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04/19/2018 Agreement
DATE: June 12, 2018 TO: Lindsey Ballard County Administrator’s Office FROM: Sally M. Abrams, D.C. SUBJECT: April 19th, BOCC Meeting Approved Agenda Items ______________________________________________________________________________ Attached is an electronic copy of the executed agenda items listed below for your handling. O6 Approval to enter into a Property Assessment Clean Energy Agreement with [[1874,1199,2125,1255][11][B,I,][Calibri]]Florida PACE [[356,1255,659,1311][11][B,I,][Calibri]]Funding Agency [[659,1255,669,1311][11][,,][Calibri]] [[669,1255,834,1311][11][,,][Calibri]]at $0 cos [[834,1255,1127,1311][11][,,][Calibri]]t to the County. [[1127,1255,1154,1311][11][,,][Calibri]] O8 Approval to enter into a Property Assessment Clean Energy Agreement with Florida Green Finance Authority at $0 cost to the County. Please contact me at extension 3550 with any questions. cc: County Attorney Finance[[607,1907,636,1968][12][,I,][Calibri]] File NON - EXCLUSIVE INTERLOCAL AGREEMENT RELATING TO THE FUNDING AND FINANCING OF QUALIFYING IMPROVEMENTS BY THE FLORIDA PACE FUNDING AGENCY This non - exclusive Interlocal Agreement is made and entered into as of Anrd 1 2018 ( "Interlocal Agreement "), by and between Monroe County, Florida, ( "Co ty"), and the Florida PACE Funding Agency, a separate legal entity and public body and unit of local government, established pursuant to Section 163.01(7), Florida Statutes, ( "Agency "), by and through their respective governing bodies. The purpose of this Agreement is to better secure, in an efficient and uniform manner, for local property owners (as hereinafter defined) the privileges and benefits provided for herein and by law, and particularly by Section 163.08, Florida Statutes, as amended ( "PACE Statute "), relating to the voluntary determination by affected property owners to obtain and finance certain improvements to property for energy efficiency, renewable energy or wind resistance. RECITALS • WHEREAS, Section 163.01, Florida Statutes, known as the "Florida Interlocal Cooperation Act of 1969" authorizes local governments to make the most efficient use of their 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, economic, population and other factors influencing the needs and development of local communities; and WHEREAS, Part I of Chapter 163, Florida Statutes, permits public agencies as defined therein to enter into interlocal agreements with each other to jointly exercise any power, privilege, or authority which such agencies share in common and which each might exercise separately; and WHEREAS, Section 163.08, Florida Statutes, ( "PACE Statute ") authorizes financing of qualifying improvements through agreements for property to be subject to a voluntary, non -ad valorem special assessment process as the repayment mechanism, commonly known as Property Assessed Clean Energy ( "PACE "); and WHEREAS, the City of Kissimmee and Flagler County entered into an Interlocal Agreement ( "Interlocal Agreement "), establishing the Florida Pace Funding Agency as a means of implementing and financing a qualifying improvements program for energy and water conservation and efficiency, renewable energy and wind - resistance improvements, and to provide additional services consistent with law, attached as Exhibit A; and WHEREAS, on March 21, 2018, the Monroe County Board of County Commissioners adopted 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 Agency 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 1 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 hereinafter set forth, the Parties agree as follows: ARTICLE I DEFINITIONS AND CONSTRUCTION SECTION 1.01. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings as defined unless the context requires otherwise: "Agency" shall mean the Florida PACE Funding 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 mean, 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 terms thereof. "Agency's Program" shall mean the activities of the Agency to provide financing for qualifying improvements undertaken within this State. "Board of Directors" shall mean the governing body of the Agency. "County" shall mean Monroe County, a political subdivision of the State of Florida. "Financing Agreement" shall mean the financing agreement or the summary memorandum 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 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 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 163.01, Florida Statutes, known as the "Florida Interlocal Cooperation Act of 1969 ", or if the context requires, a similar 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 among 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 mean 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. The term shall also include any lawful obligation committed to by the Agency or pursuant to an interlocal agreement with another governmental body or agency and/or warrants issued for services rendered or administrative expenses. "Ordinance" shall mean ^. - n e N„ 20 7 012 entitle the Monroe County Property Assessed Clean Energy (PACE) Ordinance, -and as codified. "PACE" is an acronym for the colloquial financing concept commonly referred to as `property assessed clean energy'; in Florida, the name or acronym 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 terms, 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 an ordinance governing any or all of the subject matter of the Ordinance, regardless of the time of passage of the municipal ordinance. "Pledged Funds" shall mean (A) the revenues derived from special assessments and other moneys received by the Agency or its designee 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 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 subject to a financing agreement with the Agency. "Qualifying 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 improvements. 