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Item O7County 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: 0.7 Agenda Item Summary #3616 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 Resiliency and Energy District ( "FRED ") 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 Resiliency and Energy District ( "FRED "); 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 "FRED" for program administration is Renovate America. 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 "FRED" 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) BOCC continued the Public Hearing to the February 21, 2018 BOCC meeting in Key West, FL at 3:00 P.M. 02/21/18 (Q1) BOCC continued the Public Hearing to the March 21, 2018 BOCC Meeting in Key Largo, FL at 3:00 p.m. 03/21/18 3 rd Public Hearing at the March 21, 2018 BOCC meeting in Key Largo. Item approved. CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval DOCUMENTATION: FL Resiliency and Energy District Agreement - Signed Exhibit A - Second Amended and Restated FRED Interlocal, Signed 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 5:01 PM Pedro Mercado Completed 03/29/2018 9:44 AM Budget and Finance Completed 03/29/2018 10:09 AM Maria Slavik Completed 03/29/2018 10:11 AM Kathy Peters Completed 04/02/2018 9:13 AM Board of County Commissioners Pending 04/19/2018 9:00 AM IMMEMEM This Interlocal Agreement (Interlocal Agreement") is entered into this day of , 2018 by and between the Florida Resiliency and Energy District ("FRED"), a agreements for property to be subject to avo|untary non-ad valorem special assessment process as the repayment mechanism, commonly known as Property Assessed Clean Energy orPACE; � and r� WHEREAS, an Interlocal Agreement, dated September 6, 2016, as amended and supplemented from time to time ("FRED Agreement") was entered into between the Town of Lake Clarke Shores, the City of Fernandina Beach, and any subsequent parties thereto (the "Public Agencies") and, in the limited capacity described therein, the FDFC ('together with the Public Agencies, the "Parties "), for the purpose of facilitating the financing of qualifying improvements for properties located within FRED's aggregate legal boundaries via the levy and collection of voluntary non -ad valorem special assessments on improved property, Attached as Exhibit "A "; and WHEREAS, on March 21, 2018, the Monroe County Board of County Commissioners adopted Ordinance No. , entitled the Monroe County Property Assessed Clean Energy Ordinance (PACE Ordinance), and provided for certain consumer protections and requirements for PACE Providers; and WHEREAS, the County is concurrently adopting a Resolution authorizing the Program to provide PACE financing and funding 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 Interlocal Agreement is in the best interest and welfare of the property owners within the County. NOW, THEREFORE, in consideration of the terms and conditions, promises and covenants co hereinafter set forth, the Parties agree as follows: ' Section 1. Recitals Incorporated The above recitals are true and correct and incorporated herein. Section 2. Pi p ose. The purpose of this Interlocal Agreement is to facilitate the financing of qualifying improvements for property owners within the County in accordance with the PACE Statute, and the Ordinance, by virtue of the County's joining FRED as a non- voting member and allowing the Program to operate within the County. Pursuant to the Ordinance, this Interlocal Agreement shall be applicable within the unincorporated areas of MONROE County, and in all municipalities that have not adopted an ordinance governing any or all of the subject matter of the Ordinance, regardless of the time of passage of the municipal ordinance. Section 3. (7u�tl i l i� lrrtra?vemeits The County shall allow the Program to provide financing of qualifying improvements, including energy conservation and efficiency, 2 renewable energy, and wind resistance improvements, as defined in the PACE Statute, as may be amended by law, on properties within the County, pursuant to the Ordinance. Section 4. Non - Exclusive The Program is non - exclusive, meaning the County specifically reserves the right to participate with or join any other entity providing a similar program or create its own program under the PACE Statute. Section 5. Assessment by FRED, Collection Ministerial The Parties hereto acknowledge and agree that the non -ad valorem assessments arising from a property owner's voluntary participation in the Program are imposed by FRED and not the County. Additionally, the Parties agree that the County's collection and distribution of any non -ad valorem assessments imposed by FRED are purely ministerial acts. Section 6. Creation of State, County, or Municipal Debts Prohibited The County and participating municipalities, pursuant to the Ordinance, shall not incur nor ever be requested to authorize any obligations secured by special assessments associated with qualifying improvements imposed by FRED pursuant to the PACE Statute. No special purpose local government acting pursuant to the PACE Statute, the Ordinance, or this co Agreement shall be empowered or authorized in any manner to create a debt as against the County and participating municipalities and shall not pledge the full faith and credit of the County and participating municipalities, pursuant to the Ordinance, 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 imply any pledge that the County, or any participating municipality within the County served by FRED, 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 any municipality within the County served by the Program, as a result of the Ordinance or this Interlocal Agreement. The issuance of revenue or refunding bonds by the Program under the provisions of law, FRED's governance documents, or any agreement or resolution shall not, as the result of the Ordinance or this Interlocal Agreement, be deemed in any manner, directly or indirectly or contingently, to obligate the County and participating municipalities under the Ordinance, to levy or to pledge any 3 form of ad valorem taxation or other county or municipal revenues or to make any appropriation for their payment whatsoever. Section 7. Pro��rann Gu The Parties agree that, the Program to be offered in the County will be governed by the Ordinance and the Program's guidelines. If there is a conflict between the Program's guidelines and the Ordinance, the Ordinance shall control. The Program will inform every property owner that by law these non -ad valorem assessments must be collected only pursuant to sections 197.3632. 197.3635, and 163.08, Florida Statutes; and, are not imposed by the County, any municipality within the County served by the Program under the Ordinance, the property appraiser, nor the tax collector, and that they are levied and imposed solely by FRED, and only then upon voluntary application of the private property owner as expressly enabled, authorized and encouraged by the PACE Statute, as well as the Ordinance, to accomplish a compelling state interest with the Program's assistance. In addition to any disclosure requirements in the PACE Statute and the Ordinance as may be amended, the Program shall present to the Property Owner a separate, written notice disclosing the following ( "Notice "): a. The estimated total amount of the debt, including amount financed, fees, fixed c , o interest rate, capitalized interest and the effective rate of the interest charged ("Annual Percentage Rate" or "APR "); b. That the Program Administrator(s), who offer their unique brand of PACE financing on behalf of the Program, may only offer fixed simple interest rates and payments that fully amortize the obligation. Variable or negative amortization financing terms are not permitted. Capitalized interest included in the original balance of Financing Agreement does not constitute negative amortization. c. The repayment process and terms, amounts and a schedule that fully amortizes the amount financed including the estimated annual special assessment; d. That the special assessment will appear on the property owner's tax bill; e. That there is no discount for paying the special assessment early; f. The nature of the lien recorded and that the special assessment will be collected in the same manner as real estate taxes. That failure to pay the special assessment may cause a tax certificate to be issued against the property, and that failure of 4 payment thereof may result in the loss of property subject to the special assessment, including homestead property, in the same manner as failure to pay property taxes; g. The specific improvements to be financed and installed and that such improvements and special assessment may or may not affect the overall value of the property; h. A special assessment payment term that does not exceed the useful life of the improvements; i. Prepayment: i. The PACE agencies /authorities /districts shall provide to the Eligible Participant information as to any accrued interest that may be due upon early payment. ii. No prepayment penalties may be charged or allowed on residential , projects or on non - residential projects where the total PACE funding does not exceed $75,000.00. The PACE agencies /authorities /districts shall provide a mechanism for re- amortization of PACE assessments to account for partial pre - payment, particularly for application of tax credits, rebates, , or other incentives. iii. For non - residential property where total PACE funding exceeds L $75,000, prepayment penalties may be charged or imposed to the extent permitted by applicable law, as negotiated with the property owner, and providing all financial impacts of such penalties are clearly disclosed and agreed to by the property owner in writing. j. Notice that the property owner may be required to pay any special assessment in full at the time of refinance or sale of the property; and k. The 3 -day right to cancel the financing. 