Agenda 12/12/2017 Item #16F512/12/2017
EXECUTIVE SUMMARY
Recommendation to adopt a resolution authorizing the execution and delivery of an interlocal
agreement providing for Collier County’s membership in the Florida Utility Debt Securitization
Authority (FUDSA).
OBJECTIVE: Approve the enabling documents establishing Collier County as a member of FUDSA.
CONSIDERATIONS: On July 1, 2016, House Bill 347 was signed into law. This law established a new
financing mechanism permitting the issuance of Utility Cost Containment Bonds (UCCBs) by authorities
established pursuant to the legislation. The Florida Utility Debt Securitization Authority will be formed
pursuant to the legislation for the express purpose of issuing or authorizing the issuance of UCCBs
providing securitized debt financing options to local governments in Florida for water/wastewater
projects, including new projects and refinancing of existing debt.
Attached is an information summary on the Authority including an explanation of its niche through the
issuance of UCCBs. Essentially FUDSA provides a mechanism for certain qualified issuers to receive a
much better bond rating and thus achieve interest savings. A local government entity can apply to
FUDSA for financing and by agreeing to various terms and conditions including the establishment of a
line item debt charge on the entities utility bill, the cost of financing can be reduced. Since the debt will
be owned by FUDSA and the rights to this line item charge will be owned by FUDSA and not the local
entity and since UCCBs are less risky due to the separate line item utility billing charge, the cost of
financing is generally lower.
Considering the County’s excellent credit rating long standing history of public utility financial
management, it is not likely that the County would ever access the authority for the issuance of debt.
However, our participation on the authority board would prove beneficial from an advisory perspective
especially as financing projects are considered. There is no financial obligation to the County for a greeing
to membership and the County is not responsible for backing any debt issued by FUDSA.
The appropriate resolution and interlocal agreement providing for Collier County’s membership in
FUDSA is attached. It is suggested that the Collier County Director of Corporate Financial Planning and
Management Services serve as the primary representative on the Board with the Collier County Public
Utilities Financial Operations Director to act as the substitute.
FISCAL IMPACT: None
GROWTH MANAGEMENT IMPACT: None
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, and requires majority vote for approval. Note that the Agreement allows Collier
County to withdraw from the Authority on 120 days notice. -JAK
RECOMMENDATION: To approve the resolution authorizing the execution and delivery of an
interlocal agreement providing for Collier County’s membership in the Florida Utility Debt Securitization
Authority
Prepared by: Mark Isackson, Director of Corporate Financial Planning and Management Services, Office
of Management and Budget
12/12/2017
ATTACHMENT(S)
1. FUDSA Document (PDF)
2. 020-00007.O1 Collier County Resolution (PDF)
3. 020-00007.Q4 Interlocal Agreement (PDF)
12/12/2017
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.F.5
Doc ID: 4290
Item Summary: Recommendation to adopt a resolution authorizing the execution and delivery of
an interlocal agreement providing for Collier County’s membership in the Florida Utility Debt
Securitization Authority (FUDSA).
Meeting Date: 12/12/2017
Prepared by:
Title: Operations Coordinator – Office of Management and Budget
Name: Valerie Fleming
12/05/2017 11:49 AM
Submitted by:
Title: Operations Coordinator – Office of Management and Budget
Name: Valerie Fleming
12/05/2017 11:49 AM
Approved By:
Review:
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 12/05/2017 11:49 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 12/05/2017 12:09 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 12/06/2017 7:31 AM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 12/06/2017 9:11 AM
Board of County Commissioners MaryJo Brock Meeting Pending 12/12/2017 9:00 AM
THE FLORIDA UTILITY DEBT SECURITIZATION AUTHORITY (FUDSA) 6
On July, 1 2016, House Bili 347 was signed into law. This law establishes a new financing mechanism
permitting the issuance of Utility Cost Containment Bonds (UCCBs) by authorities established pursuant to the
legislation. The Florida Utility Debt Securitization Authority (FUDSA) will be created pursuant to this
legislation for the express purpose of issuing or authorizing the issuance of UCCBs to provide securitized
debt financing to local governments in Florida for water/wastewater projects, including new projects and
refinancings of existing debt.
This financing mechanism has been successfully used by investor-owned electric utilities for many years to
help lower the amount of revenues needed to service bonded debt issued to fund electric utility projects. It is
also currently being used in other states to provide an alternative method of funding public utility debt. The
legislation provides the opportunity for local agencies in Florida owning water/wastewater utilities to access
this product.
