04/19/2018 Agreement R1
1 , Kevin Madok, CPA
Clerk of the Circuit Court & Comptroller — Monroe County, Florida
DATE: July 24, 2018
TO: Abra Campo, Ex. Administrator
County Attorney's Office
FROM: Pamela G. Han •. f D.C.
SUBJECT: April 19 BOCC Meeting
Attached is a duplicate original of Item 07, Property Assessment Clean Energy agreement
with Florida Resiliency and Energy District ( "FRED ") at $0 cost to the County, for your handling.
Should you have any questions, please feel free to contact me at ext. 3130. Thank you.
cc: Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070 Plantation Key, Florida 33C
305- 294 -4641 305- 289 -6027 305- 852 -7145 305 - 852 -7145
NON - EXCLUSIVE INTERLOCAL AGREEMENT BETWEEN THE FLORIDA
RESILIENCY AND ENERGY DISTRICT AND MONROE COUNTY, FLORIDA
This Interlocal Agreement ( "Interlocal Agreement ") is entered into this IT h Y day of
p r( 1 , 2018 by and between the Florida Resiliency and Energy District ( "FRED "), a
public body corporate and politic, and Monroe County, a political subdivision of the State of
Florida (County) collectively, the ( "Parties "), each one constituting a public agency as defined in
Part I of Chapter 163, Florida Statutes, for the purpose of levying and collecting voluntary, non -
ad valorem assessments for property owners participating in the Florida Development Finance
Corporation ( "FDFC ") Property Assessed Clean Energy ( "PACE ") program (the "Program ")
within the County.
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, (PACE Statute) 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, the 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 or PACE;
and
I WHEREAS, an Interlocal Agreement, dated September 6, 2016, as amended and
supplemented from time to time ( "FRED Agreement ") was entered into between the Town of
Lake Clarke Shores, the City of Fernandina Beach, and any subsequent parties thereto (the
"Public Agencies ") and, in the limited capacity described therein, the FDFC (`together with
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the Public Agencies, the "Parties "), for the purpose of facilitating the financing of qualifying
improvements for properties located within FRED's aggregate legal boundaries via the levy
and collection of voluntary non -ad valorem special assessments on improved property,
Attached as Exhibit "A "; and
WHEREAS, on March 21, 2018, the Monroe County Board of County Commissioners
adopted Ordinance No. 007 -2018 , entitled the Monroe County Property Assessed Clean
Energy Ordinance (PACE Ordinance), and provided for certain consumer protections and
requirements for PACE Providers; and
WHEREAS, the County is concurrently adopting a Resolution authorizing the Program
to provide PACE financing and funding with property owners for qualifying improvements
within the County, in accordance with the PACE Statute and the Ordinance; and
WHEREAS, the Parties have determined that entering into this Interlocal Agreement is
in the best interest and welfare of the property owners within the County.
NOW, THEREFORE, in consideration of the terms and conditions, promises and covenants
hereinafter set forth, the Parties agree as follows:
Section 1. Recitals Incorporated. The above recitals are true and correct and incorporated
herein.
Section 2. Purpose. The purpose of this Interlocal Agreement is to facilitate the financing of
qualifying improvements for property owners within the County in accordance with the
PACE Statute, and the Ordinance, by virtue of the County's joining FRED as a non - voting
member and allowing the Program to operate within the County. Pursuant to the
Ordinance, this Interlocal Agreement shall be applicable within the unincorporated areas
of MONROE County, and in all municipalities that have not adopted an ordinance
governing any or all of the subject matter of the Ordinance, regardless of the time of
I passage of the municipal ordinance.
Section 3. Qualifying Improvements. The County shall allow the Program to provide
financing of qualifying improvements, including energy conservation and efficiency,
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renewable energy, and wind resistance improvements, as defined in the PACE Statute, as
may be amended by law, on properties within the County, pursuant to the Ordinance.
Section 4. Non - Exclusive. The Program is non - exclusive, meaning the County specifically
reserves the right to participate with or join any other entity providing a similar program
or create its own program under the PACE Statute.
Section 5. Assessment by FRED; County Collection Ministerial. The Parties hereto
acknowledge and agree that the non -ad valorem assessments arising from a property
owner's voluntary participation in the Program are imposed by FRED and not the County.
Additionally, the Parties agree that the County's collection and distribution of any non -ad
valorem assessments imposed by FRED are purely ministerial acts.
Section 6. Creation of State, County, or Municipal Debts Prohibited. The County and
participating municipalities, pursuant to the Ordinance, shall not incur nor ever be
requested to authorize any obligations secured by special assessments associated with
qualifying improvements imposed by FRED pursuant to the PACE Statute. No special
purpose local government acting pursuant to the PACE Statute, the Ordinance, or this
Agreement shall be empowered or authorized in any manner to create a debt as against the
County and participating municipalities and shall not pledge the full faith and credit of the
County and participating municipalities, pursuant to the Ordinance, in any manner
whatsoever. No revenue bonds or debt obligations of any special purpose local
government acting pursuant to the PACE Statute, shall ever pledge or imply any pledge
that the County, or any participating municipality within the County served by FRED,
shall be obligated to pay the same or the interest thereon, nor state or imply that such
obligations payable from the full faith and credit or the taxing power of the state, the
County, or any municipality within the County served by the Program, as a result of the
Ordinance or this Interlocal Agreement. The issuance of revenue or refunding bonds by
the Program under the provisions of law, FRED's governance documents, or any
' agreement or resolution shall not, as the result of the Ordinance or this Interlocal
Agreement, be deemed in any manner, directly or indirectly or contingently, to obligate
,the County and participating municipalities under the Ordinance, to levy or to pledge any
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form of ad valorem taxation or other county or municipal revenues or to make any
appropriation for their payment whatsoever.
Section 7. Program Guidelines: The Parties agree that, the Program to be offered in the
County will be governed by the Ordinance and the Program's guidelines. If there is a
conflict between the Program's guidelines and the Ordinance, the Ordinance shall control.
The Program will inform every property owner that by law these non -ad valorem
assessments must be collected only pursuant to sections 197.3632. 197.3635, and 163.08,
Florida Statutes; and, are not imposed by the County, any municipality within the County
served by the Program under the Ordinance, the property appraiser, nor the tax collector,
and that they are levied and imposed solely by FRED, and only then upon voluntary
application of the private property owner as expressly enabled, authorized and encouraged
by the PACE Statute, as well as the Ordinance, to accomplish a compelling state interest
with the Program's assistance. In addition to any disclosure requirements in the PACE
Statute and the Ordinance as may be amended, the Program shall present to the Property
Owner a separate, written notice disclosing the following ( "Notice "):
a. The estimated total amount of the debt, including amount financed, fees, fixed
interest rate, capitalized interest and the effective rate of the interest charged
( "Annual Percentage Rate" or "APR ");
b. That the Program Administrator(s), who offer their unique brand of PACE
financing on behalf of the Program, may only offer fixed simple interest rates and
payments that fully amortize the obligation. Variable or negative amortization
financing terms are not permitted. Capitalized interest included in the original
balance of Financing Agreement does not constitute negative amortization.
c. The repayment process and terms, amounts and a schedule that fully amortizes the
amount financed including the estimated annual special assessment;
d. That the special assessment will appear on the property owner's tax bill;
e. That there is no discount for paying the special assessment early;
f. The nature of the lien recorded and that the special assessment will be collected in
the same manner as real estate taxes. That failure to pay the special assessment
may cause a tax certificate to be issued against the property, and that failure of
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payment thereof may result in the loss of property subject to the special
assessment, including homestead property, in the same manner as failure to pay
property taxes;
g. The specific improvements to be financed and installed and that such
improvements and special assessment may or may not affect the overall value of
the property;
h. A special assessment payment term that does not exceed the useful life of the
improvements;
i. Prepayment:
i. The PACE agencies /authorities /districts shall provide to the Eligible
Participant information as to any accrued interest that may be due upon
early payment.
ii. No prepayment penalties may be charged or allowed on residential
projects or on non - residential projects where the total PACE funding does
not exceed $75,000.00. The PACE agencies /authorities /districts shall
provide a mechanism for re- amortization of PACE assessments to account
for partial pre - payment, particularly for application of tax credits, rebates,
or other incentives.
iii. For non - residential property where total PACE funding exceeds
$75,000, prepayment penalties may be charged or imposed to the extent
permitted by applicable law, as negotiated with the property owner, and
providing all financial impacts of such penalties are clearly disclosed and
agreed to by the property owner in writing.
j. Notice that the property owner may be required to pay any special assessment in
full at the time of refinance or sale of the property; and
k. The 3 -day right to cancel the financing.
