees to execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, from time to time such supplements hereto and such further
instruments, corrective or otherwise, as may reasonably be required to carry out the intention of
this Agreement.
(I) Owner agrees to maintain the Improvements and provide for the timely repair of
the Improvements, at Owner's expense, throughout the term of this Agreement.
~ Owner is solely responsible for obtaining permits necessary for construction of
the Improvements and for selecting and engaging the Vendor and, to the extent that any work
involved with acquisition, construction and installation of the Improvements requires a license
under any applicable law, for ensuring that the Vendor is properly certified or registered
pursuant to part I or part II of Chapter 489, Florida Statutes. Owner shall provide copies of any
permits necessary for construction of the Improvements to the District upon request.
(I~ Owner represents that all property taxes and any other non-ad valorem
assessments levied against the Assessed Property and collected on the same bill as property
taxes have been paid and have not been delinquent for the preceding five (5) years or the
Owner's period of ownership, whichever is less; that there are no involuntary liens, including,
but not limited to, construction liens on the Assessed Property; that no notices of default or
other evidence of property-based debt delinquency have been recorded during the preceding
five (5) years or the Owner's period of ownership, whichever is less; and that Owner is current
on all mortgage debt on the Assessed Property, if any.
(L) Owner represents that the total amount of the Assessment levied hereunder does
not exceed the greater of $50,000 or twenty percent (20%) of the just value of the Assessed
Property as determined by the St. Lucie County Property Appraiser; provided, however, that
such limitation does not apply if a higher financing amount is consented to by the mortgage
holder of the Assessed Property, if one exists, and an energy audit conducted prior to the
execution of this Agreement demonstrates that the annual energy savings from the
Improvement equals or exceeds the Annual Payment. A copy of any such audit has been
presented to the District. C>n the date hereof, the just value of the Assessed Property is
(lvi) To the extent applicable, at least thirty (30) days prior to executing this
Agreement, Owner provided to the holders or loan servicers of any existing mortgages
encumbering or otherwise secured by the Assessed Property a notice of the Owner's intent to
enter into this Agreement together with the maximum principal amount to be financed and the
maximum annual assessment necessary to repay that amount, and Owner has provided proof
of such notice to the District.
(I~ Owner acknowledges that any inspection of the Improvements required by
applicable building codes or the Program do not insure quality of workmanship, and Owner is
4
solely responsible for ensuring that the Improvements are completed as proposed in the
proposal, estimate, and/or binding written invoice provided by the Vendor.
(O) Owner agrees to provide utility records to assist the District in tracking utility
savings resulting from the Improvements.
(P) Owner hereby assigns to the District any carbon credits resulting from the
Improvements in consideration for the District providing the financing option provided for
herein.
(Q) Owner agrees to adjust any applicable mortgage escrow, or to start one, if
requested by the holder of any mortgage pertaining to the Assessed Property, to pay the
monthly equivalent of the Annual Payment.
(R) Owner hereby consents to providing the District with access to the Assessed
Property for purposes of inspecting the Improvements.
(S) Owner acknowledges that the repayment term contemplated hereunder may not
exceed twenty (20) years.
SECTION 5. DISBURSEMENT.
(A) Subject to the terms and conditions set forth herein, upon (i) execution and
recording of this Agreement or a summary memorandum, (ii) completion of the Improvements
by Vendor, and (iii) inspection and approval of the completed Improvements by the District, the
District shall cause disbursement of the Disbursement Amount directly to the Vendor.
(B) By execution hereof, Owner acknowledges and directs disbursement of the
Disbursement Amount directly to the Vendor.
[(C) FOR RESIDENTIAL PROPERTIES: The Disbursement Amount may
instead be disbursed to the Owner if the Owner provides the District with a copy of
the paid contractor invoice or a paid receipt from the Vendor which demonstrates
that the cost of the Improvements (in an amount equal to the Disbursement Amount)
has been paid in full by the Owner.]
SECTION 6. COLLECTION OF ASSESSMENT ON PROPERTY TAX BILL;
CAPITALIZED INTEREST.
(A} Annual Payments, including Collection Costs and annual interest on the
Assessment as provided in paragraph (C) below, shall be collected on the property tax bill
pertaining to the Assessed Property as provided for in the Act and Section 197.3632, Florida
Statutes. The Annual Payment due in any Tax Year shall therefore be payable in the same
manner and at the same time as ad valorem taxes on real property are payable and shall become
5
delinquent at the same times and shall be subject to the same collection and enforcement
mechanisms as ad valorem taxes. By execution hereof, Owner acknowledges that failure to
pay the Assessment or any Annual Payment may result in the issuance of a tax certificate
and/or tax deed and may result loss of title to the Assessed Property pursuant to Chapter 197
Florida Statutes.
(B) Following disbursement of the Disbursement Amount, Annual Payments shall
be placed on the property tax bill as provided herein in the amounts and for the term set forth
in Appendix C, commencing with the tax bill to be issued in November, 20_.
