Item O6County of Monroe
<r
BOARD OF COUNTY COMMISSIONERS
�
Mayor David Rice, District 4
IleOI1da Keys
��x
t t 0.
Mayor Pro Tem Sylvia J. Murphy, District 5
Danny L. Kolhage, District I
P f,<
George Neugent, District 2
a
Heather Carruthers, District 3
County Commission Meeting
April 19, 2018
Agenda Item Number: 0.6
Agenda Item Summary #3615
BULK ITEM: Yes DEPARTMENT: Sustainability
TIME APPROXIMATE: STAFF CONTACT: Rhonda Haag (305) 453 -8774
N/A
AGENDA ITEM WORDING: Approval to enter into a Property Assessment Clean Energy
(PACE) Agreement with Florida PACE Funding Agency at $0 cost to the County.
ITEM BACKGROUND: The item seeks approval to enter into an Agreement establishing a
Property Assessed Clean Energy (PACE) program with the Florida PACE Funding Agency; to
which the entities will administer voluntary non -ad valorem financing of qualifying conservation and
energy conservation efficiency, renewable energy and wind resistance improvements. The third -
party administrator contracted with the Florida PACE Funding Agency for program administration is
Counterpointe.
Section 163.08, Florida Statutes (the "Supplemental Act "), authorizes counties, municipalities and
certain separate Local Government entities to establish and administer financing Programs pursuant
to which owners of real property may obtain funding for energy conservation and efficiency,
renewable energy and wind resistance improvements (as referred to therein, the "Qualifying
Improvements "), and repay such funding through voluntary special assessments, sometimes referred
to as non -ad valorem assessments ( "Special Assessments "), levied upon the improved property
pursuant to financing agreements between the owner thereof and the local government (the
"Financing Agreements ").
The Florida Green Finance Authority, the Green Corridor PACE District, the Florida Resiliency and
Energy District and the Florida PACE Funding Agency (individually the "Agency ", collectively the
"Agencies ") are currently four (4) separate legal entities and units of local government within the
State of Florida which were established by separate interlocal agreements for the express purpose of
providing scalable and uniform platform to facilitate the financing of Qualifying Improvements
throughout Florida. Pursuant to the Supplemental Act or as otherwise provided by law, local
governments may enter into a partnership with other local governments for the purpose of providing
and financing Qualifying Improvements, and a Qualifying Improvement Program may be
administered by a third party for - profit entity or a not for profit organization on behalf of or at the
discretion of the local government.
The installation of Qualifying Improvements may increase energy efficiency and improve the wind
resistance of existing structures within the COUNTY thereby reducing the burdens from fossil fuel
energy production and contributing to the local economy by cost savings to property owners,
enhancing property values and increasing job opportunities. Agencies have already created the
financing, levy and collection process to implement PACE Programs through local government
partners without cost to or assumption of liability by, or demand upon the credit of Monroe County.
PREVIOUS RELEVANT BOCC ACTION:
10/16/17: Direction and guidance on a potential County PACE program.
12/13/17: Approval to advertise a public hearing, to consider adoption of a proposed ordinance for
the Property Assessed Clean Energy (PACE) program, to be held on January 17, 2018 in Marathon,
FL at 3:00 p.m. or as soon thereafter as may be heard.
1/17/18 (04) PACE Ordinance Public Hearing held and continued to the February 21, 2018 BOCC
meeting in Key West, FL at 3:00 P.M.
02/21/18 (Q1) The 2 nd PACE Ordinance Public Hearing held and continued to the March 21, 2018
BOCC Meeting in Key Largo, FL at 3:00 p.m.
03/21/18 The 3 rd PACE Ordinance public hearing held at 3:00 p.m. on March 21 ", 2018 at the
BOCC Meeting in Key Largo. Item approved.
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
FL PACE Funding Agency Agreement (signed)
Exhibit - FPFA Amended and Restated Charter Interlocal Agreement
FINANCIAL IMPACT:
Effective Date: April 19, 2018 Expiration Date: Effective until terminated by either Party
Total Dollar Value of Contract: $0
Total Cost to County: $0 Current Year Portion: N/A
Budgeted: N/A Source of Funds: N/A
CPI: N/A Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts: Staff administration costs
Revenue Producing: No If yes, amount: N/A
Grant: No County Match: N/A
Insurance Required: Yes
Additional Details:
N/A
REVIEWED BY:
Rhonda Haag
Completed
03/28/2018 5:20 PM
Pedro Mercado
Completed
03/29/2018 9:39 AM
Budget and Finance
Completed
03/29/2018 10:06 AM
Maria Slavik
Completed
03/29/2018 10:07 AM
Kathy Peters
Completed
04/02/2018 8:11 AM
Board of County Commissioners
Pending
04/19/2018 9:00 AM
NON-EXCLUSIVE KNTERLOCAL AGREEMENT
RELATING TO THE FUNDING AND FINANCING
OF QUALIFYING IMPROVEMENTS BY THE
FLORIDA PACE FUNDING AGENCY
This non-exclusive Interlocal Aareement is nuxjc and entered into as of' ,
2018r^(mterlocm Aureconcn(l, by and bc|vvtco Monroe County, Florida, ( and the
Florida PACE Funding Agency, m separate legal entity and pob6iu hndv and unit of local
gmvermmnomt established pursuant to Section 163.0](7), Florida Statutes. ("Agency"), by and
through then respective governing bodies. The purpose m[ this Agreement imto better secure, in
on efficient and ooiforno nnuuncr, for local property owners (au hereinafter defined) the privileges
and benefits provided for herein and by law, and particularly by Section l03.O8,BoridwStatutes.
as amended ("PACE Statute"'), relating to the voluntary determination by mQicicd pnoper1v
owners to obtain and finance certain improvements to property for energy effioieocy, ncnevvuh}c
energy or wind resistance.
WHEREAS, Section 163.01, Florida Statutes, kuuv/n as the "Florida ]nto1uo/|
Cooperation Act nfl909" authorizes local governments to make the most efficient use oftheir
powers by enabling them to cooperate with other localities on a basis of mutual advantage and
thereby to provide services and facilities that will harmonize geographic, ccomurnic, Population
and other factors influencing the needs and development of local uoronnuoides�and
WHEREAS, Part [ of Chapter 16- Florida Statutes, permits pub|iouvcmuieo as defined
therein to enter into imtmr|ucm| agreements with each other to jointly exercise any power,
privi|e-c or authority which such agencies share in common and which cacti might exercise
separately and
Section 163.03 Florida Statutes, {~PACE Statute") authorizes Dmnmcimg of
qmu|i[viog improvements through agreements for property to be au6icul to m voluntary, non-ad
vmKun:nm special assessment process as the nupuycnen1 nocchuoionn, commonly known as Property
Assessed Clean Energy ('^P/\CE
WHEREAS, the City of Kissimmee and Fl0g|cr County entered into an }oter|moa|
/\gnecmcut ("!mtcdocu| &prccrneot`), establishing the Florida Pace Funding Agency as o noounx
of implementing and �omncim� o gmo|ifv�n� improvements prn�roon fbr cncr�y and water
uuuxcrvodom and e0loiemuy, renewable energy and wind-resistance imprwvenmcmto, and to
provide additional services consistent with law, attached au Exhibit A. and
WHEREAS, on March 21, 2010, the Monroe County Board of County Commissioners
adopted the Monroe County Property Assessed C|cmm Energy Ordinance (PACE) ("Ordinance"),
and provided for certain consurner protections and requirements for PACE Providers: and
WHEREAS, the County is C011CUrrently adopting
, a Resolution authorizing the Agency to
provide PACE financing and Dundim� with property owners for qualifying improvements within
the County, in accordance with the PACE Statute and the Ordinance; and
WHEREAS, the Parties have determined that entering into this Inict A� is
1 Z7
in the best interest and welfare ofthe property owners within the County.
NOW, THEREFORE. in consideration of the terms and conditions, promises and
covenants hereinafter set forth. the Parties agree as follows:
Elftlarlon
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS. AS used in this Agreement, the following terms
shall have the rneaninos as defined unless the context requires otherwise:
"Agency" shall rnean the Florida PACE f-unding Agency, a separate legal entity and
Public body and unit of local government, and also characterized as a special purpose local
government.
"Agency Charter Agreement" or "Charter" shall nican, unless the context otherwise
requires. the separate interlocal agreement which created and established the Agency, including
any amendments. Supplements or restatements thereto executed and delivered in accordance with
the terns thereof'.
"Agency's Program" shall mean the activities of the Agency to provide financing for
qualifying iniprovernClitS undertaken within this State.
"Board of Directors" shall mean the governing body of the Agency.
"County" shall rnean Monroe County, a political subdivision of the State of Florida.
"Financing Agreement" shall mean the financing agreement or the summary
iiiernorandl,1111 Of' Such agreement the property owner signs establishing terms and conditions for the
financing of' qualifying improvements which is required to be recorded in the public records
pursuant to the PACE Statute,
"Financing Documents" shall rnean the resolution or resolutions duly adopted by the
Agency, as well as any indenture of trust, trust agreement, interlocal agreement or other
instrument relating to the issuance or security of any bond or obligations of the Agency and any
agreement, pursuant to which the property owners obtain access to funds provided by the
Agency.
"Interlocal Agreement" shall mean this interlocal agreement executed under the
auspices of Section 16' ).0 1. Florida Statutes, known as the "Florida interlocal Cooperation Act of
1969", or if the context requires., a sit interlocal agreement between the Agency and any
municipality, County or other government or separate legal entity permitted by the PACE Statute
to enter into financing agreements as provided for therein. This Agreement simply presents a
means of coordination and communication arriong local governments as the Agency serves and
makes available, in a non - exclusive manner, funding and financing of qualifying improvements
by the Agency to interested private property owners in the manner provided by law.
"Obligations" shall rnean a series of bonds, obligations or other evidence of
indebtedness. including. but not limited to, notes, commercial paper. certificates or any other
obligations of the Agency issued pursuant hereto. or under any general law provisions, and
pursuant to the financing documents. "I'lie term shall also include any lawful obligation
conin to by the Agency Or P1,11 to an interlocal agreement with another governmental
body or agency and/or warrants issued for services rendered or administrative expenses.
"Ordinance" shall mean the Monroe County Property
Assessed Clean Energy (PACE) Ordinance, -afid as codified.
"PACE" is an acronym for the colloquial financing concept commonly referred to as
property assessed clean energy in Florida, the name or acronvin PACE "' is derived from the
provisions of general law related to financing energy efficiency, renewable energy and wind
resistance improvements addressed by the Ordinance. and encouraged by the Legislature in
Section 163.08, Florida Statutes, which is entitled - supplemental authority for improvements to
real property."
"PACE Statute" sometimes called the "Supplemental Act", shall mean the defined
tern general law provisions, and additional and supplemental authority described in Section
163.08, Florida Statutes. as amended.
"Participating Municipalities" shall mean all municipalities that have not adopted all
ordinance governing any or all of` the Subject matter of the Ordinance, regardless of the tinge of
passage of the I - IlUnicipal ordinance.
"Pledged Funds" shall mean (A) the revenues derived froin special assessments and
other moneys received by the Agency or its designee relating to same portion thereof, (B) until
applied in accordance with the terms of the financing documents, all moneys in the funds..
accounts and sub-accounts established thereby, including investments therein. and (C) Such other
property, assets and moneys of the Agency as shall be pledged pursuant to the financing
documents; in each case to the extent provided by the Board of Directors pursuant to the
financing documents. The Pledged funds pledged to one series of obligations may be different
than the Pledged funds pledged to other series of obligations. Pledged funds shall not Include any
general or performance assurance fund or account of the Agency.
"Property Owner" shall mean, singularly or collectively as the context requires, all of the
record owners of real property sub ect to a financing agreement the Agenc. y.
J Z- -
-Qualif`ying Improvements" includes energy conservation and efficiency, renewable
energy, and wind resistance improvements as defined by the PACE Statute. as may be amended
by law.
"Special Assessments" shall mean the non-ad valorem assessments authorized by the
PACE Statute and levied by the Agency on property owned by a property owner to fund the
costs of qualifying 1111proverrients.
SECTION 1.02 CONSTRUCTION.
(A) Words inIpOrtill'y the singular number shall include the plural In each case and
vice versa, and words importing persons shall include firms and corporations. The terms
"herein, "hereunder," "fierebv. ' "hereof." and any similar terms. shall refer to this
Agreement', the term "heretofore" shall mean before the date this Agreement is executed arid the
Agreement M
term "hereafter" shall mean after the date this Agreement is executed. 0
CL
(B) Each recital, covenant, agreement. representation and warranty made by a party
herein shall be fairly deemed to be material and to have been relied oil by the other party to this
Agreement. Both parties have independently reviewed this Agreement with their own counsel
Agreement
and covenant that the provisions hereof shall not be construed for or against either the County or
the Agency by reason 01"authorship.
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts of
the several articles and sections of' this Interlocal Agreement and any table of contents or
marginal notes appended to copies hereof shall be solely for convenience of reference and shall
neither Constitute a part of this Agreement nor affect its meaning. construction or effect.
that:
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and declared
(A) The State Legislature has determined there is a compelling state interest in
enabling private property owners to Voluntarily finance qualifying improvements with local
government assistance. The actions authorized by the PACE Statute. Including the financing of
qualifying Improvements through the execution of' financing agreements and the related
Imposition of a special assessment, have been determined by the Legislature as reasonable and
necessary for the prosperity and welfare of the State., and its property owners and inhabitants.
(B) 'File Agency has provided to the Count), a binding Final Judgment and its
governance Charter which both expressly evidence the Agency is distinct from the County and
that the County shall not in any manner be obligated to pay any debts, obligations or liabilities
arising as a result of any actions of the Agency or its agents, and the Agency has no independent
power to obligate the County or ally municipality within tile County served by tile Agency.