1. The Notice must be delivered to the property owner by the Program
Administrator(s) and must be signed and dated by the property owner prior to or
contemporaneously with the property owner's signing of any legally enforceable
documents. The property owner and the Program Administrator(s) must keep the
signed Notice with the property owner's executed financing agreement.
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m. The Program shall record, or cause to be recorded, the financing agreement or a
summary memorandum of the financing agreement, in accordance with the PACE
Statute.
Section 8. Opinion of Bond Counsel. Prior to the execution of this Interlocal Agreement, the
Program shall deliver to the County an "Opinion of Bond Counsel ", stating that, based on
the counsel's review of the bond validation judgement and the underlying bond documents
the Program's structure complies with the bond validation judgement and the underlying
bond documents. The Program acknowledges that the County is relying on the Opinion of
Bond Counsel in its decision to execute the Interlocal Agreement.
Section 9. Boundaries. Pursuant to this Interlocal Agreement, the boundaries of FRED shall
include the legal boundaries of the County, which boundaries may be limited, expanded,
or more specifically designated from time to time by the County by providing written
notice to FRED. As contemplated in the Interlocal Agreement (as defined in herein below)
and as supplemented by this Interlocal Agreement, FRED will levy voluntary non ad
valorem special assessments on the benefitted properties within the boundaries of the
County pursuant to the Ordinance to help finance the costs of qualifying improvements for
those individual properties. Those properties receiving financing for qualifying
improvements shall be assessed from time to time, in accordance with the PACE Statute,
the Ordinance, and other applicable law. Notwithstanding termination of this Interlocal
Agreement or notice of a change in boundaries by the County as provided for above, those
properties that have received financing for qualifying improvements shall continue to be a
part of FRED, until such time that all outstanding debt has been satisfied.
Section 10. Financing Agreement. The Parties agree that FDFC /FRED may enter into a
financing agreement, pursuant to the PACE Statute and the Ordinance with property
owner(s) within the County pursuant to the Ordinance who obtain financing through the
Program.
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Section 11. Responsibilities of FRED; Indemnification; Liability.
a. All of the privileges and immunities from liability and exemptions from laws,
ordinances and rules which apply to the activity of officials, officers, agents or
employees of the parties, including participating municipalities under the
Ordinance, shall apply to the officials, officers, agents or employees thereof when
performing their respective functions and duties under the provisions of this
Interlocal Agreement.
b. The County, participating municipalities, and FRED are and shall be subject to
Sections 768.28 and 163.01(9)(c), Florida Statutes, and any other provisions of
Florida law governing sovereign immunity. Pursuant to the PACE Statute and this
Interlocal Agreement, the local governments who are either the incorporators, or
members of FRED, or any subsequently served or participating local government
shall not be held jointly liable for the torts of the officers or employees of FRED,
or any other tort attributable to FRED, and that FRED alone shall be liable for any
torts attributable to it or for torts of its officers, employees or agents, and then
only to the extent of the waiver of sovereign immunity or limitation of liability as
specified in Section 768.28, Florida Statutes. The County and FRED acknowledge
and agree that FRED shall have all of the applicable privileges and immunities
from liability and exemptions from laws, ordinances, rules and common law
which apply to the municipalities and counties of the State.
c. To the extent provided by law, FRED through its Program Administrator(s)
agrees to protect, defend, reimburse, indemnify and hold the County, or any
participating municipality within the County served by FRED pursuant to the
Ordinance, its agents, employees and elected officers (Indemnified Parties), and
each of them free and harmless at all times from and against any and all suits,
actions, legal or administrative proceedings, claims, demands, damages,
liabilities, interest, attorney's fees, costs and expenses of whatsoever kind or
nature (collectively, a "Claim ") whether arising in any manner directly or
indirectly caused, occasioned or contributed to in whole or in part, by reason of
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any act, omission or fault whether active or passive of the County, or any
municipality within the County served by FRED pursuant to the Ordinance, of
anyone acting under its direction or control, or on its behalf in connection with or
incident to the performance of this Agreement. FRED's aforesaid indemnity and
hold harmless obligations, or portions or applications thereof, shall apply to the
fullest extent permitted by law but in no event shall they apply to liability caused
by the negligence or willful misconduct of the County, or any municipality within
the County served by FRED pursuant to the Ordinance, its respective agents,
servants, employees or officers, nor shall the liability limits set forth in 768.28,
Florida Statutes, be waived. Nothing in this Agreement is intended to inure to the
benefit of any third -party or for the purpose of allowing any claim, which would
otherwise be barred under the doctrine of sovereign immunity or by operation of
law. In the event any Claim is brought against an Indemnified Party, FRED
through its Program Administrator(s), shall upon written notice from an
Indemnified Party, defend each Indemnified Party against each such Claim by
counsel satisfactory to the Indemnified Party or, at the Indemnified Party's option,
it may elect to provide its own defense. The obligations of this section shall
survive the expiration or earlier termination of this Agreement.
d. FRED is an independent local government funding and financing instrumentality.
Neither the County, nor any municipality within the County pursuant to the
Ordinance, who are served by FRED, shall in any manner be obligated to pay any
debts, obligations or liabilities arising as a result of any actions of the Program, its
Board of Directors or any other agents, employees, officers or officials of the
Program, except to the extent otherwise mutually and expressly agreed upon in
writing. In addition, the Program, its Board of Directors or any other agents,
employees, officers or officials of the Program shall have no authority or power to
otherwise obligate either the County, or any municipality within the County
served by FRED pursuant to the Ordinance.
e. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation
of the County and the Contractor in this Agreement and the acquisition of any
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commercial liability insurance coverage, self - insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of
immunity to the extent of liability coverage, nor shall any contract entered into by
the County be required to contain any provision for waiver.
Section 12. Agreements with Tax Collector, Property Appraiser and Municipalities. FRED
acknowledges that the County has no authority to bind the County Tax Collector and the
County Property Appraiser, and FRED will be required to enter into separate agreement(s)
therewith, which shall establish the fees (if any) to be charged by the Tax Collector and
Property Appraiser for the collection or handling of the Program's special assessments.
FRED also acknowledges that all incorporated municipalities in the County that have not
adopted an ordinance governing any or all of the subject matter of the Ordinance will be
included in the Program.
Section 13. Resale or Refinancing of a Property. FRED recognizes that some lenders may
require full repayment of the Program's special assessments upon resale or refinancing of
a property subject to the Program's special assessments. The Program Administrator(s)
agree to provide written disclosure of this matter to all County property owners that may
utilize the Program.
Section 14. Term of Agreement; Duration of Agreement; No Exclusivity.
a. The term of this Interlocal Agreement shall commence as of the date first above
written.
b. The term shall continue so long as FRED has obligations outstanding which are
secured by pledged revenues derived from financing agreements relating to any
properties within the boundaries of the County, pursuant to the Ordinance, or
FRED has projects for qualified improvements underway therein; the applicable
provisions, authority and responsibility under this lnterlocal Agreement
reasonably necessary to carry out the remaining aspects of the Program and
responsibilities of FRED then underway, shall remain in effect and survive any
termination until such time as those obligations and all associated remaining
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FRED responsibilities are fulfilled (including, but not limited to, the collection of
assessments in due course). Provided, however, FRED's powers employed and
exercised shall be non - exclusive, and the County, pursuant to the Ordinance, is
free to and reserves the right to enter into or otherwise encourage or commence
any other program for financing qualified improvements using non -ad valorem
assessments.
c. Notwithstanding subsection (b), either party may at any time terminate this
Interlocal Agreement upon sixty (60) days written notice provided as required by
Section 17. Provided, however, no termination of this Interlocal Agreement shall
preclude FRED from exercising any of its power or authority after any
termination, including without limiting the generality of the foregoing, that
specifically associated with its mission or collection of any of its Obligations
outstanding which are secured by pledged revenues derived from Financing
Agreements. In the event FRED's rights under this Interlocal Agreement to
impose new non -ad valorem assessments shall ever end, then as of the effective
date of the termination, all rights and obligations of the parties shall continue as
specified in subsection (B) until such time as all FRED's obligations, and all
associated remaining Program responsibilities are fulfilled (including, but not
limited to, the collection of assessments in due course).
Section 15. Consent. This Interlocal Agreement and any required resolution or ordinance of
an individual Party shall be considered the County's consent to participate in the Program
pursuant to the PACE Statute.
Section 16. Voting Rights. The Parties agree that the County shall be a non - voting Limited
Member of FRED for the term of this Interlocal Agreement.