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 Agreement; the term "heretofore" shall mean before the date this Agreement is executed; and the term "hereafter" shall mean after the date this Agreement is executed. (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 on by the other party to this Agreement. Both parties have independently reviewed this Agreement with their own counsel and covenant that the provisions hereof shall not be construed for or against either the County or the Agency by reason of 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. SECTION 1.04. FINDINGS. It is hereby ascertained, determined and declared that: (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) The Agency has provided to the County 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 any municipality within the County served by the Agency. (C) Nothing in this Agreement does, nor shall be construed to empower the Agency to 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 an 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 of the PACE Statute to undertake this financing service and associated activities to interested property owners. (F) This Agreement provides a cooperative, interlocal, alternative, supplemental and non - exclusive means to encourage and achieve, inter alia, immediate local economic development in a manner provided by the Legislature, provide for local commerce and job creation, as well as achieving the compelling State interest and public purposes described in the PACE Statute. ARTICLE II IMPLEMENTATION OF A COMPELLING STATE AND LOCAL INTEREST SECTION 2.01. AUTHORITY; AND, PURPOSE. (A) The execution hereof has been duly authorized by the resolution of the governing bodies of each party hereto. (B) The Agency by this Agreement is approved to serve, to provide its lawful services, and lawfully conduct its affairs within the County in accord with applicable general law and local legislation. SECTION 2.02. CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS PROHIBITED. The Agency shall not be empowered or authorized in any manner to create a debt against the County or any participating municipality and may not pledge the full faith and credit of the County or any participating municipality. All revenue bonds or debt obligations of the Agency shall contain on the face thereof a statement to the effect that the State, County, or any participating municipality, shall not be obligated to pay the same or the interest 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 County, or any participating municipality, 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, the Charter Agreement, or any other agreement shall not directly or indirectly or contingently obligate the County, or any participating municipality, to levy or to pledge any form of ad valorem taxation or other County, or any participating municipality, revenues or to make any appropriation for their payment. SECTION 2.03. ADOPTION OF RATES, FEES AND CHARGES. (A) The Board of Directors necessarily must adopt or authorize 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 property owner pursuant to a financing agreement described in the PACE Statute. (B) Such rates, fees and charges shall be adopted and revised so as to provide moneys, which, 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 the services and administration of the activities of the Agency, to pay costs and expenses provided for by law or the Charter Agreement and the financing documents, and to pay the principal and interest on the obligations as the same shall become due and reserves therefore, and to provide for necessary administration and reasonable margin of safety over and above the total amount of such payments. Notwithstanding any other provision in the Charter Agreement or this Agreement, such rates, fees and charges shall not exceed a rate of interest greater than the equivalent of 18 percent 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 from jurisdiction to jurisdiction, but shall be just and equitable and uniform at the time of imposition for the Property Owners within the same class, or within each subscribing local governmental jurisdiction, and may be based upon or computed upon any factor (including, by way of example and not limitation, competitive or market conditions, distinguishing between residential and non - residential properties or uses, distinguishing between variable costs of administrative services and local government cooperation over time) or combination of factors affecting the demand or cost of the services furnished or provided to administer the services and affairs of the Agency as may be determined by the Board of 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 program guidelines and consumer