(C) Nothing in this Agreement does, nor shall be construed to empower the Agency to
Z!7
obligate or foist any liability upon the County, in any manner, without the express written
permission of both parties: and no such permission is included in this Agreement.
(D) The availability of the non - exclusive financing program offered by the Agency
(without cost to, assumption of liability by or demand upon the credit of the County or any
participating Municipality) and the voluntary participation in the Agency's financing program by
property owners provides all alternative financing option to private property owners who choose
to finance and repay the costs to provide and install qualifying improvements.
(E) The Agency is authorized by law and Pursuant to the Provisions 01 PACE Statute
to undertake this financing service and associated activities to interested property owners.
(F) This /kormenoeu1 provides m 000poradivc, in1erocuL aftcnna1h/c auppiconoUu| and
noo-ezduoive means to encourage and achieve, infer inmnomdimic |ucuU economic development
iu o noammcr provided by the 1.ug[o|o1unc, provide for local commerce and job creation, as well as
achieving the compelling State interest and public purposes described in the PACF Statute.
IMPLEMENTATION OF/kCOMPELLING STATE AND LOCAL INTEREST
(A) The execution hereofhas been duly authorized by the resolution OfthC governing
bodies of each party hereto,
(B) Thc Agency by this cn1 is approved to mervc, to provide its lawful
services, and lawfully conduct its affairs within the County iu accord with npp]ivab]cgeocru| law
and local legislation,
SECTION 2.02. CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS
PROHIBITED. The /\grouy ohull not he enupovvered or authorized in any manner to create
m debt against the Count). or any partlCipatifIg Municipality and may not pledge the full faith and
credit of the Coumty or any participating rouuiuipu|by. All revenue bonds or debt ob]igodmmo of"
the Agency abu|| contain on the face thereof ustatement to the cffieui that the State, CounN. or
any participating mnumicipm|i1y, shall not be obligated to pay the uunoe or the interest and that <hcy
are only payable from Agency revenues or the portion thereof for which they are Issued and that
neither the Ou|| faith and credit nor the taxing puvvcr of the Cnunty or any participating
nmumimipa|ity_ is pledged to the payment of' the principal of' orthe interest on such bonds. The
ionmoncc Wrcvcnuc or refunding bonds Under the provisions oflaw, the Charter Agreement, or
any other agreement shall not directly or indirectly or contingently obligate the Couo\y, or any
participating municipality, to levy ortu pledge any form of ad vu|urunn taxation Or Other County,
or any participating municipality, revenues or to make any appropriation for their payment.
13 11 rsleKll a HOW
(A) The Board of Directors necessarily must adopt or authorize from time to time bv
resolution much ru1es, fees or other churucs ("or the provision ofthc services of the Agency to be
paid bythe property owner pursuant 1oa financing agreement described inthe PACE Statute,
(B) Such rates, fecxand charges shall be adopted and revised sousto provide moneys
which, with other funds available for such purposes, shall be at least Sufficient atall times to pm}
the cx9cmsea nfadozinisLcrini� rnunugimg, and providing for the services and m&nuimixirudom of
the mcdvidca of the Agency. 10 pay costs and expenses provided for by law or the Charter
Agreement and the financing docmcncot4 and to pay the principal and interest on the obligations
ox the sunnc ahm|/ buuunoc due and reserves therefore, and 1nprovide for necessary administration
and ncuaonob|c margin of" safety over and above the total unnnuni of such payments,
Notwithstanding any other provision in the Charter /\-rucmneo\ or this /\� Such rates,
fees and charges yba8] not exceed a rate of interest greater than the equivalent of 18 pon:cmt per
annum simple interest either directly or indirectly, and always be sufficient to comply fully with
any covenants contained in the financing documents,
(C) Such rates, fees and charges may vary frOill _jurisdiction to _jurisdiction, but shall
be just and equitable and unit orm at the time of jillposition f or the Property Owners within the
(D
same class, or within each subscribing local governmental jurisdiction, and may be based upon
I
or computed upon any factor (including. by way of example and not limitation, competitive or 0
t� . - CL
market conditions, distinguishing between residential and non-residential properties or uses.,
distinguishing between variable costs of administrative services and local government
Z
0
cooperation over time) or conibination of Factors affecting the demand or cost of the services 0
furnished or provided to administer the services and affairs of the Agency as may be determined
by the Board ot'Directors from time to time.
SECTION 2.04. FINANCING OF IMPROVEMENTS TO REAL PROPERTY;
COLLECTION OF ASSESSMENTS.
(A) Program Guidelines: The Agency's Program to be offered in the County and
participating municipalities will comply with prograrn guidelines and consumer protections set
Forth in the Ordinance, as may be amended from time to time. The pat concur that at the time
of execution of this Aureernent, the Agency's program guidelines and consumer protections are
consistent with the Ordinance. However, if there is a conflict between the Agency's Program and
the Ordinance, the Ordinance shall prevail.
(B) Any financing assistance for qualifying improvements pursuant to the PACE
Statute shall be conducted solely between the Agency and an interested private property owner.
done pursuant to general law and the Ordinance. and shall not be Construed to be the legal,
financial or administrative responsibility Of tile County or participating municipalities in any
manner whatsoever.
(C) This Agreement provides for accomplishment of a compelling state interest.
recognizes and carefully encourages unif'orm and scalable processes statewide to finance energy
conservation and efficient, renewable energy. and wind resistance improvements to real property,
and is intended to create local econornic development and local employment, Even though this
Agreement affords service to interested private property owners who voluntarily desire to take
advantage of and use the Financing and supplemental authority for improvements to real property
described in the PACE Statute. all Such activities must be independently accomplished Without
cost, liability. or any dernand Upon the COUMV's, and participating municipalities credit or use of
significant staff time or resources.
(D) In no event shall the County and participating municipalities served by the
Agency be held individually or jointly liable for the torts of the officers or employees of the
Agency, or any other tort attributable to the Agency, and the Agency shall be solely liable for
any torts attributable to it or for torts of' its officers. employees or agents, to the extent of the
waiver of" sovereign immunity or limitation of liability as specified in Section 768,28, Florida
Statutes. Nothing in this Agreement shall be construed to Inure to the benefit of third-party
or for allowing any claim, which would otherwise be barred under the doctrine of sovereign
Z�l
IMMU111ty or by operation of lave'.
(E) By law the Agency shall at all times be a qualified. distinct and separate special
PLU - POSe local government funding and financing instrumentality separate and apart from the
C0UutV and participating municipalities and separate from their treasuries,: and. neither the
County nor participating municipalities, nor the local governments who are either incorporators
or members of, or have
,joined. or are served bN the Agency, or any subsequently served or
participating local government in the affairs of the Agency, shall be liable for the actions ofor M
0
any manner be obligated to pay any debts, obligations or liabilities arising as a result of any
actions of the Agency, or its successor in function. and neither the Agency nor any agent,
employee, officer or official of same shall have any authority or power to otherwise represent or M
0
obligate the County or participating municipalities in any manner as a result ofthis Agreement.
(F) The County and participating municipalities shall not incur nor ever be requested
to authorize any obligations secured by special assessments associated with qualifying
improvements imposed by the Agency pursuant to the PACF Statute. No special purpose local
oove•nment acting pursuant to the PACE Statute. the Ordinance, or this Agreement shall be
empowered or authorized in any manner to create a debt against the state. the County, or
part i c ipating Municipalities, and shall not pledge the full faith and credit of the state, or the
County, or participating municipalities. in any manner whatsoever. No revenue bonds or debt
obligations of any special purpose local government acting pursuant to the PACE Statute, shall
ever pledge or irnply any pledge that the County, or participating municipalities. shall be
obligated to pay the same or the interest thereon, nor state or imply that such obligations payable
from the full faith and credit or the taxing power of the state" the County, or participating
municipalities, as a result the Ordinance or this Agreement. The issuance ofrevenue or refuridino
bonds by the Agency under the provisions of law. the Agency's charter or governance
documents- or any other agreement or resolution shall not as the result of the Ordinance or this
Agreement be deemed in any manner, directly or indirectly or contingently, to obligate the
County or participating municipalities to levy or to pledge any form of ad valorem taxation or
other county or municipal revenues or to make any appropriation for- their payment whatsoever.
(G) Upon execution by the respective property owners and the Agency. the statutorily
required financing agreement or a summary governmental notice or memorandum thereof' shall
be recorded by the Agency in the Official Records within five (5) days after execution oil' the
agreement, as required by general law which provides constructive notice that the non-ad
valorem assessment to be levied on the subject property constitutes a lien of equal dignity to ad
valorem taxes and assessments from the date of recordation.
(H) In a reasonably cooperative and uniform manner, the Agency must timely provide
to the property appraiser and tax collector a digital copy of the recorded financing agreement or
other digital summary thereof, the most recent property identification number and annual amount
of the non-ad valorern assessment along with such other efficient and reasonable information and
test-rolls necessary l"or the tax collector to collect Such arnounts as a non-ad valorem assessment
on behalf of the Agency pursuant to Sections 163.01. 16108, 1973632. and 197.3635. F'Iorida
Statutes, or their Successors in function.
(T) The Agency will inform every property owner that by la\v these non-ad valorem
assessments must be collected only pursuant to Sections 163.61- 163.08, 197.3632, and
197,3635, Florida Statutes and, are not imposed by the County, any participating municipality',
the property appraiser, not the tax collector, and that they are levied and imposed solely by the
Agency, and only then upon voluntary application of the private property owner as expressINI
enabled, authorized arid encouraged by the PACE Statute, as well as the Ordinance, to
accomplish a compelling state interest with the At local government assistance.
(J) The Agency must at all times acknowledge that the Statutory duties of the
property appraiser and the tax collector in each County, under Section 197.3632, Florida Statutes,
are ministerial and the property appraiser and tax collector are by law without discretion with
regard to the imposition of non-ad valorem assessments and collection on the tax notice once the
affected private property owner has Voluntarily entered into the statutorily required financing
agreement and evidence of the non-ad valorem assessment through the required notice is
recorded, arid, the Agency is solely responsible for the local government role in Such
circumstance for complying with the requirements of' Sections 197,3632 and 163.08. Florida
Statutes,
(K) The Agency rnUSt comply with the statutory responsibility to enter into a separate
written agreement required by Section 197.3632(2). Florida Statutes, accept the terms specified
by Sections 197.3632(2) and 192.091(2 Florida Statutes, for reirnbursernent and
compensation of tax collectors arid property appraisers, and allow for payment of such amounts
by deduction as the non-ad valorem assessments are collected. 'The Agency, as a duly authorized
special purpose local government shall be solely responsible for timely and professionally
coordinating all interface with the tax collector or property appraiser. and minimize to the
greatest extent reasonably possible the time, effort and attention of these public officials and
offices.
(L) The Agency. as a duly authorized special purpose local government, is the local
-n
government imposing the subject non-ad valorem assessments. not the County nor participatilh-1
C� J -
municipalities and shall be solely responsible for compliance with all applicable law and all
matters associated with origination, funding, financing, administration, and collection (in concert
with the uniform method of collection) of each of the resulting non-ad valorem assessments,
SECTION 2.05. COORDINATION IN COLLECTION ACTIVITIES. The
Agency as a local government created and authorized by general law to impose the special
assessments. Is also required by general law to Use the Unif'61 method Of C011eCtIng Such special
assessments, and shall be solely responsible for professionally coordinating all interface with the
tax collector and property appraiser, and minimize to the greatest extent reasonably possible, the
tirne, effort and attention of these public officials to accomplish the public purposes and direction
of the PACE Statute.
SECTION 2.06, PLEDGE OF PROCEEDS FROM NON-AD VALOREM
ASSESSMENTS.
(A) The Agency will take such actions as are necessary for the lawful levy of the
Z>
Special Assessments against all lands and properties specially beriefitted by the acquisition,
construction and financing of qualifying improvements. If any assessment made with respect to
any property shall be either in whole or in part annulled, vacated or set aside by the eJUd of
any court., or if the Agency shall be satisfied that any such assessment is so Irregular or defective
that the same cannot he enforced wr collected. the Agency will take all necessary steps 10 cause n
new assessment to be made for the whole or any part of any qualifyin- improvements or auainst
any property specially hcncfittcd by such improvement, tnthe extent and in the manner provided
by law.
/B\ Pursuant to the 0namcino documents, this /\oxcenncnt, and the Ordinance the
/&�cn�yuhu|| ir�cwoco6|� pl�dB�und, to the �iud�sxm� mse��m
any and a|| revenues derived from special assessments to the repayment ofmmy debt obligation
issued hy the Agency pursuant {o the financing documents.
(C) The County and panioiputin,-,nmumioipolitico ahuU not incur or ever hc requested to
authorize any obligations secured by special assessments associated with qmu|i[*iug
improvements irnposed by the Agency.
(D) Each series af financing documents shall be secured forthwith equally and ratably
6ym pledge ofand ]iom upon the special assessments. The obligations ofLheAgemoy under and
pursnamt to the financing doounncois shall not be or constitute general obligations or an
indebtedness oftbe County, or puniicipadu.' Municipalities. as "bonds" within the meaning o[the
Constitution of' Florida. but shall be payable from and Secured solely by lien upon and pledge
of the special uoscnanmcmty as provided herein. Neither the Agency nor any holder of any debt
obligation issued by the Agency Pursuant 10 the financing documents shall ever have the right to
xonopc| the exercise o[ the ad valorem taxing power of the County, or participating
municipalities, or other taxation in any form. of property 1bcn:im to pay any n11oou1 due undcr
onyDomosiugdncmnneo1soranyspeoiu|usscsarmcnLThcfiounuingdocunoem\suboUmoloVnod[ute
u lien upon any property nfor in the Coumxy`s, or participating onmnioipa|itjea` jurisdiction except
as to the respective special assessments in the rnanner provided herein and by lavv
GENERAL PROVISIONS
SECTION 3.01. 0NTERLOCAL AGREEMENT PROVISIONS. This Agreement
is dcenmcd 10 be an ^^inter|mca] uareeimot` vvidxiu the meaning of the Florida [mtcr|ucm!