1. The Notice must be delivered to the property owner by the Program Administrator(s) and must be signed and dated by the property owner prior to or contemporaneously with the property owner's signing of any legally enforceable documents. The property owner and the Program Administrator(s) must keep the signed Notice with the property owner's executed financing agreement. 5 m. The Program shall record, or cause to be recorded, the financing agreement or a summary memorandum of the financing agreement, in accordance with the PACE Statute. Section 8. Opijjimn of Bond ('ounscl Prior to the execution of this Interlocal Agreement, the Program shall deliver to the County an "Opinion of Bond Counsel ", stating that, based on the counsel's review of the bond validation judgement and the underlying bond documents the Program's structure complies with the bond validation judgement and the underlying bond documents. The Program acknowledges that the County is relying on the Opinion of Bond Counsel in its decision to execute the Interlocal Agreement. Section 9. Boundaries Pursuant to this Interlocal Agreement, the boundaries of FRED shall include the legal boundaries of the County, which boundaries may be limited, expanded, or more specifically designated from time to time by the County by providing written notice to FRED. As contemplated in the Interlocal Agreement (as defined in herein below) and as supplemented by this Interlocal Agreement, FRED will levy voluntary non ad valorem special assessments on the benefitted properties within the boundaries of the _ County pursuant to the Ordinance to help finance the costs of qualifying improvements for those individual properties. Those properties receiving financing for qualifying improvements shall be assessed from time to time, in accordance with the PACE Statute, the Ordinance, and other applicable law. Notwithstanding termination of this Interlocal Agreement or notice of a change in boundaries by the County as provided for above, those properties that have received financing for qualifying improvements shall continue to be a part of FRED, until such time that all outstanding debt has been satisfied. Section 10. Financinwa ALreement The Parties agree that FDFC /FRED may enter into a financing agreement, pursuant to the PACE Statute and the Ordinance with property owner(s) within the County pursuant to the Ordinance who obtain financing through the Program. 0 Section 1 1. Responsibilities of FRED; Indemnification, Liability a. All of the privileges and immunities from liability and exemptions from laws, ordinances and rules which apply to the activity of officials, officers, agents or employees of the parties, including participating municipalities under the Ordinance, shall apply to the officials, officers, agents or employees thereof when performing their respective functions and duties under the provisions of this Interlocal Agreement. b. The County, participating municipalities, and FRED 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 the PACE Statute and this Interlocal Agreement, the local governments who are either the incorporators, or members of FRED, or any subsequently served or participating local government shall not be held jointly liable for the torts of the officers or employees of FRED, or any other tort attributable to FRED, and that FRED 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 co specified in Section 768.28, Florida Statutes. The County and FRED acknowledge and agree that FRED shall have all of the applicable privileges and immunities from liability and exemptions from laws, ordinances, rules and common law which apply to the municipalities and counties of the State. c. To the extent provided by law, FRED through its Program Administrator(s) agrees to protect, defend, reimburse, indemnify and hold the County, or any participating municipality within the County served by FRED pursuant to the Ordinance, its agents, employees and elected officers (Indemnified Parties), and each of them 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 of whatsoever 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 7 any act, omission or fault whether active or passive of the County, or any municipality within the County served by FRED pursuant to the Ordinance, of anyone acting under its direction or control, or on its behalf in connection with or incident to the performance of this Agreement. FRED's aforesaid indemnity and u hold harmless obligations, or portions or applications thereof, shall apply to the fullest extent permitted by law but in no event shall they apply to liability caused by the negligence or willful misconduct of the County, or any municipality within the County served by FRED pursuant to the Ordinance, its respective agents, _ servants, employees or officers, nor shall the liability limits set forth in 768.28, 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 brought against an Indemnified Party, FRED , through its Program Administrator(s), shall upon written notice from an Indemnified Party, defend each Indemnified Party against each such Claim by counsel satisfactory to the Indemnified Party or, at the Indemnified Party's option, it may elect to provide its own defense. The obligations of this section shall , survive the expiration or earlier termination of this Agreement. d. FRED is an independent local government funding and financing instrumentality. Neither the County, nor any municipality within the County pursuant to the Ordinance, who are served by FRED, shall in any manner be obligated to pay any debts, obligations or liabilities arising as a result of any actions of the Program, its Board of Directors or any other agents, employees, officers or officials of the Program, except to the extent otherwise mutually and expressly agreed upon in writing. In addition, the Program, its Board of Directors or any other agents, employees, officers or officials of the Program shall have no authority or power to otherwise obligate either the County, or any municipality within the County served by FRED pursuant to the Ordinance. e. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and the Contractor in this Agreement and the acquisition of any 8 commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. Section 12, Agreements with Tax Collector, P . FRED acknowledges that the County has no authority to bind the County Tax Collector and the County Property Appraiser, and FRED will be required to enter into separate agreement(s) therewith, which shall establish the fees (if any) to be charged by the Tax Collector and Property Appraiser for the collection or handling of the Program's special assessments. FRED also acknowledges that all incorporated municipalities in the County that have not adopted an ordinance governing any or all of the subject matter of the Ordinance will be included in the Program. Section 13. Resale ?w Refinancii of a Pia, rty FRED recognizes that some lenders may require full repayment of the Program's special assessments upon resale or refinancing of a) a property subject to the Program's special assessments. The Program Administrator(s) co agree to provide written disclosure of this matter to all County property owners that may utilize the Program. Section 14. Term of Agreement: Duration of Agreement: No Exclusivity a. The term of this Interlocal Agreement shall commence as of the date first above written. b. The term shall continue so long as FRED has obligations outstanding which are secured by pledged revenues derived from financing agreements relating to any properties within the boundaries of the County, pursuant to the Ordinance, or FRED has projects for qualified improvements underway therein; the applicable provisions, authority and responsibility under this Interlocal Agreement reasonably necessary to carry out the remaining aspects of the Program and responsibilities of FRED then underway, shall remain in effect and survive any termination until such time as those obligations and all associated remaining 9 FRED responsibilities are fulfilled (including, but not limited to, the collection of assessments in due course). Provided, however, FRED's powers employed and exercised shall be non - exclusive, and the County, pursuant to the Ordinance, is free to and reserves the right to enter into or otherwise encourage or commence any other program for financing qualified improvements using non -ad valorem assessments. c. Notwithstanding subsection (b), either party may at any time terminate this Interlocal Agreement upon sixty (60) days written notice provided as required by Section 17. Provided, however, no termination of