protections set forth in the Ordinance, as may be amended from time to time. The parties concur that at the time of execution of this Agreement, 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 the County or participating municipalities in any m anner whatsoever. (C) This Agreement provides for accomplishment of a compelling state interest, recognizes and carefully encourages uniform 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 economic 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 demand upon the County'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 any third -party or for allowing any claim, which would otherwise be barred under the doctrine of sovereign immunity or by operation of law. (E) By law the Agency shall at all times be a qualified, distinct and separate special purpose local government funding and financing instrumentality separate and apart from the County 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 by the Agency, or any subsequently served or participating local government in the affairs of the Agency, shall be liable for the actions of or in 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 obligate the County or participating municipalities in any manner as a result of this 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 PACE Statute. No special purpose local government 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 participating 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 imply 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 of revenue or refunding 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 of 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 valorem assessment along with such other efficient and reasonable information and test -rolls necessary for the tax collector to collect such amounts as a non -ad valorem assessment on behalf of the Agency pursuant to Sections 163.01, 163.08, 197.3632, and 197.3635, Florida Statutes, or their successors in function. (I) The Agency will inform every property owner that by law these non -ad valorem assessments must be collected only pursuant to Sections 163.01, 163.08, 197.3632, and 197.3635, Florida Statutes; and, are not imposed by the County, any participating municipality, the property appraiser, nor 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 expressly enabled, authorized and encouraged by the PACE Statute, as well as the Ordinance, to accomplish a compelling state interest with the Agency's 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; and, 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 must 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)(b)2., Florida Statutes, for reimbursement and compensation of tax collectors and 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 government imposing the subject non -ad valorem assessments, not the County nor participating 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 uniform method of collecting 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 time, 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 Special Assessments against all lands and properties specially benefitted by the acquisition, construction and financing of qualifying improvements. If any assessment made with respect to any property shall be either in whole or in part annulled, vacated or set aside by the judgment of any court, or if the Agency shall be satisfied that any such assessment is so irregular or defective that the same cannot be enforced or collected, the Agency will take all necessary steps to cause a new assessment to be made for the whole or any part of any qualifying improvements or against any property specially benefitted by such improvement, to the extent and in the manner provided by law. (B) Pursuant to the financing documents, this Agreement, and the Ordinance the Agency shall irrevocably pledge and, to the fullest extent permitted by law, pledge and assign any and all revenues derived from special assessments to the repayment of any debt obligation issued by the Agency pursuant to the financing documents. (C) The County and participating municipalities shall not incur or ever be requested to authorize any obligations secured by special assessments associated with qualifying improvements imposed by the Agency. (D) Each series of financing documents shall be secured forthwith equally and ratably by a pledge of and lien upon the special assessments. The obligations of the Agency under and pursuant to the financing documents shall not be or constitute general obligations or an indebtedness of the County, or participating municipalities, as "bonds" within the meaning of the Constitution of Florida, but shall be payable from and secured solely by a lien upon and pledge of the special assessments as provided herein. Neither the Agency nor any holder of any debt obligation issued by the Agency pursuant to the financing documents shall ever have the right to compel the exercise of the ad valorem taxing power of the County, or participating municipalities, or other taxation in any form, of property therein to pay any amount due under any financing documents or any special assessment. The financing documents shall not constitute a lien upon any property of or in the County's, or participating municipalities' jurisdiction except as to the respective special assessments in the