In order to issue water and wastewater revenue bonds for water and wastewater projects, customer rates
usually have to be increased to pay the debt service on the bonds particularly if the pur{me of the bonds is
to pay for new capital projects. The legislation provides an option to lower the magnitude of such rate
increases. Utilizing this legislation, participating local agencies will agree that a line item Oarge will be
placed on each customer's bill, which charge, in the aggregate, will be an amount of money nece3sary to pay
the debt service on the UCCBs. This line item is separate and apart to the usual charges contai)red in the
customer's utility bill. The charge will be imposed by FUDSA in exchange for providing the prose, ds of the
UCCBs to the local utility to finance or refinance utility projects. The charge will be collected by th# utility and
remitted to FUDSA's trustee to pay the UCCBs. The UCCBs will be debt of FUDSA, not the loca agency. By
transferring that charge to a trustee on behalf of FUDSA, a better bond rating can be achieved for the debt,
as well as a lower bond coverage requirement and the elimination of the need to fund a debt service reserve
fund.
Because the rights to the charge on the utility bill are owned by FUDSA and because the UCCBs have a
better assurance of being paid from the revenues generated by the separate UCCBs charge on the utility bill,
bond -rating agencies will give a better bond rating to that debt - typically "AAA". For instance, an "A" rated
utility is able access a "AAA" rated financing or refinancing with the use of UCCBs. With that "AAA" rating, the
utilities' interest cost on the debt is dramatically lower. The savings are passed on to the utility customers
since the line item charge Is less than the rate required to be paid per customer for traditional bonded debt.
This financing option is just that - it is only an option. Local utilities could continue to issue their own debt in
the traditional manner. A local agency would have this mechanism available should it desire to utilize it, To
access this product, the local government would perform an analysis determining that use of this option is
more cost effective for its customers over the life of the bond issue than any other available financing
mechanism. Whether UCCBs would be available to a local agency will depend on the creditworthiness of the
utility and the size of the proposed debt issue.
FUDSA will be subject to "government in the sunshine" requirements and will meet based on the number of
requests brought before it. FUDSA will originally consist of three local governments, each of which will
appoint a representative to serve on the Board of FUDSA.
The benefits of the new legislation and the creation of FUDSA are the following:
• Lower Interest Costs: Because of the "securitized" structure of the UCCBs, debt issued for a utility
project will have an AAA rating. The extent of the savings will vary based on the credit rating of the
utility.
•
No Coverage Requirement: Unlike traditional utility revenue bonds, UCCBs do not require a coverage
factor. Also, securitized bonds such as UCCBs do not need a debt service reserve fund.
• Government Financial Fiexibiilty: Debt will not be added to the local government's balance sheets. In
effect, the local government maintains its financial flexibility while obtaining/utilizing the much-
needed funds to pay for infrastructure improvements.
• Multiple Possible Utility Proiects: Because of the lower financing cost for local utility projects, local
agencies will be able to maintain strong creditworthiness for other critical utility needs.
Who is eligible?
A local agency that owns and operates a publicly owned utility Is eligible to apply for the financing or
refinancing of a utility project using the proceeds of UCCBs.
How does a local agency access flnancing through FUIDSA?
A local agency may apply to FUDSA for the financing or refinancing of a utility project with UCCBs only if the
governing body has determined, in a duly noticed public meeting, the following:
1. The utility project to be financed or refinanced is a utility project as described by the legislation.
2. The costs associated with the financing will be paid from the utility project charge relating to the
UCCBs.
3. The rates charged to the local agency's retail customers by the publicly owned utility, including the
utility project charge resulting from the financing of the utility project with UCCBs, are expected to be
lower than the rates that would be charged if the project were financed with bonds payable solely
from revenues of the publicly owned utility.
4. The savings resulting from the issuance of UCCBs for a utility project will be used to directly benefit
the customers of the publicly owned utility through rate reductions or other programs.
A RESOLUTION OF COLLIER COUNTY, FLORIDA
AUTHORIZING THE EXECUTION AND DELIVERY
OF AN INTERLOCAL AGREEMENT THAT
ESTABLISHES THE FLORIDA UTILITY DEBT
SECURITIZATION AUTHORITY; PROVIDING THAT
THE COUNTY SHALL BE A MEMBER OF SUCH
AUTHORITY; APPOINTING A REPRESENTATIVE
OF THE COUNTY TO THE AUTHORITY; AND
PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA AS FOLLOWS:
SECTION 1. AUTHORITY FOR THE RESOLUTION. This
Resolution is adopted pursuant to the provisions of Sections 125.01 and 163.09 and Part I
of Chapter 163, Florida Statutes.