this Interlocal Agreement shall preclude FRED from exercising any of its power or authority after any termination, including without limiting the generality of the foregoing, that specifically associated with its mission or collection of any of its Obligations outstanding which are secured by pledged revenues derived from Financing Agreements. In the event FRED'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 — co specified in subsection (B) until such time as all FRED's obligations, and all associated remaining Program responsibilities are fulfilled (including, but not limited to, the collection of assessments in due course). Section 15. Consent This Interlocal Agreement and any required resolution or ordinance of an individual Party shall be considered the County's consent to participate in the Program pursuant to the PACE Statute. Section 16. Votin Rights The Parties agree that the County shall be a non - voting Limited Member of FRED for the term of this Interlocal Agreement. Section 17. Notices Any notices to be given hereunder shall be in writing and shall be deemed to have been given if sent by hand delivery, recognized overnight courier (such as Federal Express), or by written certified U.S. mail, with return receipt requested, addressed to the Party for whom it is intended, at the place specified. For the present, the Parties designate the following as the respective places for notice purposes: 10 County: Monroe County ATTN: County Administrator 1100 Simonton Street, Suite 205 Key West, Florida 33040 With a copy to: Monroe County ATTN: County Attorney l 1 1 1 12`" Street, Suite 408 Key West, Florida 33040 FRED: The Florida Resiliency and Energy District c/o Florida Development Finance Corporation William "Bill" F. Spivey, Jr., Executive Director 156 Tuskawilla Road, Suite 2340 Winter Springs, FL 32708407.956.5695 (t) bspive rc ,ddfcbonds.com With a copy to: Issuer's Counsel with Broad and Cassel Joseph Stanton, Esq. Bank of America Center 390 North Orange Avenue, Suite 1400 Orlando, FL 32801 -4961 407.839.4200 (t) jstanton@broadandcassel.com Section 18. Ame ndments . It is further agreed that no modification, amendment or alteration in the terms or conditions herein shall be effective unless contained in a written document executed by the Parties hereto. Section 19. I )wnt Effort. The preparation of this Interlocal Agreement has been a joint effort of the Parties hereto and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the Parties than the other. Section 20. Merger This Interlocal Agreement incorporates and includes all prior negotiations, correspondence, agreements, or understandings applicable to the matters contained herein; and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Interlocal Agreement that are not A contained in this document. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. Section 21. Ass ni m ent The respective obligations of the Parties set forth in this Interlocal Agreement shall not be assigned, in whole or in part, without the written consent of the other Parties hereto. Section 22. Public records . FRED shall comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and FRED shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and FRED 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 FRED. Failure of FRED to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court CO proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. FRED is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Pursuant to F.S. 1 19.0701 and the terms and conditions of this contract, FRED is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from 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 FRED does not transfer the records to the County. 12 (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of FRED or keep and maintain public records that would be required by the County to perform the service. If FRED transfers all public records to the County upon completion of the contract, FRED shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If FRED keeps and maintains public records upon completion of the contract, FRED shall L meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from 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 must be made directly to the County, but if the County does not possess the requested records, the _ County shall immediately notify FRED of the request, and FRED must provide the , records to the County or allow the records to be inspected or copied within a reasonable time. IF THE FRED HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE FRED'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY, AT (305) 292 -3470 Section 23. No Third Part Beneficiaries, It is the intent and agreement of the Parties that this Agreement is solely for the benefit of the Parties and participating municipalities under the Ordinance and no other party or entity shall have any rights or privileges hereunder. Section 24. Severability In the event a portion of this Interlocal Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective. Section 25. Administrator Indemnification. Any and all Program Administrators of the Program shall be required to execute a separate indemnification agreement with the County. The Program acknowledges and agrees that as of the execution of this Interlocal Agreement, Renovate America is currently the only administrator for the Program and that 13 Renovate America will execute a separate indemnification agreement with the County for the benefit of the County and participating municipalities. If the Program approves additional Program Administrators, the Program shall ensure that any and all Program Administrators also provide the County with a separate indemnification agreement, on a form to be approved by the County Attorney's Office, within 10 business days of assuming administrative responsibilities for the Program. Section 26. Insurance by FRED. Without waiving the right to sovereign immunity as provided by Section 768.28, Florida Statute, FRED acknowledges to be self - insured for General Liability and Automobile Liability under Florida sovereign immunity statutes with coverage 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 FRED maintains third -party Commercial General Liability and Business Auto Liability in lieu of exclusive reliance of self - insurance under Section 768.28 Florida Statute, FRED shall agree to maintain said insurance policies at limits not less than $500,000 combined single limit for bodily injury or property damage. FRED agrees to maintain or to be self- 0 insured for Workers' Compensation & Employer's Liability insurance in accordance with , Section 440, Florida Statutes. When requested, FRED shall agree to provide an affidavit or Certificate of Insurance evidencing insurance, self - insurance and /or sovereign immunity status, which County agrees to recognize as acceptable for the above mentioned coverage. Compliance with the foregoing requirements shall not relieve FRED of its liability and obligations under this lnterlocal Agreement. Section 27. Certif of Insurance. Prior to execution of this Agreement, FRED shall deliver to the County via the Insurance Company /Agent a signed Certificate(s) of Insurance evidencing that all types and amounts of insurance coverages required by this Agreement have been obtained and are in full force and effect. During the term of this lnterlocal Agreement and prior to each subsequent renewal thereof, FRED shall provide this evidence to Monroe County prior to the expiration date of each and every insurance required herein. Said Certificate(s) of Insurance shall, to the extent allowable by the 14 insurer, include a minimum thirty (30) day endeavor to notify due to cancellation (10 days for nonpayment of premium) or non - renewal of coverage. Section 28. Venue The venue of any legal or equitable action that arises out of or relates to this Agreement shall be in the appropriate state court in MONROE County, Florida. In any such action, Florida law shall apply. BY ENTERING INTO THIS AGREEMENT, FRED AND COUNTY HEREBY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION = RELATED TO THIS AGREEMENT. IF FRED FAILS TO WITHDRAW A REQUEST FOR A JURY TRIAL IN A LAWSUIT ARISING OUT OF THIS AGREEMENT AFTER WRITTEN NOTICE BY THE COUNTY OF VIOLATION OF THIS SECTION, FRED SHALL BE LIABLE FOR THE REASONABLE ATTORNEYS' FEES AND COSTS OF _ THE COUNTY PARTY IN CONTESTING THE REQUEST FOR JURY TRIAL, AND , SUCH AMOUNTS SHALL BE AWARDED BY THE COURT IN ADJUDICATING THE MOTION. Section 29. Effective Date This Interlocal Agreement shall become effective upon the o execution by the Parties hereto. Section 30. Dele ation of DutN% Nothing contained herein shall be deemed to authorize the delegation of the constitutional or statutory duties of state, county, or city officers. Section 31. Filing This Interlocal Agreement shall be filed by the Program with the Clerk of the Circuit Court in MONROE County. Section 32. Nondiscrimination. County and FRED agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a 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. FRED 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 Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended 15 (20 USC ss. 1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s.794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act 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 abuse or alcoholism; 7) The Public = Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 42 USC s. et se g ( q.