(C) Subject to paragraph (D) below, interest shall accrue on the unpaid Assessment
from the date the Disbursement Amount is disbursed to the Vendor at a simple interest rate of
not to exceed percent (_%) per annum computed on the basis of a three hundred sixty
(360) day year.
(D) The amount of the Assessment and Annual Payment as set forth in Appendix C
are based on the assumption that the District causes disbursement of the Disbursement Amount
on the first Business Day of the month fo]lowing the month in which this Agreement or a
summary memorandum is recorded in the public records of St. Lucie County, Florida.
Following disbursement of the Disbursement Amount, the District will adjust the Annual
Payment as necessary to reflect the actual Assessment based on the Disbursement Amount, the
date of disbursement of the Disbursement Amount and the actual amount of Capitalized
Interest. If any refund is required, the District may make the refund by making a direct payment
to Owner or by crediting the refund amount against the next Annual Payment(s).
SECTION 7. USE OF PROCEEDS. The Disbursement Amount shall be used for
the sole purpose of paying the costs and expenses of acquiring and constructing the
Improvements.
SECTION 8. REBATES AND CREDITS. The Owner bears sole responsibility for
identifying, applying for and obtaining any rebates, refunds, credits or allowances pertaining to
the Improvements which may be available from manufacturers, federal, state or local
authorities or any other source. Any such rebate received by the Owner shall be forwarded to
the District for payment toward the outstanding balance of the Assessment.
SECTION 9. SITE PREPARATION. The parties hereto acknowledge that a
reasonable amount of site preparation may be necessary prior to installation of the
Improvements, and Owner bears the responsibility for ensuring that the cost of such
preparation has been included in the Disbursement Amount. Owner agrees and acknowledges
that the District shall have no obligation to fund costs associated with extraordinary preparation
of the site or repair work for any structure, building or facility to which the Improvements shall
be affixed which were not included in the Disbursement Amount or which were otherwise not
apparent to the Owner or Vendor prior to commencement of installation of the Improvements.
Costs associated with such extraordinary preparation or repair work shall be the sole
responsibility of the Owner.
6
SECTION 10. DEFAULT; ACCELERATION. Failure to make an Annual Payment
shall subject the Assessed Property to the tax certificate enforcement mechanism administered
by the St. Lucie County Tax Collector under Chapter 197, Florida Statutes, which may result in
loss of title. The District reserves the right to enforce any payment delinquency or default by
the Owner or any successor owner of the Assessed Property in any manner authorized by law.
Owner shall pay all costs incurred by the District for such enforcement, including reasonable
attorney's Eees. District will not seek to accelerate the unpaid balance of the Assessment in the
absence of any such default or upon transfer of the Assessed Property to a successor owner
provided no payment delinquency exists.
SECTION 11. PROGRAM ADMINISTRATOR. The District has engaged the
Program Administrator to administer the Program, and various actions and responsibilities
required of the District hereunder may be performed and satisfied by the Program
Administrator or the County on the District's behalf. Accordingly, where the context permits,
references herein to the "District" may be deemed to include the Program Administrator.
SECTION 12. PREPAYMENT OF ASSESSMENT. Owner may prepay the
'Assessment by paying the principal amount owing on the Assessment, and accrued interest,
less a credit for interest paid and not yet accrued, if any, all as determined by the District.
Owner shall notify the Program Administrator in writing of Owner's determination to prepay
the Assessment at least ten (10) Business Days prior to the date Owner intends to prepay the
Assessment.
In the event that the funds utilized by the District to pay the Disbursement Amount
were derived from the proceeds of bonds or other debt obligations issued by the District or
County, the amount of the prepayment shall include, in addition to the principal amount owing
on the Assessment and any interest accrued through the date of prepayment, (i) interest
accruing until the next available redemption date for any such bonds or debt obligations
(provided that such redemption date shall not exceed 185 days from the date of prepayment of
the Assessment) and (ii) the prepayment premium associated with such bonds or debt
obligations, if any.
SECTION 13. DISCLOSURE. During the term of this Agreement, Owner agrees
that at or before the time a purchaser executes a contract for the sale and purchase of the
Assessed Property, the Owner shall give the prospective purchaser a written disclosure
statement in the following form, which shall be set forth in the contract or in a separate writing:
QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE
ENERGY, OR WIND RESISTANCE. The property being purchased is located
within the jurisdiction of a local government that has placed an assessment on
the property pursuant to section 163.08, Florida Statutes. The assessment is for
a qualifying improvement to the property relating to energy efficiency,
renewable energy, or wind resistance, and is not based on the value of
7
property. You are encouraged to contact the county property appraiser's office
to learn more about this and other assessments that may be provided by law.
SECTION 14. INDEMNIFICATION OF DISTRICT. Owner shall indemnify and hold
harmless District and its officers, agents (including the Program Administrator) and employees
from, and, if requested, shall defend them against any and all loss, cost, damage, injury, or
liability in connection with this Agreement including the manufacture, supply or installation of
the Improvements. The foregoing indemnity shall include, without limitation, reasonable fees
of attorneys, consultants and experts and related costs and District's costs of investigating any
claims against the District.
