HomeMy WebLinkAbout14-107RESOLUTION 14-107
A RESOLUTION OF THE ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT AUTHORIZING EXECUTION
OF A FUNDING AGREEMENT BETWEEN THE DISTRICT,
THE SOLAR AND ENERGY LOAN FUND OF ST. LUCIE
COUNTY, INC. AND INLAND ST. LUCIE PACE, LLC,
PROVIDING FOR THE ISSUANCE OF BONDS, THE
PROCEEDS OF WHICH WILL FINANCE QUALIFYING
IMPROVEMENTS; APPROVING THE FORM OF BOND TO
BE USED IN CONNECTION THEREWITH; AUTHORIZING
THE CHAIR AND OTHER DISTRICT OFFICIALS TO TAKE
SUCH ACTIONS AND EXECUTE SUCH DOCUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE
TRANSACTIONS CONTEMPLATED HEREIN; 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 (the "Ordinance") of St. Lucie County, Florida (the "County"), Chapter
189, Florida Statutes, Section 163.08, Florida Statutes, County Resolution No. 10-259, and other
applicable provisions of law (collectively, the "Act").
SECTION 2. DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Ordinance, County Resolution No. 10-259, and
the form of Funding Agreement attached hereto as Appendix A.
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 which offers qualified owners of real property an opportunity to
acquire Qualifying Improvements and repay the costs associated with such improvements
through voluntary special assessments imposed by the District pursuant to Financing
Agreements (the "Project").
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(B) Pursuant to Resolution 2012-001 adopted on July 3, 2012, the District engaged the
Solar and Energy Loan Fund of St. Lucie County, Inc. ("SELF") as Program Administrator for
the Energy Financing Program.
(C) Inland St. Lucie PACE, LLC (the "Lender") has expressed a willingness to
purchase Bonds issued by the District for the ultimate purpose of financing the costs associated
with Qualifying Improvements constructed pursuant to Financing Agreements, in accordance
with a term sheet submitted by a corporate affiliate of the Lender dated February 24, 2014 (the
"Term Sheet").
(D) The Lender is willing to provide the District with anon-revolving line of credit
related to the issuance of the Bonds described above in the not to exceed amount of $1,000,000
(the "Loan") based on the terms set forth in the Term Sheet and documented in the form of a
Special Assessment Funding Agreement (Energy and Sustainability Financing Program)
between the District, SELF and the Lender attached hereto as Appendix A (the "Funding
Agreement").
(E) The District shall make one or more draws under the Loan, each drawing shall
constitute a separate borrowing evidenced by a separate revenue bond issued by the District to
the Lender entitled "St. Lucie County Sustainability District Taxable Special Assessment Bond,
Series 20_" and numbered sequentially (the "Bonds").
(F) Due to the nature of the security for the Bonds, the size of the Loan, the
willingness of the Lender to purchase the Bonds at interest rates favorable to the District and
the critical importance of timing of the sale of the Bonds, it is hereby determined under Section
218.385 that it is in the best interest of the public and the District to accept the offer of the
Lender to purchase the Bonds at a negotiated sale pursuant to the terms of the Term Sheet and
the Funding Agreement.
(G) The Project is a capital project appropriately undertaken by the District under the
Act and the District hereby authorizes the Project and the capital expenditures necessary to
complete the Project.
(H) The District hereby determines that it is necessary, desirable and in the best
interests of the District and its inhabitants that the District undertake the Project and that the
Project will serve the essential public purposes of the District.
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SECTION 5. AUTHORIZATION OF BONDS. The District hereby approves and
authorizes issuance of the Bonds for purposes of providing financing for the acquisition and
construction of the Qualifying Improvements comprising the Project. The Bonds shall be dated,
bear interest, be payable, mature, be subject to prepayment and have such other characteristics
as provided in the form of Funding Agreement attached hereto as Appendix A and shall be
secured by the Special Assessments as described therein. Such Funding Agreement, including
the form of Financing Agreement and form of Bond attached thereto, are hereby approved. The
District hereby authorizes the Chair to execute and deliver, and the Clerk of the District (the
"Clerk") to attest, on behalf of the District, the Funding Agreement and the Bonds in
substantially the forms 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, for purposes of providing financing for the
Project. The approval of execution given herein includes the approval of the District to allow
the Chair to execute and deliver, and the Clerk to attest, any requested documents on behalf of
the District with respect to closing the Loan and issuance of the Bonds.
SECTION 6. SECURITY FOR BONDS. The principal and interest of the Bonds issued
hereunder shall be payable solely from and secured by a lien upon the Special Assessments, in
the manner and to the extent provided in the Funding Agreement (the "Pledged Revenues").
SECTION 7. ADVANCES UNDER THE LOAN. The Loan may be drawn upon in
multiple drawings in accordance with the terms set forth in the Funding Agreement.
SECTION 8. AUTHORIZATION OF OTHER DOCUMENTS TO EFFECT
TRANSACTION. To the extent that other documents, certificates, opinions, or items are
needed to effect any of the transactions referenced in this Resolution, the Funding Agreement,
Financing Agreements or the Bonds and the security therefore, the Chair and other District
officials and staff are hereby authorized to execute and deliver and the Clerk is hereby
authorized to attest on behalf of the District such documents, certificates, opinions, or other
items and to take such other actions as are necessary or advisable for the full, punctual, and
complete performance of the covenants, agreements, provisions, and other terms as are
contained herein and in the documents included herein by reference.
SECTION 9. LIMITED OBLIGATION. The Bonds are special and limited
obligations of the District secured solely by the Pledged Revenues, and are payable from the
Pledged Revenues, in the manner and to the extent described herein and in the Funding
Agreement. The Bonds will not constitute a general debt, liability or obligation of the District,
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
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District, 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 Bonds and neither the holder thereof nor any
other party shall ever have the right to compel any exercise of any ad valorem taxing power of
the District, the County or of the State of Florida or any political subdivision thereof, directly or
indirectly to enforce such payment. The Bonds shall not constitute a lien upon any property of
the District or the County except upon the Pledged Revenues in the manner and to the extent
described herein and in the Funding Agreement.
SECTION 10. FINANCING AGREEMENTS. 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 to the
Funding Agreement, with such changes, insertions, and additions as the County Administrator
may approve after consultation with the County Attorney, the County Administrator's
execution thereof being evidence of such approval.
SECTION 11. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
Passed and adopted by the St. Lucie County Sustainability District at a regular meeting
duly called this 15th day of July, 2014.
ST. LUCIE COUNTY
ATTEST:
SUSTAINABILITY DISTRICT
By: ~ ..
Chair
APPRO~D AS TO FORM & CORRECTNESS:
~~%~% ~~i
County Attorney
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- -r °-~ ------
APPENDIX A
FORM OF FUNDING AGREEMENT
SPECIAL ASSESSMENT FUNDING AGREEMENT
(ENERGY AND SUSTAINABILITY FINANCING PROGRAM)
By and Between
ST. LUCIE COUNTY SUSTAINABILITY DISTRICT
and
INLAND MORTGAGE INVESTMENT CORPORATION
and
SOLAR AND ENERGY LOAN FUND OF ST. LUCIE COUNTY, INC.
Dated as of , 2014
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.