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis , of disability; 10) Monroe County Code Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 1 1) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. Section 32. Captions The captions and section designations herein set forth are for convenience only and shall have no substantive meaning. Section 33. Allornek's Fees and Casts. The County and FRED agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out -of- pocket expenses, as an award against the non - prevailing party, and shall include attorney's fees, courts costs, investigative, and out -of- pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. Section 34. Binding Effect, The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Contractor and their respective legal representatives, successors, and assigns. Section 35. AdiUdication of or Disagreements. County and FRED agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the 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 36. Cooperation, In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and FRED agree to participate, to the extent required by the other ` party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. County _ and FRED specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. Section 37. Covenant ()I' No Interest.. County and FRED covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that the only interest of each is to perform and receive benefits as recited in this Agreement. Section 38. Code of' Ethics. County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 17 Section 39. No Personal Liab Llity. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. Section 40. I in C oumerparts, This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by singing any such counterpart. Section 41. MUtUal Rcvie�k. This agreement has been carefully reviewed by FRED and the County, therefore this agreement is not to be construed against either party on the basis of authorship. A [SIGNATURE PAGE FOLLOWS] 18 WITNESS: kY3 k a _�e STATE OF FL QRIDA COUNTY OFft ") � n D le_. S FLORIDA DEVELO T ENT` FINANCE CORPORATI(.),$,,k FLORIDA RESILIENCY N D''ENERGY DISTRICT B y: William "Bill" F. Spivey, Jr. Executive Director I , I f ing 10.7 ore�_jo , instrument was acknowledged before me this CQ& day of - 4 18 �' by William "Bill" F "s bv _wfiye Director of the Florida Development Finance Corporation,(��, i - (2n it 1 own o nlla s produced js� 1)�� as identification. (SEAL) Jennifer Jenkins NOTARY PUBLIC ; STATE OF FLORIDA Comm# GG141148 . Expires 9/5/2021 10 Nan , I Notary Public-State of Florida Commission Number: 19 IN WITNESS WHEREOF, the undersigned have caused this Non-Exclusive Interlocal Agreement to be duly executed and entered into as of the date first above written. (SEAL) Bv: David Rice, Mayor Attest: Approved as to form: — - -- — -------------------- — Kevin Madok, Clerk and Comptroller Pedro Mercado Assistant County Attorney 111 111111 I'll I R '1111 ll� 11i III III 111 go] FORTIHIM "., 11, welay.11 WMI" Iling ■ TV it This instrument was prepared by or under the supervision of (and after recording should be returned to): BROAD AND CASSEL 390 NORTH ORANGE AVENUE SUITE 1400 ORLANDO, FL 32804 ATTN: JOSEPH B. STANTON PACE reserved for Clerk SECOND AMENDED AND RESTATED INTERLOCAL AGREEMENT RELATING TO THE CREATION OF THE FLORIDA RESILIENCY AND ENERGY DISTRICT, A PROPERTY ASSESSED CLEAN ENERGY DISTRICT, AND AUTHORIZING FINANCING PURSUANT THERETO BY AND AMONG THE TOWN OF LAKE CLARKE SHORES, FLORIDA, AND THE CITY OF FERNANDINA BEACH, FLORIDA, AND THE FLORIDA DEVELOPMENT FINANCE CORPORATION, FLORIDA, IN ITS LIMITED CAPACITY DESCRIBED HEREIN AND ANY SUBSEQUENT PARTIES HERETO DATED AS OF , 2017 4814 -0430 -8797 139753/0041 TABLE OF CONTENTS Page SECTION 1. AUTHORITY FOR AGREEMENT ...................... ............................... 4 SECTION 2. DEFINITIONS ................................................ ............................... 4 SECTION 3. INTERPRETATION ........ .................................. ............................... 7 SECTION 4. PURPOSE ............................................... ..............................7 SECTION 5. QUALIFYING IMPROVEMENTS ....................... ............................... 7 SECTION 6. ENABLING ORDINANCE OR RESOLUTION .. ............................... 7 SECTION 7. DISTRICT BOUNDARIES. DISTRICT ADMISSION ..................... 7 SECTION 8. GOVERNING BOARD OF THE DISTRICT ....... ............................... 8 SECTION 9. DECISIONS OF THE BOARD................. ....... ................... ... 9 SECTION 10. DISTRICT ADMINISTRATION; DISTRICT STAFF AND ATTORNEY; ADMINISTRATORS ....................... 9 SECTION 11. FINANCING AGREEMENT ................................. ............................... 9 SECTION 12. POWERS OF THE DISTRICT ........................... ............................... 10 SECTION13. TERM ................................................................... ............................... 11 SECTION14. CONSENT ........................................................... ............................... 11 SECTION 15. NOTICE OF INTENT; IMPOSITION OF ASSESSMENTS; COORDINATION ............................ ............................... 11 SECTION 16. UNDERLYING POWERS; SEPARATE INTERLOCAL AGREEMENTS .. ............................... .............. ............................... 13 SECTION 17. FEES AND COSTS..... .. . ............................... 14 SECTION 18. FILING ............................................................, ............................... 14 SECTION 19. LIMITED LIABILITY ..............................,........ ..............................- 14 SECTION 20. AMENDMENTS .... ............. ............................... ......... .. ...... ........ 15 SECTION 21. ASSIGNMENT .................................................... ............................... 15 SECTION 22. EXECUTION IN COUNTERPARTS..... . .... .... -- ............ ................ 15 SECTION 23. SEVERABILITY ................................................. ............................... 15 SECTION 24. APPLICABLE LAW ........................................... ............................... 15 SECTION 25. JOINT EFFORT ................................................... ............................... 15 SECTION 26. EFFECTIVE DATE ............................ ......... ........ ......... ...............,. 15 4814 -0430 -8797 139753(0041 SECOND AMENDED AND RESTATED INTERLOCAL AGREEMENT RELATING TO THE CREATION OF THE FLORIDA RESILIENCY AND ENERGY DISTRICT, A PROPERTY ASSESSED CLEAN ENERGY DISTRICT, AND AUTHORIZING FINANCING THERETO THIS SECOND AMENDED AND RESTATED INTERLOCAL AGREEMENT (hereinafter the "Agreement ") is made and entered into as of _ . 2017, by and among the government units executing the Agreement, each one constituting a public agency or legal entity under Part I, Chapter 163, Florida Statues, comprising the Town of Lake Clarke Shores, a municipality and local government of the State of Florida and the City of Fernandina Beach, a municipality and local government of the State of Florida (the "Public Agency" or "Public Agencies ") and, in the limited capacity described herein, the Florida Development Finance Corporation, a public body corporate and politic, a public instrumentality and a public agency organized and existing under the laws of the State of Florida ( "FDFC ") and, together collective referred to herein as the "Parties." WITNESSETH: WHEREAS, pursuant to Section 163.08, Florida Statutes, as amended (the "Florida PACE Act "), the Florida Legislature found that in order to make qualifying renewable energy, energy efficiency and conservation and wind resistance improvements (collectively, the "Qualifying Improvements ") more affordable and assist real property owners who wish to undertake such improvements, there is a compelling State of Florida ( "State ") interest in enabling property owners to voluntarily finance such improvements with local government assistance; and WHEREAS, under the Florida PACE Act, the Florida Legislature determined that the actions authorized under the Florida PACE Act, including, but not limited to, the financing of Qualifying Improvements through the execution of" financing agreements between property owners and local governments and the resulting imposition of voluntary non -ad valorem assessments are reasonable and necessary to serve and achieve a compelling state interest and are necessary for the prosperity and welfare of the State and its property owners and inhabitants; and WHEREAS, the Town of Lake Clarke Shores, Florida, and the City of Fernandina Beach, Florida (collectively, the "Founding Members "), wish to create an entity to finance Qualifying Improvements for themselves and for other local governments pursuant to Section 163.08(2)(a); and WHEREAS, effective September 6, 2016, the Founding Members and FDFC entered into that certain Agreement (the "Original Agreement "), pursuant to Section 163.01(7), Florida Statues, creating a separate legal entity within the meaning of Section 163.01, Florida Statutes, also known as the