Cooperation /\ut of 1969 msmmneodc�, The &guuuy mbu|| file this (nted*ua| Agreement with (bc
Clerk aftile Circuit Court o{Muoruc Count)!, Florida.
SECTION 3.02. DISCLOSURE; NONDISCRIMINATION; COVENANT TO
COOPERATE.
A) The Agency b� ��iduju oo7�m[{X)d� ���� ��g� ���c���cy`s
[bat Aarccnoent, ( the Final Jmdgnseot in T7o PA( �'E FunditW Agency n S'/ate, No. 20||'
CA- lU24(F|m.2dCir.C1.20[|}, and (4) other relevant disclosure information and background
noutcria8u to the County prior to execution hereof. Coumty, through its ovvm staff' and mjvi:wrs,
has independently reviewed and considered the foregoing and other nolcvun1 ioQamouAom of its
ohoouiuo,
(B) ThcAgcocy and the County agree vvDl b� no discrimination u�oiostany
peoon, and it is expressly understood that upon a determination by m court of competent
jurisdiction that discrimination has occurred, this Agreement automatically terminates without
any further action on the part of any party, effective the date of the court order. The Agency
agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable,
relating to nondiscrimination, These include but are not limited to: 1) Title VI of the Civil
L
1Zights Act of 1964 (PI_ 88-352) which prohibits discrimination on the basis of' race, color or
national origin, 2) Title IX of the Lducation Amendment of 1972, as amended (20 LJSC ss. 1681
1 683, and 1685-1686). which prohibits discrimination can the basis of' sex 3) Section 504 of the 0
CL
Rehabilitation Act of 1973. as amended (20 (JSC s.794), which prohibits discrimination on the
basis ofilandicaps, 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) Z
0
which prohibits discrimination on the basis of age, 5) The Drug Abuse Office and Treatment Act
1�
of 1972 (Pl- 92-255), as amended. relating to nondiscrimination on the basis of_ drug abuse 6)
The Comprehensive Alcohol Abuse and Alcoholism Prevention. Treatment and Rehabilitation
Act of 1970 (PL, 91-616). as amended, relating to nondiscrimination on the basis of alcohol
tM
abuse or alcoholism, 7) The Public Health Service Act of 1912. ss. 523 and 527 (42 USC ss. <
690dd-3 and 290ee-'I). as amended, relating to confidentiality of alcohol and drug abuse patient
records 8) Title Vill of the Civil Rights Act of 1968 (42 USC s. et seq.). as amended, relating to
Z
nondiscrimination in the sale, rental or financing Of']IOLISing: 9) The Americans with Disabilities U_
Act of 1990 (42 USC s. 1201 Note), as maybe amended frorn time to time, relating to
nondiscrimination on the basis of ci isabi I ity. 10) Monroe County ,' Code Chapter 14, Article CL
_J
which prohibits discrimination on the basis of race, color, sex, religion. national origin, U_
ancestry, sexual orientation, gender identity or expression, familial status or age, and I I ) Any I
W
other nondiscrimination provisions in any f- , ederal or state Statutes which may apply to the parties
to., or the subject matter of. this Agreement. CL
(B) The objective of the Agency's mission is to offer a uniform, standardized and
scalable approach that provides efficiencies and economies of scale intended to attract voluntary
financing of qualifying improvements by private property owners desil of also achieving, a
compelling state interest and stimulate a substantial and meaningful flow of private sector
econornic activity and new lob creation. In doing so under this Interlocal Agreement, the County
recognizes the non - exclusive availability of the Agency's funding and financing program to
Constituent property owners and the County and Agency covenant to cooperate, coordinate and
communicate on an interlocal basis.
SECTION 3.03. TERM OF AGREEMENT; DURATION OF AGREEMENT;
NO EXCLUSIVITV.
(A) The term of this friterlocal Agreement shall commence as of the date first above
written.
()3) The term shall continue so Long as the Agency has obligations Outstanding which
are secured by Pledged Revenues derived from financing agreements relating to any properties
t�� I
within the boundaries of the County and participating municipalities or the Agency has projects
for qualified improvements underway therein-, the applicable provisions, authority and
responsibility under this Agreement reasonably necessary to carry out the remaining aspects of
the Agency's Proorarn and responsibilities of Agency then underway, shall remain in effect and
survive any terniltlatI011 until Such time as those obligations and all associated remaining Agency
responsibilities are fulfilled (including, but not limited to, the collection of assessments in due
Course). Provided. however, the Agency's po\vers employed and exercised shall be non-
exclusive, and the County and participating municipalities are free to and reserve the right. to
enter into or otherwise encourage or commence any other prograrn for financing qualified
improvements LISin" non-ad valorem assessments.
(C) Notwithstanding subsection (B), either partN may at any time terminate this
Interlocal Agreement upon sixty (60) days written notice provided as required by Section 3,05.
Provided, however, no termination ofthis Interlocal Agreement shall preclude the Agency from
exercising any of its power or authority after any termination, inclUdinc without limiting the
generality of the foregoing, that specifically associated with its mission or collection of any of its
oblivations outstanding which are secured by pledged revenues derived from Financing
agreements, In the event the Aoency's rights under this Interlocal Agreement to impose new
non-ad valorem assessments shall ever end, then as of' the effective date of the termination, all
rights and obligations of the parties shall continue as specified In Subsection (B) until such time
as all At obligations, and all associated rerriainim responsibilities under the Agency's
Prograrri are fulfilled (including, but 1101 limited to, the collection of assessments in due course).
SECTION 3.04. AMENDMENTS AND WAIVERS. Except as otherwise
provided herein, no amendment, supplement. modification or waiver of this Agreement shall be
.
binding unless executed in writing by the County and Agency.
t� I - I
SECTION 3.05, NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when hand delivered (or
confirmed electronic l"acsirnile transmission) or mailed by registered or certified mail. postage
id or sent by nationally recognized overnight Courier (with delivery instructions for "next
prepa l I I t,
business day service) to the parties at the f'o[lowino Z-
addresses-
County: Monroe County
ATTI Roman Gastesi, County Administrator
I 100 S imonton Street, Ste. 205
Key West, FL 33070
With a copy to: Monroe County
ATI Pedro Mercado., Assistant County Attorney
I I I I I 2th Street. Suite 408
Key West. Florida 33040
Agency: EXeCUtive Director
Florida PACF. Funding Agency
c/o City of Kissimmee
101 North Church Street. Fifth Floor
Kissimmee, Florida 34741
With a copy to: Program Counsel for the Florida PACE Funding A
I - - (Tency
P.O. Box 14043
Tal lahassee, Florida 3231 -X 1 7-4043
Any ofthe parties nnuy. by notice in vvcidug given hz the other. designate any further ordifferent
addresses to which xubscqucnL no1iues, certificates or other cmrnrnunicatiuny shall he sent. Any
notice shall be deemed oiwrm on tile date such notice is delivered by bmod (or comfirmned
electronic facsimile transmission) or three Jays after the date rnui|ed
SECTION 3.06, QUALITY CONTROL AND COMMUNICATION. For
quality control purposes, the /\( and County dcsirc, and the Agency covenants 0o
Continually develop, implement and employ policies, uyutcrmaund procedures which set mrreflect
industry standards, With such standards being reasonably expected to change and evolve over
dnmc. This Agrctrncnl serves to establish an ongoing positive and professional line of
cornmuu[catioo ho1p/ccn staff and m�cnto for the parties and is encouraged. At any time,
notwithstanding lack of default or lack of material breach hereunder, each party is encouraged to
o|��chvc]y and spcoiO�m||y cornnnun�cm1� �e the other in vvr�dn� as provided for huo:�u mmy
uoocemoo, mu��csdoms or disapproval with p�r��nm�mc�, Po||oi�a, s�st�nue or proc�doncs being
employed b�eucb party concernio funding financing ofqualified iroprmvcnmem{s. The
Agency through its administrator, Fxcoudvu Director, or m dm|I authorized dcaigmcc, will
promptly respond in vvrit[nLrroall such communications (rcomonoNvvvdbiu Q8cem (15) days of
receipt ofany such written corn ill Lill WatiOn, but sooner if necessary) frorn the County and follow-
up accordingly: and, also PrnonpUycnmonmumioutc any such response, fb||mvv-up, and all related
cnrnnomnicu1iun to the Board of Directors for review. This paragraph shall not he construed as
containing any obligation for tile County to receive uwrmp|mim1s or concerns about the Agency's
peryorrnanue, po|ioicm, sys(cnms_ or procedures, and the County is requested 10 and apcciricol|y
authorized to refer all such complaints or concerns directly to the Aoencv for a response.
SECTION 3.07. IMMUNITY; LIMITED LIABILITY.
(A) All of the privileges and immunities frurn liability and cxcnoptinmx frocn laws,
ordinances and rules which apply tuthe activity of officials, ofHcen` agents oremployees of tile
parties shall apply to the officials, officeru, agents or eoup|mycuy thereof when performing their
respective functions and duties under the provisions uf this Agreement.
(B) The County and /\�eouy are and nhuU be Sub ieci to Scc1ko)a 768.28 and
163 . 0 |(9)(u), Florida Statutes, and any other provisions of F|mridm |avv governing sovereign
inmnmomity. Pursuant to Section |k3.0|(5)(o), Florida Statutes, that ccrbuu fiou| jndomcm1 in f7o
/,4CE uJ�u��.y�o.2OTl-C/\'lQ24(Bu.ZdCic��L20]X), and this cuvcnm�of
the parties hereto, the local omvcnmmnoots who are either the incorporators, or nnonmbce of tile
Agency, or any Subsequently served or participating local government sbuU| not be held 'uinUy
liable for the torts ofthe officers or employees of' the Agency, or any other tort attribUtable to the
Agency, and that the Agency alone shall be |ioh8c for any Lootu attributable to it or for torts of its
officers. employees or agents, and then only 1uthe extent o{ the waiver ofsuvcmci (m immunity mr
limitation of liability as specified in Section 768.28 Borido Statutes. The County and Agency
acknowledge and a�ruc that �b� /���mc� mboU have all o� the applicable privileges and
inmmnmmi1iumfrorn liability and exemnpdomofi laws- ordinances, rules and common law which
apply no the municipalities and counties of the State.
(C) To the extent provided by|���c ��s�p��dc���im��e^
indemnify and hold the ��ouuty and par nnumici pat bes served hv the Agency. its agents.
employees and elected officers (Indemnified Parties). and each ofthern free and harmless at all
times from and against any and all suits, actions. legal or administrative proceedings. claims,
demands, damages, liabilities, interest, attorney's fees, costs and expenses ofwhatsoever kind or
nature (collectively. a "Claim ") whether arising in any manner directly or indirectly caused,
occasioned or contributed to in whole or in part- by reason of any act, omission or fault whether
active or passive of the County and participating municipalities of anyone acting Under its
0
direction or control, or on its behalf in connection with or incident to the performance of this CL
Agreement. Agency's aforesaid indemnity and hold harmless obligations, or portions or
applications thereof, shall apply to the fullest extent permitted by law but in no event shall they M
0
apply to liability Caused by the negligence or willful misconduct of the County oi participating
municipalities. their respective agents, servants, employees or officers, nor shall the liability
limits set forth in 768.2 8, Florida Statutes. be waived. Nothing in this Agreement is intended to
inure to the benefit of any third-party: or for the Purpose of allowing any claim. which Would
otherwise be barred under the doctrine of sovereign immunity or by operation of' law. In the
event any Claim is brOULIlt against an Indemnified Party. the Agency, shall upon written notice
from an Indemnified Party, def"end each Indemnified Party against each Such Claim by COURSel
in M
satisfactory to the Indemnified Party or, at the Indemnified Party's option, it may elect to provide U_
its own defense. The obligations of this section shall Survive the expiration or earlier termination
of this Agreement. CL
(D) The Agency is an independent local government funding and financing
instrumentality. Neither the County nor any participating municipality served by the Agency.
y I a
shall in an manner be obligated to pay any debts. obligations or liabilities as a result of ,
any actions of the Agency, its Board of Directors or any other agents, employees_ off licers or
officials of the Agency, except to the extent otherwise triLitualiv and expressly agreed upon in
writing. In addition, the Agency, its Board of Directors or any other agents, employees, officers
or officials of the Agency shall have no authority or power to otherwise obligate either the
County or any participating municipality served by the Agency.
(E) Notwithstanding g anythin contrary t , to the contrar herein. neither the County nor the
Agency waive any sovereign h111111,1111tY as a result ofthis or any other aLyreernent resulting from
the sut?ject matter hereof-, and., nothing herein shall be construed to usurp or contract away any
irmIlUnity, or the duty oi authority of either party to exercise any general law or police powers as
defined by law.
SECTION 3.08. BINDING EFFECT. This Agreement shall be binding upon
the parties, their respective successors and assigns and shall inure to the benefit of the parties,
their respective successors and assigns.
SECTION 3.09. SEVERABILITY. In the event any provision of this Agreement
shall be held invalid or unenforceable by any Court of" competent _jurisdiction. Such holding shall
not invalidate or render unenforceable any other provision hereof.
SECTION 3.10. ADMINISTRATION INDEMNIFICATION; ADDITIONAL
INSURED.
(A) 'File AgencN, will promptly request and obtain frorn its administrator,
CounterPointe Energy Solutions (FL). LIX, and any subsequent administrator, a separate
indemnification agreement as to its actions and activities on behalf of the Agency concerning all
of the subject matter of this Agreement for the benefit of the County and participating
Zn
municipalities, The form of the indemnification agreement shall be approved by the County
Attorney's Office, prior to the administrator assuming responsibilities for the Agency.