Page
ARTICLE I -- DEFINITION OF TERMS .................................................................................................. 2
Section 1.01. Definitions ....................................................................................................................... 2
Section 1.02. Interpretation .................................................................................................................. 4
Section 1.03. Titles and Headings ....................................................................................................... 4
ARTICLE II --REPRESENTATIONS AND WARRANTIES OF THE PARTIES ................................5
Section 2.01. Representations and Warranties of the District .........................................................5
Section 2.02. Representations and Warranties of Lender ................................................................ 5
Section 2.03. Representations and Warranties of SELF .................................................................... 6
Section 2.04. Program Administrator; Approvals ............................................................................ 6
ARTICLE III -- ADVANCES .....................................................................................................................8
Section 3.01. The Line of Credit; Purpose and Use ...........................................................................8
Section 3.02. The Loan .......................................................................................................................... 9
Section 3.04. Conditions Precedent to Advances ............................................................................12
Section 3.05. Application of Advances .............................................................................................15
ARTICLE IV -- COVENANTS OF THE DISTRICT .............................................................................17
Section 4.01. Performance of Covenants ..........................................................................................17
Section 4.02. Payment of Loan ...........................................................................................................17
Section 4.03. Compliance with Laws and Regulations ..................................................................18
Section 4.04. Compliance with Section 215.84, Florida Statutes ...................................................18
Section 4.05. Issuance of Other Debt ................................................................................................18
ARTICLE V -- EVENTS OF DEFAULT AND REMEDIES .................................................................19
Section 5.01. Events of Default ..........................................................................................................19
Section 5.02. Remedies ........................................................................................................................19
Section 5.03. Remedies Not Exclusive ..............................................................................................19
Section 5.04. Waivers, Etc ...................................................................................................................19
ARTICLE VI -- MISCELLANEOUS PROVISIONS ............................................................................. 21
Section 6.01. Covenants of District; Successors ...............................................................................21
Section 6.02. Term of Agreement; Exclusivity .................................................................................22
Section 6.03. Notice of Changes in Fact ............................................................................................22
Section 6.04. Amendments and Supplements .................................................................................22
Section 6.05. Notices ............................................................................................................................22
Section 6.06. Benefits Exclusive .........................................................................................................23
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Section 6.07. Transfer or Assignment of Agreement ......................................................................23
Section 6.08. Severability ....................................................................................................................23
Section 6.09. Counterparts .................................................................................................................23
Section 6.10. Applicable La~v; Venue; Waiver of Jury Trial ..........................................................24
Section 6.11. No Personal Liability ...................................................................................................24
Exhibit A Form of Advance Request....
Exhibit B Form of Financing Agreement ...........
Exhibit C Form of Bond ........................................
Exhibit D Loan Approval Flow Chart .................
Exhibit E Advance Disbursement Flow Chart..
........................................................................ A-1
........................................................................ B-1
........................................................................ C-1
........................................................................D-1
........................................................................ E-l
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SPECIAL ASSESSMENT FUNDING AGREEMENT
(ENERGY AND SUSTAINABILITY FINANCING PROGRAM)
This SPECIAL ASSESSMENT FUNDING AGREEMENT (ENERGY AND
SUSTAINABILITY FINANCING PROGRAM) (the "Agreement"), is made and entered into this
day of 2014 by and between ST. LUCIE COUNTY SUSTAINABILITY
DISTRICT (the "District"), a dependent special district of St. Lucie County (the "County"),
INLAND ST. LUCIE PACE, LLC (the "Lender"), and SOLAR AND ENERGY LOAN FUND OF
ST. LUCIE COUNTY, INC., a community development financial institution ("SELF").
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, pursuant to Chapter 1.25, Part I, Florida Statutes, Ordinance No. 10-025 as
codified in Chapter 1-19 of the Code of Ordinances of St. Lucie County, Florida, Section 163.08,
Florida Statutes (collectively, the "Act"), and other applicable provisions of law, and County
Resolution No. 10-259 (the "Resolution"), the County established the District and the Energy
and Sustainability Financing Program which promotes and encourages energy conservation
and Sustainability within the County through various means including but not limited to the
financing of related improvements through non-ad valorem assessments, sometimes referred to
as special assessments; and
WHEREAS, the Energy and Sustainability Financing Program, including the authority to
impose Special Assessments pursuant to Financing Agreements with Property Owners, was
validated by the Final Judgment entered by the Circuit Court of the Nineteenth Judicial Circuit
in Case No. 10-CA-5410; and
WHEREAS, the District entered into that certain Administration Agreement dated as of
July 3, 2012 with SELF, pursuant to which SELF has agreed to administer the Energy and
Sustainability Financing Program on behalf of the District; and
WHEREAS, in accordance with the Energy and Sustainability Financing Program, the
District is authorized to enter into Special Assessment Funding Agreements in order to establish
a non-revolving line of credit with which to pay the costs of Qualifying Improvements pursuant
to Financing Agreements; and
WHEREAS, the Lender is willing to provide such non-revolving line of credit in
accordance with the term sheet of the Lender dated February 24, 2014, as negotiated by the
parties hereto; and
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WHEREAS, it is estimated that the Pledged Revenues will be available in amounts
sufficient to provide for repayment of Advances, including the payment of interest thereon; and
WHEREAS, the Lender is willing to fund Advances upon the terms and conditions set
forth in 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 Resolution or as follows:
"Act" shall have the meaning assigned to that term in the recitals hereof.
"Advance" means a draw under the non-revolving line of credit contemplated hereunder
to pay Program Costs.
"Annual Payment Date" means May 1 of each year (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 a Special Assessment
pursuant to a Financing Agreement which is specially benefitted by mitigating burdens described
in the Act, through the construction and/or installation of one or more Qualifying Improvements.
"Board" means the Board of Supervisors of the District.
"Bonds" means the revenue bonds issued by the District to the Lender to evidence the
District's obligation to repay each Advance.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which the
payment office of the Lender 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.
"Disbursement Amount" means the amount disbursed by the Program Administrator to
the Vendor to pay in full the cost of providing the Qualifying Improvements.
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"District Administration Fee" means the one-time fee equal to 2% of the amount
financed pursuant to a Financing Agreement which shall be paid to the District from the
proceeds of each Advance to compensate the District for administration, collection and staff
expenses incurred each year in certifying the annual assessment roll(s) applicable to Financing
Agreements entered into hereunder and providing related support services.
"Energy and Sustainability Financing Program" means the program established by the
County in accordance with the Act and the Resolution pursuant to which the District 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 Special Assessments, and to pledge the proceeds from the
Special Assessments to repayment of Advances made under this Agreement, together with all
reasonable and necessary actions or undertakings of any kind necessary or required to implement
and administer such program.
"Event of Default" means an Event of Default as defined in Section 5.01 of this
Agreement.
"Financing Agreement" means an agreement between the District and a Property Owner
providing for the financing of Qualifying Improvements and the imposition of a Special
Assessment against Assessed Property. Each Financing Agreement shall be in substantially the
form attached hereto as Exhibit B.
"Interest Rate" means the annual rate of interest to be borne on the principal amount of
Advances made hereunder as described in Section 3.02 hereof, including the SELF Annual Fee.
"Lender" shall mean Inland St. Lucie PACE, LLC, and its successors and assigns.
"Loan" means the non-revolving line of credit contemplated hereunder in the aggregate
principal amount of up to $1,000,000 granted by the Lender to the District pursuant to and in
accordance with this Agreement.
"Maturity Date" means September 1, 2016.
"Pledged Revenues" means the proceeds of Special Assessments received by the District
pursuant to Financing Agreements.
"Program Administrator" means SELF, the District's designee for purposes of
administering the Energy and Sustainability Financing Program.
"Program Costs" means all costs associated with the Energy and Sustainability 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; the
costs associated with energy audits; the fees of fiscal agents, financial advisors, third party
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administrators, and consultants; administrative expenses; interest on Financing Agreements
including the SELF Annual Fee described in Section 3.02 hereof, origination fees imposed by the
Lender, administration fees imposed by the District, recording fees, closing costs, and such other
expenses as may be necessary or incidental to the Financing Agreements and the Energy and
Sustainability Financing Program contemplated herein, and reimbursement to the District for any
sums expended for the foregoing purposes in anticipation of execution of Financing Agreements.
"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,
renewable energy improvements, wind resistance improvements and eater conservation
improvements as described in and authorized by the Act and the Resolution.
"Special Assessments" means the non-ad valorem assessments levied pursuant to a
Financing Agreement to finance Program Costs funded with Advances under this Agreement.
"Tax Collector" means the St. Lucie County Tax Collector.
"Vendor" means the contractor engaged by the Property Owner to provide, construct,
deliver and install the Qualifying Improvements.
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.
[Remainder of Page Intentionally Left Blank]
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Section 2.01. Representations and Warranties of the District. The District represents
and warrants as follows:
(a) Existence. The District is a dependent special district of St. Lucie County,
Florida, duly created by the County and validly existing under the laws of the State of Florida,
with full power to enter into this Agreement, to pledge the Special Assessments in the manner
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
District has been duly authorized by all necessary action on the part of the District 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 District or any of its material properties is bound.