Section 17. Notices. Any notices to be given hereunder shall be in writing and shall be
deemed to have been given if sent by hand delivery, recognized overnight courier (such as
Federal Express), or by written certified U.S. mail, with return receipt requested,
addressed to the Party for whom it is intended, at the place specified. For the present, the
Parties designate the following as the respective places for notice purposes:
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County: Monroe County
ATTN: County Administrator
1100 Simonton Street, Suite 205
Key West, Florida 33040
With a copy to: Monroe County
ATTN: County Attorney
1111 12 Street, Suite 408
Key West, Florida 33040
FRED: The Florida Resiliency and Energy District
c/o Florida Development Finance Corporation
William "Bill" F. Spivey, Jr., Executive Director
156 Tuskawilla Road, Suite 2340
Winter Springs, FL 32708407.956.5695 (t)
bspivey @fdfcbonds.com
With a copy to: Issuer's Counsel with Broad and Cassel
Joseph Stanton, Esq.
Bank of America Center
390 North Orange Avenue, Suite 1400
Orlando, FL 32801 -4961
407.839.4200 (t)
jstanton@broadandcassel.com
Section 18. Amendments. It is further agreed that no modification, amendment or alteration in
the terms or conditions herein shall be effective unless contained in a written document
executed by the Parties hereto.
Section 19. Joint Effort. The preparation of this Interlocal Agreement has been a joint effort
of the Parties hereto and the resulting document shall not, solely as a matter of judicial
construction, be construed more severely against one of the Parties than the other.
Section 20. Merger. This Interlocal Agreement incorporates and includes all prior
negotiations, correspondence, agreements, or understandings applicable to the matters
contained herein; and the Parties agree that there are no commitments, agreements, or
understandings concerning the subject matter of this Interlocal Agreement that are not
contained in this document. Accordingly, the Parties agree that no deviation from the
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terms hereof shall be predicated upon any prior representations or agreements, whether
oral or written.
Section 21. Assignment. The respective obligations of the Parties set forth in this Interlocal
Agreement shall not be assigned, in whole or in part, without the written consent of the
other Parties hereto.
Section 22. Public Records . FRED shall comply with Florida public records laws, including
but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the
Constitution of Florida. The County and FRED shall allow and permit reasonable access
to, and inspection of, all documents, records, papers, letters or other "public record"
materials in its possession or under its control subject to the provisions of Chapter 119,
Florida Statutes, and made or received by the County and FRED in conjunction with this
contract and related to contract performance. The County shall have the right to
unilaterally cancel this contract upon violation of this provision by FRED. Failure of
FRED to abide by the terms of this provision shall be deemed a material breach of this
contract and the County may enforce the terms of this provision in the form of a court
proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's
fees and costs associated with that proceeding. This provision shall survive any
termination or expiration of the contract. FRED is encouraged to consult with its advisors
about Florida Public Records Law in order to comply with this provision. Pursuant to F.S.
119.0701 and the terms and conditions of this contract, FRED is required to:
(1) Keep and maintain public records that would be required by the County to perform
the service.
(2) Upon receipt from the County's custodian of records, provide the County with a
copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in this chapter or as
otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if FRED does not
transfer the records to the County.
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(4) Upon completion of the contract, transfer, at no cost, to the County all public
records in possession of FRED or keep and maintain public records that would be
required by the County to perform the service. If FRED transfers all public records to the
County upon completion of the contract, FRED shall destroy any duplicate public records
that are exempt or confidential and exempt from public records disclosure requirements.
If FRED keeps and maintains public records upon completion of the contract, FRED shall
meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the County, upon request from the County's custodian
of records, in a format that is compatible with the information technology systems of the
County.
(5) A request to inspect or copy public records relating to a County contract must be
made directly to the County, but if the. County does not possess the requested records, the
County shall immediately notify FRED of the request, and FRED must provide the
records to the County or allow the records to be inspected or copied within a reasonable
time.
IF THE FRED HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO THE FRED'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS, BRIAN BRADLEY, AT (305) 292 -3470
Section 23. No Third Party Beneficiaries. It is the intent and agreement of the Parties that this
Agreement is solely for the benefit of the Parties and participating municipalities under the
Ordinance and no other party or entity shall have any rights or privileges hereunder.
Section 24. Severability. In the event a portion of this Interlocal Agreement is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue to be
effective.
Section 25. Administrator Indemnification. Any and all Program Administrators of the
Program shall be required to execute a separate indemnification agreement with the
County. The Program acknowledges and agrees that as of the execution of this Interlocal
Agreement, Renovate America is currently the only administrator for the Program and that
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Renovate America will execute a separate indemnification agreement with the County for
the benefit of the County and participating municipalities. If the Program approves
additional Program Administrators, the Program shall ensure that any and all Program
Administrators also provide the County with a separate indemnification agreement, on a
form to be approved by the County Attorney's Office, within 10 business days of
assuming administrative responsibilities for the Program.
Section 26. Insurance by FRED. Without waiving the right to sovereign immunity as
provided by Section 768.28, Florida Statute, FRED acknowledges to be self - insured for
General Liability and Automobile Liability under Florida sovereign immunity statutes
with coverage limits of $200,000 Per Person and $300,000 Per Occurrence; or such
monetary waiver limits that may change and be set forth by the legislature. In the event
FRED maintains third -party Commercial General Liability and Business Auto Liability in
lieu of exclusive reliance of self - insurance under Section 768.28 Florida Statute, FRED
shall agree to maintain said insurance policies at limits not less than $500,000 combined
single limit for bodily injury or property damage. FRED agrees to maintain or to be self -
insured for Workers' Compensation & Employer's Liability insurance in accordance with
Section 440, Florida Statutes. When requested, FRED shall agree to provide an affidavit
or Certificate of Insurance evidencing insurance, self - insurance and /or sovereign
immunity status, which County agrees to recognize as acceptable for the above mentioned
coverage. Compliance with the foregoing requirements shall not relieve FRED of its
liability and obligations under this Interlocal Agreement.
Section 27. Certificate of Insurance. Prior to execution of this Agreement, FRED shall
deliver to the County via the Insurance Company /Agent a signed Certificate(s) of
Insurance evidencing that all types and amounts of insurance coverages required by this
Agreement have been obtained and are in full force and effect. During the term of this
Interlocal Agreement and prior to each subsequent renewal thereof, FRED shall provide
this evidence to Monroe County prior to the expiration date of each and every insurance
required herein. Said Certificate(s) of Insurance shall, to the extent allowable by the
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insurer, include a minimum thirty (30) day endeavor to notify due to cancellation (10 days
for nonpayment of premium) or non - renewal of coverage.
Section 28. Venue. The venue of any legal or equitable action that arises out of or relates to
this Agreement shall be in the appropriate state court in MONROE County, Florida. In
any such action, Florida law shall apply. BY ENTERING INTO THIS AGREEMENT,
FRED AND COUNTY HEREBY EXPRESSLY WAIVE ANY RIGHTS EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO THIS AGREEMENT. IF FRED FAILS TO WITHDRAW A REQUEST
FOR A JURY TRIAL IN A LAWSUIT ARISING OUT OF THIS AGREEMENT AFTER
WRITTEN NOTICE BY THE COUNTY OF VIOLATION OF THIS SECTION, FRED
SHALL BE LIABLE FOR THE REASONABLE ATTORNEYS' FEES AND COSTS OF
THE COUNTY PARTY IN CONTESTING THE REQUEST FOR JURY TRIAL, AND
SUCH AMOUNTS SHALL BE AWARDED BY THE COURT IN ADJUDICATING
THE MOTION.
Section 29. Effective Date. This Interlocal Agreement shall become effective upon the
execution by the Parties hereto.
Section 30. Delegation of Duty. Nothing contained herein shall be deemed to authorize the
delegation of the constitutional or statutory duties of state, county, or city officers.
Section 31. Filing. This Interlocal Agreement shall be filed by the Program with the Clerk of
the Circuit Court in MONROE County.
Section 32. Nondiscrimination. County and FRED agree that there will be no discrimination
against any person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court
order. FRED agrees to comply with all Federal and Florida statutes, and all local ordinances,
as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI
of the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of
race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended
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(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.
Section 32. Captions. The captions and section designations herein set forth are for
convenience only and shall have no substantive meaning.
Section 33. Attorney's Fees and Costs. The County and FRED agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative
to the enforcement or interpretation of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, court costs, investigative, and out -of- pocket
expenses, as an award against the non - prevailing party, and shall include attorney's fees,
courts costs, investigative, and out -of- pocket expenses in appellate proceedings.