SECTION 15. SEVERABILITY. Each and every provision of this Agreement is, and
shall be construed to be, a separate and independent covenant and agreement. If any term or
provision of this Agreement or the application thereof shall to any extent be held to be invalid
or unenforceable, the remainder of this Agreement, or the application of such term or provision
to circumstances other than those to which it is invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and shall be enforced to
the extent permitted by law.
SECTION 16. GOVERNING LAW; VENUE. This Agreement shall be governed by
the law of the State of Florida. Unless otherwise required by law, venue for any action or
proceeding to construe or enforce the provisions of this Agreement or any matters associated
therewith shall lie in the Circuit Court in and for St. Lucie County, Florida.
SECTION 17. ASSIGNMENT.
(A) The District, at its option, may (i) assign any or all of its rights and obligations
under this Agreement, and (ii) pledge and assign its right to receive the Assessment and any
other payments due to District hereunder, without obtaining the consent of Owner.
(B) In no event shall Owner assign or transfer any portion of this Agreement or
Owner's obligations hereunder without the prior express written consent of District, which
consent may be granted or withheld in the sole and absolute discretion of the District, nor shall
Owner assign or transfer Owner's rights under this Agreement without prior written notice to
District. Sale, transfer, or rental of the Assessed Property is not an assignment or transfer of this
Agreement.
SECTION 18. TERM. The term of this Agreement shall be until the Assessment,
including all accrued interest thereon, has been paid in full.
SECTION 19. ENTIRE AGREEMENT; COUNTERPARTS; AMENDMENT.
This Agreement is the entire agreement between the parties. Any other agreement related to
the Improvements, and any amendment to this Agreement, must be signed in writing by both
parties. If there is more than one "Owner," the obligations hereunder of all Owners shall be
joint and several. This Agreement may be executed in several counterparts, each of which shall
8
be deemed an original, and all of such counterparts together shall constitute one and the same
instrument.
THE DECLARATIONS, ACKNOWLEDGEMENTS AND AGREEMENTS CONTAINED
HEREIN SHALL RUN WITH THE LAND DESCRIBED IN APPENDIX A HERETO AND
SHALL BE BINDING ON THE OWNER AND ON ALL PERSONS (INCLUDING
CORPORATIONS, ASSOCIATIONS, TRUSTS, AND OTHER LEGAL ENTITIES) TAKING
TITLE TO ALL OR ANY PART OF THE LAND, AND ITS SUCCESSORS IN INTEREST. BY
TAKING SUCH TITLE, SUCH PERSONS SHALL BE DEEMED TO HAVE CONSENTED
AND AGREED TO THE PROVISIONS OF THIS AGREEMENT TO THE SAME EXTENT
AS IF THEY HAD EXECUTED IT AND BY TAKING SUCH TITLE, SUCH PERSONS
SHALL BE ESTOPPED FROM CONTESTING, IN COURT OR OTHERWISE, THE
VALIDITY, LEGALITY AND ENFORCEABILITY OF THIS AGREEMENT
IN WITNESS WHEREOF, Owner and District have entered into this Agreement as of the last
day signed below.
ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT
By:
Contract Administrator
Date
ATTEST:
Deputy Clerk
20
9
IN WITNESS WHEREOF, Owner and District have entered into this Agreement as of the last
day signed below.
Signed, sealed and delivered
In our presence:
OWNER [add additional signature blocks if
Assessed Property is owned jointly]
sy:
[Name]
Witness #1
(Witness #1 printed name)
Witness #2
(Witness #2 printed name)
STATE OF FLORIDA
COUNTY OF ST. LUCIE
The foregoing Agreement was acknowledged before me this _ day of 20
by ~ as Owner of
. He/she [ ) is personally known to me, or [
] has produced as identification.
(Notary Seal)
Signature of Notary Public
Name of Notary Typed, Printed or Stamped
Date: , 20
10
APPENDIX A
DESCRIPTION OF ASSESSED PROPERTY
Owner Name(s):
Property Address:
Parcel Identification No.:
Legal Description:
A-1
APPENDIX C
ASSESSMENT AND ANNUAL PAYMENTS
Parcel Identification No.:
Disbursement Amount:
Administration Cost:
$_
Capitalized Interest: $
TOTAL ASSESSMENT $_
Interest Rate:
Annual Payment (including interest and
Collection Costs): $
Number of Annual Payments:
Annual Payments Commence: November, 20_
Payment Schedule/Amortization Table:
(TO COME]
Disbursement Dates First Tax Year Annual Payment Due
No Later Than:
September 1, 2011 - August 2012 March 31, 2013
31, 2012
September 1, 2012 - August 2013 March 31, 2014
31, 2013
September 1, 2013 - August 2014 March 31, 2015
31, 2014
September 1, 2014. - August 2015 March 31, 2016
31, 2015
C-1