(B) The Agency will promptly request and obtain from its administrator,
CounterPointe Energy S011-1tiOnS (1- LLC, and any Subsequent administrator., and provide the
County a certificate showing the County as all additional insured for the coverages the Agency
requires of its administrator, which are currently:
Worker's Compensation
Employer's Liability
Commercial General Liability
Commercial Auto Liability
Professional Liability (E-&o)
Statutory
$1 ,000.000
1,000,000 pet Occurrence
1,000.000 aggregate
$1,000,000 combined single limit
$ 1,000.000 per occurrence
$2.000,000 aggregate
The staternent or Certificate evidencing the County is named as an additional insured will include
a standard insurance industry statement prohibiting cancellation, termination, or modification of
the policy or a reduction of coverage without first giving the COL111tv (as in addit insured) at
t� I
least ten ( 10) days prior written notice Of Such proposed action.
SECTION 3.1 INSURANCE BYTHE AGENCY: Without waiving the right to
sovereign irnmUnity as provided by Section 768.28, Florida Statute. the Agency acknow=ledges to
be Self-insured for General Liability and Automobile Liability under Florida sovereign immunity
statutes With covet limits of $200.000 Per Person and $300,000 Per Occurrence, or such
monetary waiver limits that may change and be set forth by the legislature. In the event the
Agency maintains third-party Commercial General Liability and Commercial Auto Liability in
HICU Of CXCIUSIve reliance of self-insurance under Section 768.28 Florida Statute, the Agency
shall agree to maintain said insurance policies at limits not less than $500,000 combined single
lirrut for bodily in' property damage. The Agency agrees to maintain or to be self-insured
_jury or prope . L� Agency= �:,
for Workers' Compensation & Employer's Liability Insurance in accordance with Section 440.
Florida Statutes, When requested, the Agency shall agree to provide all affidavit or Certificate of
Insurance evidencing insurance, self-insurance and/or soverei(Ju I'1111111-11lity status, Which County
agrees to recognize as acceptable for tile above mentioned coverage. Compliance with the
foregoing requirements shall not relieve the Agency of its liability and obligations Under this
Interlocal Agreement.
SECTION 3.12. EXECUTION IN COUNTERPARTS. This Agreement may
be simultaneously executed in several counterparts, each of'which shall he an original and all of'
which shall constitute but one and the same instrument.
SECTION 3.13. APPLICABLE LAW, ENFORCEMENT; DELEGATION. A
breach of this Agreement shall mean a material failure to comply with the PACE Statute or any
covenants or provisions of this Agreement. If any party breaches any obli-atiort herein. then, 0
CL
upon receipt of written notice by the non-breaching party the breaching party shall proceed
diligently and in good faith to take all reasonable actions to Cure Such breach, and shall continue Z
0
to take all Such actions until such breach is cured, or be subject to termination for cause.
(A) The parties agree time is of the essence in {ill perCormance hereunder. At all times
the parties may proceed at law or in equity to enforce then rights under this Agreement using all
available remedies.
(13) The venue of any legal or equitable action that arises out of' or relates to this
l -1
Agreement shall be in the appropriate state Court in Monroe County, Florida. In any such action.
Florida law shall apply and the parties waive any right to jury trial.
(C) Any costs or expenses ( including reasonable attorney's fees) associated with the
enforcement of the terms and/or conditions of' this A-reerrient shall be borne by the respective
parties, provided-. however, BY ENTERING INTO THIS AGREEMEN4', ITIE AGENCY AND
COUNI'Y FIEREBY EXPRESSI.,Y WAIVE ANY RIG] ITS EITHER PARTY MAY HAVE TO
A TRIAL- BY YURY OF ANY CIVII- LITIGATION RELATED TO THIS AGREE"MEN]". IF
rHE AGENCY FAILS TO WITHDRAW A REQUEST FOR AJURY TRIAL IN A LAWSUIT
ARISING OUT 01 THIS AGREEMENT AFTER WRITTEN NOTICE BY ] COUNTY OF
VIOLATION OF ']'HIS SECTION., THE AGENCY SIlAI,I_ BE LIABLE FOR THE
RFASONABI_E ATTORNFYS' FEE'S AND COSTS OF THE COUNTY IN CONI
THE REQUEST FOR JURY TRIAL. AND SUCH AMOUNTS SHAI-1, BE AWARDED BY
THE COURT IN ADJUDICATING "ITIE MOTION.
(D) Nothing contained herein shall be deemed to authorize the delegation of the
Constitutional or statutory duties of state. county. or municipal officers.
SECTION 3.14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof, and supersedes all prior and
Contemporaneous ageernents, understandings, negotiations and discussions of' the parties,
whether oral or written, and there are no warranties. representations or other agreements among
the parties in connection with the subject matter hereof- except as specifically set forth herein.
SECTION 3.15. PUBLIC RECORDS. The Agency shall comply with
Florida public records laws. including but not limited to Chapter 119. Florida Statutes and
It,
Section 24 ol'article I of the Constitution of Florida, The County and the Agency shall allow and
permit reasonable access to. and inspection of, all documents, records., papers, letters or other
. 'Public record" materials in its possession or Linder its control subject to the provisions of
Chapter 119, Florida Statutes, and made or received by the County and the Agency in
Conjunction with this contract and related to contract performance. The County shall have the
right to unilaterally cancel this contract upon violation of this provision by the Agency. Failure
of the Agency to abide by the terms of this provision shall be deemed a material breach ot'this
contract and the County may enforce the terms of this provision in the form of a court
proceeding and shall, as a prevailing party, be entitled to reirnburseinent of all attorney's fees
and costs associated with that proceeding. This provision shall Survive any ten or
expiration of the contract,
0
The Agency is encouraged to consult with its advisors about Florida Public Records Law CL
in order to comply with this provision.
PLU - SUant to F.S. 1 19.0701 and the terms and conditions of' this contract. the Agency is M
0
required to: 0
I ) Keep and maintain public records that would be required by the County to perform
the service,
(2) Upon receipt frorn the County's custodian of' records, provide the County with a
copy of the requested records or allow the records to be inspected or copied Within a reasonable
time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by
law.
(3 ) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the duration of
the contract term and following completion of the contract if the Agency does not transfer the
records to the County.
(4) Upon completion of the contract, transfer, at no cost, to the County all public
records in possession or the Agency or keep and maintain public records that would be required
by the County to perform the service. If the Agency transfers all public records to the County
upon completion of the contract., the Agency shall destroy any duplicate public records that are
exempt or confidential and exempt firorn public records disclosure requirements. If the Agency
keeps and maintains public records upon completion of the contract, the Agency shall meet all
applicable requirements for retaining public records. All records stored electronically must be
provided to the County.. upon request frorn the County's custodian of records, in a. format that is
compatible with the information technology systems of the County.
(5) A request to inspect or copy public records relating to a County Contract most be
made directly to the County, but if the County does not possess the requested records, the County
shall immediately notify the Agency of the request, and the Agency must provide the records to
the County or allow the records to be inspected or copied within a reasonable time-
IF THE AGENCY HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES. TO THE AGENCY'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS CONTRACT, CONTACT '1 CUSTODIAN OF P1.1
RECORDS, BRIAN BRADLEY, AT (305) 292-3470
SECTION 3.16, EFFECTIVE DATE. This Ageernent shall become
effective upon the execution by the Parties hereto.
SECTION 3.17. RECORDING. This Agreement shall be recorded by the
Agency with the Clerk 01 the Circuit Court in Monroe County, Florida,
Agency
3.18. ATTORNEY'S FEES AND COSTS. The County and the
Agency agree that in the event anV Cause of action or administrative proceeding is initiated or
defended by any party relative to the enforcement or interpretation n[ this Agreement, the
prevailing party xbaH hc entitled to reasonable attorney's fees, court costs, invuutip1ivc and out-
of-pocket expenses, as an award against the non-prevailing par and shall iuc|udc attorney's
fees, coucts ons1u, imvtsdga1[xe, and out-u|'�pmckeiexpenses [o appel|u1eproceedimp. Mediation
proceedings initiated and conducted pursuant to this/\tyrecnmuot sbo|| be in mccmnj000c with the
Florida Rules of Civil Procedure and usual and cuxiorumry procedures required by the circuit
Court mf Monroe Cmmoty. pw
SECTION 3'0. ADJUDICATION OF DlSP0TES OR DISAGREEMENTS.
The Couutv and the Agency agree that all disputes and dixaoreernentn shall be attempted
to be resolved by meet and confer sessions between rcprcsontm Ives o[cmcb of' the parties. If no
resolution can he agreed upon within 30 days after the first rncct and confer oess[on, the issoe or
issues shall hc discussed u1u public meeting o[ the Board ofCoum1�/ Commissioners. If the issue
or issues are md|| not resolved tn the satisfaction o[Lhc parties. then any party shall have the right
to seek such relief or remedy as may be provided by this Agreement or by Florida law.
SECTION 3.20. COOPERATION, In the event any administrative or legal
proceeding is instituted against either party relating 1mthe formation, excCUtion performance, or
breach of this Agreement. County and the Agency agree to participate, io the extent required by
the other party, in all pmouecdlnox, hearings, processes, nnecdngs. and other activities rc|c4eJ to
the substance of this /\2rcenneutmrprovision of the services under this Agreement. County and
the Agency speoiDom||y ocrncc that no pur1y to this Agcoenmcn( ahu]U be required to enter into any
arbitration proceedings related to this Agreement.
SECTION 3~21. COVENANT OF NO INTEREST. County and the Atzemcy
cmvcomu1 that neither presently has any imtcrcst, and sbu|] not acquire any interest, which vvmmld
conflict in any manner ordegree with its performance under this Agreement, and that the only
in1erem1ofcuoh is to perform and receive henc6/u as recited in this Agreement,
SECTION 3-22. CODE OF ETHICS, County agrees that officers and employees
ofthe County recognize and will be required to comply w4i the standards ofconduct f'br Public
officers and cnnp]oIcea as delineated in Section 112.31 Florida Sbxiutes, rcgurdiog, but not
limited to, solicitation or acceptance uf gifts; doimgbauimcxs with one's agency; unauthorized
uormpcnsmdmn,rmiououoypuhUcposibon
disclosure or use of certain information.
SECTION 3.33. NO PERSONAL LIABILITY, No ouvenuo1 or agreement
contained herein shall be deerned to be a covenant or agreement of any member. officer, agent or
ccnp|n��uofK1mnroc County in him urk�r individual capacity. and no rmcro�cr, oOiucc, agent or
employee n/Monroe County shall be |iub[c pccsooeX|y om this Agreement or be suijcd 10 any
personal liability or accountability by reason o[ the execution of1his /\gocenocnt.
[Remainder of'page intentionally left blank.]
Non-Exchisive loh A, recme0
mom-oc Coarrtt
IN WITNESS WHEREOF. tile Undersigned have caused this Non-Exclusive Interlocal
Agreement to be duly executed and entered into as of the date first above �xritten.
BOARD OF COUNTY
COMMISSIONERS OF MONROEI
(SEAL)
Attest'.
Kevin Madok. Clerk and Comptroller
maoism
y:
David Rice, Mayor
Approved as to Norm:
County Attorney
'18
Non-Exclusi hierlocal Sobscriplion Agreemcni
monroc
IN WITNESS WHEREOF. the Undersigned have caused this Non-Lxclusive Interlocal
Agreement to be duly executed and entered into as of the date first above written.
w
FlIMMUNEUMARM
(SEAL)
By.
Michael 11. Steigerwald. ExeCUtive Director
ATTEST:
Donald 'I". Smallwood, Assistant Secretary
19
EXHIBIT "A"
INTERLOCAL AGREEMENT
Florida PACE Funding Agency
Charter Agreement
AMENDED AND RESTATED
INTERLOCAL AGREEMENT
RELATING TO THE ESTABLISHMENT OF THE
FLORIDA PACE FUNDING AGENCY
Florida PACE Funding Agency
Charter Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS .............................................................. ............................... 2
SECTION 1.02 CONSTRUCTION ........................................................ ..............................4
SECTION 1.03. SECTION HEADINGS ................................................. ..............................5
SECTION1.04. FINDINGS ..................................................................... ..............................5
ARTICLE II
THE AGENCY
SECTION 2.01.
ESTABLISHMENT AND CREATION ....................... ..............................8
SECTION 2.02.
AUTHORITY TO ADMINISTER THE PROVISION OF
TERM OF AGREEMENT; DURATION OF AGREEMENT ................25
SERVICE, FUNDING AND FINANCING OF QUALIFYING
AMENDMENTS AND WAIVERS ............................ .............................25
IMPROVEMENTS ........................................................ ...............................
9
SECTION 2.03.
GOVERNANCE ........................................................... .............................10
IMMUNITY; LIMITED LIABILITY ........................... .............................26
SECTION 2.04.
MEETINGS; NOTICE ................................................. .............................13
BINDING EFFECT ...................................................... .............................27
SECTION 2.05.
REPORTS; BUDGETS; AUDITS ................................ .............................13
SEVERABILITY ........................................................... .............................27
SECTION 2.06.
POWERS, FUNCTIONS AND DUTIES .................... .............................13
EXECUTION IN COUNTERPARTS ......................... .............................27
SECTION 2.07.
CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS
APPLICABLE LAW ..................................................... .............................27
PROHIBITED ................................................................ .............................18
ENTIRE AGREEMENT ............................................... .............................27
SECTION 2.08
ADOPTION OF RATES, FEES AND CHARGES .... .............................19
SECTION 2.09
BONDS AND OBLIGATIONS ................................... .............................20
SECTION 2.10.
MERGER; DISSOLUTION .......................................... .............................23
SECTION 2.11.
ENFORCEMENT AND PENALTIES ....................... .............................24
SECTION 2.12.