Florida Interlocal Cooperation Act of 1969 (the 1 4814 - 0430 - 8797139753(0041 "Interlocal Act ") and a "local government" within the meaning of the Florida PACE Act, in furtherance of the objectives of the Florida PACE Act; and WHEREAS, the separate legal entity created under the Original Agreement has been designated as the Florida Resiliency and Energy District (the "District" or "FRED ") which may, pursuant to section 163.08(2)(a), finance Qualifying Improvements through voluntary assessments; and WHEREAS, FRED, as a separate legal entity created pursuant to section 163.01(7), meets the definition of a local government under section 163.08(2)(a), and may levy assessments to fund qualifying improvements pursuant to authority granted under 163.08(3); and WHEREAS, subsequent to the execution of the Original Agreement, the parties determined that certain amendments were desired in order provide clarity with respect to the nature of the Qualifying Improvements, and the composition of the Governing Board and the designated principal place of business, among other terms and conditions as are more fully set forth herein; and WHEREAS, upon agreement of the parties, an Amended and Restated Agreement was ratified by the parties and became effective on January 10, 2017; and WHEREAS, subsequent to the execution of the Amended and Restated Agreement, the parties determined that certain amendments were desired to be responsive to interpretive concerns raised by some local governments as are more fully set forth herein; and WHEREAS, the Act also permits FDFC and FRED, as public agencies under the Interlocal Act, to enter into Agreements with each other to provide for the performance of service functions to cooperate on a basis of mutual benefit in the best interest of the real property owners within the boundaries of FRED; and WHEREAS, FDFC has determined that there is a substantial need within the State for a financing program which can provide funds to property owners to enable them to finance Qualifying Improvements under the Florida PACE Act on a cost - effective basis; and WHEREAS, the Florida Legislature determined that FDFC has the authority to issue revenue bonds for the purpose of financing Qualifying Improvements pursuant to Section 288.9606(7), Florida Statutes; and WHEREAS, FDFC acts as a special development financing authority that specializes in providing financing support to fund capital projects that support economic development and job creation on a state -wide basis; and 2 4814- 0430 -8797 139753(0041 WHEREAS, the Florida PACE Act is an economic development tool that provides communities with an additional option for financing, stimulates production of qualifying products, promotes competition, seeks to increases property values, lower energy consumption, mitigate wind damage, and create jobs; and WHEREAS, on December 4, 2015, the FDFC Board of Directors adopted Resolution No. 15 -09, as amended and supplemented from time to time (the "Bond Resolution "), authorizing the issuance of revenue bonds ( "Bonds ") in order to finance Qualifying Improvements under the Florida PACE Act, which revenue bonds shall be secured by and payable from the proceeds of voluntary non -ad valorem assessments levied against the real properties that are benefitted by such Qualifying Improvements (the "Assessments "), all in accordance with the provisions of the Florida PACE Act and other applicable provisions of law and in accordance with FDFC's Property Assessed Clean Energy ( "PACE ") Program (the "FDFC PACE Program "); and WHEREAS, on July 18, 2014, in accordance with Chapter 75, Florida Statutes, the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida issued an Amended Final Judgment validating the issuance of the Bonds by FDFC and on October 15, 2015, the Supreme Court of the State of Florida affirmed such Final Judgment; and WHEREAS, on December 4, 2015, the FDFC Board of Directors adopted Resolution No. 15 -10 setting forth its policies and procedures relating to the FDFC PACE Program; and WHEREAS, on December 4, 2015, the FDFC Board of Directors adopted Resolution No. 15 -11 approving Renovate America, Inc. ( "Renovate America ") as its first PACE administrator for the FDFC PACE Program; and WHEREAS, FDFC anticipates adding other PACE providers as PACE residential and commercial administrators to provide a competitive marketplace in Florida for any potential residential and commercial property owners interested in the FDFC PACE Program; and WHEREAS, FRED and FDFC agree, pursuant to Section 163.01(14), that FRED, as a separate legal entity authorized to facilitate PACE financing pursuant to Section 163.08, Florida Statutes, may contract with FDFC to serve the financing function of the District and therefore serve the property owners of within the District; and WHEREAS, under this Agreement, the Parties agree to have the FDFC PACE Program serve as the administrator for the District's PACE program; and WHEREAS, in order to provide the property owners within the boundaries of FRED an efficient process for accessing the FDFC PACE Program, FRED will designate FDFC as 3 4814- 0430 - 8747.134753/0041 its agent for purposes of executing Financing Agreements with property owners on behalf of FRED pursuant to Section 163.08(6), Florida Statutes, and for purposes of administering the FDFC PACE Program within the boundaries of FRED and ensuring compliance with the Florida PACE Act; and WHEREAS, the District will utilize the FDFC PACE Program to implement PACE exclusively on behalf of the District and take on all costs and responsibilities for administering and operating the program; and WHEREAS, FDFC will utilize its authority under law to provide, authorize, and issue revenue bonds to finance Qualifying Improvements within and on behalf of property owners within the District; and WHEREAS, FRED will have immediate access to a turnkey FDFC PACE Program which includes $2,000,000,000 in judicially validated bonding authority for PACE financing and a trained PACE program staff; and NOW THEREFORE, THE PARTIES TO THIS AGREEMENT AGREE AS FOLLOWS: SECTION 1. AUTHORITY FOR AGREEMENT. This Agreement is adopted pursuant to the provisions of the Interlocal Act, the Florida PACE Act, and other applicable provisions of law. At all times prior to and during the term of this Agreement, the Town of Lake Clarke Shores, Florida, and the City of Fernandina Beach, Florida, constitute local governments as that term is defined in the Florida PACE Act and the Interlocal Act and the Florida Development Finance Corporation constitutes a "public agency" as that term is defined in the Florida Interlocal Act. That portion of this Agreement creating the separate legal entity pursuant to Section 163.01(7), Florida Statues, is among and between the Founding Members, and that portion of the Agreement allowing the FDFC PACE Program to provide the financing duties of the District is pursuant to Section 163.01(14), Florida Statutes. SECTION 2. DEFINITIONS. The following definitions shall govern the interpretation of this Agreement: "Agreement" means this Amended and Restated Interlocal Agreement, including any amendments or supplements hereto, executed and delivered in accordance with the terms hereof. "Assessment Resolution" means a resolution or resolutions adopted by the District that (A) imposes new Assessments against those property owners entering into Financing Agreements since adoption of the last Assessment Resolution, and (B) approves an electronic assessment roll to be submitted to the Tax Collector for the next tax bill M 4814 -0430 -8797 139753(0041 containing the required collection information for all property owners with outstanding Assessments under the FDFC PACE Program, in each case limited to those property owners within the boundaries of the local governments that comprise the District. "Assessments" means the non -ad valorem assessments levied by the District against the properties that are benefitted by the Qualifying Improvements in accordance with the Florida PACE Act and the FDFC PACE Program. "Bond Resolution" means Resolution No. 15 -09 of the FDFC adopted on December 4, 2015 relating to the Bonds and the FDFC PACE Program, as amended and supplemented from time to time. "Bonds" means bonds that are issued by FDFC from time to time pursuant to the Bond Resolution. "Contracted FDFC Services" means the services provided by FDFC pursuant to this Agreement. "District" or "FRED" means the Florida Resiliency and Energy District (FRED), a separate legal entity formed pursuant to the Interlocal Act and this Agreement and a local government within the meaning of the Florida PACE Act. "FDFC" means Florida Development Finance Corporation, a public body corporate and politic, a public instrumentality and a public agency organized and existing under the laws of the State of Florida. "FDFC PACE Program" means the FDFC's Property Assessed Clean Energy (PACE) Program adopted pursuant to the Bond Resolution and its policies and procedures. "Financing Agreement" means a contract among FRED, FDFC and the owner of a participating parcel in the FDFC PACE Program pursuant to which the owner voluntarily agrees to the levy of Assessments against the participating parcel and the payment thereof to finance the installation of Qualifying Improvements on the participating parcel. "Florida PACE Act" means Section 163.08, Florida Statutes, as may be amended from time to time. "Founding Members" means the Town of Lake Clarke Shores, Florida, and the City of Fernandina Beach, Florida. The term does not include FDFC. "Governing Board" means the governing board of FRED as further described in Section 8 hereof. 