(b) Validity, Etc. This Agreement is a valid and binding obligation of the District
enforceable against the District 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 except to the extent that the availability of certain remedies
may be precluded by general principles of equity.
(c) Compliance with the Act. The Energy and Sustainability Financing Program
complies with the requirements of the Act.
Section 2.02. Representations and Warranties of Lender. The Lender represents and
warrants as follows:
(a) Existence. The Lender has 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 Lender and the making of the Loan have been duly authorized by all necessary action on
the part of the Lender and will not violate or conflict with applicable law or any material
agreement, indenture or other instrument by which the Lender or any of its material properties
is bound.
(b) Validity. This Agreement is a valid and binding obligation of the Lender
enforceable against the Lender 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)
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and except to the extent that the availability of certain remedies may be precluded by general
principles of equity.
Section 2.03. Representations and Warranties of SELF. SELF represents and warrants
as follo~~s:
(a) Existence. SELF is a community development financial institution with full
po~~er to enter into this Agreement, to perform its obligations hereunder and to act as Program
Administrator. The performance of this Agreement on the part of SELF have been duly
authorized by all necessary action on the part of SELF and will not violate or conflict with
applicable law or any material agreement, indenture or other instrument by which SELF or any
of its material properties is bound.
(b) Validity. This Agreement is a valid and binding obligation of SELF enforceable
against SELF 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
except to the extent that the availability of certain remedies may be precluded by general
principles of equity.
(c) Compliance with the Act. The Energy and Sustainability Financing Program
complies with the requirements of the Act.
(d) Errors and Omissions Insurance. SELF shall obtain and maintain an errors and
omissions insurance policy with coverage amounts of $1,000,000 through the Maturity Date.
SELF shall direct its insurer to notify Lender of any lapse or within 30 days of each
renewal/expiration date. Additionally, the Lender shall be named as an additional insured on
the errors and omissions insurance policy.
Section 2.04. Program Administrator; Approvals. Applications for financing of
Qualifying Improvements will be processed for approval in accordance with this section and
generally as described in the procedural flow chart included in Exhibit D attached hereto. The
parties ackno~~ledge that the flow chart is conceptual, is included herein for example purposes
only to illustrate how the approval process may unfold, and that deviations from or revisions to
the flow chart may be necessary or desirable as actual Advances are approved and funded
hereunder.
(a) The District has engaged SELF to act as Program Administrator to administer the
Energy and Sustainability Financing Program. The Program Administrator shall pre-screen
applications for financing of Qualified Improvements in accordance with the approval criteria
set forth below. The Lender will give final approval in writing to all applications including final
loan terms, closing documentation and energy audits, as applicable, following which the
Program Administrator will provide the Vendor with notice to proceed with construction of the
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Qualifying Improvements. The Lender shall also give final approval to each Financing
Agreement.
(b) Contractors. The Lender will receive apre-approved contractor list from the
Program Administrator. All contractors must be properly licensed, insured and qualified in
order to perform work funded through an Advance provided by the Lender. No contractor
shall be an affiliate, principal, executive, or employee of SELF. In the event that a member of
the Board of Directors of SELF appears on the pre-approved contractor list, then (i) such board
member shall disclose to the board the affiliate relationship(s) giving rise to the conflict of
interest before any decisions are made that could benefit such member, (ii) the member shall
abstain from casting any vote that could benefit them personally, and (iii) the pre-approved
contractor list shall disclose any affiliate relationships.
(c) Approval Criteria for Applications. The following criteria shall be utilized in
determining whether an application for financing of Qualifying Improvements shall be
approved by the Lender:
(1) All property taxes and any other assessments levied on the same bill as property
taxes for the Assessed Property are paid and have not been delinquent for the preceding 3 years
or the Property Owner's period of ownership, whichever is less.
(2) There are no involuntary liens, including, but not limited to, construction liens
on the Assessed Property.
(3) No notices of default or other evidence of property-based debt delinquency have
been recorded during the preceding 3 years or the Property Owner's period of ownership,
whichever is less.
(4) The Property Owner is current on all mortgage debt on the Assessed Property
and no notices of default or foreclosure due to non-payment of property taxes or mortgage loan
payments within the preceding 3 years.
(5) The Qualifying Improvement(s) proposed for funding shall be affixed to a
building, facility or structure that is located upon and part of the Assessed Property and shall
constitute an improvement to the Assessed Property.
(6) Qualifying Improvements shall not be financed hereunder for buildings or
facilities under new construction or construction for which a certificate of occupancy or similar
evidence of substantial completion of new construction or improvement has not been issued.
(7) Written consent of the holders or loan servicers of any mortgage encumbering or
otherwise secured by the Assessed Property regarding execution of the Financing Agreement
by the Property Owner, including an acknowledgement that upon recordation of the Financing
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Agreement, the entire balance of the Special 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.
(8) Qualifying Improvements may only be financed hereunder for non-residential
and multi-family parcels, and parcels owned by non-profit entities.
(9) The Assessed Property must be located in St. Lucie County, Florida.
(10) The Property O~~ner must have fee simple title to the Assessed Property.
(11) An energy audit demonstrating that the annual energy savings from the
Qualified Improvement will equal or exceed the annual repayment amount of the Special
Assessment; provided, however, that energy audits shall not be required for Qualifying
Improvements consisting of wind resistance, water conservation or lighting retrofit
improvements.
(12) The just value of the Assessed Property must exceed the sum of all privately-
held mortgages or encumbrances attached to the Assessed Property, if any.
(13) The Property Owner must not have been subject to bankruptcy proceedings
during the prior three (3) years.
(14) The Assessed Property is not the subject of a pending or imminent eminent
domain action, environmental litigation or other cause of action affecting the value of the
Assessed Property, excluding actions initiated by the Property Owner regarding the value
attributed to the Assessed Property by the Property Appraiser for purposes of ad valorem
taxation.
(15) There are no judgments against the Property Owner ~~hich could result in a lien
against the Assessed Property.
ARTICLE III
ADVANCES
Section 3.01. The Line of Credit; Purpose and Use. On the date of this Agreement, the
Lender shall make available to the District the Loan in the aggregate principal amount of up to
One Million Dollars ($1,000,000). The proceeds of Advances made as part of the Loan from
time to time shall be used solely to fund Program Costs financed pursuant to Financing
Agreements.
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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 Lender's sole discretion and
evidenced by a writing executed by the Lender), subject to the terms and conditions of this
Agreement, and so long as there exists no Event of Default as defined in Section 5.01 hereof, the
Lender agrees to extend to the District anon-revolving line of credit in an amount not to exceed
One Million Dollars ($1,000,000) for purposes of financing Program Costs financed pursuant to
Financing Agreements. In no event shall the aggregate sum of all principal advances made by
the Lender to the District hereunder exceed the sum of $1,000,000 unless approved in advance
by the Lender.
Section 3.02. The Loan. The general terms of the Loan shall be as follo~~s:
(a) Bonds. Each advance shall be accompanied by a Bond in substantially the form
attached hereto as Exhibit C.
(b) Amount of Loan. The Loan shall have a maximum principal amount of up to
One Million Dollars ($1,000,000).
(c) Interest. Each Advance shall correspond to a Financing Agreement. The Interest
Rate applicable to each Advance (and each Financing Agreement) to be paid to Lender shall be
a function of the term of the corresponding Financing Agreement, in accordance with the
following table:
Term of
Financing Agreement
Base Interest Rate
5 ears 4.50% + 5 ear treasur rate
10 years 4.50% + 10 year treasury rate
15 ears 4.50% + inter olated 15 ear treasur rate
20 years 4.50% + interpolated 20 year treasury rate
(i) SELF will receive a 0.75% interest rate that will be added to the Interest
Rate payable to Lender described above which will be a servicing fee (the "SELF Annual
Fee") that will continue through the term of the Financing Agreement. Payment of the
SELF Annual Fee is subordinate to Lender's receipt of interest.
(ii) Interest on Financing Agreements shall begin to accrue thirty (30) days
after the effective date thereof on a 30/360 day count basis.
(iii) Notwithstanding anything herein to the contrary, the total rate of interest
applicable to the Loan, Advances, and/or Financing Agreements shall never exceed the
maximum rate authorized by law.