TAX EXEMPTION ....................................................... .............................24
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01.
INTERLOCAL AGREEMENT PROVISIONS .......... .............................25
SECTION 3.02.
TERM OF AGREEMENT; DURATION OF AGREEMENT ................25
SECTION 3.03.
AMENDMENTS AND WAIVERS ............................ .............................25
SECTION3.04.
NOTICES ...................................................................... .............................26
SECTION 3.05.
IMMUNITY; LIMITED LIABILITY ........................... .............................26
SECTION 3.06.
BINDING EFFECT ...................................................... .............................27
SECTION 3.07.
SEVERABILITY ........................................................... .............................27
SECTION 3.08.
EXECUTION IN COUNTERPARTS ......................... .............................27
SECTION 3.09.
APPLICABLE LAW ..................................................... .............................27
SECTION 3.10.
ENTIRE AGREEMENT ............................................... .............................27
Florida PACE Funding Agency
Charter Agreement
AMENDED AND RESTATED
INTERLOCAL AGREEMENT RELATING TO THE ESTABLISHMENT OF
THE FLORIDA PACE FUNDING AGENCY
THIS AMENDED AND RESTATED OF THE INTERLOCAL AGREEMENT is
made and entered into as of the last date of execution hereof by the Incorporators
(hereinafter the "Charter Agreement" or "Charter "), by and among the local governments
acting as Incorporators hereof (each an "Incorporator ", and collectively, the
"Incorporators ") as evidenced by their execution hereof, by and through their respective
governing bodies. This amendment and restatement concerns the Interlocal Agreement
recorded at Official Record Book 4143, at Page 2562, as amended at Official Record Book
4210, at Page 2544 in the Official Records of Osceola County, Florida, and in Record Book
1821 at Page 1493, as amended at Official Record Book, at Page 1843, page 415 in the
Official Records of Flagler County, Florida (the "Interlocal Agreement "). The purpose of
the Interlocal Agreement was to create and establish a separate legal entity, public body
and unit of local government, pursuant to Section 163.01(7)(g), Florida Statutes, with all
of the privileges, benefits, powers and terms provided for therein and by law.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration each to the other, receipt of which is
hereby acknowledged by each Incorporator and the Agency, the parties hereby update,
amend, codify and restate the Interlocal Agreement, and agree, stipulate and covenant as
follows:
1
Florida PACE Funding Agency
Charter Agreement
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS. As used in this Charter Agreement, the
following terms shall have the meanings as defined unless the context requires otherwise:
"Agency" means the Florida PACE Funding Agency, a separate legal entity and
public body created pursuant to the provisions of the Interlocal Agreement, and as
updated, amended, codified and restated by this Charter Agreement. The name or
acronym PACE is derived from the concept commonly referred to as 'property assessed
clean energy' and relates hereto to the provisions of general law related to funding and
financing energy efficiency, renewable energy, and /or wind resistance improvements
encouraged and authorized by Section 163.08, Florida Statutes.
"Charter Agreement" or "Charter" means this Charter Agreement which updates,
amends, codifies as a single document, and restates the Interlocal Agreement in its
entirety and confirms the establishment of the Agency, including any amendments and
supplements hereto executed and delivered in accordance with the terms hereof.
"Financing Documents" shall mean the resolution or resolutions duly adopted by
the Agency, as well as any indenture of trust, trust agreement, interlocal agreement or
other instrument relating to the issuance or security of any bond or debt obligations of
the Agency, or the lending or provision of the proceeds thereof to a Subscribing Local
Government.
"Incorporator" and "Incorporators" shall mean those local governments executing
the Interlocal Agreement and this Charter Agreement, acting as the Incorporators of the
Agency, and any future constituent local government member of the Agency who may
join in to this Charter Agreement.
"Obligations" shall mean a series of bonds, obligations or any other evidence of
indebtedness, including, but not limited to, notes, commercial paper, certificates or any
other obligations of the Agency issued under the Interlocal Agreement or hereunder, or
under any general law provisions, and pursuant to the Financing Documents. The term
shall also include any lawful debt obligation committed to by the Agency pursuant to an
interlocal agreement with another governmental body or agency and /or warrants issued
for services rendered or administration expenses.
"Pledged Funds" shall mean (A) the revenues derived from non -ad valorem
special assessments levied in association with Qualified Improvements by a local
government or the Agency and other moneys received by the Agency or its designee
2
Florida PACE Funding Agency
Charter Agreement
relating to some portion thereof, (B) until applied in accordance with the terms of the
Financing Documents, all moneys in the funds, accounts and sub - accounts established
thereby, including investments therein, and (C) such other property, assets and moneys
CL
of the Agency as shall be pledged pursuant to the Financing Documents; in each case to
the extent provided by the Board of Directors pursuant to the Financing Documents. The
Pledged Funds pledged to one series of Obligations may be different than the Pledged
Funds pledged to other series of Obligations. Pledged Funds shall not include any general
or performance assurance fund or account of the Agency.
"Qualifying Improvement" means those improvements for energy efficiency,
renewable energy, and /or wind resistance or any such similar purposes described or
authorized in the Supplemental Act or any amendment thereto, to be affixed or installed
by the record owner of an affected property. Until subsequently determined by the Board
of Directors of the Agency once the Agency's programs have become established,
Qualifying Improvements shall not include improvements completed before the
property has received an initial certificate of occupancy.
"Serve ", "service" or the "provision of service" as such terms are used herein relate
to a governmental function or purpose identified by law, which serve and achieve what
the Legislature has determined as a compelling state interest necessary for the prosperity
and welfare of the state and its property owners and inhabitants, and shall include and
mean all actions authorized by the Supplemental Act and this Charter, including, but not
limited to, the funding and financing of Qualifying Improvements through the execution
of financing agreements and the related imposition of voluntary non -ad valorem
assessments to finance facilities on behalf of private property owners within or outside
of any Incorporator, all of which have been authorized and declared by the Legislature
to benefit the people of the state, increase their commerce and prosperity, improve their
health and living conditions, and to allow for the performance of essential governmental
functions by the Agency.
"Subscribing Local Government" or "Subscriber" shall mean any municipality,
county or other government permitted by the Supplemental Act to enter into financing
agreements as provided for therein which elects to participate in the Agency's financing
program for Qualifying Improvements by entering into a Subscription Agreement with
the Agency.
"Subscription Agreement" means a separate interlocal agreement between the
Agency and any municipality, county or other government permitted by general law to
finance Qualifying Improvements or permitted by the Supplemental Act to enter into
financing agreements as provided for therein. At a minimum, such Subscription
Agreement shall provide for (1) the request or confirmation of authority of the Agency to
3
Florida PACE Funding Agency
Charter Agreement
act, provide its services, and conduct its affairs in cooperation with and /or within the
subscribing government's area of service or boundaries; (2) the Agency or local
government to facilitate by law the voluntary acquisition, delivery, installation or any
C CL
other manner of provision of Qualifying Improvements to record owners desiring such
improvements who are willing to enter into financing agreements as provided for in the
Supplemental Act and agree to impose non -ad valorem assessments which shall run with
the land on their respective properties; (3) the Agency or local government to levy,
impose and collect non -ad valorem assessments pursuant to such financing agreements;
(4) the issuance of Obligations of the Agency to fund and finance the Qualifying
Improvements; (5) the proceeds of such non -ad valorem assessments to be timely and
faithfully paid to the Agency or its bondholders; (6) the withdrawal from, discontinuance
of, or termination of the Subscription Agreement by either party upon reasonable notice
in a manner not detrimental to the holders of any Obligations of the Agency or CL
inconsistent with general law or any Financing Documents; (7) such disclosures, consents
or waivers reasonably necessary to concurrently use or employ the service and activities LU
of the Agency; and (8) such other covenants or provisions deemed necessary and
mutually agreed to by the parties in respect of general law to carry out the purpose and
mission of the Agency.
"Supplemental Act" means the provisions of, and additional and supplemental
authority described in, Section 163.08, Florida Statutes, and as may be amended from
time to time and contemporaneously in effect.
SECTION 1.02 CONSTRUCTION.
A) Words importing the singular number shall include the plural in each case
and vice versa, and words importing persons shall include firms and corporations. The
terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer
to this Charter Agreement; the term "heretofore" shall mean before the date this Charter
Agreement is entered into; and the term "hereafter" shall mean after the date this Charter
Agreement is entered into.
S) Each recital, covenant, agreement, representation and warranty made by a
party herein shall be deemed to have been material and to have been relied on by the
other party to this Charter Agreement. Each Incorporator has reviewed and desires to
enter into this Charter Agreement; the Agency is a successor to such Incorporators and a
beneficiary thereof, and the provisions hereof shall not be construed for or against any
Incorporator or the Agency by reason of authorship or incorporation.
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts
of the several Articles and Sections of this Charter Agreement and any table of contents
Florida PACE Funding Agency
Charter Agreement
or marginal notes appended to copies hereof shall be solely for convenience of reference
and shall neither constitute a part of this Charter Agreement nor affect its meaning,
construction or effect.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and
declared that:
(A) The Legislature has determined that all energy consuming improvements
to property that are not using energy conservation strategies contribute to the burden
resulting from fossil fuel energy production. This comports with the declared public
policy of the State to play a leading role in developing and instituting energy
management programs to promote energy conservation, energy security, and the
reduction of greenhouse gases, in addition to establishing policies to promote the use of
renewable energy.
(S) The Legislature has also determined that improved properties not
protected from wind damage by wind - resistant improvements contribute to the burden
resulting from potential wind damage; and, the installation and operation of Qualifying
Improvements not only benefit the affected properties for which the improvements are
made, but also assist in fulfilling the goals of the State's energy and hurricane mitigation
policies.
(C) In the Supplemental Act, the Legislature finds that there is a compelling
State interest in enabling property owners to voluntarily finance such improvements with
local government facilitative assistance.
(D) In the Supplemental Act, the Legislature makes it clear that the financing of
Qualifying Improvements through the execution of financing agreements and related
imposition of voluntary assessments is reasonable and necessary for the prosperity and
welfare of the State and its property owners and inhabitants.
(E) The Supplemental Act also expressly allows for, but does not require, local
governments to enter into partnerships with one or more local governments for the
purpose of providing and financing Qualifying Improvements. Such provision allows
among other things for innovation in carrying out service and the compelling state
interest described in the Supplemental Act.
(F) Although, in theory, assessments for Qualifying Improvements could be
imposed under home rule authority, the Legislature felt it necessary and desirable to
provide supplemental authority and encouragement which provides a framework for
local, regional, and even state -wide approaches to service. The Supplemental Act
5
Florida PACE Funding Agency
Charter Agreement
provides guidelines, safeguards and clarifies necessary aspects of implementation. The
concept that each landowner voluntarily subjects their land as security for payment of
the non -ad valorem assessments through an individual financing agreement is unique
CL
and fundamental to reasonably attracting funding secured by assessments for Qualifying
Improvements which include energy efficiency, renewable energy, wind resistant
improvements.
(G) A simplified and standardized state -wide program offers efficiencies,
economies of scale, and uniformity that can efficiently attract a stream of financing and
uniform program implementation and avoid administrative burdens and inefficient
expenditures by local governments throughout Florida. The approach embodied in this
Charter Agreement allows the local governments executing this Charter Agreement to
act initially as 'incorporators' to create a focused single legal entity which minimizes their
involvement and exposure in a manner like that of an incorporator in the corporate sense.
The Legislature has expressly determined that the Agency shall be defined as a local
government in the Supplemental Act and is independently authorized by law to impose
these types of voluntary assessments for energy efficiency, renewable energy or wind
resistant Qualifying Improvements.
(H) The Agency achieves local economic development, the hardening of
building stock and creates local jobs by bringing owners and contractors together to
facilitate the provision, funding, and financing of Qualifying Improvements. As a
separate legal entity, the Agency is expressly authorized by general law to finance
facilities on behalf of any person relating to a governmental function or purpose which
may serve populations within or outside of the members of the entity.
(I) This approach requires a match of demand by individual property owners,
both residential and commercial, to the reservoir of qualified labor, tradesmen and
vendors in communities throughout Florida. The Agency presents inter alia a focused
governmental function of attracting and educating qualified labor, tradesman and
vendors in how to effectively serve a new market. Facilitation by creating uniform and
standardized approaches, careful disclosure to interested private property owners, and
developing financing underwritten voluntarily by individual property owners not only
addresses energy efficiency, renewable energy, and /or wind resistance burdens and
benefits, but will stimulate a substantial and meaningful flow of private sector economic
activity and new job creation.
(J) The creation and establishment of the Florida PACE Funding Agency
serves to minimize duplication of effort and unnecessary government exposure or
involvement, and by law accomplishes a compelling state interest through the provision
of service by making available uniform, competitive and credible funding and financing
I
Florida PACE Funding Agency
Charter Agreement
for individual property owners wishing to participate. The increased availability of
funding and financing service by the Florida PACE Funding Agency serves to convert a
resource of unused trade and construction skill -sets into productive new private sector
CL
job markets, naturally creates local employment, and carefully complies with relevant
industry guidelines, safeguards and implementation authorization provided by the
Legislature in the Supplemental Act.
(K) This Charter Agreement serves to expressly address and conform to a
change in general law subsequent to the execution and effective date of the Interlocal
Agreement in order to more broadly serve and provide competitive opportunities to
communities, labor markets, material markets, populations, and persons and help to
improve properties throughout Florida in order to assist property owners in voluntarily
achieving the compelling state interest and fulfilling the goal of the state's energy and
hurricane policies articulated in the Supplemental Act.
[Remainder of page intentionally left blank]
7
Florida PACE Funding Agency
Charter Agreement
ARTICLE II
THE AGENCY
SECTION 2.01. ESTABLISHMENT AND CREATION.