5 4814- 0430 -8747 139753/0041 "Interlocal Act" means Section 163.01, Florida Statutes, as amended. "Joinder Agreement" means a document in which additional government units constituting Public Agencies under the Interlocal Act and local governments as defined under the Florida PACE Act join the District as a Subsequent Party. "Jurisdictional Boundaries" has the meaning described in Section 7 hereof. "Limited Member" means additional government units constituting Public Agencies under the Interlocal Act and local governments as defined under the Florida PACE Act which join the District upon application to the District and the affirmative vote of a majority of the Governing Board and upon execution of a Limited Purpose Party Membership Agreement between the District and a Limited Member. "Limited Purpose Party Membership Agreement" means an agreement between additional government units constituting Public Agencies under the Interlocal Act and/or local governments as defined under the Florida PACE Act and the District defining the terms and conditions of membership within the District. "Party" or "Parties" means the Town of Lake Clarke Shores, Florida, and the City of Fernandina Beach, and the Florida Development Finance Corporation Florida, and their respective assigns; provided, however, the FDFC is a party only for the contracted FDFC services "Property Appraiser" means the county property appraiser for real property within the boundaries of each Founding Member, Subsequent Party or Limited Member. "Public Agency" means cities or counties of the State of Florida, or any Subsequent Party or Limited Member. "Resolution of Intent" means a resolution adopted by the District pursuant to the Uniform Assessment Collection Act providing notice to all owners of real property within the boundaries of District that non -ad valorem assessments may be imposed pursuant to the Florida PACE Act and will be collected pursuant to the Uniform Assessment Collection Act if the property owner chooses to utilize the FDFC PACE Program to finance Qualifying Improvements. "State" means the State of Florida. "Subsequent Party" or "Subsequent Parties" means additional governmental units constituting Public Agencies under the Interlocal Act and local governments as defined under the Florida PACE act which execute a Joinder Agreement and agree to serve 6 4814- 0430 - 8797.139753(0041 on the Governing Board. "Tax Collector" means the county tax collector for real property within the boundaries of each Founding Member, Subsequent Party, or Limited Member. "Uniform Assessment Collection Act" means Sections 197.3632 and 197.3635, Florida Statutes, as amended and supplemented from time to time. SECTION 3. INTERPRETATION. 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 Agreement; the term "heretofore" shall mean before the effective date of this Agreement; and the term "hereafter" shall mean after the effective date of this Agreement. This Agreement shall not be construed more strongly against any party regardless that such party, or its counsel, drafted this Agreement. SECTION 4. PURPOSE. The purpose of this Agreement is for the Founding Members to affirm the creation of the District, pursuant to the Interlocal Act and the Florida PACE Act, and, by also agreeing to contract with the Florida Development Finance Corporation and its FDFC PACE Program and the Florida PACE Act to facilitate the financing of Qualifying Improvements for property owners within the District. The District shall be a separate legal entity, pursuant to Section 163.01(7), Florida Statutes and a local government within the meaning of the Florida PACE Act. SECTION 5. QUALIFYING IMPROVEMENTS. The District shall allow the financing of Qualifying Improvements by and through the FDFC PACE Program as defined in Section 163.08, Florida Statutes, under authority of Section 163.01(14), Florida Statutes. SECTION 6. ENABLING ORDINANCE OR RESOLUTION. The Founding Members and Subsequent Parties to this Agreement agree to approve and keep in effect such resolutions and ordinances as may be necessary to approve, create and maintain the District. Said ordinances and resolutions shall include all of the provisions as may be required or desirable under the Interlocal Act and the Florida PACE Act for the creation and operation of FRED as a separate legal entity and a local government. The District shall be created upon the execution and delivery of this Agreement by the Parties. SECTION 7. DISTRICT BOUNDARIES; DISTRICT ADMISSION. (A) The boundaries of the District shall initially be the legal boundaries of the Founding Members, and shall be expanded to include all areas within the legal boundaries of, or service area designated by the Joinder Agreement or Limited Purpose Party Membership Agreement entered into by each local government (the "Jurisdictional 7 4614 -0436 -8797 139753(0041 Boundaries ") that becomes a Subsequent Party or Limited Member to this Agreement. As contemplated in this Amended and Restated Agreement, the District shall levy voluntary assessments on the benefitted properties within the Jurisdictional Boundaries of the District in order for the FDFC PACE Program to finance the costs of Qualifying Improvements for those benefitted properties. Upon petition by the landowners of individual residential or commercial properties desiring to be benefited, those properties receiving financing for Qualifying Improvements shall be assessed from time to time, in accordance with the applicable law. Notwithstanding a Founding Member's termination of participation in this Agreement, or Subsequent Party's or Limited Member's termination of participation, those properties that have received financing for Qualifying Improvements shall continue to be a part of the District in accordance with Section 13(C) hereof. (B) To the extent permitted by the Interlocal Act, the District may admit any public agency or local government (as such terms are defined in the Interlocal Act and the Florida PACE Act, respectively) as a Subsequent Party or Limited Member to the District upon application of each public agency or local government to the District and the affirmative vote of a majority of the Governing Board. This Agreement need not be amended to admit any such public agency or local government, and the approval of the respective governing boards of the existing Parties to the District shall not be required to admit a Subsequent Party or Limited Member. Each Subsequent Party or Limited Member shall execute, deliver, duly authorize, and record in the public records of each Subsequent Party or Limited Member a Joinder Agreement or Limited Purpose Party Membership Agreement as a precondition to membership in the District. SECTION 8. GOVERNING BOARD OF THE DISTRICT. The District shall be governed by the Governing Board which shall at a minimum be comprised of three (3) individuals, two (2) of whom are elected officials, city managers, or their designees, of each of the Founding Members, and each representing an individual local government within the Jurisdictional Boundaries of the Parties to this Agreement. The next Subsequent Party to join the District shall be entitled to the third position as a member of the Governing Board, provided however, that prior to addition of a Subsequent Party, the Founding Members shall have the right to jointly appoint a third Governing Board member. Such third Governing Board member shall be unrelated to either Founding Member (e.g., shall not be an officer, or employee of the Founding Members), but shall have a background or experience in finance or economic development. Notwithstanding the foregoing, the maximum number of members on the Governing Board may be increased by a majority vote of the Governing Board to a maximum of 5 members, with the proviso that as much as possible the composition of the Governing Board membership reflects the geographic regions of the state of Florida. After the Governing Board is constituted, the Executive Director may recommend procedures for setting terms, Governing Board qualifications and responsibilities, and the means of appointment of members to the Governing Board. In the event a Governing Board member is no longer eligible or able to serve on the Governing Board, the Public Agency represented by the Governing Board member, so long as it 8 4814 -0470 -8797 139753(0041 continues to be a Party to this Agreement, shall have the right to request appointment of a replacement to fulfill the remaining term of that member. FDFC shall have no right to appoint any member of the Governing Board. SECTION 9. DECISIONS OF THE GOVERNING BOARD. Decisions of the Governing Board shall be made by majority vote of the Governing Board. The Governing Board, upon recommendation of the Executive Director, may adopt rules of procedure for the Governing Board. In the absence of the adoption of such rules of procedure, the most current version of Roberts Rules of Order shall apply to the