Mediation proceedings initiated and conducted pursuant to this Agreement shall be in
accordance with the Florida Rules of Civil Procedure and usual and customary procedures
required by the circuit court of Monroe County.
16
•
Section 34. Binding Effect. The terms, covenants, conditions, and provisions of this
Agreement shall bind and inure to the benefit of the County and Contractor and their
respective legal representatives, successors, and assigns.
Section 35. Adjudication of Disputes or Disagreements. County and FRED agree that all
disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within
30 days after the first meet and confer session, the issue or issues shall be discussed at a
public meeting of the Board of County Commissioners. If the issue or issues are still not
resolved to the satisfaction of the parties, then any party shall have the right to seek such
relief or remedy as may be provided by this Agreement or by Florida law.
Section 36. Cooperation. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, County and FRED agree to participate, to the extent required by the other
party, in all proceedings, hearings, processes, meetings, and other activities related to the
substance of this Agreement or provision of the services under this Agreement. County
and FRED specifically agree that no party to this Agreement shall be required to enter into
any arbitration proceedings related to this Agreement.
Section 37. Covenant of No Interest. County and FRED covenant that neither presently has
any interest, and shall not acquire any interest, which would conflict in any manner or
degree with its performance under this Agreement, and that the only interest of each is to
perform and receive benefits as recited in this Agreement.
Section 38. Code of Ethics. County agrees that officers and employees of the County
recognize and will be required to comply with the standards of conduct for public officers
and employees as delineated in Section 112.313, Florida Statutes, regarding, but not
limited to, solicitation or acceptance of gifts; doing business with one's agency;
unauthorized compensation; misuse of public position, conflicting employment or
contractual relationship; and disclosure or use of certain information.
17
Section 39. No Personal 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.
Section 40. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be regarded as an original, all of which taken together
shall constitute one and the same instrument and any of the parties hereto may execute this
Agreement by singing any such counterpart.
Section 41. Mutual Review. This agreement has been carefully reviewed by FRED and the
County, therefore this agreement is not to be construed against either party on the basis of
authorship.
[SIGNATURE PAGE FOLLOWS]
18
WITNESS / ' , ;� FLORIDA DEV OPMENT FINANCE
i „" ,7 i
;/� , , ,„, _ CORPO , � ON on behalf of FLORIDA
/Wit/ / = RESILIE l i AND ENERGY DISTRICT
By:
r William "Bill" F. Spivey, Jr.
* I : ES : .. Executive Director
fo,A
STATE OF FLORIDA
COUNTY OF ''-6 - ' 1 I H as / f
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The foregoing instrument was acknowledged before me this day of
, 20 /S , by William "Bill" F. Spivey, Jr., Executive Director of the Florida
Deve opment Finance Corporation, who is personally known to me has produced
f Z. ,I_ as identification.
/
Printed /Typed Name: / v IR < j—-
(SEAL) Notary Public -State of Florida
_ _ _ _ _ _ _ _
+ Commission Number: G 13827
1 ,. P ' j • MARK JUARBE w
� 2 ,1: ,': Notary Public — State of Florida
Commission d GG 138271 1
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•
19
IN WITNESS WHEREOF, the undersigned have caused this Non - Exclusive Interlocal
Agreement to be duly executed and entered into as of the date first above written.
V®ttra;, BOARD OF COUNTY COMMISSIONERS
4 _ ' _ V OF MONROE COUNTY
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By:
David Rice, Mayor _ ......—_,...0
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Attest: Approved as to form:
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Kevin Madok, Clerk and Comptroller Pedro Mercado Assistant County Attorn-
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[SIGNATURE PAGE TO MEMBERSHIP AGREEMENT] '' c..)
20
EXHIBIT "A"
INTERLOCAL AGREEMENT
21
This instrument was prepared by or under the supervision
of (and after recording should be returned to):
BROAD AND CASSEL
390 NORTH ORANGE AVENUE
SUITE 1400
ORLANDO, FL 32804
ATTN: JOSEPH B. STANTON
(SPACE:reseived for Clerk ofQut}
SECOND AMENDED AND RESTATED INTERLOCAL
AGREEMENT RELATING TO THE CREATION OF THE
FLORIDA RESILIENCY AND ENERGY DISTRICT, A
PROPERTY ASSESSED CLEAN ENERGY DISTRICT, AND
AUTHORIZING FINANCING PURSUANT THERETO
BY AND AMONG
THE TOWN OF LAKE CLARKE SHORES, FLORIDA, AND
THE CITY OF FERNANDINA BEACH, FLORIDA, AND
THE FLORIDA DEVELOPMENT FINANCE CORPORATION, FLORIDA, IN ITS
LIMITED CAPACITY DESCRIBED HEREIN
AND ANY SUBSEQUENT PARTIES HERETO
DATED AS OF. _ ,2017
4814-0430-8797 139753/0041
TABLE OF CONTENTS
Page
SECTION 1. AUTHORITY FOR AGREEMENT 4
SECTION 2. DEFINITIONS 4
SECTION 3. INTERPRETATION , 7
SECTION 4. PURPOSE
SECTION 5. QUALIFYING IMPROVEMENTS 7
SECTION 6. ENABLING ORDINANCE OR RESOLUTION 7
SECTION 7. DISTRICT BOUNDARIES. DISTRICT ADMISSION - 7
SECTION 8. GOVERNING BOARD OF THE DISTRICT 8
SECTION 9. DECISIONS OF THE BOARD .9
SECTION 10. DISTRICT ADMINISTRATION; DISTRICT
STAFF AND ATTORNEY; ADMINISTRATORS ... .................. 9
SECTION 11. FINANCING AGREEMENT , 9
SECTION 12. POWERS OF THE DISTRICT 10
SECTION 13. TERM 11
SECTION 14. CONSENT 11
SECTION 15. NOTICE OF INTENT; IMPOSITION OF ASSESSMENTS;
COORDINATION. .. ... . .............. . ... . . .......... ......... . .. . 11
SECTION 16. UNDERLYING POWERS; SEPARATE INTERLOCAL
AGREEMENTS 13
. .
SECTION 17. FEES AND COSTS. - 14
SECTION 18. FILING
SECTION 19. LIMITED LIABILITY 14
SECTION 20. AMENDMENTS _ 15
SECTION 21. ASSIGNMENT 15
SECTION 22. EXECUTION IN COUNTERPARTS 15
SECTION 23. SEVERABILITY - 15
SECTION 24. APPLICABLE LAW 15
SECTION 25. JOINT EFFORT 15
SECTION 26. EFFECTIVE DATE
4814-0430-8797 139753/(7041
SECOND AMENDED AND RESTATED INTERLOCAL
AGREEMENT RELATING TO THE CREATION OF THE FLORIDA
RESILIENCY AND ENERGY DISTRICT, A PROPERTY ASSESSED CLEAN
ENERGY DISTRICT, AND AUTHORIZING FINANCING THERETO
THIS SECOND AMENDED AND RESTATED INTERLOCAL AGREEMENT
(hereinafter the "Agreement ") is made and entered into as of _ 2017, by
and among the government units executing the Agreement, each one constituting a public •
agency or legal entity under Part I, Chapter 163, Florida Statues, comprising the Town of
Lake Clarke Shores, a municipality and local government of the State of Florida and the
City of Fernandina Beach, a municipality and local government of the State of Florida (the
"Public Agency" or "Public Agencies ") and, in the limited capacity described herein, the
Florida Development Finance Corporation, a public body corporate and politic, a public
instrumentality and a public agency organized and existing under the laws of the State of
Florida ( "FDFC ") and, together collective referred to herein as the "Parties."
WITNESSETH:
WHEREAS, pursuant to Section 163.08, Florida Statutes, as amended (the "Florida
PACE Act "), the Florida Legislature found that in order to make qualifying renewable
energy, energy efficiency and conservation and wind resistance improvements (collectively,
the "Qualifying Improvements ") more affordable and assist real property owners who wish
to undertake such improvements, there is a compelling State of Florida ( "State ") interest in
enabling property owners to voluntarily finance such improvements with local government
assistance; and
WHEREAS, under the Florida PACE Act, the Florida Legislature determined that
the actions authorized under the Florida PACE Act, including, but not limited to, the
financing of Qualifying Improvements through the execution of financing agreements
between property owners and local governments and the resulting imposition of voluntary
non -ad valorem assessments are reasonable and necessary to serve and achieve a
compelling state interest and are necessary for the prosperity and welfare of the State and its
property owners and inhabitants; and
WHEREAS, the Town of Lake Clarke Shores, Florida, and the City of Fernandina
Beach, Florida (collectively, the "Founding Members "), wish to create an entity to finance
Qualifying Improvements for themselves and for other local governments pursuant to
Section 163.08(2)(a); and
WHEREAS, effective September 6, 2016, the Founding Members and FDFC
entered into that certain Agreement (the "Original Agreement "), pursuant to Section
163.01(7), Florida Statues, creating a separate legal entity within the meaning of Section
163.01, Florida Statutes, also known as the Florida Interlocal Cooperation Act of 1969 (the
1
4814 - 0430 -879L 139753/0041
"Interlocal Act ") and a "local government" within the meaning of the Florida PACE Act, in
furtherance of the objectives of the Florida PACE Act; and
WHEREAS, the separate legal entity created under the Original Agreement has been
designated as the Florida Resiliency and Energy District (the "District" or "FRED ") which
may, pursuant to section 163.08(2)(a), finance Qualifying Improvements through voluntary
assessments; and
WHEREAS, FRED, as a separate legal entity created pursuant to section163.01(7),
meets the definition of a local government under section 163.08(2)(a), and may levy
assessments to fund qualifying improvements pursuant to authority granted under
163.08(3); and
WHEREAS, subsequent to the execution of the Original Agreement, the parties
determined that certain amendments were desired in order provide clarity with respect to the
nature of the Qualifying Improvements, and the composition of the Governing Board and
the designated principal place of business, among other terms and conditions as are more
fully set forth herein; and
WHEREAS, upon agreement of the parties, an Amended and Restated Agreement
was ratified by the parties and became effective on January 10, 2017; and
WHEREAS, subsequent to the execution of the Amended and Restated Agreement,
the parties determined that certain amendments were desired to be responsive to interpretive
concerns raised by some local governments as are more fully set forth herein; and
WHEREAS, the Act also permits FDFC and FRED, as public agencies under the
Interlocal Act, to enter into Agreements with each other to provide for the performance of
service functions to cooperate on a basis of mutual benefit in the best interest of the real
property owners within the boundaries of FRED; and
WHEREAS, FDFC has determined that there is a substantial need within the State
for a financing program which can provide funds to property owners to enable them to
finance Qualifying Improvements under the Florida PACE Act on a cost - effective basis;
and
WHEREAS, the Florida Legislature determined that FDFC has the authority to issue
revenue bonds for the purpose of financing Qualifying Improvements pursuant to Section
288.9606(7), Florida Statutes; and
WHEREAS, FDFC acts as a special development financing authority that
specializes in providing financing support to fund capital projects that support economic
development and job creation on a state -wide basis; and
2
4814.0430- S797,139753/004I
WHEREAS, the Florida PACE Act is an economic development tool that provides
communities with an additional option for financing, stimulates production of qualifying
products, promotes competition, seeks to increases property values, lower energy
consumption, mitigate wind damage, and create jobs; and
WHEREAS, on December 4, 2015, the FDFC Board of Directors adopted
Resolution No. 15 -09, as amended and supplemented from time to time (the "Bond
Resolution "), authorizing the issuance of revenue bonds ( "Bonds ") in order to finance
Qualifying Improvements under the Florida PACE Act, which revenue bonds shall be
secured by and payable from the proceeds of voluntary non -ad valorem assessments levied
against the real properties that are benefitted by such Qualifying Improvements (the
"Assessments "), all in accordance with the provisions of the Florida PACE Act and other
applicable provisions of law and in accordance with FDFC's Property Assessed Clean
Energy ( "PACE ") Program (the "FDFC PACE Program "); and
WHEREAS, on July 18, 2014, in accordance with Chapter 75, Florida Statutes, the
Circuit Court of the Second Judicial Circuit in and for Leon County, Florida issued an
Amended Final Judgment validating the issuance of the Bonds by FDFC and on October 15,
2015, the Supreme Court of the State of Florida affirmed such Final Judgment; and
WHEREAS, on December 4, 2015, the FDFC Board of Directors adopted
Resolution No. 15 -10 setting forth its policies and procedures relating to the FDFC PACE
Program; and
WHEREAS, on December 4, 2015, the FDFC Board of Directors adopted
Resolution No. 15 -11 approving Renovate America, Inc. ( "Renovate America ") as its first
PACE administrator for the FDFC PACE Program; and •
WHEREAS, FDFC anticipates adding other PACE providers as PACE residential
and commercial administrators to provide a competitive marketplace in Florida for any
potential residential and commercial property owners interested in the FDFC PACE
Program; and
WHEREAS, FRED and FDFC agree, pursuant to Section 163.01(14), that FRED, as
a separate legal entity authorized to facilitate PACE financing pursuant to Section 163.08,
Florida Statutes, may contract with FDFC to serve the financing function of the District and
therefore serve the property owners of within the District; and
WHEREAS, under this Agreement, the Parties agree to have the FDFC PACE
Program serve as the administrator for the District's PACE program; and
WHEREAS, in order to provide the property owners within the boundaries of FRED
an efficient process for accessing the FDFC PACE Program, FRED will designate FDFC as
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4814.0430- 8797.139753/0041
its agent for purposes of executing Financing Agreements with property owners on behalf of
FRED pursuant to Section 163.08(6), Florida Statutes, and for purposes of administering the
FDFC PACE Program within the boundaries of FRED and ensuring compliance with the
Florida PACE Act; and
WHEREAS, the District will utilize the FDFC PACE Program to implement PACE
exclusively on behalf of the District and take on all costs and responsibilities for
administering and operating the program; and
WHEREAS, FDFC will utilize its authority under law to provide, authorize, and
issue revenue bonds to finance Qualifying Improvements within and on behalf of property
owners within the District; and
WHEREAS, FRED will have immediate access to a turnkey FDFC PACE Program
which includes $2,000,000,000 in judicially validated bonding authority for PACE
financing and a trained PACE program staff; and
NOW THEREFORE, THE PARTIES TO THIS AGREEMENT AGREE AS
FOLLOWS:
SECTION 1. AUTHORITY FOR AGREEMENT. This Agreement is
adopted pursuant to the provisions of the Interlocal Act, the Florida PACE Act, and other
applicable provisions of law. At all times prior to and during the term of this Agreement,
the Town of Lake Clarke Shores, Florida, and the City of Fernandina Beach, Florida,
constitute local governments as that term is defined in the Florida PACE Act and the
Interlocal Act and the Florida Development Finance Corporation constitutes a, "public
agency" as that term is defined in the Florida Interlocal Act. That portion of this
Agreement creating the separate legal entity pursuant to Section 163.01(7), Florida Statues,
is among and between the Founding Members, and that portion of the Agreement allowing
the FDFC PACE Program to provide the financing duties of the District is pursuant to
Section 163.01(14), Florida Statutes.
SECTION 2. DEFINITIONS. The following definitions shall govern the
interpretation of this Agreement:
"Agreement" means this Amended and Restated Interlocal Agreement, including
any amendments or supplements hereto, executed and delivered in accordance with the
terms hereof.
"Assessment Resolution" means a resolution or resolutions adopted by the District
that (A) imposes new Assessments against those property owners entering into Financing
Agreements since adoption of the last Assessment Resolution, and (B) approves an
electronic assessment roll to be submitted to the Tax Collector for the next tax bill
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4914- 0430 - 8797.139753/0041
containing the required collection information for all property owners with outstanding
Assessments under the FDFC PACE Program, in each case limited to those property
owners within the boundaries of the local governments that comprise the District.
"Assessments" means the non -ad valorem assessments levied by the District against
the properties that are benefitted by the Qualifying Improvements in accordance with the
Florida PACE Act and the FDFC PACE Program.
"Bond Resolution" means Resolution No. 15 -09 of the FDFC adopted on
December 4, 2015 relating to the Bonds and the FDFC PACE Program, as amended and
supplemented from time to time.
"Bonds" means bonds that are issued by FDFC from time to time pursuant to the
Bond Resolution.
"Contracted FDFC Services" means the services provided by FDFC pursuant to
this Agreement.
"District" or "FRED" means the Florida Resiliency and Energy District (FRED), a
separate legal entity formed pursuant to the Interlocal Act and this Agreement and a local
government within the meaning of the Florida PACE Act.
"FDFC" means Florida Development Finance Corporation, a public body corporate
and politic, a public instrumentality and a public agency organized and existing under the
laws of the State of Florida.
"FDFC PACE Program" means the FDFC's Property Assessed Clean Energy
(PACE) Program adopted pursuant to the Bond Resolution and its policies and procedures.
"Financing Agreement" means a contract among FRED, FDFC and the owner of a
participating parcel in the FDFC PACE Program pursuant to which the owner voluntarily
agrees to the levy of Assessments against the participating parcel and the payment thereof
to finance the installation of Qualifying Improvements on the participating parcel.
"Florida PACE Act" means Section 163.08, Florida Statutes, as may be amended
from time to time.
"Founding Members" means the Town of Lake Clarke Shores, Florida, and the City
of Fernandina Beach, Florida. The term does not include FDFC.
"Governing Board" means the governing board of FRED as further described in
Section 8 hereof.
5
4814- 0430 - 8797.1397.5310041
"Interlocal Act" means Section 163.01, Florida Statutes, as amended.
"Joinder Agreement" means a document in which additional government units
constituting Public Agencies under the Interlocal Act and local governments as defined
under the Florida PACE Act join the District as a Subsequent Party.
"Jurisdictional Boundaries" has the meaning described in Section 7 hereof.
"Limited Member" means additional government units constituting Public
Agencies under the Interlocal Act and local governments as defined under the Florida
PACE Act which join the District upon application to the District and the affirmative vote
of a majority of the Governing Board and upon execution of a Limited Purpose Party
Membership Agreement between the District and a Limited Member.
"Limited Purpose Party Membership Agreement" means an agreement between
additional government units constituting Public Agencies under the Interlocal Act and/or
local governments as defined under the Florida PACE Act and the District defining the
terms and conditions of membership within the District.
"Party" or "Parties" means the Town of Lake Clarke Shores, Florida, and the City
of Fernandina Beach, and the Florida Development Finance Corporation Florida, and their
respective assigns; provided, however, the FDFC is a party only for the contracted FDFC
services
"Property Appraiser" means the county property appraiser for real property within
the boundaries of each Founding Member, Subsequent Party or Limited Member.
"Public Agency" means cities or counties of the State of Florida, or any Subsequent
Party or Limited Member.
"Resolution of Intent" means a resolution adopted by the District pursuant to the
Uniform Assessment Collection Act providing notice to all owners of real property within
the boundaries of District that non -ad valorem assessments may be imposed pursuant to the
Florida PACE Act and will be collected pursuant to the Uniform Assessment Collection Act
if the property owner chooses to utilize the FDFC PACE Program to finance Qualifying
Improvements.
"State" means the State of Florida.
"Subsequent Party" or "Subsequent Parties" means additional governmental
units constituting Public Agencies under the Interlocal Act and local governments as
defined under the Florida PACE act which execute a Joinder Agreement and agree to serve
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4814- 0430 - 8797.139753/0041
on the Governing Board.
"Tax Collector" means the county tax collector for real property within the
boundaries of each Founding Member, Subsequent Party, or Limited Member.
"Uniform Assessment Collection Act" means Sections 197.3632 and 197.3635,
Florida Statutes, as amended and supplemented from time to time.
SECTION 3. INTERPRETATION. Words importing the singular number
shall include the plural in each case and vice versa, and words importing persons shall
include firms and corporations. The terms "herein," "hereunder," "hereby," "hereto,"
"hereof," and any similar terms, shall refer to this Agreement; the term "heretofore" shall
mean before the effective date of this Agreement; and the term "hereafter" shall mean after
the effective date of this Agreement. This Agreement shall not be construed more strongly
against any party regardless that such party, or its counsel, drafted this Agreement.
SECTION 4. PURPOSE. The purpose of this Agreement is for the Founding
Members to affirm the creation of the District, pursuant to the Interlocal Act and the Florida
PACE Act, and, by also agreeing to contract with the Florida Development Finance
Corporation and its FDFC PACE Program and the Florida PACE Act to facilitate the
financing of Qualifying Improvements for property owners within the District. The District
shall be a separate legal entity, pursuant to Section 163.01(7), Florida Statutes and a local
government within the meaning of the Florida PACE Act.
SECTION 5. QUALIFYING IMPROVEMENTS. The District shall allow
the financing of Qualifying Improvements by and through the FDFC PACE Program as
defined in Section 163.08, Florida Statutes, under authority of Section 163.01(14), Florida
Statutes.
SECTION 6. ENABLING ORDINANCE OR RESOLUTION. The
Founding Members and Subsequent Parties to this Agreement agree to approve and keep in
effect such resolutions and ordinances as may be necessary to approve, create and maintain
the District. Said ordinances and resolutions shall include all of the provisions as may be
required or desirable under the Interlocal Act and the Florida PACE Act for the creation and
operation of FRED as a separate legal entity and a local government. The District shall be
created upon the execution and delivery of this Agreement by the Parties.
SECTION 7. DISTRICT BOUNDARIES; DISTRICT ADMISSION.
(A) The boundaries of the District shall initially be the legal boundaries of the
Founding Members, and shall be expanded to include all areas within the legal boundaries
of, or service area designated by the Joinder Agreement or Limited Purpose Party
Membership Agreement entered into by each local government (the "Jurisdictional
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4814- 0430- 8797,139753/0041
Boundaries ") that becomes a Subsequent Party or Limited Member to this Agreement. As
contemplated in this Amended and Restated Agreement, the District shall levy voluntary
assessments on the benefitted properties within the Jurisdictional Boundaries of the District
in order for the FDFC PACE Program to finance the costs of Qualifying Improvements for
those benefitted properties. Upon petition by the landowners of individual residential or
commercial properties desiring to be benefited, those properties receiving financing for
Qualifying Improvements shall be assessed from time to time, in accordance with the
applicable law. Notwithstanding a Founding Member's termination of participation in this
Agreement, or Subsequent Party's or Limited Member's termination of participation, those
properties that have received financing for Qualifying Improvements shall continue to be a
part of the District in accordance with Section 13(C) hereof.
(B) To the extent permitted by the Interlocal Act, the District may admit any
public agency or local government (as such terms are defined in the Interlocal Act and the
Florida PACE Act, respectively) as a Subsequent Party or Limited Member to the District
upon application of each public agency or local government to the District and the
affirmative vote of a majority of the Governing Board. This Agreement need not be
amended to admit any such public agency or local government, and the approval of the
respective governing boards of the existing Parties to the District shall not be required to
admit a Subsequent Party or Limited Member. Each Subsequent Party or Limited Member
shall execute, deliver, duly authorize, and record in the public records of each Subsequent
Party or Limited Member a Joinder Agreement or Limited Purpose Party Membership
Agreement as a precondition to membership in the District.
SECTION 8. GOVERNING BOARD OF THE DISTRICT. The District
shall be governed by the Governing Board which shall at a minimum be comprised of three
(3) individuals, two (2) of whom are elected officials, city managers, or their designees, of
each of the Founding Members, and each representing an individual local government
within the Jurisdictional Boundaries of the Parties to this Agreement. The next Subsequent
Party to join the District shall be entitled to the third position as a member of the Governing
Board, provided however, that prior to addition of a Subsequent Party, the Founding
Members shall have the right to jointly appoint a third Governing Board member. Such
third Governing Board member shall be unrelated to either Founding Member (e.g., shall
not be an officer, or employee of the Founding Members), but shall have a background or
experience in finance or economic development. Notwithstanding the foregoing, the
maximum number of members on the Governing Board may be increased by a majority
vote of the Governing Board to a maximum of 5 members, with the proviso that as much as
possible the composition of the Governing Board membership reflects the geographic
regions of the state of Florida. After the Governing Board is constituted, the Executive
Director may recommend procedures for setting terms, Governing Board qualifications and
responsibilities, and the means of appointment of members to the Governing Board. In the
event a Governing Board member is no longer eligible or able to serve on the Governing
Board, the Public Agency represented by the Governing Board member, so long as it
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4814 -0430 - 8797.139753/0041
•
continues to be a Party to this Agreement, shall have the right to request appointment of a
replacement to fulfill the remaining term of that member. FDFC shall have no right to
appoint any member of the Governing Board.
SECTION 9. DECISIONS OF THE GOVERNING BOARD. Decisions of
the Governing Board shall be made by majority vote of the Governing Board. The
Governing Board, upon recommendation of the Executive Director, may adopt rules of
procedure for the Governing Board. In the absence of the adoption of such rules of
procedure, the most current version of Roberts Rules of Order shall apply to the extent it is
not inconsistent with Florida law.
SECTION 10. DISTRICT ADMINISTRATION; DISTRICT STAFF AND
ATTORNEY; ADMINISTRATORS
(A) Financing. As a condition of this Agreement, the Founding Members, and
any Party joining the District consents to FDFC and FDFC PACE Program providing
financing for the District, and FDFC agrees to provide a turnkey PACE program for each
jurisdiction that is a Party, Subsequent Party, or Limited Member to this Agreement.
Notwithstanding any other section of this Agreement, the Executive Director of FDFC or
his or her appointee shall also be the Executive Director of FRED. The Executive Director
shall have sole authority to appoint staff, counsel, professionals, consultants, and all other
positions to fulfill the functions of the District per the PACE Act for the District, and all
costs and expenses shall be borne by FDFC and the District.
(B) Additional. Administrators. The PACE program development period, which
serves as a soft launch period for the FDFC PACE Program, will end on July 1, 2017,
whereby additional qualified administrators for residential PACE programs may be
presented to the District. Within 30 days after execution of this Agreement, FDFC may
present to the District qualified administrators for commercial PACE programs that will be
available to serve jurisdictions that are a Party to this Agreement. All PACE administrators
( "PACE Administrators" or "Administrators ") must undergo a vetting process by the FDFC.
Once vetted, the PACE Administrators must be presented to the FDFC Board and approved
by resolution. In order for an approved PACE provider to provide administrator services
through the FDFC PACE Program, it must execute a PACE administration agreement.
Each member of the District shall receive notice of all approved PACE Administrators
(except for residential PACE Providers during the "soft launch" period above).
Notwithstanding any of the foregoing, the only authorized FDFC PACE residential
Administrator for the District shall be Renovate America until July 1, 2017.
SECTION 11. FINANCING AGREEMENT. The Parties agree that FDFC
and FRED, and their designees, may enter into Financing Agreements, pursuant to Section
163.08(8), Florida Statutes, with property owner(s) who obtain financing through the
District. In accordance with the findings described in this Agreement, FRED hereby
9
48 14-0430-8797,139753/004 1
designates FDFC as its agent for the limited purpose of executing Financing Agreements
with property owners on behalf of FRED pursuant to Section 163.08(6), Florida Statutes,
and for purposes of administering the FDFC PACE Program within the Jurisdictional
Boundaries of FRED and ensuring compliance with the Florida PACE Act.
SECTION 12. POWERS OF THE DISTRICT. With the approval of a
majority vote of the Governing Board, the District may exercise any or all of the powers
granted to the District under the Interlocal Act and the Florida PACE Act, which include,
without limitation, the following:
(A) To finance Qualifying Improvements through contracts with property owners
in the District, and the District shall impose and levy assessments as a local government in
accordance with Section 163.08 to repay the financing received; provided, however, (i)
FDFC shall provide the form of the Financing Agreement and (ii) that FDFC shall, have
independent discretionary authority to authorize and approve the issuance of revenue bonds
to finance such improvements without further approval or authorization from the District,
and subject to Section 10, to select and approve Program Administrators for the District; •
(B) In its own name to make and enter into contracts on behalf of the District;
(C). Subject to Section 10(A) hereof, to employ agencies, employees, or consultants
for the District;
(D) To acquire, construct, manage, maintain, or operate buildings, works, or
improvements for the District;
(E) To acquire, hold, or dispose of property for the District;
(F) To incur debts, liabilities, or obligations, provided, however, that such debts,
liabilities, or obligations shall not constitute debts, liabilities, or obligations of the State,
FDFC, the Founding Members, or any Subsequent Party to this Agreement;
(G) To adopt resolutions and policies prescribing the powers, duties, and functions
of the officers of the District, the conduct of the business of the District, and the
maintenance of records and documents of the District;
(H) To maintain an office at such place or places as it may designate within the
District or within the boundaries of a Party to this Agreement;
(I) To cooperate with or contract with other governmental agencies as may be
necessary, convenient, incidental, or proper in connection with any of the powers, duties, or
purposes authorized by the Florida PACE Act, and to accept funding from local, state and
federal agencies;
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(J) To exercise all powers necessary, convenient, incidental, or proper in
connection with any of the powers, duties, or purposes authorized in the Florida PACE Act
or Florida statutes governing the District; and
(K) To apply for, request, receive and accept gifts, grants, or assistance funds from
any lawful source to support any activity authorized under Florida Statutes and this
Agreement.
SECTION 13. TERM.
(A) This Agreement shall remain in full force and effect from the date of its
execution; provided, however, that any Party may terminate its involvement in the District
and its participation in this Agreement upon 90 days' written notice to the other Parties.
Should a Party terminate its participation in this Agreement, be dissolved, abolished, or
otherwise cease to exist, the District and this Agreement shall continue until such time as all
remaining Parties agree to terminate this Agreement.
(B) At its discretion, and with reasonable notice, FDFC may terminate its role as a
PACE program administrator for the District.
(C) Notwithstanding a Party's termination of participation in this Agreement, to
ensure continued collection of Assessments for Qualifying Improvements acquired within
the service area of the terminating Party, such terminating Party shall enter into a written
agreement with the District for such Party to consent to the levy of annual Assessments by
the District or for such party to levy annual Assessments on those properties that have
received financing for Qualifying Improvements within the legal boundaries of the
terminating Party, until such time that all outstanding debt related to such Qualifying
Improvements has been satisfied. The proceeds of the Assessments shall be paid to the
designee of the District pursuant to such written agreement.
SECTION 14. CONSENT. This Agreement and any required resolution or
ordinance of an individual Party shall be considered the Party's consent to the creation of the
District as required by the Interlocal Act and the Florida PACE Act.
SECTION 15. NOTICE OF INTENT; IMPOSITION OF SPECIAL
ASSESSMENTS; COORDINATION.
(A) In accordance with the Uniform Assessment Collection Act and the Florida
PACE Act, the District hereby agrees to impose Assessments within its Jurisdictional
Boundaries and to utilize the Uniform Assessment Collection Act for collection of such
Assessments from each property owner that voluntarily enters into a Financing Agreement
pursuant to the Florida PACE Act and the FDFC PACE Program. Specifically, the District
11
4814.0430.8797,139753 /0041
shall:
(1) advertise a public hearing to consider adoption of a Resolution of
Intent, thus providing notice to the owners of real property within the Jurisdictional
Boundaries of the District that non -ad valorem assessments may be imposed pursuant
to the Florida PACE Act and may be collected pursuant to the Uniform Assessment
Collection Act;
(2) after holding the public hearing referred to in (1) above, adopt a
Resolution of Intent and mail an executed copy to FDFC, the Tax Collector and the
PropertyAppraiser;
(3) enter into a written agreement with the Tax Collector and the Property
Appraiser regarding costs associated with use of the Uniform Assessment Collection
Act, to the extent such agreement is not already in place;
(4) prior to September 15 of each calendar year, or as frequently as needed,
adopt Assessment Resolutions which impose new Assessments against those
property owners entering into Financing Agreements since adoption of the last
Assessment Resolution, and certifies an electronic assessment roll to be
submitted to the Tax Collector for the next tax bill, in each case based on information
provided by FDFC;
(5) remit Assessment proceeds received on behalf of the District from the
Tax Collector directly to the District, FDFC or its designee;
(6) take all actions necessary to enforce collection of the Assessments
pursuant to the Uniform Assessment Collection Act; and
(7) on its own behalf and at the request of FDFC, re- impose the
Assessments as necessary to the extent required by changes in State law or
subsequent judicial decisions.
• (B) Each approved Administrator shall be responsible for all other actions
required by the Florida PACE Act and their administration agreement with FDFC under the
FDFC PACE Program, including but not limited to:
(1) assisting each Party to the Agreement with preparing all documents
required for the District to impose the Assessments pursuant to the Florida PACE
Act and the Uniform Assessment Collection Act, including finalization of the
documents attached as exhibits hereto and assistance with the written agreement with
the Tax Collector and Property Appraiser, if requested by each Party;
(2) providing a copy of the Resolution of Intent, together with any other
documents required by the Florida PACE Act or the Uniform Assessment Collection
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Act, to the Florida Department ofRevenue;
(3) ensuring that each property owner that voluntarily enters into a
Financing Agreement has met all of the financial and other requirements provided for
by the Florida PACE Act and the FDFC PACE Program;
(4) providing the requisite notifications to all real property owners
participating in the District;
(5) recording a summary or memorandum of the Financing Agreement
with the property owner in accordance with the Florida PACEAct;
(6) tracking payment information for each property owner participating in
the FDFC PACE Program and maintaining the related assessment rolls for all such
participating parcels within the boundaries of the District;
(7) working with the District to ensure the submission of the electronic
assessment roll relating to the District each year to the Tax Collector; and
(8) administering all other aspects of the District including the payment of
Bonds with proceeds derived from the Assessments,
(C) The District shall fully cooperate and coordinate with the Tax Collector and
Property Appraiser with respect to the levying and collection of assessments and comply
with all other requirements of the Florida PACE Act and the Uniform Assessment
Collection Act.
SECTION 16. UNDERLYING POWERS; SEPARATE
AGREEMENTS.
(A) For purposes of this Agreement and the District, the Parties acknowledge
that FDFC currently does not have the power to levy the Assessments. FDFC shall not
be a member of the District. FDFC shall be a party to this Agreement solely for the
purpose of providing turn-key financial and administrative services through the FDFC
PACE Program.
(B) In order to maintain the integrity of the Assessments imposed by the
District, the FDFC may, at its sole option, terminate its participation in this Agreement
and enter into a separate Agreement or contract which provides the services described
herein related to the FDFC PACE Program.
SECTION 17. FEES AND COSTS.
(A) All fees and costs related to the recording of this Agreement, the Resolution of
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48t4- 0430 - 8797.139753!0041
Intent process and any other fees and costs incurred by any Party with respect to the
Assessments and the FDFC PACE Program will be paid for solely by FDFC and reimbursed
to FDFC through the FDFC PACE Program by the respective FDFC- approved PACE
Administrator(s).
(B) To advance the purposes of the Florida PACE Act, to minimize participation
costs, and because each property owner is voluntarily undertaking to achieve and underwrite
the compelling State interests described in the Florida PACE Act, the District shall seek
either (i) the waiver or reduction by the Tax Collector and Property Appraiser of their fees
or (ii) a flat fee per year per tax parcel in an amount sufficient to reimburse the Tax
Collector and Property Appraiser for their actual costs related to providing such services,
which shall be paid by the District and reimbursed to the District through the FDFC PACE
Program by the respective FDFC - approved PACE administrator.
SECTION 18. FILING; PRINCIPAL PLACE OF BUSINESS. A copy of
this Agreement shall be filed by the District for record with the Clerk of the Circuit Court in
and for such jurisdictions as may be required by Section 163.01(11), Florida Statutes. By
agreement of the parties, the principal place of business for the District shall be located in
Orange County, Florida at FDFC's principal place of business.
SECTION 19. LIMITED LIABILITY.
(A) To the extent permitted by Florida Law and subject to the limitations of
Section 768.28, Florida Statutes, the Parties hereto shall each be individually and separately
liable and responsible for the actions of its own officers, agents and employees in the
performance of their respective obligations under this lnterlocal Agreement. Except as
specified herein, the Parties shall each individually defend any action or proceeding brought
against their respective agency pursuant to this lnterlocal Agreement and shall be
individually responsible for all of their respective costs, attorneys' fees, expenses and
liabilities Incurred as a result of any such claims, demands, suits, actions, damages and
causes of action, including the investigation or the defense thereof, and from and against
any orders, judgments or decrees which may be entered as a result thereof. The Parties shall
each individually maintain throughout the term of this lnterlocal Agreement any and all
applicable insurance coverage required by Florida law for governmental entities. Nothing in
this Agreement shall be construed to affect in any way the Parties' rights, privileges, and
immunities, including the monetary limitations of liability set forth therein, under the
doctrine of "sovereign immunity" and as set forth in Section 768.28 of the Florida.Statutes.
(B) All Limited Member liabilities shall be governed by the Limited Purpose
Party Membership Agreement.
(C) No Party or any agent, board member, officer, official, advisor or employee of
such Party shall be liable for any action taken pursuant to this Agreement in good faith or
for any omission, or for any act of omission or commission by any other Party hereto or its
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4814- 0430 - 8797.139753/0041
agents, officers, officials or employees. The terms of this Section 19 shall survive
termination or expiration of this Agreement.
(D) Neither this Agreement nor any Bonds issued by FDFC on behalf of the
District under the FDFC PACE Program shall be deemed to constitute a general debt,
liability, or obligation of or a pledge of the faith and credit of FRED, FDFC, or any Party or
Subsequent Party, the State of Florida, or any political subdivision or agency thereof. The
issuance of any Bonds by FDFC on behalf of the FDFC PACE Program shall not directly,
indirectly, or contingently obligate any Party, FDFC, the State of Florida, or any political
subdivision or agency thereof to levy or to pledge any form of taxation whatsoever therefor,
or to make any appropriation for their payment.
(E) The District, FDFC, and each Party are and shall be subject to Sections 768.28
and 163.01(9), Florida Statutes, and any other provisions of Florida law governing
sovereign immunity. Nothing in this Agreement is intended to inure to the benefit of any
third -party for the purpose of allowing any claim, which would otherwise be barred under
the doctrine of sovereign immunity or by operation of law.
SECTION 20. ENTIRE AGREEMENT. This Agreement sets forth all the
promises, covenants, agreements, conditions and understandings between the parties hereto
regarding the subject matter hereof, and supersedes all prior and contemporaneous
agreements (including the Original Interlocal Agreement), understandings, inducements or
conditions, expressed or implied, oral or written, regarding the subject matter hereof, except
as herein contained.
SECTION 21. AMENDMENTS. This Agreement may be amended only by a
writing approved by each Party.
SECTION 22. ASSIGNMENT. This Agreement may be assigned, in whole or
in part, by any Party at any time with the prior written consent of each other Party hereto,
which consent shall not unreasonably be withheld.
SECTION 23. EXECUTION IN COUNTERPARTS. This Agreement may
be simultaneously executed in several counterparts, each of which shall be an original and
all of which shall constitute one and the same instrument.
SECTION 24. SEVERABILITY. In the event that any provision of this
Agreement shall, for any reason, be determined invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, the other provisions of this Agreement shall
remain in full force and effect.
SECTION 25. APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
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4814- 0430 - 8797.139753/0041
•
SECTION 26. JOINT EFFORT. The preparation of this Agreement has been
a joint effort of the Parties hereto and the resulting document shall not, solely as a matter of
judicial construction, be construed more severely against one of the Parties than the other.
SECTION 27. EFFECTIVE DATE. This Agreement shall become effective
on the later of (A) the date hereof, or (B) the date the last Founding Member and FDFC
executes this Agreement and the filing requirements of Section 18 hereof are satisfied.
[SIGNATURE PAGES FOLLOW]
16
•
4814- 0430 - 8797,139753/0041
[SIGNATURE PAGE TO AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of
the Town of Lake Clarke Shores, Florida by its Mayor, its seal affixed hereto, as attested
by its Clerk as of the (f day of A pr ( , 2017.
TOWN OF LAKE CLARKE SHORES, FLORIDA
41 /
By -womb
tia Ma or
APPROVED AS TO FORM:
By: r.� - ..
axles F. Schoech, Town Attorney
ATTEST:
*-atacoiragi By: _
Mary Pinkerman, Town Clerk
17
4814- 0430 - 8797.139753/0041
[SIGNATURE PAGE TO AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of
the City of Fernandina Beach, Florida by its Mayor, its seal affixed hereto, as attested by its
Clerk as of the day of 2017.
CITY OF FERNANDINA BEACH
tha (
Robin C. Lentz 6
Commissioner -Mayor
APPROVED AS TO FORM AND LEGALITY:
do opor-
Tammie E. Bach
City Attorney
ATTEST:
Caroltie Best
City Clerk
18
4814-0430-8797.139751P)041
[SIGNATURE PAGE TO AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of
the FDFC by the authorized signatory identified below.
FLORIDA D ELOPMENT FINANCE
CORPORAT 1
By
Name: William "Bill" F. Spivey, Jr
Title: Executive Director
•
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4814 - 0430. 8797,139753/0041
ATTACHMENT D
2011 Edition
MONROE COUNTY, FLORIDA
Request For Waiver
of
Insurance Requirements
It is requested that the insurance requirements. as specified in the County's Schedule of Insurance Requirements, be
waived or modified on the following contract.
Ci ntractor. Florida Resiliency and Energy District
Contract for. Non - Exclusive Interlocal Agreement
Address of Contractor. 156 Tuskawilla Road
Winter Sprngs, FL 32708
Phone: 407 - 712 -6352
Scope of Work: Purpose of levying and collecting voluntary, non -ad valorem assessments
for property owners participating in the FDFC PACE Program within
the County.
Reason for Waiver: Not applicable to program.
Policies Waiver
will apply to:
Signature of Contractor.
Approve ' Not Approved
Risk Management �
Date — 1 KJ j e
County Administrator appeal:
Approved: Not Approved:
Date:
Board of County Commissioners appeal:
Approved: Not Approved:
Meeting Date:
Administration Instruction
104