(A) Creation and establishment of the 'Florida PACE Funding Agency," a
separate legal entity and public body and unit of local government with all of the
privileges, benefits, powers and terms provided for herein and by law, and as defined
herein as the "Agency ", by the Interlocal Agreement is ratified and confirmed.
(B) Initial membership in and the Incorporators of the Agency consists of those
local governments executing the Interlocal Agreement and this Charter Agreement as
Incorporators. To the extent permitted by Section 163.01, Florida Statutes, additional
members may be included or deleted by amendment hereto approved by all member
local governments of the Agency and the governing body of the Agency. As a condition
to membership in the Agency, each member shall be a municipality or county, or other
government permitted by the Supplemental Act to enter into financing agreements as
provided for therein.
(C) The boundaries or non - exclusive jurisdiction of the Agency shall embrace
the territory of any county or municipality throughout the state within which any person
owning a property therein determines to enter into a financing agreement evidencing the
levy and imposition of a non -ad valorem assessment for a Qualifying Improvement
funded or financed by the Agency.
(D) A municipality or county or other government permitted by the
Supplemental Act to enter into financing agreements as provided for therein need not be
a local government member in or of the Agency, and by law need not otherwise enter
into a Subscription Agreement, nor undertake any exclusive relationship with the
Agency, nor otherwise take any action to acquiesce, encourage or request the Agency to
act, provide its services, or conduct its affairs within the local governments' boundaries.
(E) The Agency is created for purposes set forth in Section 163.01(7)(8), Florida
Statutes, and this Charter Agreement as the same may be amended from time to time, in
order to facilitate, administer, implement and assist in providing funding and financing
for Qualifying Improvements, enter into Subscription Agreements and other agreements,
and otherwise serve or provide its services to facilitate financing agreements and non -ad
valorem assessments only on properties subjected to same by the record owners thereof,
develop funding and financing markets, develop structures and procedures to finance
Qualifying Improvements, and to take any actions associated therewith or necessarily
resulting therefrom, as contemplated by the Supplemental Act and general law.
0
Florida PACE Funding Agency
Charter Agreement
(F) The Agency charter created by this Charter Agreement may be amended
only by written amendment hereto, or by special act of the Legislature, upon the consent
by resolution of the governing bodies of the then members of the Agency.
(G) The mission of the Agency shall be to aspire to and undertake, cause and /or
perform all such acts as shall be necessary to provide an independent, uniform and
efficient local platform capable of serving private property owners in Florida, by securing
economies of scale, market -based competition and uniform implementation on a state-
wide basis as authorized by general law and this Charter to facilitate the provision of
service, and the funding and financing of Qualifying Improvements to only interested
property owners desiring to voluntarily achieve the compelling state interests expressed
in the Supplemental Act.
(H) The Agency's mission fundamentally includes a judicially- confirmed
structure which eliminates responsibility or liability for the Agency's actions with regard
to any other governmental official or entity, while benefitting local commerce, fulfilling
the state's energy and hurricane mitigation policies, and allows for cooperation and
sharing information with general purpose local governments; and, shall focus upon
education of interested and participating property owners, along with providing for
direct written disclosure and constructive notice which meets and exceeds relevant
industry standards and the extraordinary direct and constructive notice provided by the
Supplemental Act.
(I) The Agency, pursuant to general law and by judicial determination, is (1) a
legal entity separate and distinct from its Incorporators or members, and (2) a valid and
legally existing public body corporate and politic within the State of Florida created
pursuant to the Interlocal Agreement and other general law. The Agency is not and
cannot be characterized as a dependent special district under section 189.012, Florida
Statutes. Accordingly, for providing a status statement and substantial compliance with
section 189.03, Florida Statutes and its predecessor in function, as previously requested
by the Department of Economic Opportunity, the status of the Agency is "independent."
Such status is consistent with the determination of the Department of Economic
Opportunity.
SECTION 2.02. AUTHORITY TO ADMINISTER THE PROVISION OF
SERVICE, FUNDING AND FINANCING OF QUALIFYING IMPROVEMENTS. By
this Charter, the provisions of section 163.01(7)(8), Florida Statutes, the Supplemental
Act, or by resolution of the governing bodies of a general purpose local government
affected and as implemented pursuant to a Subscription Agreement, collectively,
alternatively, or supplementally, all power and authority available to the Agency under
this Charter Agreement, and general law, including without limitation, Chapters 163,189
9
Florida PACE Funding Agency
Charter Agreement
and 197, Florida Statutes, shall be deemed to be authorized and may be implemented by
the Agency to serve populations within and outside of the members of the Agency.
SECTION 2.03. GOVERNANCE.
(A) The governing body of the Agency shall consist of a number of persons
equal to one (1) member of the Agency's Board of Directors appointed by each
Incorporator, and due to the event of an even number of Incorporators, one (1) member
of the Agency's Board of Directors shall be selected jointly by all Incorporators, each of
whom shall serve a staggered term of three (3) years commencing on October 1. To
immediately broaden geographic and insightful participation in governance, until the
Agency attains a total of four (4) local government members (including the initial
Incorporators) as provided for in the preceding sentence, the Board of Directors of the
Agency is directed and authorized to appoint Board Director No. 4 and Board Director
No. 5 using substantially the process as provided in subsection (C) of this Section.
However, any person so appointed by the Board of Directors concerning Board Director
No. 4 or Board Director No. 5 shall be appointed for the unexpired term. Each Director
shall hold office until his or her successor has been appointed, qualified and taken an
oath of office. The procedure for appointment of members of the Board of Directors and
their initial terms of office shall be as follows:
(1) Board Director No. 1, Barbara Revels, is hereby confirmed and
appointed by the Board of County Commissioners of Flagler County and accepted
to serve a second term ending on September 30, 2019.
(2) Board Director No. 2, Cheryl Grieb, is hereby confirmed and
appointed by the City Commission of the City of Kissimmee and accepted to serve
a second term ending on September 30, 2017.
(3) Board Director No. 3, Jim Ley, is hereby jointly confirmed and
appointed, due to the event of an even number of initial Board of Directors
appointed by the Incorporators, and accepted to serve a first term ending
September 30, 2018.
(4) Board Director No. 4, as soon as reasonably practicable, shall be
appointed as provided herein or as otherwise directed and authorized to an initial
term ending on September 30, 2019.
(5) Board Director No. 5, as soon as reasonably practicable, shall be
appointed as provided herein or as otherwise directed and authorized to an initial
term ending on September 30, 2018.
10
Florida PACE Funding Agency
Charter Agreement
(6) All members of the Board of Directors shall be qualified electors
of the State of Florida.
To the extent necessary, if at all, and without assumption of any liability therefore by the
Incorporators, all actions of the Incorporators, the Agency's Board of Directors, and their
duly authorized officers and agents, beginning with the inception of the Agency through
execution hereof, are hereby ratified and confirmed. This confirmation and ratification
provision serves the purpose of a savings clause for the avoidance of doubt in favor of
the public interest, and for purposes of repose in the conduct of orderly public affairs.
(B) Members of the Board of Directors shall serve no more than three (3)
consecutive three (3) year terms, not including any initial term of less than three (3) years.
Provided, however, they shall continue to hold office for the terms for which they were
appointed until their successors are chosen, qualified and taken an oath or office.
(C) Upon the occasion of a vacancy for any reason in the term of office of a
member of the Board of Directors, which vacancy occurs prior to the replacement of the
Board member by appointment and which remains unfilled for thirty (30) days after such
vacancy due to inaction or the failure of the respective Incorporator's governing body to
duly appoint a successor who is a qualified elector of the State as provided in subsection
(A) hereof or otherwise, a successor shall be appointed by a majority of a quorum of the
remaining Board of Directors at a meeting held for such purposes. Except as specifically
provided on an interim basis in subsection (A) concerning Board Director No. 4 and
Board Director No. 5, any person so appointed to fill a vacancy shall be appointed to serve
only for the unexpired term or until a successor is duly appointed.
(D) The Board of Directors shall elect a Chairperson, Vice - Chairperson,
Secretary, Assistant Secretary and such other officers of the Agency as may be hereafter
designated and authorized by the Board of Directors, each of whom shall serve for one
(1) year commencing as soon as practicable after October 1 and until their successor is
chosen. The Chairperson, the Vice - Chairperson, or the Secretary shall conduct the
meetings of the Agency and perform such other functions as herein provided. The
Chairperson and Vice - Chairperson shall take such actions, and have all such powers and
sign all documents on behalf of the Agency in furtherance of this Charter Agreement or
as may be approved by resolution of the Board of Directors adopted at a duly called
meeting. The Vice - Chairperson, in the Chairperson's absence, shall preside at all
meetings. The Secretary, or the Secretary's designee, shall keep minutes of all meetings,
proceedings and acts of the Board of Directors, but such minutes need not be verbatim.
Copies of all minutes of the meetings of the Agency shall promptly be sent by the
Secretary, or the Secretary's designee, to all members of the Board of Directors and to
each general purpose local government which is an Incorporator or Subscribing Local
11
Florida PACE Funding Agency
Charter Agreement
Government. The Secretary and any Assistant Secretary may also attest to the execution
of documents. The Secretary and any Assistant Secretary, or other person duly
designated by resolution of the Board, shall have such other powers as may be approved
C CL
by resolution of the Board of Directors adopted at a duly called meeting.
(E) The Board of Directors shall have those administrative duties set forth in
this Charter Agreement and Chapter 189, Florida Statutes, as the same may be amended
from time to time. Any certificate, resolution or instrument signed by the Chairperson,
Vice - Chairperson or such other person on behalf of the Agency as may hereafter be
designated and authorized by resolution of the Board of Directors shall be evidence of
the action of the Agency and any such certificate, resolution or other instrument so signed
shall be conclusively presumed to be authentic.
(F) Except as provided in this subsection, the members of the Board of
Directors shall receive no compensation for their services. Each member of the Board of
Directors may be reimbursed for expenses as provided in Section 112.061, Florida
Statutes, or, as an alternative, receive a per diem to compensate each member for the
inconvenience of travel and associated expenses not to exceed $350 per calendar day or
as otherwise approved by the Board of Directors for travel on Agency business. Provided,
however, such expenses or per diem shall not be construed as a salary, and accrue and
only be payable as, if and when funds to pay same are available to the Agency.
(G) A majority of the Board of Directors shall constitute a quorum for the
transaction of business of the Agency. The affirmative vote of the majority of the members
of the Board of Directors present and voting (exclusive of any member having a conflict)
shall be necessary to transact business.
(H) By the Interlocal Agreement, prior to the appointment of the entire Board
of Directors and the first organizational meeting thereof, the affairs of the Agency were
governed by joint resolution of the Incorporators and the then members of the Agency.
In such interim period, however long, such acts were necessarily made on behalf of and
shall be binding upon the Agency by joint resolution of said Incorporators and the then
members. Such acts shall be deemed actions of the governing body of the Agency. In this
context, "joint resolution" shall mean any one or a set of resolutions adopting concurrent
direction and authorization under the provisions of the Interlocal Agreement or the
Charter, and may be evidenced by resolutions executed separately, jointly or with
counterpart or other similar provisions, and do not require the joint meeting of the
Incorporators. Such actions shall be exclusively on behalf of the Agency, and no liability
or responsibility therefor shall be imputed to said Incorporators or the then members.
Such acts may include any power or authority otherwise available to the Agency and
shall include, among other things, approval of such Financing Documents as were
12
Florida PACE Funding Agency
Charter Agreement
deemed advisable to file all necessary validation or other pleadings, and undertake
appellate matters if necessary, in order to obtain validation of the authority for the
Agency to undertake its purpose and mission and issue its Obligations associated there
CL
with, the retention of counsel, the procurement of other professional services and all other
reasonable acts to initiate and validate the purpose, mission and authority of the Agency,
with the cost thereof accruing exclusively to and only payable by the Agency as, if and
when funds from or associated with the programs of the Agency become available. All
such actions taken or instruments executed on behalf of the Agency are ratified and
confirmed and shall continue to be valid and binding in every respect upon the Agency
as if duly executed by the Chairman on behalf of the Board of Directors or any other
person authorized by the Board of Directors to execute same.
SECTION 2.04. MEETINGS; NOTICE. Unless determined otherwise by
the Board of Directors, the Board of Directors shall hold meetings pursuant to Section
189.015, Florida Statutes. Notice of meetings and the adoption of the annual budget shall
be promulgated on the Agency's website, and notice concerning same shall be published
in newspapers of general circulation in the counties of the Incorporators and members of
the Agency. Meetings may be noticed and conducted in any reasonable manner in any
lawful location within the State.
SECTION 2.05. REPORTS; BUDGETS; AUDITS. Unless determined
otherwise by the Board of Directors, the Agency shall prepare and submit reports,
budgets and audits as provided in Sections 189.016, Florida Statutes.
SECTION 2.06. POWERS, FUNCTIONS AND DUTIES.
(A) The Agency shall have all powers to carry out the purposes of this Charter
Agreement and the functions and duties provided for herein, including the following
powers which shall be in addition to and supplementing any other privileges, benefits
and powers granted by this Charter Agreement or by law:
(1) To execute all contracts and other documents, adopt all
proceedings and perform all acts determined by the Board of Directors as
necessary or advisable to carry out the purpose or mission of the Agency, the
purposes of the Interlocal Agreement or this Charter Agreement or any
Subscription Agreement with a local government. Unless otherwise provided for
herein or authorized by the Board of Directors, the Chairperson or Vice -
Chairperson shall execute contracts and other documents on behalf of the Board
of Directors.
13
Florida PACE Funding Agency
Charter Agreement
(2) To plan and provide for the provision, funding, and financing of
Qualified Improvements in any manner or means determined by the Board of
Directors.
(3) To contract for the service of administrators, accountants,
attorneys and any other experts, advisors, or consultants, and such other
professionals, agents and employees as the Board of Directors may require or
deem appropriate from time to time.