9
(d) Principal. The principal amount of each Financing Agreement shall amortize
over the term thereof and shall be paid, together with interest as specified above, by the earlier
of (i) thirty (30) days after receipt by the District of the proceeds of Special Assessments
pursuant to a Financing Agreement, or (ii) the Annual Payment Date. On such date, the District
shall forward proceeds of the Special Assessment (minus the SELF Annual Fee and any fees
imposed by the Tax Collector as contemplated by Section 4.02 hereof) to the Lender for
payment of the debt obligation evidenced by the applicable Financing Agreement(s); provided,
however, that payment by the District to the Lender is subject in all cases to actual receipt of
Special Assessment(s) by the District. The District shall make such payments by check mailed
to the Lender at the address designated in writing by the Lender for purposes of payment or by
bank wire or bank transfer as Lender may specify in writing to the District or otherwise as the
District and the Lender may agree.
The parties hereto acknowledge that some property owners may elect to pay annual ad
valorem taxes and non-ad valorem assessments (including Special Assessments) on a quarterly
installment basis, as authorized by Section 197.222, Florida Statutes. Any such installment
payments received by the District shall be remitted to the Lender within thirty (30) days of
receipt for payment of the amounts due under the respective Financing Agreement.
(e) Origination Fee. Each Advance shall be subject to a 1% origination fee due to
Lender upon payment of the Advance. Such fee shall be included in the principal amount of
each Financing Agreement.
(f) Program Administration Fee. Each Advance shall be subject to a 4.5% program
administration fee due to SELF upon payment of the Advance. Such fee shall be included in the
principal amount of each Financing Agreement and shall consist of three components:
(i) 2% origination fee for origination and processing of application to pre-
approval that will be submitted to Lender for final approval; and
(ii) 2% project management fee for overseeing and managing the
construction and/or installation of Qualifying Improvements from start to finish; and
(iii) 0.5% for deposit into a "Business Development Fund" to be established
and maintained as a trust fund by SELF from which SELF may pay third party referral
fees, marketing expenses and other costs associated with developing the Energy and
Sustainability Financing Program. An affiliate of Lender, or any other third party, will
have the right to refer applicants for Financing Agreements in St. Lucie County to the
Program Administrator (subject to program guidelines administered by the Program
Administrator) for a referral fee that will be paid for by the Program Administrator from
the Business Development Fund; provided, however, that the referral fee shall not
exceed .5% of the principal amount of the Financing Agreement for which the referral
was made.
10
(g) Capitalized Interest. Each Financing Agreement may include a capitalized
interest component which shall be described in the Financing Agreement. Capitalized interest,
if any, shall accrue at the rate of interest applicable to the respective Financing Agreement;
provided, however, that such rate shall not include the SELF Annual Fee. Capitalized interest
shall be determined as follows:
(i) For Financing Agreements entered into anytime on or after May 1 of a
given calendar year through August 15 of the same calendar year, there shall be no capitalized
interest.
(ii) For Financing Agreements entered into anytime after August 15 of a
given calendar year, capitalized interest shall apply for the period between execution of the
Financing Agreement and the immediately following April 30.
(h) Security. Each Financing Agreement shall be secured solely by the Special
Assessments imposed in accordance therewith, and such Special Assessments are hereby
pledged to repayment of the Loan. The parties hereto acknowledge that the Special
Assessments shall be collected on the annual property tax bill by the St. Lucie County Tax
Collector in accordance with the Act, pursuant to which the Tax Collector assumes collection
and enforcement responsibility through the tax certificate/tax deed process described in
Chapter 197, Florida Statutes. The lien of the Special Assessments against Assessed Property
shall be in the name of the District; provided, however, that, to the extent allowed by law, the
lien against Assessed Property shall be assigned to the Lender at Lender's request for purposes
of enforcing payment of delinquent Special Assessments through foreclosure or any other
enforcement mechanism authorized by law.
(i) Advances under the Loan. On or before the Maturity Date, the Loan may be
drawn upon in multiple Advances under the following terms:
(i) each Advance must be requested by the District through an advance
request (an "Advance Request") in writing and executed by the County Administrator,
from the Lender, no later than five (5) Business Days 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) No Advance Request will be presented to the Lender prior to the
applicable Financing Agreement(s) being approved and executed;
11
(iv) each Advance Request must state that the District remains in full
compliance with the terms of this Agreement, 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;
(v) no Advance Request shall be honored after the occurrence of an Event of
Default;
(vi) the conditions set forth in Section 3.04 of this Agreement must have been
satisfied prior to the first Advance;
(vii) the Advance must be for Program Costs;
(viii) Advances shall be funded within three (3) Business Days of the Lender's
final approval of a Financing Agreement and the recordation of such Financing
Agreement or a summary memorandum thereof; and
(ix) The minimum cost per project to be financed through a Financing
Agreement, and therefore the minimum Advance, is $50,000 including all Program
Costs applicable to such project and Financing Agreement. The Lender may, in its sole
discretion, fund Advances below $50,000, provided two or more such Advances which
in the aggregate equal or exceed $50,000 are funded simultaneously.
(j) Prepayments. The amounts due and owing under each Financing Agreement
may be prepaid prior to their respective maturities, in whole, on any date; provided, however,
that the prepayment amount shall include all outstanding principal and interest accrued
thereon together with a prepayment penalty of 5% of the outstanding principal balance payable
to Lender.
(k) Presentment. For so long as the Bonds are held by the Lender, the District agrees
that all amounts payable to the Lender thereunder shall be made to the Lender without any
presentment thereof, except upon payment of the final installment of principal, and without
any notation of such payment being made thereon.
(1) Records. The Program Administrator shall maintain accurate records of each
Advance, Financing Agreement, prepayment of Special Assessments, and annual Special
Assessment receipts including the allocation thereof among principal and interest components,
capitalized interest, if any, and the SELF Annual Fee. Such records shall be maintained in a
written report (which may be in electronic format) and available to any party hereto upon
request.
Section 3.04. Conditions Precedent to Advances.
12
(a) Conditions Precedent to All Advances. The Lender shall approve all
applications for financing of Qualifying Improvements and all Financing Agreements prior to
funding an Advance. In addition, there shall be filed with Lender the following, each in form
and substance reasonably acceptable to the Lender, prior to funding an Advance.
(i) An executed Bond in the amount of the Advance;
(ii) Copies of permits necessary for construction or installation of the
Qualifying Improvements;
(iii) Copies of invoices pertaining to the Qualifying Improvements;
(iv) Waivers of any mechanic's liens pertaining to the Qualifying
Improvements;
(v) A certification from the Program Administrator that the Advance
complies with the Act;
(vi) A list of all costs associated with a particular Financing
Agreement;
(vii) Written consent of the holders or loan servicers of any mortgage
encumbering or otherwise secured by the Assessed Property regarding execution
of the Financing Agreement by the Property Owner, including an
acknowledgement that upon recordation of the Financing Agreement, the entire
balance of the Special 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; and
(viii) Executed Financing Agreement and proof of recording thereof
within five (5) days of execution consistent ~~ith section 163.08(8), Florida
Statutes.
(b) Conditions Precedent to Initial Advance. Prior to or simultaneously with the
delivery of the Advance Request hereunder by the District in connection with the initial
Advance, there shall be filed with the Lender the following, each in form and substance
reasonably acceptable to the Lender:
(i) An opinion of counsel to the District to the effect that:
13
(1) this Agreement has been duly authorized, executed and
delivered by the District and constitutes a valid, binding and enforceable
agreement of the District in accordance with its 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;
(2) the District'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;
(3) the District (A) is a dependent special district created by St.
Lucie County, and (B) has power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated by
such instrument;
(4) 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 District a breach or default under,
any indenture, mortgage, deed of trust, agreement or other instrument to
which the District 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 District
or its properties are subject;
(5) 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 District or the
right of any of its officers to their respective offices; and
14
(6) all conditions contained in the Act and The Resolution
precedent to the issuance of this Agreement have been complied with;
and
(ii) Such other documents as the Lender reasonably may request.