extent it is not inconsistent with Florida law. SECTION 10. DISTRICT ADMINISTRATION; DISTRICT STAFF AND ATTORNEY; ADMINISTRATORS (A) Financin . As a condition of this Agreement, the Founding Members, and any Party joining the District consents to FDFC and FDFC PACE Program providing financing for the District, and FDFC agrees to provide a turnkey PACE program for each jurisdiction that is a Party, Subsequent Party, or Limited Member to this Agreement. Notwithstanding any other section of this Agreement, the Executive Director of FDFC or his or her appointee shall also be the Executive Director of FRED. The Executive Director shall have sole authority to appoint staff, counsel, professionals, consultants, and all other positions to fulfill the functions of the District per the PACE Act for the District, and all costs and expenses shall be borne by FDFC and the District. (B) Additional Administrators The PACE program development period, which serves as a soft launch period for the FDFC PACE Program, will end on July 1, 2017, whereby additional qualified administrators for residential PACE programs may be presented to the District. Within 30 days after execution of this Agreement, FDFC may present to the District qualified administrators for commercial PACE programs that will be available to serve jurisdictions that are a Party to this Agreement. All PACE administrators ( "PACE Administrators" or "Administrators ") must undergo a vetting process by the FDFC. Once vetted, the PACE Administrators must be presented to the FDFC Board and approved by resolution. In order for an approved PACE provider to provide administrator services through the FDFC PACE Program, it must execute a PACE administration agreement. Each member of the District shall receive notice of all approved PACE Administrators (except for residential PACE Providers during the "soft launch" period above). Notwithstanding any of the foregoing, the only authorized FDFC PACE residential Administrator for the District shall be Renovate America until July 1, 2017. SECTION 11. FINANCING AGREEMENT. The Parties agree that FDFC and FRED, and their designees, may enter into Financing Agreements, pursuant to Section 163.08(8), Florida Statutes, with property owner(s) who obtain financing through the District. In accordance with the findings described in this Agreement, FRED hereby 9 4814 -0430 -8797 139753(0041 designates FDFC as its agent for the limited purpose of executing Financing Agreements with property owners on behalf of FRED pursuant to Section 163.08(6), Florida Statutes, and for purposes of administering the FDFC PACE Program within the Jurisdictional Boundaries of FRED and ensuring compliance with the Florida PACE Act. SECTION 12. POWERS OF THE DISTRICT. With the approval of a majority vote of the Governing Board, the District may exercise any or all of the powers granted to the District under the Interlocal Act and the Florida PACE Act, which include, without limitation, the following: (A) To finance Qualifying Improvements through contracts with property owners in the District, and the District shall impose and levy assessments as a local government in accordance with Section 163.08 to repay the financing received; provided, however, (i) FDFC shall provide the form of the Financing Agreement and (ii) that FDFC shall, have independent discretionary authority to authorize and approve the issuance of revenue bonds to finance such improvements without further approval or authorization from the District, and subject to Section 10, to select and approve Program Administrators for the District; (B) In its own name to make and enter into contracts on behalf of the District; (C). Subject to Section 10(A) hereof, to employ agencies, employees, or consultants for the District; (D) To acquire, construct, manage, maintain, or operate buildings, works, or improvements for the District; (E) To acquire, hold, or dispose of property for the District; (F) To incur debts, liabilities, or obligations, provided, however, that such debts, liabilities, or obligations shall not constitute debts, liabilities, or obligations of the State, FDFC, the Founding Members, or any Subsequent Party to this Agreement; (G) To adopt resolutions and policies prescribing the powers, duties, and functions of the officers of the District, the conduct of the business of the District, and the maintenance of records and documents of the District; (H) To maintain an office at such place or places as it may designate within the District or within the boundaries of a Party to this Agreement; (I) To cooperate with or contract with other governmental agencies as may be necessary, convenient, incidental, or proper in connection with any of the powers, duties, or purposes authorized by the Florida PACE Act, and to accept funding from local, state and federal agencies; 10 4814 - 0430 -8797 139753(0041 (J) To exercise all powers necessary, convenient, incidental, or proper in connection with any of the powers, duties, or purposes authorized in the Florida PACE Act or Florida statutes governing the District; and (K) To apply for, request, receive and accept gifts, grants, or assistance funds from any lawful source to support any activity authorized under Florida Statutes and this Agreement. SECTION 13. TERM. (A) This Agreement shall remain in full force and effect from the date of its execution; provided, however, that any Party may terminate its involvement in the District and its participation in this Agreement upon 90 days' written notice to the other Parties. Should a Party terminate its participation in this Agreement, be dissolved, abolished, or otherwise cease to exist, the District and this Agreement shall continue until such time as all remaining Parties agree to terminate this Agreement. (B) At its discretion, and with reasonable notice, FDFC may terminate its role as a PACE program administrator for the District. (C) Notwithstanding a Party's termination of participation in this Agreement, to ensure continued collection of Assessments for Qualifying Improvements acquired within the service area of the terminating Party, such terminating Party shall enter into a written agreement with the District for such Party to consent to the levy of annual Assessments by the District or for such party to levy annual Assessments on those properties that have received financing for Qualifying Improvements within the legal boundaries of the terminating Party, until such time that all outstanding debt related to such Qualifying Improvements has been satisfied. The proceeds of the Assessments shall be paid to the designee of the District pursuant to such written agreement. SECTION 14. CONSENT. This Agreement and any required resolution or ordinance of an individual Party shall be considered the Party's consent to the creation of the District as required by the Interlocal Act and the Florida PACE Act. SECTION 15. NOTICE OF INTENT; IMPOSITION OF SPECIAL ASSESSMENTS; COORDINATION. (A) In accordance with the Uniform Assessment Collection Act and the Florida PACE Act, the District hereby agrees to impose Assessments within its Jurisdictional Boundaries and to utilize the Uniform Assessment Collection Act for collection of such Assessments from each property owner that voluntarily enters into a Financing Agreement pursuant to the Florida PACE Act and the FDFC PACE Program. Specifically, the District 11 4814-0430-8797 139753 /0041 shall: (1) advertise a public hearing to consider adoption of a Resolution of Intent, thus providing notice to the owners of real property within the Jurisdictional Boundaries of the District that non -ad valorem assessments may be imposed pursuant to the Florida PACE Act and may be collected pursuant to the Uniform Assessment Collection Act; (2) after holding the public hearing referred to in (1) above, adopt a Resolution of Intent and mail an executed copy to FDFC, the Tax Collector and the Property Appraiser; (3) enter into a written agreement with the Tax Collector and the Property Appraiser regarding costs associated with use of the Uniform Assessment Collection Act, to the extent such agreement is not already in place; (4) prior to September 15 of each calendar year, or as frequently as needed, adopt Assessment Resolutions which impose new Assessments against those property owners entering into Financing Agreements since adoption of t h e 1 a s t Assessment Resolution, and certifies an electronic assessment roll to be submitted to the Tax Collector for the next tax bill, in each case based on information provided by FDFC; (5) remit Assessment proceeds received on behalf of the District from the Tax Collector directly to the District, FDFC or its designee; (6) take all actions necessary to enforce collection of the Assessments pursuant to the Uniform Assessment Collection Act; and (7) on its own behalf and at the request of FDFC, re- impose the Assessments as necessary to the extent required by changes in State law or subsequent judicial decisions. (B) Each approved Administrator shall be responsible for all other actions required by the Florida PACE Act and their administration agreement with FDFC under the FDFC PACE Program, including but not limited to: (1) assisting each Party to the Agreement with preparing all documents required for the District to impose the Assessments pursuant to the Florida PACE Act and the Uniform Assessment Collection Act, including finalization of the documents attached as exhibits hereto and assistance with the written agreement with the Tax Collector and Property Appraiser, if requested by each Party; (2) providing a copy of the Resolution of Intent, together with any other documents required by the Florida PACE Act or the Uniform Assessment Collection 12 4814 -0430 -8797 13475310041 Act, to the Florida Department ofRevenue; (3) ensuring that each property owner that voluntarily enters into a Financing Agreement has met all of the financial and other requirements provided for by the Florida PACE Act and the FDFC PACE Program; (4) providing the requisite notifications to all real property owners participating in the District; (5) recording a summary or memorandum of the Financing Agreement with the property owner in accordance with the Florida PACEAct; (6) tracking payment information for each property owner participating in the FDFC PACE Program and maintaining the related assessment rolls for all such participating parcels within the boundaries of the District; (7) working with the District to ensure the submission of the electronic assessment roll relating to the District each year to the Tax Collector; and (8) administering all other aspects of the District including the payment of Bonds with proceeds derived from the Assessments, (C) The District shall fully cooperate and coordinate with the Tax Collector and Property Appraiser with respect to the levying and collection of assessments and comply with all other requirements of the Florida PACE Act and the Uniform Assessment Collection Act. SECTION 16. UNDERLYING POWERS; SEPARATE AGREEMENTS. (A) For purposes of this Agreement and the District, the Parties acknowledge that FDFC currently does not have the power to levy the Assessments. FDFC shall not be a member of the District. FDFC shall be a party to this Agreement solely for the purpose of providing turn-key financial and administrative services through the FDFC PACE Program. (B) In order to maintain the integrity of the Assessments imposed by the District, the FDFC may, at its sole option, terminate its participation in this Agreement and enter into a separate Agreement or contract which provides the services described herein related to the FDFC PACE Program. SECTION 17. FEES AND COSTS. (A) All fees and costs related to the recording of this Agreement, the Resolution of 13 4814- 0470 - &79.139753/0041 Intent process and any other fees and costs incurred by any Party with respect to the Assessments and the FDFC PACE Program will be paid for solely by FDFC and reimbursed to FDFC through the FDFC PACE Program by the respective FDFC- approved PACE Administrator(s). (B) To advance the purposes of the Florida PACE Act, to minimize participation costs, and because each property owner is voluntarily undertaking to achieve and underwrite the compelling State interests described in the Florida PACE Act, the District shall seek either (i) the waiver or reduction by the Tax Collector and Property Appraiser of their fees or (ii) a flat fee per year per tax parcel in an amount sufficient to reimburse the Tax Collector and Property Appraiser for their actual costs related to providing such services, which shall be paid by the District and reimbursed to the District through the FDFC PACE Program by the respective FDFC- approved PACE administrator. SECTION 18. FILING; PRINCIPAL PLACE OF BUSINESS. A copy of this Agreement shall be filed by the District for record with the Clerk of the Circuit Court in and for such jurisdictions as may be required by Section 163.01(11), Florida Statutes. By agreement of the parties, the principal place of business for the District shall be located in Orange County, Florida at FDFC's principal place of business. SECTION 19. LIMITED LIABILITY. (A) To the extent permitted by Florida Law and subject to the limitations of Section 768.28, Florida Statutes, the Parties hereto shall each be individually and separately liable and responsible for the actions of its own officers, agents and employees in the performance of their respective obligations under this lnterlocal Agreement. Except as specified herein, the Parties shall each individually defend any action or proceeding brought against their respective agency pursuant to this lnterlocal Agreement and shall be individually responsible for all of their respective costs, attorneys' fees, expenses and liabilities Incurred as a result of any such claims, demands, suits, actions, damages and causes of action, including the investigation or the defense thereof, and from and against any orders, judgments or decrees which may be entered as a result thereof. The Parties shall each individually maintain throughout the term of this lnterlocal Agreement any and all applicable insurance coverage required by Florida law for governmental entities. Nothing in this Agreement shall be construed to affect in any way the Parties' rights, privileges, and immunities, including the monetary limitations of liability set forth therein, under the doctrine of "sovereign immunity" and as set forth in Section 768.28 of the Florida Statutes. (B) All Limited Member liabilities shall be governed by the Limited Purpose Party Membership Agreement. (C) No Party or any agent, board member, officer, official, advisor or employee of such Party shall be liable for any action taken pursuant to this Agreement in good faith or for any omission, or for any act of omission or commission by any other Party hereto or its 14 4814 -0430- 8797139753/0041 agents, officers, officials or employees. The terms of this Section 19 shall survive termination or expiration of this Agreement. (D) Neither this Agreement nor any Bonds issued by FDFC on behalf of the District under the FDFC PACE Program shall be deemed to constitute a general debt, liability, or obligation of or a pledge of the faith and credit of FRED, FDFC, or any Party or Subsequent Party, the State of Florida, or any political subdivision or agency thereof. The issuance of any Bonds by FDFC on behalf of the FDFC PACE Program shall not directly, indirectly, or contingently obligate any Party, FDFC, the State of Florida, or any political subdivision or agency thereof to levy or to pledge any form of taxation whatsoever therefor, or to make any appropriation for their payment. (E) The District, FDFC, and each Party are and shall be subject to Sections 768.28 and 163.01(9), Florida Statutes, and any other provisions of Florida law governing sovereign immunity. Nothing in this 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. SECTION 20. ENTIRE AGREEMENT. This Agreement sets forth all the promises, covenants, agreements, conditions and understandings between the parties hereto regarding the subject matter hereof, and supersedes all prior and contemporaneous agreements (including the Original Interlocal Agreement), understandings, inducements or conditions, expressed or implied, oral or written, regarding the subject matter hereof, except as herein contained. SECTION 21. AMENDMENTS. This Agreement may be amended only by a writing approved by each Party. SECTION 22. ASSIGNMENT. This Agreement may be assigned, in whole or in part, by any Party at any time with the prior written consent of each other Party hereto, which consent shall not unreasonably be withheld. SECTION 23. EXECUTION IN COUNTERPARTS. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. SECTION 24. SEVERABILITY. In the event that any provision of this Agreement shall, for any reason, be determined invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. SECTION 25. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 15 4814 - 0430 - 8797.139753/0041 SECTION 26. JOINT EFFORT. The preparation of this Agreement has been a joint effort of the Parties hereto and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the Parties than the other. SECTION 27. EFFECTIVE DATE. This Agreement shall become effective on the later of (A) the date hereof, or (B) the date the last Founding Member and FDFC executes this Agreement and the filing requirements of Section 18 hereof are satisfied. [SIGNATURE PAGES FOLLOW] 16 4814- 0430 -5797 139753(0041 [SIGNATURE PAGE TO AGREEMENT] IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of the Town of Lake Clarke Shores, Florida by its Mayor, its seal affixed hereto, as attested by its Clerk as of the day of 1 1 2017. TOWN OF LAKE CLARKE SHORES, FLORIDA /:I>>:Z61T/ a O7:%V 110111101 tim By Carle F. Sehoech, Town Attorney ATTEST: By a Mary Pinkerman, Town Clerk 17 4814- 0430 - 8797139753/0041 [SIGNATURE PAGE TO AGREEMENT] IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of the City of Fernandina Beach, Florida by its Mayor, its seal affixed hereto, as attested by its Clerk as of the day of 2017. CITY OF FERNANDINA BEACH Robin C. Lentz Commissioner -Mayor APPROVED AS TO FORM AND LEGALITY: Tammie E. Bach City Attorney ATTEST: City Clerk . 4814 - 0430 - 8'.9".139753/0041 [SIGNATURE PAGE TO AGREEMENT] IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of the FDFC by the authorized signatory identified below. FLORIDA D E LOPMENT FINANCE CORPORAT By: Name: Title: 19 William "Bill" F. Spivey, Jr. Executive Director 4914 -0430- 879713975310041 FE 4914-0430-8797 t39753/0041