(4) To contract for such services, costs, goods, facilities, or other costs
or expenses on a contingent, at risk or deferred basis with the providers,
purveyors, or vendors thereof with the express understanding that payment
therefore may be evidenced by warrants only due or payable from the Agency
(and absolutely no other person, entity or Incorporator) as, if and when identified
funds to pay same are available to the Agency.
(5) To reimburse any Incorporator for actual and verifiable costs and
expenses reasonably associated with the creation and establishment of the Agency,
if any, as, if and when identified funds to repay same are available to the Agency.
(6) To adopt all necessary rules, regulations, procedures, or
standards by resolution.
(7) To exercise jurisdiction, control and supervision over the
provision, funding, and financing of Qualified Improvements and to make and
enforce such rules, procedures and regulations applicable thereto as may be, in the
judgment of the Board of Directors, necessary or desirable for the efficient
operation of the Agency in accomplishing the purpose and mission of the Agency,
and purposes of this Charter Agreement.
(8) To enter into interlocal agreements or join with any other special
purpose or general purpose local governments, public agencies or authorities in
the exercise of common powers.
(9) To contract with private or public entities or persons.
(10) Subject to such provisions and restrictions as may be set forth in
any Financing Document, to enter into contracts with the government of the
United States or any agency or instrumentality thereof, the State, or with any
municipality, county, district, authority, political subdivision, private corporation,
partnership, association or individual providing for or relating to the provision,
funding, or financing of Qualifying Improvements and any other matters relevant
14
Florida PACE Funding Agency
Charter Agreement
thereto or otherwise necessary to effect the purpose and mission of the Agency
and purposes of this Charter Agreement.
(11) To receive and accept from any federal or State agency, grants or
loans for or in aid of the planning, administration, provision or financing of
Qualifying Improvements, and to receive and accept aid or contributions or loans
from any other source of either money, labor or other things of value, to be held,
used and applied only for the purpose for which such grants, contributions or
loans may be made.
(12) To purchase, finance, assume the ownership of, lease, operate,
manage and /or control of any administrative facilities, including all equipment or
personal property deemed necessary by the Board of Directors to achieve the
purpose or mission of the Agency.
(13) To appoint advisory boards and committees to assist the Board of
Directors in the exercise and performance of the powers and duties provided in
this Charter Agreement.
(14) To sue and be sued in the name of the Agency and participate as
a party in any civil, administrative or other action.
(15) To provide or contract for record retention and public records
administration.
(16) To adopt and use a seal and authorize the use of a facsimile
thereof.
(17) To employ or contract with any public or private entity or person
to administer, manage, operate or provide professional services or other efforts
associated with any Agency activity, program or facilities, or any portion thereof,
including project or program management or similar plans, upon such terms as
the Board of Directors deems appropriate.
(18) Subject to such provisions and restrictions as may be set forth in
any Financing Document, to own, use, manage or otherwise dispose of any
administrative facilities, equipment or personal property, or any portion thereof,
upon such terms as the Board of Directors deems appropriate.
(19) Subject to such provisions and restrictions as may be set forth in
any Financing Document, to acquire, own, manage, or otherwise dispose of
carbon, renewable energy or similar credits upon such terms as the Board of
15
Florida PACE Funding Agency
Charter Agreement
Directors deems appropriate; and use the proceeds of same, if any materialize, to
underwrite start -up or on -going program costs, payment to professionals for
deferred or contingent fee or other work or retainers, the advancement of
CL
educational programs, deposit into any general or performance assurance fund
and /or payment of other reasonable costs or expenditure to advance the mission
and purpose of the Agency.
(20) To acquire, by purchase, gift, devise, tax sale certificate or
otherwise, and to dispose of, real or personal property, or any estate therein in the
course of the purpose or mission of the Agency.
(21) To make and execute contracts or other instruments necessary or
convenient to the exercise of its powers.
(22) To maintain an office or offices within the State at such place or
places as the Board of Directors may designate from time to time.
(23) To utilize and employ technology and innovation to the
maximum extent possible, unless otherwise inconstant with general law, in
conducting the meetings and affairs of the Agency.
(24) To lease, as lessor or lessee, to or from any person, firm,
corporation, association or body, public or private, facilities or property of any
nature to carry out any of the purposes authorized by law or this Charter
Agreement.
(25) To borrow money and issue bonds, certificates, warrants, notes,
obligations or other evidence of indebtedness of any kind.
(26) To independently act, assist, serve or provide service within the
bounds of any general purpose local government to fund, finance, assess, levy,
impose, collect and enforce non -ad valorem assessments authorized by Section
163.08, Florida Statutes, as expressly authorized to do so by either the Legislature
and this Charter or by the general purpose local government in which the lands
assessed are located. Such non -ad valorem assessments may only be to fund and
finance Qualifying Improvements.
(27) To contract, apply for and accept grants, loans, assignments and
subsidies from any governmental entity for the provision, funding and financing
of Qualifying Improvements, and to comply with all requirements and conditions
imposed in connection therewith.
16
Florida PACE Funding Agency
Charter Agreement
(28) To the extent allowed by law and to the extent required to
effectuate the purposes of this Charter Agreement, to have and exercise all
privileges, immunities and exemptions accorded municipalities and counties of
C CL
the State under the provisions of the constitution and laws of the State.
(29) To adopt investment policies from time to time and /or invest its
moneys in such investments as directed by the Board of Directors in a manner
which shall be consistent in all instances with the applicable provisions of the
Financing Documents and State law.
(30) To purchase such insurance, bonds, sureties, contracts of
indemnity, or similar facilities of any kind or nature as it deems appropriate.
(31) To do all acts and to exercise all of the powers necessary,
convenient, incidental, implied or proper, in connection with any of the powers,
duties, obligations or purposes authorized by this Charter Agreement or by law.
(B) The Board of Directors may appoint or contract with one or more persons
or entities to act as the third party administrator for the Agency having such functions,
duties, and responsibilities to implement the services and affairs of the Agency as the
Board of Directors may prescribe.
(C) The Board of Directors may appoint or contract with a person or entity to
act as executive director of the Agency having such official title, functions, duties, and
powers as the chief administrative officer of the Agency as the Board of Directors may
prescribe. The Board of Directors shall appoint a person or entity to act as the legal
counsel for the Agency. The executive director and legal counsel shall each answer
directly to the Board of Directors. The third party administrator shall answer to the
executive director, unless otherwise directed by the Board of Directors. Neither the
executive director, the third party administrator, legal counsel, nor any other employee
of the Agency shall be a member of the Board of Directors.
(D) The Board of Directors (or the executive director prior to the first meeting
of Board of Directors) may use or employ any procurement procedures or approach not
otherwise inconsistent with general law.
(E) The Board of Directors (or the executive director prior to the first meeting
of Board of Directors) may request proposals, or receive unsolicited proposals; provided,
however, a courtesy notice thereof shall be provided to the chief administrative officer of
each then Incorporator or member of the Agency.
17
Florida PACE Funding Agency
Charter Agreement
(F) The executive director shall be authorized to execute and deliver on behalf
of the Agency such documents and to take such actions as shall be authorized from time
to time by the governing body of the Agency. The executive director, or other person or
CL
entity otherwise specifically directed to do so, is hereby directed and authorized to
undertake such reasonable actions to request proposals, receive unsolicited proposals or
employ any procurement procedures necessary to reasonably and timely advance the
mission and purpose of the Agency, and thereafter make recommendations to the Board
of Directors.
(G) In exercising the powers conferred by this Charter Agreement, the Board of
Directors shall act by resolution or motion made and adopted at duly noticed and
publicly held meetings in conformance with applicable law.
(H) The provisions of Chapter 120, Florida Statutes, shall not apply to the
Agency.
(I) However, nothing herein shall affect the ability of the Agency to engage in
or pursue any civil or administrative action or remedies, including but not limited to any
proceeding or remedy available under Chapter 120, Florida Statutes, or its successor in
function.
SECTION 2.07. CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS
PROHIBITED. The Agency shall not be empowered or authorized in any manner to
create a debt as against the State, any county or any municipality, and may not pledge
the full faith and credit of the State, any county, or any municipality. All revenue bonds
or debt obligations shall contain on the face thereof a statement to the effect that the state,
county or any municipality shall not be obligated to pay the same or interest thereon and
that they are only payable from Agency revenues or the portion thereof for which they
are issued and that neither the full faith and credit nor the taxing power of the state or of
any political subdivision thereof is pledged to the payment of the principal of or the
interest on such bonds. The issuance of revenue or refunding bonds under the provisions
of law or this Charter Agreement shall not directly or indirectly or contingently obligate
the state, or any county or municipality to levy or to pledge any form of taxation whatever
therefor or to make any appropriation for their payment.
SECTION 2.08. ADOPTION OF RATES, FEES AND CHARGES.
(A) The Board of Directors may adopt from time to time by resolution such
rates, fees or other charges for the provision of the services of the Agency to be paid by
the record owner of any property, pursuant to a financing agreement described in the
Supplemental Act.
18
Florida PACE Funding Agency
Charter Agreement
(B) Such rates, fees and charges shall be adopted and revised so as to provide
moneys, which, together with other funds available for such purposes, shall be at least
sufficient at all times to pay the expenses of administering, managing, and providing for
C CL
the services and administration of the activities of the Agency, to pay costs and expenses
provided for by law or this Charter Agreement and the Financing Documents (including
the funding of any financing or operating reserves deemed advisable by the Agency), and
to pay the principal and interest on the Obligations as the same shall become due and
reserves therefor, and to provide a reasonable margin of safety over and above the total
amount of such payments. Notwithstanding any other provision in this Charter
Agreement, such rates, fees and charges shall always be sufficient to comply fully with
any covenants contained in the Financing Documents. The Agency shall charge and
collect such rates, fees and charges so adopted and revised, and such rates, fees and
charges shall not be subject to supervision or regulation by any other commission, board, CL
bureau, agency or other political subdivision of the State.
(C) Such rates, fees and charges may vary from jurisdiction to jurisdiction, but
shall be just and equitable and uniform at the time of imposition for the record owners
(within each community served or subscribing local governmental jurisdiction) electing
to enter into any financing agreement described in the Supplemental Act within the same
class, and may be based upon or computed upon any factor (including, by way of
example and not limitation, distinguishing between residential and non - residential
customers or uses, distinguishing between variable costs of administrative services, the
degree of local cooperation, assistance from and coordination with local officials,
underwriting or market factors over time) or combination of factors affecting the demand
or cost of the service furnished by the Agency or provided to administer the affairs of the
Agency and provision of service as may be determined or approved by the Board of
Directors from time to time.
(D) Notwithstanding anything in this Charter Agreement to the contrary, the
Agency may establish a general fund and /or performance assurance account into which
moneys may be deposited from an annual surcharge not to exceed one percent (1 %) upon
any assessments, or any rates, fees and charges imposed, pledged to or collected by the
Agency. Any moneys deposited to such general fund account from such a surcharge
represent a fair and reasonable cost of administration and shall be considered legally
available for any lawful purpose approved by the Board of Directors. Moneys in such
general fund and /or performance assurance account may be used to pay for or reimburse
initial costs and expenses advanced or associated with start -up costs, feasibility studies,
economic analysis, financial advisory services, program development or implementation
costs or enhancements, public education, administration, quality control, vendor
procurement, and any other lawful purpose approved by the Board of Directors.
19
Florida PACE Funding Agency
Charter Agreement
SECTION 2.09. BONDS AND OBLIGATIONS.
(A) The Board of Directors shall have the power and it is hereby authorized to
provide pursuant to the Financing Documents, at one time or from time to time in one or
more series, for the issuance of Obligations of the Agency, or notes in anticipation thereof,
for one or more of the following purposes:
(1) Paying all or part of the cost of one or more Qualifying
Improvements,
(2) Refunding any bonds or other indebtedness of the Agency,
(3) Assuming or repaying the indebtedness relating to Qualifying
Improvements,
(4) Setting aside moneys in a reserve or performance assurance
account,
(5) Funding a debt service reserve account,
(6) Capitalizing interest on the Obligations,
(7) Paying costs of issuance relating to the Obligations, and
(8) Any other purpose relating to the purpose or mission of the
Agency or this Charter Agreement.
(B) The principal of and the interest on each series of Obligations shall be
payable from the Pledged Funds, all as determined pursuant to the Financing
Documents. The Agency may grant a lien upon and pledge the Pledged Funds in favor
of the holders of each series of Obligations in the manner and to the extent provided in
the Financing Documents. Such Pledged Funds shall immediately be subject to such lien
without any physical delivery thereof and such lien shall be valid and binding as against
all parties having claims of any kind in tort, contract or otherwise against the Agency.
(C) The Obligations of each series shall be dated, shall bear interest and such
rate or rates, shall mature at such time or times not exceeding forty (40) years from their
date or dates, may be made redeemable before maturity, at the option of the Agency, at
such price or prices and under such terms and conditions, all as shall be determined by
the Board of Directors pursuant to the Financing Documents. The Board of Directors shall
determine the form of the Obligations, the manner of executing such Obligations, and
shall fix the denomination of such Obligations and the place of payment of the principal
20
Florida PACE Funding Agency
Charter Agreement
and interest, which may be at any bank or trust company within or without the State. In
case any officer whose signature or facsimile of whose signature shall appear on any
Obligations shall cease to be such officer before the delivery of such Obligations, such
C CL
signature or such facsimile shall nevertheless be valid and sufficient for all purposes the
same as if such officer had remained in office until delivery. The Board of Directors may
sell Obligations in such manner and for such price as it may determine to be in the best
interest of the Agency in accordance with the terms of the Financing Documents. In
addition to the Pledged Funds, the Obligations may be secured by such credit
enhancement as the Board of Directors determines to be appropriate pursuant to the
Financing Documents. The Obligations may be issued as capital appreciation bonds,
current interest bonds, term bonds, serial bonds, variable bonds or any combination
thereof, all as shall be determined pursuant to the Financing Documents.