Section 3.05. Application of Advances. The process for disbursement of
Advances is generally described in the procedural flow chart included in Exhibit E attached
hereto. The parties acknowledge that the flow chart is conceptual, is included herein for
example purposes only to illustrate how the disbursement process may unfold, and that
deviations from or revisions to the flow chart may be necessary or desirable as actual Advances
are approved and funded hereunder. At the time of delivery of each Advance herein
authorized, proceeds thereof shall be used solely to fund Program Costs and shall be disbursed
as follows:
(a) The origination fee contemplated by Section 3.02(e) hereof shall be retained by
the Lender.
(b) The balance of the Advance shall be deposited into an account specified by the
District and disbursed by the District as follows:
(1) The program administration fee contemplated by Section 3.02(f) hereof
shall be disbursed to the Program Administrator.
(2) The District Administration Fee shall be disbursed to the County
Administrator.
(3) Capitalized interest associated with the Advance, if any, shall be retained
by the District and paid to the Lender on the immediately following Annual Payment Date.
(4) The balance of the Advance shall be forwarded to the Program
Administrator for application as follows:
(i) The Program Administrator shall pay or reimburse all recording
fees and any other fees associated with recording the Financing Agreement.
(ii) The Program Administrator shall reimburse the Property Owner
for expenses associated with an energy audit, if any, if such reimbursement was
approved in advance by the Program Administrator.
(iii) The Program Administrator shall pay the Disbursement Amount
directly to the Vendor; provided, however, that amounts disbursed to the
15
Vendor shall not exceed the maximum guaranty amount provided by the
Vendor and approved by the Lender during the financing application.
(c) The parties hereto acknowledge that the Lender anticipates that construction or
installation of Qualifying Improvements shall be completed prior to payment of the
Disbursement Amount to the Vendor. Accordingly, prior to payment of the Disbursement
Amount to the Vendor, there shall be filed ~~ith the Lender a certificate of completion from the
Vendor. The certificate of completion shall be in a form and substance reasonably acceptable to
Lender.
(d) In the sole discretion of the Lender, and if approved in advance by the Lender in
writing, proceeds of an Advance may be disbursed to the Vendor prior to completion of the
Qualifying Improvements pursuant to prudent construction lending practices; provided,
ho~~ever, that the Vendor must provide a maximum guaranty for work performed. Interest
shall accrue on the full loan amount as provided in the corresponding Financing Agreement. In
order to make such partial payments to the Vendor, verification by the Program Administrator
of partial completion will be necessary. Partial payments will be subject to the consent of the
Lender as to the frequency and amount of the partial payment.
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16
ARTICLE IV
COVENANTS OF THE DISTRICT
Section 4.01. Performance of Covenants. The District covenants that it will perform
faithfully at all times its covenants, undertakings and agreements contained in this Agreement
or in any proceedings of the District relating to the Loan.
Section 4.02. Payment of Loan.
(a) The District 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 District secured solely by the Pledged
Revenues, and is payable solely from the Pledged Revenues, in the manner and to the extent
described herein. The Loan will not constitute a general debt, liability or obligation of the
District 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
District 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 Lender shall never have the right to compel
any exercise of any ad valorem taxing power of the District 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 District except upon the Pledged Revenues in the
manner and to the extent described herein.
(c) The parties hereto acknowledge that the Special Assessments shall be collected
and enforced in accordance with the Act and the "Uniform Collection Method" set forth in
Section 197.3632, Florida Statutes, pursuant to which non-ad valorem assessments may be
collected on the annual property tax bill administered by the Tax Collector. The annual
amount of the Special Assessment may be increased by up to 2% for purposes of reimbursing
the Tax Collector for administrative costs incurred in collecting and processing the Special
Assessments pursuant to such method, as required by Section 197.3632(2), Florida Statutes.
The District covenants to enforce collection of the Special Assessments through any means
authorized by law including but not limited to the tax certificate process authorized by Chapter
197, Florida Statutes and administered by the Tax Collector, and/or Chapter 173, Florida
Statutes. Nothing herein shall be construed to prohibit the Lender from purchasing tax
certificates associated with real property subject to a Financing Agreement. In the event a tax
certificate associated with Assessed Property is struck to the county within the meaning of
section 197.432, Florida Statutes, then, to the extent allowed by law, the District shall take such
actions as may be necessary to assign its rights of enforcement and collection against such
Assessed Property to the Lender such that Lender may directly enforce payment by removing that
property from the assessment roll and/or instituting foreclosure proceedings, or by any other
17
method authorized by law. The proceeds of default rates of interest and/or late payment penalties,
if any, arising from delinquent Special Assessments shall be shared equally by the District and the
Lender.
(d) If through mistake or inadvertence a Special Assessment is omitted from the annual
assessment roll(s) certified to the Tax collector for collection pursuant to Section 197.3632, Florida
Statutes, then the District shall provide for direct billing of the amount due for that annual
collection cycle.
(e) Upon execution hereof, the District ~~ill establish an account through the
County's finance department to be known as the "Special Assessment Funding Agreement
Account" (the "Assessment Account"). The District ti~ill provide for deposit of the Special
Assessment proceeds, minus the SELF Annual Fee and such fees as are necessary to reimburse
the Tax Collector in accordance with paragraph (c) above, into the Assessment Account upon
receipt. The Assessment Account shall constitute a trust fund for the benefit of the Lender.
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.
Section 4.03. Compliance with Laws and Regulations. The District shall maintain
compliance with all federal, state and local laws and regulations regarding the Energy and
Sustainability Financing Program.
Section 4.04. Compliance with Section 215.84, Florida Statutes. The District
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.
Section 4.05. Issuance of Other Debt. Through the Maturity Date, the District is not
permitted to incur indebtedness secured by the Pledged Revenues other than the Loan or to
pledge the Pledged Revenues to any other debt obligation of the District, without the prior
written consent of the Lender.
[Remainder of page intentionally left blank]
18
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
Section 5.01. Events of Default. The following shall constitute Events of Default:
(a) If the District fails to make any payment of principal or interest under this Special
Assessment Funding Agreement as the same becomes due and payable;
(b) If the District defaults in the performance or observance of any covenant or
agreement contained in this Special Assessment Funding Agreement (other than as set forth in (a)
above) and fails to cure the same within thirty (30) days;
(c) If the District shall be subject to a determination of financial emergency as provided
for in Part V, Chapter 218, Florida Statutes; or
(d) The filing of a petition by or against the District relating to bankruptcy,
reorganization, arrangement or readjustment of debt of the District or for any other relief relating
to the District 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
District, and the continuance of any such event for 90 days undismissed or undischarged. The
District agrees that upon continuance of any such event for 90 days undismissed or undischarged,
or if the District is unable for any reason to enforce collection of any Special Assessment, then the
District shall, to the extent allowed by law, take such actions as may be necessary to assign its
rights of enforcement and collection against Assessed Property to the Lender.
Section 5.02. Remedies. Upon the occurrence and during the continuation of any Event
of Default, the Lender 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 District
or by any officer thereof.
Section 5.03. Remedies Not Exclusive. No remedy herein conferred upon or reserved
to the Lender 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 Lender 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 Lender may be exercised from time to time and as often as may
be deemed expedient.
19
The Lender 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.
[Remainder of page intentionally left blank]
20
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Covenants of District; Successors. (a) All of the covenants, stipulations,
obligations and agreements contained in this Agreement shall be deemed to be covenants,
stipulations, obligations and agreements of the District 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 ~~hom or to which any power or
duty affecting such covenants, stipulations, obligations and agreements shall be transferred by
or in accordance with law.
(b) The District covenants that the District (or a third party administrator selected by the
District if approved in writing, in advance, by the Lender) will succeed SELF as Program
Administrator and will assume the rights, responsibilities and obligations contemplated for the
Program Administrator hereunder, if:
(i) SELF withdraws, voluntarily or involuntarily, from its role as Program
Administrator;
(ii) The filing of a petition by or against SELF relating to bankruptcy,
reorganization, arrangement or readjustment of debt of SELF or for any other relief
relating to SELF 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 SELF, and the continuance of any such event for 90 days
undismissed or undischarged; or
(iii) There is any occurrence of fraudulent, unlawful, grossly negligent, dishonest
or willful misconduct of SELF or any officer or director of SELF.