manner provided herein and by law. ARTICLE III GENERAL PROVISIONS SECTION 3.01. INTERLOCAL AGREEMENT PROVISIONS. This Agreement is deemed to be an "interlocal agreement" within the meaning of the Florida Interlocal Cooperation Act of 1969, as amended. The Agency shall file this Interlocal Agreement with the Clerk of the Circuit Court of Monroe County, Florida. SECTION 3.02. DISCLOSURE; NONDISCRIMINATION; COVENANT TO COOPERATE. A) The Agency has provided a copy of (1) the PACE Statute, (2) the Agency's Charter Agreement, (3) the Final Judgment in Fla. PACE Funding Agency v. State, No. 2011 - CA -1824 (Fla. 2d Cir. Ct. 2011), and (4) other relevant disclosure information and background materials to the County prior to execution hereof. County, through its own staff and advisors, has independently reviewed and considered the foregoing and other relevant information of its choosing. (B) The Agency and the County 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. 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 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 (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 seq.), 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 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. (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 desirous of also achieving, a compelling state interest and stimulate a substantial and meaningful flow of private sector economic activity and new job 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 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 the Agency has obligations outstanding which are secured by Pledged Revenues derived from financing agreements relating to any properties 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 Program and responsibilities of Agency then underway, shall remain in effect and survive any termination 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 powers 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 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 3.05. Provided, however, no termination of this Interlocal Agreement shall preclude the Agency 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 the Agency'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 Agency's obligations, and all associated remaining responsibilities under the Agency's Program are fulfilled (including, but not 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. 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 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 parties at the following addresses: County: Monroe County ATTN: Roman Gastesi, County Administrator 1100 Simonton Street, Ste. 205 Key West, FL 33070 With a copy to: Monroe County ATTN: Pedro Mercado, Assistant County Attorney 1111 12th Street, Suite 408 Key West, Florida 33040 Agency: Executive Director Florida PACE 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 Agency P.O. Box 14043 Tallahassee, Florida 32317 -4043 Any of the parties may, by notice in writing given to the other, 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 3.06. QUALITY CONTROL AND COMMUNICATION. For quality control purposes, the Agency and County desire, and the Agency covenants to continually develop, implement and employ policies, systems and procedures which set or reflect industry standards; with such standards being reasonably expected to change and evolve over time. This Agreement serves to establish an ongoing positive and professional line of communication between staff and agents for the parties and is encouraged. At any time, notwithstanding lack of default or lack of material breach hereunder, each party is encouraged to objectively and specifically communicate to the other in writing as provided for herein any concerns, suggestions or disapproval with performance, policies, systems or procedures being employed by each party concerning the funding and financing of qualified improvements. The Agency through its administrator, Executive Director, or a duly authorized designee, will promptly respond in writing to all such communications (reasonably within fifteen (15) days of receipt of any such written communication, but sooner if necessary) from the County and follow - up accordingly; and, also promptly communicate any such response, follow -up, and all related communication to the Board of Directors for review. This paragraph shall not be construed as containing any obligation for the County to receive complaints or concerns about the Agency's performance, policies, systems, or procedures, and the County is requested to and specifically authorized to refer all such complaints or concerns directly to the Agency for a response. SECTION 3.07. 