(D) Prior to the preparation of definitive Obligations of any series, the Board of
Directors may issue interim receipts, interim certificates or temporary Obligations,
exchangeable for definitive Obligations when such Obligations have been executed and
are available for delivery. The Board of Directors may also provide for the replacement
of any Obligations which shall become mutilated, or be destroyed or lost. Obligations
may be issued without any other proceedings or the happening of any other conditions
or things than those proceedings, conditions or things which are specifically required by
this Charter Agreement, the Financing Documents or other applicable laws.
(E) The Board of Directors may enter into such swap, hedge or other similar
arrangements relating to any Obligations as it deems appropriate.
(F) The proceeds of any series of Obligations shall be used for such purposes,
and shall be disbursed in such manner and under such restrictions, if any, as the Board
of Directors may provide pursuant to the Financing Documents.
(G) The Financing Documents may also contain such limitations upon the
issuance of additional Obligations as the Board of Directors may deem appropriate, and
such additional Obligations shall be issued under such restrictions and limitations as may
be prescribed by such Financing Documents. The Financing Documents may contain
such provisions and terms in relation to the Obligations and the Pledged Funds as the
Board of Directors deems appropriate and which shall not be inconsistent herewith.
(H) Obligations shall not be deemed to constitute a general obligation debt of
the Agency or a pledge of the faith and credit of the Agency, but such Obligations shall
be payable solely from the Pledged Funds and any moneys received from the credit
enhancers of the Obligations, in accordance with the terms of the Financing Documents.
The issuance of Obligations shall not directly or indirectly or contingently obligate the
21
Florida PACE Funding Agency
Charter Agreement
Agency to levy or to pledge any form of ad valorem taxation whatsoever therefor. No
holder of any such Obligations shall ever have the right to compel any exercise of the ad
valorem taxing power on the part of the Agency or any incorporating local government
CL
or subscribing local government to pay any such Obligations or the interest thereon or
the right to enforce payment of such Obligations, or the interest thereon, against any
property of the Agency, nor shall such Obligations constitute a charge, lien or
encumbrance, legal or equitable, upon any property of the Agency, except the Pledged
Funds in accordance with the terms of the Financing Documents.
(I) All Pledged Funds shall be deemed to be trust funds, to be held and applied
solely as provided in the Financing Documents. Such Pledged Funds may be invested by
the Agency in such manner as provided in the Financing Documents.
(J) Any holder of Obligations, except to the extent the rights herein given may
be restricted by the Financing Documents, may, either at law or in equity, by suit, action,
mandamus or other proceeding, protect and enforce any and all rights under the laws of
the State or granted hereunder or under the Financing Documents, and may enforce and
compel the performance of all agreements or covenants required by this Charter
Agreement, or by such Financing Documents, to be performed by the Agency or by any
officer thereof.
(K) From time to time the Agency may issue warrants, payable not from
Pledged Funds, but as, if and when other legally available funds become available; or as
otherwise authorized under the Financing Documents.
(L) Obligations may be validated, at the sole discretion of the Board of
Directors, pursuant to Chapter 75, Florida Statutes. Obligations may be issued pursuant
to and secured by a resolution of the Board of Directors. Provided, however, the Agency's
power and authority to issue its Obligations for proper, legal, and paramount public
purposes in the amount not to exceed $2,000,000,000 in revenue bonds (various series),
together with the validity of the Interlocal Agreement, and all of its terms, provisions and
powers, the Pledged Funds, the power and authority of the Agency and any subscribing
local government to enter into a Subscription Agreement, the provision, funding, and
financing of Qualifying Improvements, the power and authority for local governments
to enter into financing agreements and impose non -ad valorem assessments and the
status of such non -ad valorem assessments as a lien of equal dignity to taxes and
assessments as described in the Supplemental Act, and all matters associated therewith
were required to be and were validated pursuant to Chapter 75, Florida Statutes, as soon
as practicable after the execution of the Interlocal Agreement.
22
Florida PACE Funding Agency
Charter Agreement
(M) In addition to the other provisions and requirements of this Charter
Agreement, any Financing Documents may contain such provisions as the Board of
Directors deems appropriate.
(N) All Obligations issued hereunder shall not be invalid for any irregularity or
defect in the proceedings for the issuance and sale thereof and shall be incontestable in
the hands of bona fide purchasers for value. No proceedings in respect to the issuance of
such Obligations shall be necessary except such as are required by law, this Charter
Agreement or the Financing Documents. The provisions of the Financing Documents
shall constitute an irrevocable contract between the Agency and the holders of the
Obligations issued pursuant to the provisions thereof.
(0) Holders of Obligations shall be considered third party beneficiaries
hereunder and may enforce the provisions of this Charter Agreement or general law.
SECTION 2.10. MERGER; DISSOLUTION.
(A) In no event shall a merger involving the Agency be permitted, unless
otherwise approved by resolution of the local governments which are then members of
the Agency pursuant to this Charter Agreement.
(B) The dissolution of the Agency shall occur by law and transfer the title to all
property owned by the Agency in a manner consistent with Chapter 189, Florida Statutes,
unless (1) the Agency is merged into an independent special district as acknowledged
herein, (2) this Charter Agreement is terminated pursuant to Section 3.02 hereof, or (3) as
otherwise provided in a dissolution plan approved and adopted by resolution of the local
governments which are then members of the Agency pursuant to this Charter
Agreement.
SECTION 2.11. ENFORCEMENT AND PENALTIES. The Board of
Directors or any aggrieved person may have recourse to such remedies in law and equity
as may be necessary to ensure compliance with the provisions of this Charter Agreement,
including injunctive relief to mandate compliance with or enjoin or restrain any person
violating the provisions of this Charter Agreement and any bylaws, resolutions,
regulations, rules, codes, and orders adopted under this Charter Agreement, and the
court shall, upon proof of such failure of compliance or violation, have the duty to issue
forthwith such temporary and permanent injunctions as are necessary to mandate
compliance with or prevent such further violations thereof.
SECTION 2.12. TAX EXEMPTION. As the exercise of the powers conferred
by this Charter Agreement to effect the purposes of this Charter Agreement constitute
23
Florida PACE Funding Agency
Charter Agreement
the performance of essential public functions, and as the programs of the Agency
constitute public purposes as more particularly articulated in the Supplemental Act, all
assets and properties of the Agency and all Obligations issued hereunder and interest
CL
paid thereon and all assessment proceeds, rates, fees, charges, and other revenues
derived by the Agency from the activities, services, and programs provided for by this
Charter Agreement or otherwise shall be exempt from all taxes by the State or any
political subdivision, agency, or instrumentality thereof, except that this exemption shall
not apply to interest earnings subject to taxation under Chapter 220, Florida Statutes.
[Remainder of page intentionally left blank.]
24
Florida PACE Funding Agency
Charter Agreement
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. INTERLOCAL AGREEMENT PROVISIONS. This Charter
Agreement constitutes a joint exercise of power, privilege or authority by and between
the Incorporators and shall be deemed to be an "interlocal agreement" within the meaning
of the Florida Interlocal Cooperation Act of 1969, as amended. This Charter Agreement
shall be filed with the applicable clerk of the circuit court as provided by Section
163.01(11), Florida Statutes.
SECTION 3.02. TERM OF AGREEMENT; DURATION OF AGREEMENT.
(A) The term of this Charter Agreement shall commence as of the date first
above written, and shall continue for so long as the Agency shall exist.
(B) The Agency shall continue to exist so long as the Agency has Obligations
outstanding. At such time as no Obligations are outstanding, the Agency may dissolve
by a majority vote of the Board of Directors in a manner provided for herein.
(C) So long as the Agency has Obligations outstanding, the members of the
Agency covenant not to undertake any act or action to withdraw from or otherwise
terminate this Charter Agreement; and any such action shall not be effective if such action
would leave less than two (2) members.
SECTION 3.03. AMENDMENTS AND WAIVERS.
(A) Except as otherwise provided herein, no amendment, supplement,
modification or waiver of this Charter Agreement shall be binding unless executed in
writing by the Agency and the local governments which are then members of the Agency
pursuant to this Charter Agreement.
(B) To the extent the Agency has no outstanding bonds, Obligations or other
evidence of indebtedness, this Charter Agreement may be amended or modified or
provisions hereto waived upon the written consent of all the then members of the Agency
as more particularly described in Section 2.01(B) hereof.
(C) This Charter Agreement is fairly determined as not materially adverse to
the holders of any Agency Obligations. Notwithstanding any other provision herein
interpreted to the contrary, to the extent the Agency has outstanding Obligations or other
evidence of indebtedness, this Charter Agreement may not be amended or modified in
any way that is materially adverse to holders of such Obligations or other evidence of
indebtedness without the consent in writing of the holders of at least two - thirds (2/3) or
25
Florida PACE Funding Agency
Charter Agreement
more in principal amount of such Obligations or other evidence of indebtedness then
outstanding, or any trustee or insurer duly authorized to provide such consent on behalf
of such holders.
SECTION 3.04. NOTICES.
(A) All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when hand delivered (or confirmed
electronic facsimile transmission) or mailed by registered or certified mail, postage
prepaid, or sent by nationally recognized overnight courier (with delivery instructions
for "next business day" service) to the Incorporators at the addresses appearing on their
respective signature page.
(B) Upon execution hereof all notices shall also be sent to the Agency, to the
attention of its Chair, with a separate copy to the legal counsel and registered agent of
the Agency.
(C) Any of the Incorporators (including the Agency after execution hereof by
the Incorporators) may, by notice in writing given to the others, designate any further or
different addresses to which subsequent notices, certificates or other communications
shall be sent. Any notice shall be deemed given on the date such notice is delivered by
hand (or confirmed electronic facsimile transmission) or three days after the date mailed.
SECTION 3.05. IMMUNITY; LIMITED LIABILITY.
(A) All of the privileges and immunities from liability and exemptions from
laws, ordinances and rules which apply to the activity of officials, officers, agents or
employees of the general purpose local governments incorporating or by law deemed
members of the Agency shall apply to the officials, officers, agents or employees of the
Agency when performing their respective functions and duties under the provisions of
this Charter Agreement.
(B) The Agency and the general purpose local governments incorporating or
by law deemed members of the Agency are and shall be subject to Sections 768.28 and
163.01(9)(c), Florida Statutes, and any other provisions of Florida law governing
sovereign immunity. Pursuant to Section 163.01(5)(0), Florida Statutes, such local
governments may not be held jointly or severally liable for the torts of the officers or
employees of the Agency, or any other tort attributable to the Agency or another member
of the Agency, and that the Agency alone shall be liable for any torts attributable to it or
for torts of its officers, employees or agents, and then only to the extent of the waiver of
sovereign immunity or limitation of liability as specified in Section 768.28, Florida
26
Florida PACE Funding Agency
Charter Agreement
Statutes. The general purpose local governments incorporating or by law deemed
members of the Agency intend that the Agency shall have all of the privileges and
immunities from liability and exemptions from laws, ordinances, rules and common law
CL
which apply to the municipalities and counties of the State. Nothing in this Charter
Agreement is intended to inure to the benefit of any third -party for the purpose of
allowing any claim, which would otherwise be barred under the doctrine of sovereign
immunity or by operation of law.
(C) Neither any Incorporator nor any subsequent Subscribing Local
Government shall in any manner be obligated to pay any debts, obligations or liabilities
arising as a result of any actions of the Agency, the Board of Directors or any other agents,
employees, officers or officials of the Agency, except to the extent otherwise mutually
and expressly agreed upon, and neither the Agency, the Board of Directors nor any other
agents, employees, officers or officials of the Agency have any authority or power to
otherwise obligate one or more of the Incorporators or Members of the Agency, nor any
subsequently Subscribing Local Government in any manner.
SECTION 3.06. BINDING EFFECT. All actions of the Agency heretofore are
acknowledged and ratified as to effect. To the extent provided herein, this Charter
Agreement shall be binding upon the parties, their respective successors and assigns and
shall inure to the benefit of the parties, their respective successors and assigns.
SECTION 3.07. SEVERABILITY. In the event any provision of this Charter
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable the Interlocal Agreement
otherwise or any other provision hereof.
SECTION 3.08. EXECUTION IN COUNTERPARTS. This Charter
Agreement may be simultaneously executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same instrument.
SECTION 3.09. APPLICABLE LAW. This Charter Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
SECTION 3.10. ENTIRE AGREEMENT. This Charter Agreement
constitutes the entire updated, amended, codified and restated agreement among the
parties pertaining to the subject matter hereof, and there are no warranties,
representations or other agreements among the parties in connection with the subject
matter hereof, except as specifically set forth herein.
Incorporator Signature Page
27
Florida PACE Funding Agency
Charter Agreement
IN WITNESS WHEREOF, the undersigned have caused this Charter Agreement
to be duly executed and entered into as of this date.
ROARD OF ('01 NTY COMMISSIONERS
,. � to �IcL����tOur" � t��l�r
ATTY' s"I':
C.' -'crk of t'i ct9 it t.ttiAt
al)d C, (otnptrollel
P
28
Florida PACE Funding Agency
Charter Agreement
Incorporator Signature Page
IN WITNESS WHEREOF, the undersigned have caused this Charter Agreement
to be duly executed and entered into as of this date.
THE CITY COMMISSION OF TIME
CITY OIL KISSIMMFF, FLORIDA
(5V AL tk.
By
Mayor
ATI FSI
City Clerk T
29
Florida PACE Funding Agency
Charter Agreement
Agency Acknowledgment Page
IN WITNESS WHEREOF, the undersigned on behalf of the Agency hereby
accepts and acknowledges this Charter Agreement and the provisions set forth herein.
U1,,,0RD1A PACE FUNDING, AGENCY
Chair
ATI ES T. 7
30