(c) Upon the occurrence of any event set forth in Section 6.OI (b)(i) through (iii) (each
an "Event") and/or if the District or a third party administrator selected by the District succeeds
SELF as Program Administrator, then the Lender may, in its sole discretion, discontinue the
funding of Advances hereunder by providing written notice of its intent to discontinue funding
to the District. If such written notice indicates the Lender's intent to permanently discontinue
funding Advances, or if funding is discontinued follo~n~ing an Event for more than sixty (60)
days then the exclusivity provisions set forth in Section 6.02 below shall no longer apply.
Notwithstanding the foregoing, if the Lender has discontinued funding following an Event for
more than sixty (60) days and (1) all the other parties are not ready, willing and able to
perform, or (2) the Event has not been resolved to Lender's reasonable satisfaction, then the
exclusivity provisions set forth in Section 6.02 shall continue to apply. The Lender's
determination to discontinue funding under this section shall not affect any Financing
21
Agreements then recorded or any then-pending applications for the financing of Qualifying
Improvements.
Section 6.02. Term of Agreement; Exclusivity. This Agreement shall be in full force
and effect from the date hereof through the Maturity Date. The Lender shall have the exclusive
right to fund all Financing Agreements entered into between the District and Property Owners
for the financing of Qualifying Improvements constructed or installed in St. Lucie County from
the date hereof through the Maturity Date, including any extension of the Maturity Date
requested by the District and granted by the Lender. Any such extension shall be approved in
writing by the Lender.
Section 6.03. Notice of Changes in Fact. Promptly after the District becomes aware of
the same, the District will notify the Lender of any default under this Agreement, specifying in
each case the nature thereof and what action the District 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 parties hereto.
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 District or the Lender,
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) To District: St. Lucie County Sustainability District
Attn: County Administrator
2300 Virginia Avenue
Ft. Pierce, Florida 34982
With a copy to: County Attorney
2300 Virginia Avenue
Ft. Pierce, Florida 34982
(b) To SELF: Solar Energy Loan Fund of St. Lucie County, Inc.
2400 Rhode Island Avenue (P.O. Box 5506)
Fort Pierce, Florida 34950 (34954)
22
(c) To Lender: Inland St. Lucie PACE, LLC
2907 Butterfield Road
Oak Brook, Illinois 60523
Attn: Art Rendak
With a copy to: The Inland Real Estate Group, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: General Counsel
Any party may, by notice sent to the other parties, 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 District, SELF and the Lender, any right, remedy or claim,
legal or equitable, under or by reason of this Agreement or any provision hereof, this
Agreement and all its provisions being intended to be and being for the sole and exclusive
benefit of the District, SELF and the Lender.
Section 6.07. Transfer or Assignment of Agreement. This Agreement may not be
transferred or assigned without the express written consent of the District.
Section 6.08. 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 District to the full extent from time to
time permitted by law.
Section 6.09. 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.
23
Section 6.10. Applicable Law; Venue; Waiver of Jury Trial. This Agreement shall be
governed exclusively by and construed in accordance with the applicable laws of the State of
Florida. The exclusive venue of any legal or equitable action that arises out of or relates to this
Agreement shall lie in State Court in St. Lucie County, Florida. In any action, the parties waive
any right to jury trial.
Section 6.11. No Personal Liability. Notwithstanding anything to the contrary
contained herein, or in any other instrument or document executed by or on behalf of the
District or SELF in connection herewith, no stipulation, covenant, agreement or obligation of
any present or future member of the District Board of Supervisors, the County Board of County
Commissioners, SELF, the Lender, employees or agents thereof, employees or agents of
successors thereto, 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 District, the County, SELF or the Lender, 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.
[Remainder of page intentionally left blank]
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first set forth herein.
(SEAL)
ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT
By:
Chair
ATTEST:
Approved as to Form:
Deputy Clerk County Attorney
SOLAR AND ENERGY LOAN FUND OF
ST. LUCIE COUNTY, INC.
By:
Name:
Title:
INLAND ST. LUCIE PACE, LLC
sy:
Name:
Title:
25
EXHIBIT A
FORM OF ADVANCE REQUEST
[Lender and address]
The St. Lucie County Sustainability District (the "District") does hereby request the
following Advance Request made pursuant to the Special Assessment Funding Agreement
(Energy and Sustainability Financing Program) by and between the District, Solar and Energy
Loan Fund, and (the "Lender") dated , 20] 4 (the "Agreement").
1. This advance shall be designated as the "Special Assessment Funding Agreement
(Energy and Sustainability Financing Program) -Draw for Financing Agreement No. _."
2. The principal amount of this advance shall be $ and the advance
date shall be , 20 The amount of the advance is determined as follows:
Recording Fees:
Program Administrator Fee:
District Administration Fee:
Origination Fee:
Capitalized Interest:
Reimbursement of energy audit expense to owner:
Disbursement Amount Paid to Vendor:
Total: $
3. The wire instructions for the transfer are as follows:
[To Come]
4. The District ~~arrants 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 ~~ith the passage of time or the giving of notice.
4. Following this advance, the remaining principal amount of advances the District
may draw upon pursuant to the requirements of the Agreement is $
A-1
Dated , 20_
ST. LUCIE COUNTY SUSTAINABILITY DISTRICT
By:_
Name:
Title:
A-2
Financing Agreement No.
Prepared By and after Recording
Return to:
FINANCING AGREEMENT
This Financing Agreement (the "Agreement") is made and entered into on
20J by and between the ST. LUCIE COUNTY SUSTAINABILITY DISTRICT (the
"District"), a dependent special district established by St. Lucie County, Florida, 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 reneti~able energy improvements and sustainability
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 1-1.9.10 of the sustainability Ordinance, and/or "qualifying
improvements" within the meaning of the Act.
1
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 ~~ith the appendices attached hereto, are
incorporated herein as a material part of this Agreement.
SECTION 2. DEFINITIONS. Capitalized terms not otherti~ise defined herein shall
have the meanings set forth in the Resolution. As used in this Agreement, the following terms
shall have the following meanings.
"Administration Cost" means the cost incurred by the District in administering the
Program and the Special Assessment contemplated hereunder, including but not limited to
origination fees, Program Administrator fees, and 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 Special Assessment levied
hereunder which is due in any given Tax Year, including interest.
"Bondholder" means the beneficial oti~ner of any bonds or other debt obligations issued
by the District for purposes of financing the Improvements.
"Business Day" means any day the County is open for business.
"Collection Costs" means the annual costs associated ~~ith 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 797.3632, 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, 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.
2
"Vendor" means the contractor engaged by the Owner to provide, construct, deliver and
install the Improvements.
"Special 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.
"Tax Year" means the period from January 1st through the following December 31st.
SECTION 3. SPECIAL ASSESSMENT AND LIEN.
(A) Owner agrees that upon recordation of this Agreement, the Assessed Property
shall be subject to a Special Assessment levied by the District in the principal amount of
$ , as shown in Appendix C.
(B) Owner hereby expressly consents to the imposition of the Special 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 Special 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 Special 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 Special 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
3
the District in exchange for resolving all questions about the validity, appropriateness, and
enforceability of the Special Assessment and upon execution of this Agreement any question or
controversy regarding the Special Assessment shall forever be conclusively resolved.
(D) Owner acknowledges that the Special Assessment shall be pledged to the
repayment of bonds or other debt obligations issued by the District to the Bondholder.
(E) Owner agrees and covenants to timely pay each Annual Payment and
acknowledges that failure to pay any Annual 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, and that upon recordation the
Special Assessment arising hereunder shall constitute a lien coequal with the lien of all state,
county, district, and municipal taxes and assessments, superior in dignity to all other liens,
titles, and claims, until paid.
(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
all successors in interest.
(H) 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.
(n 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 ~~ork
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 assessments levied on the
same bill as property taxes for the Assessed Property are paid and have not been delinquent for
the preceding 3 years or the Owner's period of ownership, whichever is less; there are no
involuntary liens, including, but not limited to, construction liens on the Assessed Property; no
notices of default or other evidence of property-based debt delinquency have been recorded
during the preceding 3 years or the Owner's period of ownership, whichever is less; and Owner
is current on all mortgage debt on the Assessed Property, if any, and no notices of default or
foreclosure due to non-payment of property taxes or mortgage loan payments within the
preceding 3 years.