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 parties shall apply to the officials, officers, agents or employees thereof when performing their respective functions and duties under the provisions of this Agreement. (B) The County and 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)(o), Florida Statutes, that certain final judgment in Fla. PACE Funding Agency v. State, No. 2011 -CA -1824 (Fla. 2d Cir. Ct. 2011), and this covenant of the parties hereto, the local governments who are either the incorporators, or members of the Agency, or any subsequently served or participating local government shall not be held jointly liable for the torts of the officers or employees of the Agency, or any other tort attributable to 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 Statutes. The County and Agency acknowledge and agree that the Agency 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, the Agency agrees to protect, defend, reimburse, indemnify and hold the County and participating municipalities served by the Agency, 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 any act, omission or fault whether active or passive of the County and participating municipalities of anyone acting under its direction or control, or on its behalf in connection with or incident to the performance of this 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 apply to liability caused by the negligence or willful misconduct of the County or participating municipalities, their 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, the Agency, 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) The Agency is an independent local government funding and financing instrumentality. Neither the County nor any participating municipality served by the Agency, shall in any manner be obligated to pay any debts, obligations or liabilities arising as a result of any actions of the Agency, its Board of Directors or any other agents, employees, officers or officials of the Agency, except to the extent otherwise mutually 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 anything to the contrary herein, neither the County nor the Agency waive any sovereign immunity as a result of this or any other agreement resulting from the subject matter hereof; and, nothing herein shall be construed to usurp or contract away any immunity, or the duty or 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) The Agency will promptly request and obtain from its administrator, CounterPointe Energy Solutions (FL), LLC, 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 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 Solutions (FL), LLC, and any subsequent administrator, and provide the County a certificate showing the County as an additional insured for the coverages the Agency requires of its administrator, which are currently: Worker's Compensation Statutory Employer's Liability $1,000,000 Commercial General Liability $1,000,000 per occurrence $1,000,000 aggregate Commercial Auto Liability $1,000,000 combined single limit Professional Liability (E &O) $1,000,000 per occurrence $2,000,000 aggregate The statement 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 County (as an additional insured) at least ten (10) days prior written notice of such proposed action. SECTION 3.11. INSURANCE BY THE AGENCY: Without waiving the right to sovereign immunity as provided by Section 768.28, Florida Statute, the Agency 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 the Agency maintains third -party Commercial General Liability and Commercial Auto Liability in lieu of exclusive 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 limit for bodily injury or property damage. The Agency agrees to maintain or to be self - insured for Workers' Compensation & Employer's Liability insurance in accordance with Section 440, Florida Statutes. When requested, the Agency 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 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 be 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 obligation herein, then, 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 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 all performance hereunder. At all times the parties may proceed at law or in equity to enforce their rights under this Agreement using all available remedies. (B) 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 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 Agreement shall be borne by the respective parties, provided; however, BY ENTERING INTO THIS AGREEMENT, THE AGENCY 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 THE AGENCY 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, THE AGENCY SHALL BE LIABLE FOR THE REASONABLE ATTORNEYS' FEES AND COSTS OF THE COUNTY IN CONTESTING THE REQUEST FOR JURY TRIAL, AND SUCH AMOUNTS SHALL BE AWARDED BY THE COURT IN ADJUDICATING THE 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 agreements, 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 Section 24 of 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 under 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 of 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 reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Agency is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Agency 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 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 of 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 from 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 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 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 THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY, AT (305) 292 -3470 SECTION 3.16. EFFECTIVE DATE. This Agreement 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 of the Circuit Court in Monroe County, Florida. SECTION 3.18. ATTORNEY'S FEES AND COSTS. The County and the Agency 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 3.19. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. The County and the Agency 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 3.20. 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 the Agency 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 the Agency specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. SECTION 3.21. COVENANT OF NO INTEREST. County and the Agency 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 3.22. 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. SECTION 3.23. NO PERSONAL LIABILITY_ 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. [Remainder of page intentionally left blank.] Non - Exclusive Interlocal Subscription Agreement Monroe County 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. THE FLORIDA PACE FUNDING AGENCY (SEAL) „i-14 By: Michael H. Steigerwald, Executive Director ATTEST: I Donald T. Smallwood, Assistant Secretary 19 Non - Exclusive Interlocal Agreement Monroe County 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. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY _ '•. �'ir'1 1 B y. David R Mayo _,1 Attest: Approved as to form: 3 "`14 /14 . - 7 4 11/1 d County Attorney Kevin Mailok, Clerk and Comptroller °L I i" ' CC -J Q 4 - L 1.1,.: 41, c � v ✓ ROE COU AT I° ° NN / / PED" ` ER ATTORNEY • ASSISTANT '5 2-a I ' Q Date 18 EXHIBIT "A" INTERLOCAL AGREEMENT Exhibit A 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 SECTION 1.04. FINDINGS 5 ARTICLE II THE AGENCY SECTION 2.01. ESTABLISHMENT AND CREATION 8 SECTION 2.02. AUTHORITY TO ADMINISTER THE PROVISION OF SERVICE, FUNDING AND FINANCING OF QUALIFYING IMPROVEMENTS 9 SECTION 2.03. GOVERNANCE 10 SECTION 2.04. MEETINGS; NOTICE 13 SECTION 2.05. REPORTS; BUDGETS; AUDITS 13 SECTION 2.06. POWERS, FUNCTIONS AND DUTIES 13 SECTION 2.07. CREATION OF STATE, COUNTY OR MUNICIPAL DEBTS PROHIBITED 18 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 SECTION 3.04. 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 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 govemment's area of service or boundaries; (2) the Agency or local government to facilitate by law the voluntary acquisition, delivery, installation or any 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 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 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 indude 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. B) 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 4 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. (B) 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 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 6 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 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)(g), 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. 8 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)(g), 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 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 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 Agreemen t 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 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 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 mariner 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 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 arty 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 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, 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 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 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 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)(o), 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 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. BOARD OF COUNTY COMMISSIONERS OF FLACLER COUNTY, FLORIDA By: - `ate McLau• in ' air ATTEST: m� >xlcy, Clerk of the Circuit Court and Comptroller APPROVED AS TO FORM: AQ 1 Hadeed, County Attorney 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 THE CITY OF KISSIMMEE, FLORIDA (SF.AL) By: Mayor ATTEST: L.% X _ City Clerk 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. FLORDIA PACE FUNDING AGENCY tr L t (SEAL) ALAC"Y By: L.,. Chair ATTE,S'I': 7 �r ` `" ' xecutive Director 30 le MEMORANDUM 1 . OFFICE OF THE COUNTY ATTORNEY 1111 12 Street, Suite 408, Key West, FL 33040 Phone (305) 292 - 3470 /Fax (305) 292 -3516 TO: Pam Hancock Executive Aide to the Clerk FROM: Abra Campo Executive Ad istrator DATE: June 4, 2018 SUBJECT: BOCC Meeting 04/19/18; Approved Agenda Item 06 (3615) 0. COUNTY ADMINISTRATOR — Page 11 06 SUSTAINABILITY: Approval to enter into a Property Assessment Clean Energy (PACE) Agreement with Florida PACE Funding Agency at $0 cost to the County. Enclosed: One (1) originally executed and stamped original Agreement for execution by the Mayor, processing in BOCC records and distribution. *Also enclosed are Two (2) duplicate originals of an Indemnification Agreement between CounterPointe Energy Solutions LLC as the Administrator of the Florida PACE Funding Agency, and Monroe County to be filed with the Florida PACE Funding Agency Agreement. Per Pedro Mercado the Indemnification does not need to be placed on the agenda for Board approval. INDEMNIFICATION AGREEMENT BETWEEN COUNTERPOINTE ENERGY SOLUTIONS (FL) LLC, AS ADMINISTRATOR OF THE FLORIDA PACE FUNDING AGENCY, AND MONROE COUNTY, FLORIDA This Indemnification Agreement (the "Agreement ") is entered into April 16, 2018 by and between CounterPointe Energy Solutions (FL) LLC ( "CounterPointe "), as the administrator of the Florida PACE Funding Agency ( "FPFA "), and Monroe County, a political subdivision of the State of Florida ( "County") (collectively, the "Parties "). WHEREAS, the County and the FPFA have proposed to enter into an Interlocal Agreement ( "Interlocal Agreement ") to authorize the FPFA to operate in Monroe County pursuant to the Monroe County PACE Program Ordinance for the purposes of providing a Property Assessed Clean Energy (PACE) program; and WHEREAS, CounterPointe is the third party administrator for the FPFA and CounterPointe would be operating on behalf of the FPFA within Monroe County; and WHEREAS, CounterPointe has agreed to provide the County with a separate indemnification agreement for the benefit of the County, 1. The foregoing recitals are true and correct and incorporated into this Agreement. 2. CounterPointe shall indemnify and hold harmless the County and the County's elected and appointed officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which County or its elected or appointed officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of action or proceedings of any kind or nature arising out of, relating to or resulting from the performance of the Interlocal Agreement by CounterPointe or its employees, agents, servants, partners, principals, administrators, subcontractors, or agents. CounterPointe shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the County, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. CounterPointe expressly understands and agrees that any insurance protection shall in no way limit the responsibility to indemnify, keep and save harmless and defend the County or its elected or appointed officers, employees, agents and instrumentalities as herein provided. 3. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. The parties agree that the exclusive venue for any lawsuit arising from, related to, or in conjunction with this Agreement shall be in the state courts in and for Monroe County, Florida, 4 the United States District Court for the Southern District of Florida or United States Bankruptcy Court for the Southern District of Florida, as appropriate. IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement on this sixteenth day of April, 2018. APP O ED AS TO FORM MONRO ' • - 1 0 TY ORIDA By: �� By: [Assistant] Arty Attorney County Administrator or Designee Date For the Board of County Commissioners Monroe County, Florida Governmental Center 1100 Simonton Street Key West, FL 33040 COUNTERPOINTE ENERGY SOLUTIONS (FL) LLC 6401 Congress Blvd., Suite 200 Boca Raton, FL 33487 ir Name: D avid Sc aefer to Title: Chief O eratin Office' p g AC D DATE (MM /DD/YYYY) 4....------ CERTIFICATE OF LIABILITY INSURANCE 05/31/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Rebecca Abercrombie Fleming Enterprises, Inc. IA/CNo•Ext): (321) 445 -9967 FAX N (407) 423-7837 2208 Hillcrest Street E ADDRESS: r eecca flemin a en ADDRESS: C� 9 9 cY• net INSURER(S) AFFORDING COVERAGE NAIC # Orlando FL 32803 INSURERA: FEDERAL INS CO 20281 INSURED INSURER B: ACE FIRE UNDERWRITERS INS CO 20702 CounterPointe Energy Partners LLC INSURER C: CounterPointe Energy Solutions (CA) LLC INSURERD: 6401 Congress Ave. Suite 200 INSURER E : Boca Raton FL 33487 INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR T YPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR IMO WVD POLICY NUMBER (MMIDD/YYYYI (MMIDD/YYYYI X COMMERCIAL GENERA L LIABILITY EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED CLAIMS -MADE X OCCUR PREMISES (Ea occurrence) $ 1,000,000 MED EXP (Any one person) $ 15,000 A 36038503 08/17/2017 08/17/2018 PERSONAL &ADVINJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: AP Y RIS NAG EMENT GENERAL AGGREGATE $ 2,000,000 X POLICY PE0 LOC BY PRODUCTS - COMP /OP AGG $ 2,000,000 OTHER $ AUTOMOBILE LIABILITY �� COMBINED SINGLE LIMIT $ 1,000,000 (Ea accident) ANY AUTO WAIVER w YE8 - BODILY INJURY (Per person) $ A AWNED SCHEDULED AUTOS ONLY AUTOS 73595040 08/17/2017 08/17 /2018 BODILY INJURY (Per accident) $ X HIRED X NON -OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY (Per accident) X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 4,000,000 A EXCESS LAB CLAIMS -MADE 79893109 08/17/2017 08/17/2018 AGGREGATE $ 4,000,000 _ DED RETENTIONS PR/COMP OPS AGG $ 4,000,000 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N STATUTE ER ANY PROPRIETOR /PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ OFFICER /MEMBER EXCLUDED? I N /A (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ Professional Liability Each Claim $1,000,000 B EONFLF136659412 08/17/2017 08/17/2018 Aggregate $2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate Holder is additional insured in regards to general and auto liability on a primary and non - contributory basis when required in a written contact. Waiver of Subrogation in favor of Additional Insured applies to General and auto Liability when required in a written contact. 30 day notice of cancellation except 10 day notice for non -pay. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Monroe County 102050 Overseas Highway AUTHORIZED REPRESENTATIVE Suite 246 -- ------ Key Key Largo FL 33037 .�-�/- T ��`""`T © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD