Res No 149-12-13706RESOLUTION NO. 1 49 -1 .13706
A Resolution authorizing the City Manager to execute the amended and restated
Interlocal Agreement between the City of South Miami, the Town of Cutler Bay,
Village of Palmetto Bay, Village of Pinecrest, Miami Shores Village, the City of
Coral Gables and the City of Miami, relating to the Green Corridor Property
Assessment Clean Energy (PACE) District.
WHEREAS, the City of South Miami adopted Resolution No. 24 -10 -13058 dated January 26,
2010 supporting the Green Corridor District legislation, which is a PACE program; and
WHEREAS, the City of South Miami adopted Resolution No. 145 -11 -13459 dated September 6,
2011 in which the City Commission entered into an agreement with other municipalities in order to
provide for the upfront financing for qualifying improvements as provided for in Section 163.08, Florida
Statutes, and
WHEREAS, the City Commission finds that this resolution is in the best interest and welfare of
the residents of the City.
WHEREAS, Dr. Philip Stoddard is appointed to the governing board of the district until the 4-
year term expires or the City Commission chooses to make another appointment.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA THAT:
Section l: The City Manager is hereby authorized to execute the amended and restated version
of the Interlocal Agreement between the City of South Miami, the Town of Cutler Bay, Village of
Palmetto Bay, Village of Pinecrest, Miami Shores Village, the City of Coral Gables and the City of
Miami, relating to the Green Corridor Property Assessment Clean Energy (PACE) District. Dr. Philip
Stoddard is appointed to the governing board of the district until the 4 -year term expires or the City
Commission chooses to make another appointment. The amended Interlocal Agreement is attached.
Section 2: This resolution shall be effective immediately after the adoption hereof.
PASSED AND ADOPTED this24th, day of July , 2012.
ATTEST:
READ
LANG
OVED AS TO FORM
ATTORNEY
APPROVED:
Commission Vote:
Mayor Stoddard:
Vice Mayor Liebman:
Commissioner Harris:
Commissioner Newman:
Commissioner Welsh:
5 -0
Yea
Yea
Yea
Yea
Yea
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER - OFFICE MEMORANDUM
TO: The Honorable Mayor & Members of the City Commission
FROM: Hector Mirabile, Ph.D., City Manager y V A Moor.
DATE: July 24, 2012 Agenda Item No.:
SUBJECT: A resolution authorizing the City Manager to execute the amended and
restated Interlocal Agreement between the City of South Miami, the Town of
Cutler Bay, Village of Palmetto Bay, Village of Pinecrest, Miami Shores Village
the City of Coral Gables and the City of Miami, relating to the Green Corridor
Property Assessment Clean Energy (PACE) District.
BACKGROUND: The City of South Miami adopted Resolution No. 24 -10 -13058 dated January
26, 2010 supporting the Green Corridor District legislation, which is a PACE
program. The City of South Miami adopted Resolution No. 145 -1 1 -13459
dated September 6, 2011 in which the City Commission entered into an
agreement with other municipalities in order to provide for the upfront
financing for qualifying improvements as provided for in Section 163.08, Florida
Statutes. The City Commission finds that this resolution is in the best interest
and welfare of the residents of the City.
ATTACHMENTS:
Final amended and restated version of the Interlocal Agreement
Memo — Summary of Changes of Interlocal Agreement
Interlocal Agreement with Track Changes
Resolution No. 24-10-13058
Resolution No. 145-11-13459
AMENDED AND RESTATED
INTERLOCAL AGREEMENT BETWEEN THE TOWN OF
CUTLER BAY, VILLAGE OF PALMETTO BAY, VILLAGE OF
PINECREST, CITY OF SOUTH MIAMI, MIAMI SHORES VILLAGE, CITY OF CORAL
GABLES & CITY OF MIAMI
This Amended and Restated Interlocal Agreement (the "Interlocal Agreement ") is
entered into between the Town of Cutler Bay, Florida, a Florida municipal corporation;
Village of Palmetto Bay, Florida, a Florida municipal corporation; Village of Pinecrest, a
Florida municipal corporation; City of South Miami, a Florida municipal corporation;
Miami Shores Village, a Florida municipal corporation; City of Coral Gables, a Florida
municipal corporation, and the City of Miami, a Florida municipal corporation
(Collectively, the "Parties ").
RECITALS
WHEREAS, Section 163.01, Florida Statutes, the "Florida Interlocal Cooperation
Act of 1969," authorizes local government units to enter into interlocal agreements for
the mutual benefit of governmental units; and
WHEREAS, Section 163.01 (7), Florida Statutes, allows for the creation of a
"separate legal entity" constituted pursuant to the terms of the interlocal agreement to
carry out the purposes of the interlocal agreement for the mutual benefit of the
governmental units; and
WHEREAS, the Parties desire to enter into an interlocal agreement creating a
separate legal entity entitled the Green Corridor Property Assessment Clean Energy
(PACE) District, hereinafter referred to as the "District;" and
WHEREAS, Section 166.021, Florida Statutes, authorizes the Parties to
exercise any power for municipal purposes, except when expressly prohibited by law;
and
WHEREAS, Section 163.08, Florida Statutes, provides that a "local government,"
defined as a county, municipality, a dependent special district as defined in Section
189.403, Florida Statutes, or a separate legal entity created pursuant to Section
163.01(7), Florida Statutes may finance energy related "qualifying improvements"
through voluntary assessments; and
WHEREAS, Section 163.08, Florida Statutes, provides that improved property
that has been retrofitted with energy - related qualifying improvements receives the
special benefit of alleviating the property's burden from energy consumption and assists
in the fulfillment of the state's energy and hurricane mitigation policies; and
1
WHEREAS, Section 163.08(5), Florida Statutes, provides that local governments
may enter into a partnership with one or more local governments for the purpose of
providing and financing qualifying improvements; and
WHEREAS, the Parties to this Interlocal Agreement have expressed a desire to
enter into this Interlocal Agreement in order to authorize the establishment of the District
as a means of implementing and financing a qualifying improvements program within
the District; and
WHEREAS, the Parties have determined that it is necessary and appropriate to
create the District and to clarify various obligations for future cooperation between the
Parties related to the financing of qualifying improvements within the District; and
WHEREAS, the Parties agree and understand that each member of the District
will have complete control over the administration, governance, and implementation of
their own PACE program, which includes, but is not limited to, the ability to review and
approve program documents, marketing strategies, and determining eligible property
types and improvements; and
WHEREAS, the Parties have determined that it shall serve the public interest to
enter into this Interlocal Agreement to make the most efficient use of their powers by
enabling them to cooperate on a basis of mutual advantage to provide for the financing
of qualifying improvements within the District.
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 consent to
and authorize the creation of the District, pursuant to Section 163:08, Florida Statutes in
order 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,
Section 3. Qualifying Improvements. The District shall allow the financing of
qualifying improvements as defined in Section 163.08, Florida Statutes.
Section 4. Enabling Ordinance or Resolution. The Parties to this Interlocal
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 provided for in Sections 163.01 and
163.08, Florida Statutes, for the creation of a partnership between local governments as
a separate legal entity. The District shall be created upon the execution of this
Interlocal Agreement by the Parties hereto and the adoption of an ordinance or
resolution of support by the Parties establishing the District. Additional local
governments may join in and enter into this Interlocal Agreement by approval of two-
2
thirds of the members of the Board (as defined in Section 6 below), execution of this
Interlocal Agreement and adoption of an ordinance or resolution of support establishing
the District.
Section 5. District Boundaries. The boundaries of the District shall be the
legal boundaries of the local governments that are Parties to this Interlocal Agreement.
As contemplated in this Interlocal Agreement, the District will levy voluntary
assessments on the benefitted properties within the boundaries of the District to help
finance the costs of qualifying improvements for those individual properties. Upon
petition by the landowners of individual 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 Parties termination of
participation within this Interlocal Agreement, those properties that have received
financing for qualifying improvements shall continue to be a part of the District, until
such time that all outstanding debt has been satisfied.
Section 6. Governing Board of the District. The District shall be governed by a
governing board (the "Board, ") which shall be comprised of property owners or elected
officials within the jurisdictional boundaries of the Parties to this Interlocal Agreement
and one at large property owner from within the District. The maximum number of
members of the Board serving at any given time shall be no more than seven (7) and
the minimum number of members shall be not less than three (3). Notwithstanding the
foregoing, the maximum number of members on the Board may be increased by a two -
third majority vote of the Board. The initial Board shall serve for an initial four (4) year
term and shall consist of one (1) representative appointed by each Party from within
their jurisdictional boundaries. The initial at large member of the Board shall be
appointed by a majority vote of the Board. All subsequent renewal terms shall be for
four (4) years. Following the initial Board appointments, the Parties to this Interlocal
Agreement shall nominate appointees to be elected to the Board by current sitting
Board members. In the event a Board member is no longer eligible to serve on the
Board, that Party to this Interlocal Agreement shall appoint a replacement to fulfill the
remaining term of that member. The Board's administrative duties shall include all
duties necessary for the conduct of the Board's business and the exercise of the powers
of the District as provided in Section 11.
Section 7. Decisions of the Board. Decisions of the Board shall be made by
majority vote of the Board. The Board may adopt rules of procedure. In the absence of
the adoption of such rules of procedure, the fundamental parliamentary procedures of
Roberts Rules of Order shall apply.
Section 8. District Staff and Attorney. The Town Manager of Cutler Bay shall
serve as the staff to the District. In addition, the Town Attorney for Cutler Bay shall
serve as the counsel to the District. To the extent not paid by the Third Party
Administrator of the District (the "TPA "), all of the District's staff and attorney expenses
shall be borne by the Town of Cutler Bay. After the District has been operating for two
years, the Board may choose to hire different District staff and /or Attorney. If the Board
chooses to hire different District staff and /or Attorney, the Town of Cutler Bay will no
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longer pay for the staff and /or attorney expenses to the extent they are not paid by the
TPA.
Section 9. Financing Agreement. The Parties agree that the District shall
enter into a financing agreement, pursuant to Section 163.08(8), Florida Statutes, with
property owner(s) who obtain financing through the District.
Section 10. Procurement. The Parties agree and understand that the initial
procurement for the TPA for the District was performed by the Town of Cutler Bay in
accordance with its adopted competitive procurement procedures (Request for Proposal
10 -05). The Parties further agree and understand that the Town of Cutler Bay has
selected Ygrene Energy Fund, Florida, LLC (the "Ygrene ") as the initial TPA. The Town
of Cutler Bay, on the behalf of the District, has entered into an Agreement between the
Town of Cutler Bay and Ygrene, dated August 16, 2011, which was assigned to the
District.
Section 11. Powers of the District. The District shall exercise any or all of the
powers granted under Sections 163.01 and 163.08, Florida Statutes, as may be
amended from time to time, which include, without limitation, the following:
a. To finance qualifying improvements within the District boundaries;
b. In its own name to make and enter into contracts;
C. To employ agencies, employees, or consultants;
d. To acquire, construct, manage, maintain, or operate buildings, works, or
improvements;
e. To acquire, hold, or dispose of property;
f. To incur
debts, liabilities,
or obligations which
do not constitute the debts,
liabilities,
or obligations of
any of the Parties to
this Interlocal 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
Interlocal Agreement;
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 Section 163.08, Florida
Statutes, and to accept funding from local and state agencies;
0
j. To exercise all powers necessary, convenient, incidental, or proper in
connection with any of the powers, duties, or purposes authorized in
Section 163.08, Florida Statutes; and
k. To apply for, request, receive and accept gifts, grants, or assistance funds
from any lawful source to support any activity authorized under this
Agreement.
Section 12. Quarterly Reports. A quarterly report of the District shall be
completed in accordance with generally accepted Government Auditing Standards by
an independent certified public accountant. At a minimum, the quarterly report shall
include a balance sheet, statement of revenues, expenditures and changes in fund
equity and combining statements prepared in accordance with generally accepted
accounting principles. All records such as, but not limited to, construction, financial,
correspondence, instructions, memoranda, bid estimate sheets, proposal
documentation, back charge documentation, canceled checks, reports and other related
records produced and maintained by the District, its employees and consultants shall be
deemed public records, and shall be made available for audit, review or copying by a
Party to this Interlocal Agreement upon reasonable notice.
Section 13, Term, This Interlocal 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 Interlocal Agreement upon ten (10)
days' written notice to the other Parties. Should a Party terminate its participation in this
Interlocal Agreement, be dissolved, abolished, or otherwise cease to exist, the District
and this Interlocal Agreement shall continue until such time as all remaining Parties
agree to terminate.
Section 14. Consent. This Interlocal Agreement and any required resolution or
ordinance of an individual Party shall be considered the Parties' consent to the creation
of the District as required by Sections 163.01 and 163.08, Florida Statutes.
Section 15. Liability. 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 Interlocal
Agreement. Except as specified herein, the Parties shall each individually defend any
action or proceeding brought against their respective agency pursuant to this' Interlocal
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 Interlocal 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.
5
Section 16. Indemnification, The Parties agree that the TPA for the District
shall always indemnify and hold harmless the Parties and the District. The Parties
understand and acknowledge that the indemnification provisions included in Section 11
"Indemnification" of the Agreement between the Town of Cutler Bay and Ygrene, dated
August 16, 2011, which will be assigned to the District, extend to all of the members of
the District.
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 it must be given 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:
If to Cutler Bay: Town Manager
Town of Cutler Bay
10720 Caribbean Boulevard, Suite 105
Town of Cutler Bay, Florida 33189
With a Copy to: Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Boulevard
Suite 700
Coral Gables, Florida 33134
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 and the District.
r.
Ll
Section 19. Filing. It is agreed that this Interlocal Agreement shall be filed with
the Clerk of the Circuit Court of Miami -Dade County, as required by Section 163.01(l 1),
Florida Statutes.
Section 20. 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 21. 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 terms hereof shall be. predicated upon any prior representations or
agreements whether oral or written It is further agreed that no change, amendment,
alteration or modification in the terms and conditions contained herein shall be effective
unless contained in a written document executed with the same formality and of equal
dignity herewith by all Parties to this Interlocal Agreement.
Section 22. 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 23. Records. The Parties shall each maintain their own respective
records and documents associated with this Interlocal Agreement in accordance with
the requirements for records retention set forth in Chapter 119, Florida Statutes,
Section 24. Governing Law and Venue. This Interlocal Agreement shall be
governed, construed and controlled according to the laws of the State of Florida. Venue
for any claim, objection or dispute arising out of the terms of this Interlocal Agreement
shall be proper exclusively in Miami -Dade County, Florida.
Section 25. 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 26. Third Party Beneficiaries. This Interlocal Agreement is solely for the
benefit of the Parties and no right or cause of action shall accrue upon or by reason, to
or for the benefit of any third party not a formal party to this Agreement. Nothing in the
Agreement expressed or implied is intended or shall be construed to confer upon any
person or corporation other than the Parties any right, remedy, or claims under or by
reason of this Interlocal Agreement or any of the provisions or conditions of this
Agreement; and all of the provisions, representations, covenants, and conditions
contained in this Agreement shall inure to the sole benefit of and shall be binding upon
the Parties.
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Section 27. Effective Date. This Interlocal Agreement shall become effective
upon the execution by the Parties hereto and recordation in the public records of the
applicable county.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the Parties hereto have made and executed this
Interlocal Agreement on this 3 i day of U"�Ai y , 2012.
ATTEST:
BY:
cul
ft r
01 ��4
JiNCORPORATED
2005
Town Clerk
(Affix Town Seal)
R
Approved by Town Attorney
as to form and legal sufficiency
ATTEST:
TOWN OF CUTLER BAY, a municipal
corporation of the State of Florida
BY: wcam- Q _ cac�009�
Town Manager
Town Attorney
CITY OF SOUTH MIAMI, a municipal
corporation of the State of Florida
(Affix Town Seal)
Approved by City Attorney
as to form and legal sufficiency
0
Memo
To: Steven Alexander, Town Manager
From: Chad S. Friedman, Town Attorney
Date: July 18, 2012
Re: Amended & Restated Interlocal Agreement Relating to Green Corridor
Property Assessed Clean Energy (PACE) District (the "District ")
I. Introduction.
During the approval process for the initial Interlocal Agreement, which
established the District, several municipalities raised concerns that municipalities within
the District would be required to: (1) execute financing agreements; and (2) levy the non
ad valorem special assessments. When discussing this concern with the municipalities
involved, the Town of Cutler Bay staff committed to proposing a legislative amendment
to Section 163.08, Florida Statutes, which would eliminate this concern. Following
through with this commitment, the Town's lobbyist filed an amendment to House Bill
7117 (the "HB 7117 "), 'which would allow for the District, instead of the municipalities
within the District, to execute the financing agreements and levy the non ad valorem
special assessments.
Fortunately, the Florida Legislature passed HB 7117 on the last day of the
legislative session and the Governor allowed for the bill to go into law on April 14, 2012.
It was this change in the law that was the impetus for the changes to the Interlocal
Agreement. After it was decided that a change in the Interlocal Agreement was
necessary, we decided to review the Agreement in its entirety in order to provide further
clarifications within the Agreement. You have asked us to provide a summary of the
amendments made to the Interlocal Agreement. Per your request, below is a summary of
the relevant changes.
II. Summary of Changes.
A. Financing_
Agreements
and Special
Assessments.
As a result of the change in
state law,
the
Interlocal
Agreement
was amended
to reflect that the District will
me.
sign the financing agreements and levy the special assessments instead of the
municipalities involved. Also, other changes were made throughout the Interlocal
Agreement to make the Agreement consistent with these changes.
B. Board Appointments & Addition of Other Municipalities. The individuals
eligible to serve on the District Board has been expanded to include any property
owner or elected official. In addition, it was clarified that the District Board can
be expanded beyond seven people upon a two -third vote of the Board.
Furthermore, a two third vote is necessary to add an additional municipality to the
District. Finally, to provide flexibility, the at large member may be appointed by
the Board at anytime instead of at the first meeting.
C. Third Party Administrator. The Interlocal Agreement was updated to clarify that
the Town had selected Ygrene as the Third Party Administrator through a public
procurement process.
D. District Staff & Attorney. It was clarified that if the District decides not to utilize
the Town Manager and Town Attorney after the initial 2 years, that the Town
would not pay for the costs and expenses of the new staff and attorney.
E. District Liability. The Interlocal Agreement was further clarified that the
municipalities would not be responsible for the liabilities of the District. In
addition, it was clarified that entering into this Interlocal Agreement did not waive
sovereign immunity.
F. Indemnification. Although clearly stated in the Third Party Administrator
agreement, the Interlocal Agreement was amended to acknowledge that the Third
Party Administrator's indemnification of the District also extended to the member
municipalities. It was also expressly provided that the Third Party Administrator
regardless of who it is shall always indemnify the District and the municipalities
within.
G. Third Party Beneficiaries & Recordation. It was clarified that there are no third
party beneficiaries to the Interlocal Agreement and that the Agreement will be
effective upon recordation.
III. Conclusion.
If you have any questions or concerns about these changes please feel free to contact
2
AMENDED AND RESTATED
INTERLOCAL AGREEMENT
BETWEEN
THE TOWN OF
CUTLER BAY, VILLAGE OF PALMETTO BAY VILLAGE OF F- WRtDA;
PINECREST CITY OF SOUTH MIAMI MIAMI SHORES VILLAGE CITY OF CORAL
GABLES & CITY OF MIAMI
This Amended and Restated Interlocal Agreement (the "Interlocal Agreement ") is
entered into between the Town of Cutler Bay, Florida, a Florida municipal corporation;
Village of Palmetto, hereinafter referred to-as- "cutler Bays ;"
0
, Florida, a Florida municipal corporation; Village of
Pinecrest, a, hereinafteF referred +4G-as the " ' + ,"
tal
Florida municipal corporation; City of South Miami, a
Florida municipal corporation: Miami Shores Village, a Florida municipal corporation;
City of Coral Gables a Florida municipal corporation and hereinafterreferred to as the
City of Miami a Florida municipal corporation (Collectively, !!Q ;"
0
the • - „ - - ..
DiStFiGt, hereinafter referred te as the "Distfirat—."
RECITALS
WHEREAS, Section 163.01, Florida Statutes, the "Florida Interlocal Cooperation
Act of 1969," authorizes local government units to enter into interlocal agreements for
the mutual benefit of governmental units; and
WHEREAS, Section 163.01 (7), Florida Statutes, allows for the creation of a
"separate legal entity" constituted pursuant to the terms of the interlocal agreement to
carry out the purposes of the interlocal agreement for the mutual benefit of the
governmental units; and
WHEREAS, the PartiesGutler Bay, Git-c and 6+ty G desire to enter into an
interlocal agreement creating for-establishment-of_the-DimstFiGt ass a separate legal entity
entitled
(Sellestively; the Green Corridor Property Assessment Clean Energy (PACE
District hereinafter referred to as the "District "" " ; and
1
Formatted: Body Text
WHEREAS, Section 166.021, Florida Statutes, authorizes the PartinG�y,
City S and City G to exercise any power for municipal purposes, except when expressly
prohibited by law; and
WHEREAS, Section 163.08, Florida Statutes, provides that a "local government,"
defined as a county, municipality,-of a dependent special district as defined in Section
189.403, Florida — Statutes, or a separate legal entity created pursuant to Section
163.01(7), Florida Statutes may finance energy related "qualifying improvements"
through voluntary assessments; and
WHEREAS, Section 163.08, Florida Statutes, provides that improved property
that has been retrofitted with energy - related qualifying improvements receives the
special benefit of alleviating the property's burden from energy consumption and assists
in the fulfillment of the state's energy and hurricane mitigation policies; and
WHEREAS, Section 163.08(5), Florida Statutes, provides that local governments
may enter into a partnership with one or more local governments for the purpose of
providing and financing qualifying improvements; and
WHEREAS, the Parties to this Interlocal Agreement have expressed a desire to
enter into this Interlocal Agreement in order to authorize the establishment of the District
as a means of implementing and financing a qualifying improvements program for
energy-GGnsepiation within the District; and
WHEREAS, the Parties" have determined that it is
necessary and appropriate to create the District and to clarify various obligations for
future cooperation between the PartiesSutler —Bay, y—G related to the
financing of qualifying improvements within the District; and
WHEREAS, the Parties agree and understand that each member of the District
will have complete control over the administration governance, and implementation of
their own PACE program, which includes, but is not limited to, the ability to review and
approve program documents, marketing strategies, and determining eligible property
types and improvements: and
WHEREAS, the. Parties ler—H have
determined that it shall serve the public interest to enter into this Interlocal Agreement to
make the most efficient use of their powers by enabling them to cooperate on a basis of
mutual advantage to provide for the financing of qualifying improvements within the
District.
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.
2
ee s :e. ••
Section 2, Purpose. The purpose of this Interlocal Agreement is to consent to
and authorize the creation of the District, pursuant to Section 163.08, Florida Statutes in
order to facilitate the financing of qualifying improvements for property owners within the
District. The District shall be a separate legal entity, pursuant to Section 163.01,0,;
Florida Statutes.
Section 3. Qualifying Improvements. The District shall allow the financing of
qualifying improvements as defined in Section 163.08, Florida Statutes.
Section 4. Enabling Ordinance or Resolution. The Parties to this Interlocal
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 provided for in Sections 163.01 and
163.08, Florida Statutes, for the creation of a partnership between local governments as
a separate legal entity. The District shall be created upon the execution of this
Interlocal Agreement by the Parties hereto and the adoption of an ordinance or
resolution of support by the Parties establishing the District. Additional local
governments may join in and enter into this Interlocal Agreement by approval of two -
thirds of the members of the Board (as defined in Section 6 below), execution of this
Interlocal Agreement and adoption of an ordinance or resolution of support establishing
the District.
Section 5. District Boundaries. The boundaries of the District shall be the
legal boundaries of the local governments that are Parties to this Interlocal Agreement.
As contemplated in this Interlocal Agreement, the District will 1
governments in levying voluntary assessments on the benefitted properties within the
boundaries of the District to help finance the costs of qualifying improvements for those
individual properties. Upon petition by the landowners of individual 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 Partieslesal- government's termination of participation within this Interlocal Agreement,
those properties that have received financing for qualifying improvements shall continue
to be a part of the District, until such time that all outstanding debt has been satisfied.
Section 6. Governing Board of the District. The District shall be governed by a
governing board of the DiStFiGt (the 'Board, ") which shall be comprised of property
owners orsurrent elected officials within the iurisdictional boundaries of the Parties to
this Interlocal Agreement and one at large property owner from within the
Districtme -mber. The maximum number of members of the Board serving at any given
time shall be no more than seven (7) and the minimum number of members shall be not
less than three (3). Notwithstanding the foregoing, the maximum number of members
on the Board may be increased by a two -third majority vote of the Board. The initial
Board which -shall serve for an initial four (4) year term and shall consist of one (1)
representative(&) appointed by each Party from within their jurisdictional
boundaries6utler- -J3a�, ene-(1)-representative(-
rep . The initial at large member of the Board shall be
appointed by a majority vote of the Board - -at -its first- regular4y- scheduled- rneettr4g. All
3
.. mglm
subsequent renewal terms shall be for four (4) years. Following the initial Board
appointments, the Parties to this Interlocal Agreement shall nominate appointees to be
elected to the Board by current sitting Board members. In the event a Board member is
no longer L eligible to serve on the Boardlo,�s his "eFeleeted seat, that Party to this
Interlocal Agreement shall appoint a replacement- elested-effisial to fulfill the remaining
term of that member. The Board's administrative duties shall include all duties
necessary for the conduct of the Board's business and the exercise of the powers of the
District as provided. in Section 11.
Section 7. Decisions of the Board. Decisions of the Board shall be made by
majority vote of the Board. The Board may adopt rules of procedure. In the absence of
the adoption of such rules of procedure, the fundamental parliamentary procedures of
Roberts Rules of Order shall apply.
Section 8, District Staff and Attorney. The Town Manager of Cutler Bay shall
serve as the staff to the District. In addition, the Town Attorney for Cutler Bay shall
serve as the counsel to the District. To the extent not paid by the Third Party
Administrator of the District (the "TPA "), all of the District's staff and attorney expenses
shall be borne by the Town of Cutler
Manager of tler Bay, ae -thefr utherized -agen t for purposes of signing any
agreem . After the District has been operating for two
years, the Board may choose to hire different District staff and /or Attorney. If the Board
chooses to hire different District staff and /or Attorney, the Town of Cutler Bay will no
longer pay for the staff and /or attorney expenses to the extent they are not paid by the
TPA.
Section 9. Financing Agreement.Au#WiZed-QffiGia-L The Parties agree thatta
each -ide the District shallr° ^ ° ^ + „° o ^4, . ",rQ ie
aut-#erized -to enter into a financing agreement, pursuant to Section 163.08(8), Florida
Statutes, with property owner(s) who obtain financing through the District.
Section 10, Procurement. The Parties agree and understand that the initial
procurement for the TPA for the District wasa Third--- I?art-y-- Admkiis�vill --be
performed by the Town of Cutler Bay in accordance with its adopted competitive
procurement procedures (Request for Proposal 10 -05). The Parties further agree and
understand that —.l the Town of Cutler Bay has selected Y rg ene Energy Fund,
Florida, LLC (the "Ygrene" ) as the initial TPA. The Town of Cutler Bay, on the behalf of
the District, has enteredselesting -the Third Pa inistrator �TD�T,.- A`,, �wn -wiN
enter into an Agreement between the Town of Cutler Bax and Ygrene, dated August 16,
2011ag;eerneni wwith -the TPA, which waswill -h ubseuepMy assigned to the District.
Section 11. Powers of the District. The District shall exercise any or all of the
powers granted under Sections 163.01 and 163.08, Florida Statutes, as may be
amended from time to time, which include, without limitation, the following:
a. To finance qualifying improvements within the District boundaries;
n
MN
b. In its own name to make and enter into contracts;
C. To employ agencies, employees, or consultants;
d. To acquire, construct, manage, maintain, or operate buildings, works, or
improvements;
e. To acquire, hold, or dispose of property;
f. To incur
debts, liabilities,
or obligations which
do not constitute the debts,
liabilities,
or obligations of
any of the Parties to
this Interlocal 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
Interlocal Agreement;
L 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 Section 163.08, Florida
Statutes, and to accept funding from local and state agencies;
j. To exercise all powers necessary, convenient, incidental, or proper in
connection with any of the powers, duties, or purposes authorized in
Section 163.08, Florida Statutes; and
k. To apply for, request, receive and accept gifts, grants, or assistance funds
from any lawful source to support any activity authorized under this
Agreement.
Section 12. Quarterly Reports. A quarterly report of the District shall be
completed in accordance with generally accepted Government Auditing Standards by
an independent certified public accountant. At a minimum, the quarterly report shall
include a balance sheet, statement of revenues, expenditures and changes in fund
equity and combining statements prepared in accordance with generally accepted
accounting principles. All records such as, but not limited to, construction, financial,
correspondence, instructions, memoranda, bid estimate sheets, proposal
documentation, back charge documentation, canceled checks, reports and other related
records produced and maintained by the District, its employees and consultants shall be
deemed public records, and shall be made available for audit, review or copying by a
Party to this Interlocal Agreement upon reasonable notice.
Section 13. Term. This Interlocal 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 Interlocal Agreement upon ten (10)
days' written notice to the other Parties. Should a Party terminate its participation in this
5
5e a.. memm
........ .............. .
......... _....._..........
Interlocal Agreement, be dissolved, abolished, or otherwise cease to exist, the District
and this Interlocal Agreement shall continue until such time as all remaining Parties
agree to terminate.
Section 14. Consent. This Interlocal Agreement and any required resolution or
ordinance of an individual Party shall be considered the Parties' consent to the creation
of the District as required by Sections 163.01 and 163.08, Florida Statutes.
Section 15. Liability. 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 Interlocal
Agreement. Except as specified herein, the Parties shall each individually defend any
action or proceeding brought against their respective agency pursuant to this Interlocal
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. e- District
m rata fen all
the-defense thefeG f Qi3d fr-6rr} �aaga e6Ie -w c T
be entered as a Fesellt - thereof. The Parties shall each individually maintain throughout
the term of this Interlocal 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.
understand and acknowledge that the indemnification provisions included in Section 11
"Indemnification" of the Agreement between the Town of Cutler Bay and Ygrene, dated
August 16, 2011, which will be assigned to the District, extend to all of the members of
the District.
Section- 16.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 it must be given 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:
If to Cutler Bay: Town Manager
Town of Cutler Bay
10720 Caribbean Boulevard, Suite 105
Town of Cutler Bay, Florida 33189
6
With a Copy to: Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Boulevard
Suite 700
Coral Gables, Florida 33134
Section 1843. 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 and the District.
f Section 194-4. Filing. It is agreed that this Interlocal Agreement shall be
filed with the Clerk of the Circuit Court of Miami -Dade County, as required by Section
163.01 (11), Florida Statutes.
Section 2045. 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 2146. Merger. This Interlocal Agreement incorporates and includes
all prior negotiations, correspondence, agreements or understandings applicable to the
7
i lN60GS41�95l933- 1�a804A -7 -096
if to City
B:
i-if to City
G;
Section 1843. 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 and the District.
f Section 194-4. Filing. It is agreed that this Interlocal Agreement shall be
filed with the Clerk of the Circuit Court of Miami -Dade County, as required by Section
163.01 (11), Florida Statutes.
Section 2045. 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 2146. Merger. This Interlocal Agreement incorporates and includes
all prior negotiations, correspondence, agreements or understandings applicable to the
7
i lN60GS41�95l933- 1�a804A -7 -096
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 terms hereof shall be predicated upon any prior representations or
agreements whether oral or written It is further agreed that no change, amendment,
alteration or modification in the terms and conditions contained herein shall be effective
unless contained in a written document executed with the same formality and of equal
dignity herewith by all Parties to this Interlocal Agreement.
Section 224-7. 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 2348. Records. The Parties shall each maintain their own
respective records and documents associated with this Interlocal Agreement in
accordance with the requirements for records retention set forth in Chapter 119, Florida
Statutes.
Section 244-9. Governing Law and Venue. This Interlocal Agreement shall
be governed, construed and controlled according to the laws of the State of Florida.
Venue for any claim, objection or dispute arising out of the terms of this Interlocal
Agreement shall be proper exclusively in Miami -Dade County, Florida.
Section 252-0. 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 26, Third Party Beneficiaries. This Interlocal Agreement is solely for the4
benefit of the Parties and no right or cause of action shall accrue upon or by reason, to
or for the benefit of any third party not a formal party to this Agreement. Nothing in the
Agreement expressed or implied is intended or shall be construed to confer upon any
person or corporation other than the Parties any right, remedy, or claims under or by
reason of this Interlocal Agreement or any of the provisions or conditions of this
Agreement; and all of the provisions, representations, covenants, and conditions
contained in this Agreement shall inure to the sole benefit of and shall be binding upon
the Parties2l. EffectNe- -Date- and - Joinder -by- District— phis4nterloc- akAgreement
shall beGemie-effe e,,.unnn the exam Linn by }ho Du�ioW hereto I} is agreed hat upon
r� s t. `r� °9'z'"
the f armatoon- ef4he- Distrin}�.e- ect,the District shall }hereafter iein-thii c. In }erinr.nl Anreemen}
and that the DiStF*Gt shall thereafter nterlesai Agreerx►ent as i#
it were an e, 1PzJyerete,-------- - - - - -- - - - - - - - - - - - - - - - - -
Section 27. Effective Date. This Interlocal Agreement shall become effective
upon the execution by the Parties hereto and recordation in the public records of the
applicable county.
9
[Remainder of page intentionally left blank.]
E
IN
WITNESS
WHEREOF, the Parties
hereto have made and executed this
Interlocal
Agreement
on this day
of
N120122044.
ATTEST:
BY:
Town Clerk
(Affix Town Sea])
Approved by Town Attorney
as to form and legal sufficiency
TOWN OF CUTLER BAY, a municipal
corporation of the State of Florida
BY:
10
Town Manager
Town Attorney
RESOLUTION NO. 244043058
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, SUPPORTING
THE PROPOSED GREEN CORRIDOR LEGISLATION;
TRANSMITTING THIS RESOLUTION TO CERTAIN PUBLIC
OFFICIALS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of South. Miami finds climate change to be one of the most
serious issues facing our planet today; and
WHEREAS, the City Commission continues to be deeply concerned about the
adverse effects of climate change and the future health and well -being of not only our planet,
but our community as well;-and
WHEREAS, the City Commission is similarly concerned with the continued
dependence of the United States and the State of Florida on conventional energy sources,
whose use has been scientifically proven to contribute significantly to the threat of climate
change;- and
WHEREAS, the City Commission recognizes the importance of encouraging the
expansion of the use of renewable energy sources in order to diversify the state's energy
supplies, reduce dependence on foreign oil, and mitigate the effects of climate change; and
WHEREAS, the City would like -to encourage the increased use, of renewable energy
sources by its residents, but one of the most significant impediments to the purchase by home
owners of products that produce energy from renewable sources, and solar panels in
particular, is the upfront cost associated with those devices; and
WHEREAS, the City supports the ereation'of a voluntary special assessment program
that provides a local governing entity or entities the authority to finance the installation of
renewable energy sources that are permanently fixed to real property, thereby eliminating the
primary impediment to the purchase of devices that produce renewable energy; and
WHEREAS, the City further supports the creation of special assessment districts to be
named Green Corridors that care consist of a single municipality or several municipalities, a
single county or several counties, or any other combination thereof; and
WHEREAS, these Green Corridors would be able to utilize the special assessment
process to facilitate the financing and installation of renewable energy sources to be
permanently attached to previously developed, private lots or parcels; and
WHEREAS, the City Commission supports the proposed legislation that would create
the Green Corridor program, attached hereto as Exhibit "A "; and
Pg. 2 of Res. No. 244043058
WHEREAS, the Mayor and City Commission believe that it is in the best interest of
the health safety, and welfare of residents of the City for the state of Florida to create a Green
Corridor program.
NO'076', THEREFORE, BE
IT RE' SOLVIED
BY TI-MI
MA'J'OR AND CITY
COMMISSION OF THE CITY OF
SOUTH MIAMI,
FLORIDA,
AS FOLLOWS*
Sects 9,0.citals.• The above recitals are true and correct and are
incorporated herein: by this reference.
Section 2, Suport. The Mayor and City Commission hereby support legislation
that would create a special assessment program which would assist in the financing of
renewable energy producing devices in substantially the form attached hereto as Exhibit "A"
Section 33. TransnuttaL That the City Cleric is hereby directed to transmit
electronic copies of this Resolution to the Governor of the State of Florida, the President of
the Florida Senate, the Speaker of the Florida House of Representatives, any Members of the
Florida House of Representatives or Florida Senate intrflducing legislation in accordance with
the terms of this Resolution, and the Mayors and Members of the governing bodies of the
municipalities within Miami -Dade County,
Section 4. Effective Date. This resolution shall take effect immediately
upon adoption.
PASSED and ADOPTED this 261" day of January, 2010.
ATTES'T':
' CITY CLE
APPROVED:
COMMISSION VOTE: 5 -0
APPROVED O FORM: Mayor Feliu: Yea
Vice Mayor Beasley: Yea
Commissioner Newman.: Yea
ATTORNEY Commissioner Sellars: Yea
Commissioner Palmer.: Yea
2
Exhibit "A"
Amendment to SB
Insert at Line
Section 1. Section 171.01, Florida Statutes, is amended to read:
170.01 Authority for providing improvements and levying and collecting special
assessments against property benefited. --
(4)
The
Legislature
of the
State
of Florida
recognizes
the
importance
of encouraging the
expansion of the use of renewable energy sources in order to diversify the state's energy
supplies,
reduce dependence on
foreign oil, and
mitigate the effects of climate change.
The Legislature declares that a
public purpose
will be served by a special assessment
program
that provides a local
governing entity
or entities the authority to finance the
installation of renewable energy
sources that are
permanently_ fixed to real property.
(a) As used in this subsection, the term:
I. "Green Corridor" means a special assessment district composed of a single
municipality or several municipalities, a single county or several counties, or any other
combination thereof that is created to facilitate the financing: and installation of renewable
energy sources.
2. "Green Corridor Council" means the governing body of a Green Corridor that mu
levy and collect special assessments against property benefited by the installation of
renewable energy sources to the property of the individually affected property owners.
(b) LEGISLATIVE INTENT. - -It is the intent of this act to encourage the creation of
special assessment districts to be named Green Corridors that can consist of a single
municipality or several municipalities, a side county or several counties, or any other
combination thereof. A Green Corridor utilizes, the special assessment process to
facilitate the financing and installation of renewable energy sources to be permanently
attached to previously developed, private lots or parcels. The Green Corridor program is
to be used in conjunction with the programs described in part III of chapter 377; Florida
Statues, entitled, "Renewable Energy and Green Government Programs"
0 A Green Corridor may be created pursuant to section 4(a), subiect to the approval, b
a majority vote of the governing body each participating public entity, of an interlocal
agreement that sets forth the terms and conditions of the Green Corridor and the selection
of a Green Corridor Council to oversee the creation and operation of the Green Corridor.
(d) Individual property owners residing within public entities that have chosen to
participate in the Green Corridor may voluntarily opt to participate in the Green Corridor.
Individual property owners can not be compelled to participate in the Green Corridor
program.
' Words striAen are deletions, words underline . are additions.
(e) The Green Corridor Council, subject to the voluntary approval of the individually
affected property owners, may levy and collect special assessments against property
benefited by the installation of renewable energy sources to the property of the
individually affected property owners, for the purpose of reducing the he dependence of the
benefited propeqy on non - renewable energy sources increasing the benefited property's
value and reducing the carbon emissions from the use of those non - renewable energy
sources which adversely impact the climate.
TITLE AMENDMENT
Insert at
; amending s. 170.01 F.S. to create Green Corridors and provide for the
imposition of special assessments on homeowners that voluntarily approve of the
addition of renewable energy sources to their property;
RESOLUTION 145-11-13459
A Resolution adopting an Interlocal Agreement between
the City and other municipalities relating to the
Green Corridor Property Assessment Clean Energy
(PACE) District; authorizing the City Manager to take
any and all steps
documents to carry
resolution.
WHEREAS, the City
10 -13058 dated January
District legislation, wl
necessary to execute the necessary
out the intent and purpose of this
of.South Miami adopted Resolution No. 24-
26, 2010 supporting the Green Corridor
zich is a PACE program; and
WHEREAS, the City Commission desires to enter into an
agreement with other municipalities in order to provide for the
upfront financing for qualifying improvements as provided for in
Section 163.08, Florida Statutes, and
WHEREAS, the City Commission finds that this resolution is
in the best interest and welfare of the residents of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY OF
SOUTH MIAMI, FLORIDA, AS FOLLOWS:
Section 1.
Recitals.
The above
recitals are true and
correct and are
incorporated
herein by
this reference.
Section 2. Adoption of Interlocal Agreement, The City
Commission hereby approves the Interlocal Agreement between the
City of South Miami and other municipalities, in substantially
the form attached hereto as Exhibit "A," relating to the Green
Corridor PACE District.
Section 3. Authorization. The City Manager is hereby
authorized to take any and all steps necessary to execute the
necessary documents to carry out the intent and purpose of this
Resolution.
Section 4. Effective Date. This resolution shall take
effect immediately upon adoption.
PASSED AND ADOPTED this Eth , day of Sap± Pmhpr , 20111
Page 1 of 2
Res. No. 145-11-13459
ATTEST:
APPROVED,
COMMISSION VOTE: 5 -0
Mayor Stoddard: yea
Vice Mayor Newman: Yea
Commissioner Beasley: Yea
Commissioner Palmer: Yea
Commissioner Harris: Yea
Page 2 of 2
INTERLOCAL AGREEMENT
BETWEEN
THE TOWN OF CUTLER BAY, FLORIDA,
AND
This Interlocal Agreement is entered into. between the Town of Cutler Bay,
Florida, a Florida municipal corporation, hereinafter referred to as "Cutler Bay;"
and
cTrw, ��� `� ` Florida, a 'Florida' municipal corporation, hereinafter
referred to as the "City B; "
referred to as the "City C;""
and
Florida, a Florida -municipal corporation, hereinafter
:and
the Green Corridor Property Assessment Clean' Energy (PACE) District, hereinafter
referred to as the "District.
RECITALS
WHEREAS, Section 163.01,.Fiorida Statutes, the "Florida Interlocal Cooperation
Act of 1969," authorizes local government units.to enter into interlocal agreements for.
the mutual benefit of governmental units; and
WHEREAS, Section 163.01 (7), Florida Statutes,. allows for. the creation of a
"separate legal entity" constituted pursuant to =the terms of the interlocal agreement to
carry out the purposes of the - interlocal agreement for the mutual benefit of the
governmental units; and
WHEREAS, Cutler Bay, City B, and City C desire to enter into an interlocal
agreement for establishment of the District as a separate legal entity (Collectively, the
"Parties "); and
WHEREAS, Section 166.021,. Florida Statutes; authorizes Cutler Bay, City B
and City C to exercise any power for municipal purposes, except when • expressly
prohibited by law; and
WHEREAS, Section 163.08, Florida Statutes, provides that a "local government,"
defined as a county, municipality or a dependent special district as defined in Section
189.403, Florida Statutes, may finance energy related "qualifying improvements"
through voluntary assessments; and
1
G: \CB \Ordinances Resolutions\COMPLETBOrd Res Exhibits\Resolutions\201 1\1 1-35 PACE Inlerlocalv1.DOC
WHEREAS, Section 163.08,. Florida. Statutes, provides that improved property
that has been retrofitted with energy - related qualifying improvements receives the
special benefit of alleviating the property's burden from energy consumption and assists
in the fulfillment of the state's energy and hurricane mitigation policies: and
WHEREAS, Section 163:08(5), Florida Statutes, provides that local governments
may enter into a partnership with one or more local governments for the purpose of
providing.and financing qualifying improvements; and
WHEREAS, the Parties to this Interlocal Agreement have expressed a desire to
enter into this Interlocal Agreement in order to authorize the establishment of the District
as a means of implementing and financing a qualifying improvements program for
energy conservation and efficiency improvements within the District; and
WHEREAS, Cutler Bay, City B and City C have determined that it is necessary
and appropriate to create the District and to clarify various obligations for future
cooperation between Cutler Ray, City B and City C related to the financing of qualifying
improvements within the District; and
WHEREAS, Cutler Bay; City B and City C have determined that it shall serve the
public interest to enter into this Interlocal Agreement to make the most efficient .use of
their powers by enabling them to cooperate on a basis of mutual advantage to provide
for the financing of qualifying improvements within the District.
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 consent to
and authorize the creation of the District, pursuant to Section 163.08, Florida Statutes in
order 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, Florida
Statutes.
Section 3. Qualifying Improvements. The District shall allow the financing of
qualifying improvements as defined in Section 163.08, Florida Statutes,
Section 4. Enabling Ordinance or Resolution. The Parties to this Interlocal
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 provided for in Sections 163.01 and
163.08, Florida Statutes, for the creation of a partnership between local governments as
a separate" legal` entity. The District shall be created' upon the execution of this
Interlocal Agreement by the Parties hereto and the adoption of an ordinance %or
resolution of support by the Parties establishing the District. Additional local
governments may join in and enter into this Interlocal Agreement by approval of the
2
GAMOrdinances Resolutions\COMPLETMOrd Res Exhfbits\ResoIufons\201 1 11 1 -35 PACE InterlocaM-DOC
Board (as defined in Section '6 below), execution of this Interlocal Agreement and
adoption of an ordinance or resolution of support establishing the District.
Section 5. District Boundaries. The boundaries of the District shall be the
legal boundaries of the local governments that are Parties to this Interlocal Agreement.
As contemplated in this . Interlocal Agreement, the District will assist* the local
governments in levying voluntary assessments on the benefitted properties within the
boundaries of the District to help finance the costs of qualifying improvements for those
individual properties. Upon petition by the landowners of individual 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 local government's termination of participation within this Interlocal Agreement, those
properties that have received financing for qualifying improvements shall continue to be
a part of the District, until such time that all outstanding debt has been satisfied.
Section 6. Governing Board of the District. The District shall be governed by a
governing board of the District (the "Board, ") which shall be comprised of current
elected officials of the Parties to this Interlocal. Agreement and one 'at large member.
The maximum number of members of the Board serving at any given time shall be no
more than seven (7) and the minimum number of members shall be not less than three
(3). The initial Board which shall serve for an initial four (4) year term and shall consist
of one (1) representative(s) appointed by Cutler Bay, one (1) representative(s)
appointed by City B, and one (1) representative(s) appointed by City C. The initial at
large member of the Board shall be appointed by a majority vote of the Board at its first
regularly scheduled meeting. All subsequent renewal terms shall be for four (4) years.
Following the initial Board appointments, the Parties to this Interlocal Agreement shall
nominate appointees to be elected to the Board by current sitting Board members. In
the event a Board member loses his or her elected seat, that Party to this Interlocal
Agreement' shall appoint a replacement elected official to fulfill the remaining term of
that member. The Board's administrative duties sha.il include all duties necessary for
the conduct of the Board's business and the exercise of the powers of the District as
provided in Section 11.
Section 7. Decisions of the Board. Decisions of the Board shall be made by
majority vote of the Board. The Board may adopt rules of procedure. In the absence of
the adoption of such rules of procedure, the fundamental parliamentary procedures of
Roberts Rules of Order shall apply.
Section 81 District Staff and Attorney.
serve as the staff to the District. In addition,
serve as the counsel to the District. The Partie
of Cutler Bay, as. their authorized agent for
authorized by the Board. After the District has
may choose to hire different District staff'and /or
The Town Manager of Cutler Bay shall
the Town Attorney for Cutler Bay shall
s agree to designate the Town Manager
purposes of signing any agreements
been operating for two years, the Board
Attorney,
Section 9.
Authorized
Official.
The Parties agree
to
each
identify a local
official
or designee
of
the respective Party who is authorized
to
enter
into a financing
3
G:\CMOrdinances Resolutions \COMPLETE\Ord Res Exhibits \Resolutions \2011 \11 -35 PACE Interi6calv1 DOC
agreement, pursuant to Section 163.08(8), Florida Statutes, with property owner(s) who
obtain financing through the District.
Section:.10, Procurement. The Parties agree and understand that the initial
procurement for a Third Party Administrator will be performed by the Town of Cutler Bay
in accordance,with its adopted procurement procedures. Upon the Town of Cutler Bay
selecting the Third Party Administrator (TPA), the Town will enter into an agreement
with the TPA, which will be subsequently assigned to the District.
Section 11. Powers of the District. The District shall exercise any or all of the
powers granted under Sections 163.01 and 163.08, Florida Statutes, as may be
amended from time to time, which include, without limitation, the following:
a.
b.
G.
d.
e.
To finance qualifying improvements within the District boundaries;
In its own name to make and enter into contracts;
To employ agencies, employees, or consultants;
To acquire, construct, manage, maintain, or operate buildings, works, or
Improvements;
To acquire, hold, or dispose of property,;
f. To incur debts, liabilities, or obligations which do not constitute the debts,
liabilities, or obligations of any of the Parties to this Interlocal 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.
iV
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
Interlocal Agreement;.-
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 Section 163.08, Florida
Statutes, and to accept funding from local and state agencies; -
To exercise all powers necessary,
connection with any of the powers
Section 163.08,. Florida Statutes;. and
convenient,
incidental,
or proper
in
, duties,
or
purposes
authorized
in
k. To apply for, request, receive and accept gifts, grants, or assistance funds
from any lawful source to support. any . activity authorized under this
Agreement. .
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Section 12, Quarterly Reports. A quarterly report of the District shall be
completed in accordance with generally accepted Government Auditing Standards by
an independent certified public accountant. At a minimum, the quarterly report shall
include a balance sheet, statement of revenues, expenditures and changes in fund
equity and combining statements prepared in accordance with generally accepted
accounting principles. All records such as, but not limited to, construction, financial,
correspondence, instructions, memoranda, bid estimate sheets, proposal
documentation, back charge documentation, canceled checks, reports and other related
records produced and maintained by the District, its employees and consultants shall be
deemed public records, and shall be-made available for audit, review or copying by a
Party to this Interlocal Agreement upon reasonable notice.
Section 13. Term, This Interlocal 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 Interlocal Agreement upon ten (10)
days' written notice to the other Parties. Should a Party terminate its participation in this
Interlocal Agreement, be dissolved, abolished, or otherwise cease to exist, the District
and this Interlocal Agreement shall continue until such time as all remaining Parties
agree to terminate.
Section 14. Consent. This Interlocal Agreement and any required resolution or
ordinance of an individual Party shall be considered the Parties' consent to the creation
of the District as required by Sections 163.01 and 163.08, Florida Statutes,
Section 15, Liability. The Parties hereto shall each be individually , and
separately liable and responsible for the actions of its officers, agents and employees in
the performance of their respective obligations under this Interlocal Agreement. Except
as specified herein, the Parties shall each individually defend any action or proceeding
brought against their respective agency pursuant to this Interlocal 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.
For any action or proceeding brought against the District pursuant to this Interlocal
Agreement, the Parties shall each contribute pro rata for all 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
Interlocal Agreement any and all applicable insurance coverage required by Florida law
for governmental entities.
Section 16. 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 it must be given by written certified U.S. mail, with
return receipt requested, addressed to the Party for whom it is intended, at the place
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specified. For the present, the Parties designate the following as the respective places
for notice purposes:
If to Cutler Bay:
With. a Copy to:
If to City B:
If to City. C:
Town Manager
Town of Cutler Bay
10720 Caribbean Boulevard, Suite 105
Town of Cutler Bay, Florida 33189
Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L.
2525 Ponce de Leon Boulevard
Suite 700
Coral Gables, Florida 33134
Section 13. 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 and the District.
Section 14, Filing. It is agreed that this Interiocal Agreement shall be filed with
the Clerk of the Circuit Court of Miami -Dade County, *as required by Section 163.01 (11),
Florida Statutes..
Section 15, 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 16. Merger: This Interlocal Agreement incorporates and includes all
prior negotiations, correspondence, agreements or understandings applicable to the
no
GAMOrdinances Resoiufions =MPLETE \Ord Res Exhibits \Resolutions \2011111 -35 PACE InteriocaM.DOC
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 terms hereof shall be predicated'upon any�prior representations or
agreements whether oral or written It is further..agreed that no change, amendment,
alteration or modification in the terms and conditions contained herein shall be effective
unless contained in a written document executed.. With..fthe. same formality and of equal
dignity herewith by all Parties to this Interlocal Agree'meni•,;
Section 17, Assignment. The respective•,obligations of the Parties set forth in
this Interlocal Agreement shall not be assigned, 11 whole or n.:.part, without the written
consent of the other Parties hereto.
Section 18. Records. . The Parties .shall each maintain their own respective
records and documents associated with this Interlocal Agreement. in accordance with
the requirements for records retention set forth in Chapter 1.19, Florida Statutes,
Section 19, Governing Law and Venue. This Interlocal Agreement shall be
governed, construed and controlled according to the laws of the State of Florida. Venue
for any claim, objection or dispute arising out of the terms of this Interlocal Agreement
shall be proper exclusively in Miami -Dade County, Florida.
Section 20. Severability. In the event a portion of this Interlocal Agreement is
found by a court of competent jurisdiction to be invalid, the is
provisions shall
continue to be effective.
Section 21. Effective Date and Joinder by District. This Interlocal Agreement
shall became effective upon the execution by the Parties hereto. It is agreed that, upon
the formation of the District, the District shall thereafter join this Interlocal Agreement
and that the District shall thereafter be deemed a Party to this Interlocal Agreement as if
it were an original Party thereto.
[Remainder of page intentionally left blank.]
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IN WITNESS. WHEREOF, the Parties hereto have made and executed this
Interlocal Agreement on this L day of Sjbc- &cam , 2011.
ATTEST:
BY:
Town Cleric
0
e
X4;1
(Affix Town Seal)
Approved by Town Attorney
as to fohn and legal sufficiency
V
BY:
OF CUTLER BAY
on of tl�e Staff
Manager
Town-Attorney
a municipal
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