(L) [If applicable: Owner has obtained the written consent of the holders or loan
servicers of any mortgage encumbering or otherwise secured by the Assessed Property
regarding execution of this Agreement by the Owner, including an acknowledgement that upon
recordation of the Financing Agreement, the entire balance of the Special Assessment (including
4
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. Owner has provided the District with a copy of such written consent prior to
execution hereof.]
(NI) 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
solely responsible for ensuring that the Improvements are completed as proposed in the
proposal, estimate, and/or binding written invoice provided by the Vendor.
(N) Owner agrees to provide utility records to assist the District in tracking utility
savings resulting from the Improvements.
(O) 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.
(P) 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.
(Q) Owner hereby consents to providing the District with access to the Assessed
Property for purposes of inspecting the Improvements.
(R) Owner acknowledges that the repayment term contemplated hereunder may not
exceed twenty (20) years.
(S) Owner acknowledges that the Annual Payment will be collected on the annual
property tax bill administered by the St. Lucie County Tax Collector and that the Annual
Payment will include charges and fees imposed by the St. Lucie County Tax Collector in an
amount up to 2% per year, in accordance with section 197.3632(2), Florida Statutes.
(T) Owner acknowledges that there is no discount associated with prepaying the
Special Assessment prior to its maturity, and that a premium will apply to any prepayment
as provided in Section 12.
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.
5
(B) By execution hereof, Owner ackno~~ledges and directs disbursement of the
Disbursement Amount directly to the Vendor.
SECTION 6. COLLECTION OF SPECIAL ASSESSMENT ON PROPERTY TAX
BILL; CAPITALIZED INTEREST.
(A) Annual Payments, including Collection Costs and annual interest on the Special
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
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 Special 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 recordation of this Agreement or a summary memorandum in the
public records of St. Lucie County, Florida, Annual Payments shall be collected 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) Interest shall accrue on the unpaid Special Assessment from [the effective date
hereof/thirty days after approval of the financing agreement by Inland] at a simple interest rate
of not to exceed percent (_%) per annum computed on a 30/360 day count basis. If
applicable, the first Annual Payment may consist solely of capitalized interest representing
interest accruing on the Special Assessment between the effective date hereof and April 30,
20 ,and shall be payable from proceeds of the Disbursement Amount. The amount of
capitalized interest is set forth in Appendix C.
SECTION 7. USE OF PROCEEDS.
(A) Funds advanced by the District hereunder shall be used for the sole purpose of
paying the costs and expenses of acquiring and constructing the Improvements. Such costs and
expenses may include, but are not limited to, recording fees, accounting and legal fees, costs
associated with energy audits, if applicable, including reimbursement to the Owner for energy
audits related to the Improvements and approved by the Program Administrator, origination fees
and Program Administrator fees, Capitalized Interest, if applicable, disbursement of the
Disbursement Amount to the Vendor. Such costs and expenses are described in Appendix C
hereto.
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.
6
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.
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
including foreclosure. Owner shall pay all costs incurred by the District for such enforcement,
including reasonable attorney's fees. District will not seek to accelerate the unpaid balance of
the Special 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. RESERVED.
SECTION 12. PREPAYMENT OF SPECIAL ASSESSMENT. Owner may prepay
the Special Assessment by paying the principal amount owing on the Special Assessment, and
accrued interest, less a credit for interest paid and not yet accrued, if any, and a prepayment
premium equal to 5% of the principal balance outstanding, all as determined by the District.
Owner shall notify the Program Administrator in writing of O~~ner's determination to prepay
the Special Assessment at least ten (10) Business Days prior to the date Owner intends to prepay
the Special Assessment.
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, wind resistance or water conservation, and is not based on
the value of property. You are encouraged to contact the county property
7
appraiser's office to learn more about this and other assessments that may be
provided bylaw.
SECTION 14. INDEMNIFICATION. Owner shall indemnify and hold harmless the
Bondholder, the District and the Program Administrator, including their respective officers,
agents 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 costs of
investigating any claims against the Bondholder, the District and the Program Administrator.
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 Courtin and for St. Lucie County, Florida.
SECTION 17. ASSIGNMENT. 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 Special Assessment and any other payments due to District hereunder, ~~ithout
obtaining the consent of Owner.
SECTION 18. TERM. The term of this Agreement shall be until the Special
Assessment, including all accrued interest thereon, has been paid in full.
SECTION 19. THIRD PARTY BENEFICIARY. The parties hereto acknowledge
that the Bondholder is a third party beneficiary of this Agreement.
SECTION 20. 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
be deemed an original, and all of such counterparts together shall constitute one and the same
instrument.
8
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, Oti~ner and District have entered into this Agreement as of the last
day signed below.
OWNER [add additional signature blocks if
Assessed Property is owned jointly]
Signed, sealed and delivered
In our presence:
Witness #1
sy:
[Name]
(Witness #7 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 B
DESCRIPTION OF IMPROVEMENTS
[DESCRIBE OR AFFIX VENDOR INVOICE]
B-1
APPENDIX C
SPECIAL ASSESSMENT AND ANNUAL PAYMENTS
Parcel Identification No.:
Svecial Assessment Amount
Recording Fees: $
Program Administrator Fee:
District Administration Fee:
Origination Fee:
Capitalized Interest:
Reimbursement of energy audit expense to owner:
Disbursement Amount Paid to Vendor:
TOTAL SPECIAL 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]
isbursement Dates: First Payment
Will Appear on
Tax Bill for
Year:
Annual Payment Due
No Later Than:
Se tember 1, 2013 - Au ust 15, 2014 2014 March 31, 2015
Se tember 1, 2014 - Au ust 15, 2015 2015 March 31, 2016
Se tember 1, 2015 - Au ust 15, 2016 2016 March 31, 2017
Se tember 1, 2016 - Au ust 15, 2017 2017 March 31, 2018
C-1
[FORM OF SERIES 2014 BOND]
R-
STATE OF FLORIDA
ST. LUCIE COUNTY SUSTAINABILITY DISTRICT
TAXABLE SPECIAL ASSESSMENT BOND,
SERIES 20_
Interest Rate Date of Original Issuance
J 20_
Owner: [OWNER]
Principal Amount:
AND NO/100 DOLLARS
KNOW ALL PERSONS BY THESE PRESENTS that the St. Lucie County Sustainability
District (the "Issuer"), for value received, hereby promises to pay (the
"Owner"), on each Annual Payment Date commencing with the first Annual Payment Date of
the calendar year in ~n~hich a Special Assessment imposed pursuant to a Financing Agreement is
due, the aggregate annual principal and interest of the Special Assessments funded with
proceeds of a draw of principal of this Bond, each such payment of principal and interest as
reflected on the respective Reconciliation. Principal of and interest on this Bond is payable in
lawful money of the United States of America pursuant to written instructions received from
such Owner. Capitalized terms used in this Bond and not otherwise defined shall have the
meanings set forth in the Special Assessment Funding Agreement dated , 2014 (the
"Funding Agreement") by and between the Issuer, the Owner and the Solar And Energy Loan
Fund of St. Lucie County, Inc. (the "Program Administrator").
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY OUT
OF THE PLEDGED REVENUES PLEDGED THEREFOR UNDER THE FUNDING
AGREEMENT AND NEITHER THE PROPERTY, THE FULL FAITH AND CREDIT, NOR THE
TAXING POWER OF THE ISSUER, ST. LUCIE COUNTY, FLORIDA, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION THEREOF, IS PLEDGED AS SECURITY FOR
THE PAYMENT OF THE BOND, EXCEPT THAT THE ISSUER IS OBLIGATED UNDER THE
FUNDING AGREEMENT TO LEVY AND TO EVIDENCE AND CERTIFY, OR CAUSE TO BE
CERTIFIED, FOR COLLECTION, SPECIAL ASSESSMENTS (AS DEFINED IN THE FUNDING
AGREEMENT) TO SECURE AND PAY THE BOND. THE BOND DOES NOT CONSTITUTE
AN INDEBTEDNESS OF THE ISSUER, ST. LUCIE COUNTY, FLORIDA, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY PROVISION OR LIMITATION.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
benefit or security under the Funding Agreement until it shall have been authenticated by
1
execution of the Program Administrator, or such other authenticating agent as may be
appointed by the Issuer, of the certificate of authentication endorsed hereon.
This Bond is an authorized issue of the St. Lucie County Sustainability District, a
dependent special district established by St. Lucie County, Florida (the "County") designated as
"St. Lucie County Sustainability District Taxable Special Assessment Bond, Series 2014" (the
"Bond"), in the aggregate principal amount of Dollars ($ ). The
Bond is being issued under authority of the laws and Constitution of the State of Florida,
including particularly Section 163.08, Florida Statutes (the "Supplemental Act") and County
Ordinance No. 10-025, to pay the Program Costs associated with Qualifying Improvements
funded through Financing Agreements. The Bond is issued under and secured by the Funding
Agreement.
Reference is hereby made to the Funding Agreement for the provisions, among others,
with respect to the application of the proceeds Advances made under the Funding Agreement,
the operation and application of the funds and accounts charged with and pledged to the
payment of the principal of and the interest on the Bond, the levy and the evidencing and
certifying for collection, of Special Assessments, the nature and extent of the security for the
Bond, the terms and conditions on which the Bond is issued, the rights, duties and obligations
of the Issuer and of the Program Administrator under the Funding Agreement, the conditions
under which such Funding Agreement may be amended, and as to the rights and remedies of
the Owner.
The Owner of this Bond shall have no right to enforce the provisions of the Funding
Agreement or to institute action to enforce the covenants therein, or to take any action with
respect to any event of default under the Funding Agreement or to institute, appear in or
defend any suit or other proceeding with respect thereto, except as provided in the Funding
Agreement.
It is expressly agreed by the owner of this Bond that such owner shall never have the
right to require or compel the exercise of the ad valorem taxing power of the Issuer, the County,
the State of Florida or any political subdivision thereof, or taxation in any form of any real or
personal property of the Issuer, the County, the State of Florida or any political subdivision
thereof, for the payment of the principal of, premium, if any, and interest on this Bond or the
making of any other payments provided for in the Funding Agreement, except for Special
Assessments to be assessed and levied by the Issuer as set forth in the Funding Agreement.
By the acceptance of this Bond, the owner hereof assents to all the provisions of the
Funding Agreement.
This Bond is payable from and secured by Pledged Revenues, as such term is defined in
the Funding Agreement, all in the manner provided in the Funding Agreement. The Funding
Agreement provides for the levy and the evidencing and certifying, of non-ad valorem
assessments in the form of Special Assessments to secure and pay the Bonds.
2
This Bond is subject to prepayment prior to its maturity, in whole, on any date;
provided, however, that the prepayment amount shall include all outstanding principal and
interest accrued thereon together with a prepayment penalty of 5% of the outstanding principal
balance.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and to be performed, precedent to and in the issuance of this Bond exist, have
happened and have been performed in regular and due form and time as required by the laws
and Constitution of the State of Florida applicable thereto, including particularly the Act, and
that the issuance of this Bond is in full compliance with all constitutional and statutory
limitations or provisions.
IN WITNESS WHEREOF, the St. Lucie County Sustainability District has issued this
Bond and has caused the same to be executed by its Chair, either manually or with her/his
facsimile signature, and the corporate seal of said District or a facsimile thereof to be affixed
hereto or imprinted or reproduced hereon and attested by the manual or facsimile signature of
the Clerk, all as of the Date of Issue above.
(SEAL) ST. LUCIE COUNTY
SUSTAINABILITY DISTRICT
By:
ATTEST:
By:
Chair, Board of Commissioners
Clerk of the Circuit Court, ex-officio
Secretary/Treasurer of the Board of Commissioners
3
CERTIFICATE OF AUTHENTICATION
This Bond is delivered pursuant to the within mentioned Funding Agreement.
Date of Authentication:
SOLAR AND ENERGY LOAN FUND
OF ST. LUCIE COUNTY, INC., as
Program Administrator
By:
Authorized Officer
C-4
STATEMENT OF VALIDATION
This Bond is one of a series of debt obligations which were validated by judgment of the
Circuit Court of the Nineteenth Judicial Circuit of Florida, in and for St. Lucie County, Florida,
issued on the 30th day of November, 2010.
ST. LUCIE COUNTY SUSTAINABILITY
DISTRICT
By:
Name:
Title: Chair
C-5
SELF submtts Pre-
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._
Approved Loan to (~ ' "--~ ' ` "
LENDER ...--. ., _._
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Application, EA (when
i applicable), and total ! i
~ amount of ~=
LENDER Revses ~, Improvements.
t.--.
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project and
`' PACE Loan A royal Process
Documents accordng
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to agreed crtere.
Loan Is ~ SELF s Nottied of SELF revises dots and
Pre- Declnatbn and reasons for decides to resubmit Or
Approved Decination notifies Client
by LENDER
Yes
Notificatbn of Pre-
Approval and 6 sent
t0 SELF ..._.__-°_~_"'_'_,....._-~-
Pre-Approval Memo
from Inland
SELF sends complete LENDER APPROVAL:
SELF fnafees Loan "Appication Package" Reviews and Provides SELF
Documents wth complete to LENDER for "Final and County with
"Appicatfon Package" Assessment "ASSESSMENTAPPROVAL"
Approval"
,.e..~ _ _. _.
"ASSESSMENT APPROVAL
FORM" includes name of client
and amount of Financing
SELF Prepares LENDER Prepares
"Request for and sends SELF
Advance" Payment Schedule
Interest Starts
' Acuuing ,i
SELF Not~ies
Contractor
to Proceed
* Prepared by SELF 06.30.2014
SELF presents
Payment Schedule to
Client
Property Owner (CLIENT)
Accepts and Signs Payment
Schedule"
Payment Schedule is
Issued by INLAND to SELF
& Client
D-2
Loan Disbursement Process
i W
i
~
Confndpr Compktts '
SELF prepares
'Advance Request" i 9roJedand Presents li
-~ InvokeLOSEIF
„Ad
Peq est Form
` t.. _
i
DISTRICTrecieves SELF verifies
Advance Request" With Completion of
Final Documents
' project and
s
verifies againstLENDER Submits
"Assessment Approval
Form" "Verification and
Approval to
Fund" to Lender
and District
' Prepared try SELF o6.3~.2~14
,, =_
_ ~ r ~ (Lender retains
1%
originatbn
= fee )
iu !€ a .
SELF submits ~ ~ ~' tk u n ~ W ~ DI51'RlRpays out
~ ~ - V ~ upfront fees, retains
Verfidtion of LENDER Deposits
Project Capitalized Interest, if
Completionand ~~ Funds into DISTRICT ~: ~ ,_ ~; any,for paymertm
Approval to Fund ~" ` ~ ~ ESCROW ACCT. ; s:. lender, deposits
toIFNDER& ° er f
/ ~ ~ e w balanceto SEtF
..._/ r ~ as
DISI'RIR LLL...... ~ a w ~ b ~
s Ir e
"Verification and ~; k
Projen n . ~ in SELF ~ r ~
Completion' PREPARES
I _ TAX ROLL FOR
f DISTRICT ,
~'B ~ ~ ~ d~i~~~~~
~ ~ a k',.~ <: r
~ ~ DISTRICT Certifies In c re
ar ® r<
Tax Roll
ii c ~ k
.g ~ f":. :u r,.
I .:
•° a
SELF Records
r r puessemdd
E-2
Yes
D4STRlCT pays
Capitalized Interest
to Lender on annual
payment date.
,I
I
I
DISTRICT
ADMINISTRATION
FEE 2°/a f
SELF ORIGINAT]ON
AND PROJECT MGMT I
FEE 4.5°Jo '
V
DISTRICT Retains I
Capidlited I
Interest if any.
I
I
I
Wpkalixed I
Interest I
acttued No 1
I
I
Balance of Funds are
deposited by DISTAIR I
into SELF"PACE" Account
I
f
SELF DISBURSES I
PJNDS TO
CONTRACTORS AND
OTHER COSTS
a r