SECTION 2. FINDINGS. Collier County, Florida (the "County"), does
hereby find and determine that:
(A) On July 1, 2016, House Bill 347 was signed into law. This law establishes a
new financing mechanism permitting the issuance of Utility Cost Containment Bonds
("UCCBs") by authorities established pursuant to the legislation. The Florida Utility Debt
Securitization Authority ("FUDSA") will be created pursuant to this legislation for the
express purpose of issuing UCCBs to provide securitized debt financing to local
governments in Florida for water/wastewater projects, including new projects and
refinancings of existing debt.
(B) Utilizing this legislation, participating local agencies will agree that a line
item charge will be placed on each customer's bill, which charge, in the aggregate, will be
an amount of money necessary to pay the debt service on the UCCBs. This line item is
separate and apart to the usual charges contained in the customer's utility bill. The charge
will be imposed by FUDSA in exchange for providing the proceeds of the UCCBs to the
local utility to finance or refinance utility projects. The charge will be collected by the
utility and remitted to FUDSA's trustee to pay the UCCBs. The UCCBs will be debt of
FUDSA, not the local agency. By transferring that charge to a trustee on behalf of
FUDSA, a better bond rating can be achieved for the debt, as well as a lower bond coverage
requirement and the elimination of the need to fund a debt service reserve fund.
(C) Because the rights to the charge on the utility bill are owned by FUDSA and
because the UCCBs have a better assurance of being paid from the revenues generated by
the separate UCCBs charge on the utility bill, bond-rating agencies will give a better bond
rating to that debt - typically "AAA." With that "AAA" rating, the utilities' interest cost
on the debt is dramatically lower. The savings are passed on to the utility customers since
the line item charge is less than the rate required to be paid per customer for traditional
bonded debt.
(D) The County desires to become a member of the Authority in order to provide
local utilities access to UCCBs and a more cost effective method of financing utility
projects.
(E) In order to properly document the admission of the County to membership in
the Authority it is necessary and desirable for the County to authorize, execute and deliver
the Interlocal Agreement attached hereto as Exhibit A (the "Agreement").
SECTION 3. APPROVAL OF AGREEMENT. The form, terms and
provisions of the Agreement, submitted to this meeting and attached hereto as Exhibit A,
be and the same hereby are approved. The Chair of the Board of County Commissioners
of the County (the "Board") and Clerk of the Board are hereby authorized and directed to
execute and deliver said Agreement in the name and on behalf of the County, with such
changes, amendments, modifications, omissions and additions as approved by the Chair.
Execution by said Chair shall be deemed to be conclusive evidence of approval of such
changes, amendments, modifications, omissions and additions.
SECTION 4. FILING OF AGREEMENT. The Clerk of the Board is
hereby directed to file the Agreement as required by Section 163.01(11), Florida Statutes.
SECTION 5. REPRESENTATIVE. The Corporate Financial and
Management Services Division Director is hereby appointed as the County's
Representative on the Authority. The Corporate Financial and Management Services
Division Director may designate another individual to serve as the alternative
Representative in the event the Corporate Financial and Management Services Division
Director is unable to attend an Authority meeting.
SECTION 6. GENERAL AUTHORITY. The members of the County
Commission and the officers, attorneys and other agents or employees of the County are
hereby authorized to do all acts and things required of them by this Resolution and the
Agreement, or desirable or consistent with the requirements hereof or thereof for the full,
punctual and complete performance of all the terms, covenants and agreements contained
herein or in the Agreement, and each member, employee, attorney and officer of the
County and the Clerk is hereby authorized and directed to execute and deliver any and all
papers and instruments and to do and cause to be done any and all acts and things necessary
or proper for carrying out the transactions contemplated hereunder and under the
Agreement.
SECTION 7. SEVERABILITY AND INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained shall be held
contrary to any express provision of law or contrary to the policy of express law, thoug h
not expressly prohibited or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and shall
be deemed separable from the remaining covenants, agreements or provisions and shall in
no way affect the validity of any of the other provisions hereof or of the Agreement.
SECTION 8. EFFECTIVE DATE. This Resolution shall become
effective immediately upon its adoption.
DULY ADOPTED, in Regular Session this ____ day of _____________, 2017.
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
(SEAL)
By:
Penny Taylor, Chair
ATTEST:
Dwight E. Brock, Clerk
By:
Deputy Clerk
APPROVED AS TO FORM AND LEGALITY:
Jeffrey A. Klatzkow
County Attorney
EXHIBIT A
AGREEMENT
INTERLOCAL AGREEMENT RELATING TO
ESTABLISHMENT OF THE
FLORIDA UTILITY DEBT SECURITIZATION AUTHORITY
Among
Florida Governmental Utility Authority,
Collier County, Florida,
and
Lee County, Florida
Dated as of ___________ 1, 2017
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS ................................................................................... 2
ARTICLE II
THE AUTHORITY
SECTION 2.01. CREATION ........................................................................................ 6
SECTION 2.02. PURPOSES ........................................................................................ 6
SECTION 2.03. AUTHORITY MEMBERS ................................................................ 6
SECTION 2.04. DURATION OF AUTHORITY ........................................................ 6
ARTICLE III
MEMBERSHIP AND REPRESENTATION
SECTION 3.01. MEMBERSHIP .................................................................................. 7
SECTION 3.02. REPRESENTATION ......................................................................... 7
SECTION 3.03. ACTION ............................................................................................. 8
SECTION 3.04. ELECTION OF OFFICERS .............................................................. 8
SECTION 3.05. AUTHORITY OF OFFICERS ........................................................... 8
SECTION 3.06. RESIGNATION ................................................................................. 9
SECTION 3.07. POWERS AND DUTIES OF THE BOARD ..................................... 9
SECTION 3.08. MEETINGS ...................................................................................... 10
SECTION 3.09. WITHDRAWAL OR DISMISSAL OF AUTHORITY
MEMBERS ................................................................................. 10
SECTION 3.10. EXPENSES ...................................................................................... 10
SECTION 3.11. LIABILITY ...................................................................................... 10
ARTICLE IV
POWERS AND DUTIES
SECTION 4.01. POWERS .......................................................................................... 11
SECTION 4.02. ANNUAL BUDGET ........................................................................ 13
SECTION 4.03. UTILITY COST CONTAINMENT BONDS .................................. 14
SECTION 4.04. AD VALOREM TAXATION NOT AUTHORIZED ..................... 17
SECTION 4.05. ESTABLISHMENT OF FINANCING AUTHORITIES ................ 17
SECTION 4.06. ESTABLISHMENT OF SINGLE PURPOSE ENTITIES .............. 18
SECTION 4.07. LIMITATION ON DEBT RELIEF ................................................. 18
ARTICLE V
MISCELLANEOUS
SECTION 5.01. DELEGATION OF DUTY .............................................................. 19
SECTION 5.02. FILING ............................................................................................. 19
ii
SECTION 5.03. IMMUNITY ..................................................................................... 19
SECTION 5.04. LIMITED LIABILITY ..................................................................... 19
SECTION 5.05. AMENDMENTS .............................................................................. 19
SECTION 5.06. SEVERABILITY ............................................................................. 20
SECTION 5.07. CONTROLLING LAW ................................................................... 20
SECTION 5.08. EFFECTIVE DATE ......................................................................... 20
INTERLOCAL AGREEMENT RELATING TO
ESTABLISHMENT OF THE
FLORIDA UTILITY DEBT SECURITIZATION AUTHORITY
THIS INTERLOCAL AGREEMENT, dated as of _________ 1, 2017 (the
"Interlocal Agreement"), is entered into among the local governmental units executing this
Interlocal Agreement, each one constituting a legal entity created under Section
163.01(7)(g), Florida Statutes, or a "public agency" under Part I of Chapter 163, Florida
Statutes, which shall on the date hereof be the Florida Governmental Utility Authority,
Collier County, Florida, and Lee County, Florida (collectively, the "Authority Members"),
as evidenced by the signatures of their authorized representatives;
W I T N E S S E T H:
WHEREAS, Part I of Chapter 163, Florida Statutes (the "Interlocal Act"), permits
Public Agencies (as such term is defined in the Interlocal Act) to enter into interlocal
agreements with each other to jointly exercise any power, privilege or authority which such
Public Agencies share in common and which each might exercise separately, permitting
the Public Agencies to make the most efficient use of their powers by enabling them to
cooperate on a basis of mutual benefit and thereby provide services and facilities in a
manner and pursuant to forms of governmental organization that will best serve
geographic, economic, population and other factors influencing the needs and development
of such Public Agencies; and
WHEREAS, Section 163.09, Florida Statutes (the "Utility Cost Containment Bond
Act"), authorizes a legal entity created under Section 163.01(7)(g), Florida Statutes, such
as the Florida Governmental Utility Authority, and members of such legal entity or Public
Agencies (as defined in the Interlocal Act) to create a single purpose entity by interlocal
agreement under Section 163.01, Florida Statutes, and exercise the powers provided in
Section 163.09, Florida Statutes; and
WHEREAS, the establishment of such legal entity, in the form of the hereinafter
described Authority, will ensure that the customers of water and wastewater facilities in the
State of Florida are provided access to an alternative cost effective manner of financing and
refinancing water and wastewater facilities.
NOW, THEREFORE, in consideration of the foregoing and the covenants herein,
it is mutually agreed and understood by and among the Authority Members, that now or
may hereafter execute this Interlocal Agreement, that the "Florida Utility Debt
Securitization Authority," a legal entity and public body and a unit of local government
with all of the privileges, benefits, powers and terms of the hereinafter defined Act and this
Interlocal Agreement, is hereby created for the purposes described herein, as follows:
2
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following definitions shall govern the
interpretation of this Interlocal Agreement:
"Act" shall mean, collectively, the Interlocal Act, the Utility Cost Containment
Bond Act, Section 125.01, Florida Statutes (in the case of counties), Section 166.021 ,
Florida Statutes (in the case of municipal corporations), and other applicable provisions of
law.
"Authority" shall mean the Florida Utility Debt Securitization Authority, a legal
entity and public body created pursuant to the provisions of this Interlocal Agreement and
the Act.
"Authority Member" or "Authority Members" shall mean the member or
members of the Authority, from time to time, as shall be provided for by this Interlocal
Agreement. The Authority Members shall on the date hereof be the FGUA, Collier
County, Florida, and Lee County, Florida.
"Board" shall mean the governing board of the Authority, consisting of the
Directors appointed hereunder.
"Cost" as applied to a Utility Project or a portion of a Utility Project shall mean
(1) any part of the expense of constructing, renovating, or acquiring lands, structures, real
or personal property, rights, rights-of-way, franchises, easements, and interests acquired or
used for a Utility Project; (2) the expense of demolishing or removing any buildings or
structures on acquired land, including the expense of acquiring any lands to which the
buildings or structures may be moved, and the cost of all machinery and equipment used
for the demolition or removal; (3) finance charges; (4) interest, as determined by the
Authority; (5) provisions for working capital and debt service reserves; (6) expenses for
extensions, enlargements, additions, replacements, renovations, and improvements;
(7) expenses for architectural, engineering, financial, accounting, and legal services, and
plans, specifications, estimates, and administration; or (8) any other expenses necessary or
incidental to determining the feasibility of acquiring and constructing a Utility Project or
incidental to the construction, acquisition, or financing of a Utility Project or the issuance
of Utility Cost Containment Bonds.
"Customer" shall mean a person or entity receiving any transmission, distribution,
processing, delivery, or metering of water or wastewater service from a Publicly Owned
Utility. "Customer" may also include a person or entity receiving stormwater services to
the extent the Utility Cost Containment Bond Act permits the Authority to finance Utility
Projects for stormwater purposes.
3
"Director" shall mean that individual appointed in accordance with the provisions
hereof to serve as part of the Board. "Director" shall also include an alternate who is
appointed to fill such role by an Authority Member.
"FGUA" shall mean the Florida Governmental Utility Authority.
"Finance" or "Financing" includes refinancing.
"Financing Cost" shall mean (1) interest and redemption premiums that are
payable on Utility Cost Containment Bonds; (2) the cost of retiring the principal of Utility
Cost Containment Bonds, whether at maturity, including acceleration of maturity upon an
event of default, or upon redemption, including sinking fund redemption; (3) the cost
related to issuing or servicing Utility Cost Containment Bonds, including any payment
under an interest rate swap agreement and any type of fee; (4) a payment or expense
associated with a bond insurance policy, financial guaranty, contract, agreement, or other
credit or liquidity enhancement for bonds; or contract, agreement, or other financial
agreement entered into in connection with Utility Cost Containment Bonds; (5) any
coverage charges; (6) the funding of one or more reserve accounts relating to Utility Cost
Containment Bonds; and (7) such other costs related to Utility Cost Containment Bonds
provided for in the Financing Documents.
"Financing Documents" shall mean the Financing Resolution or Financing
Resolutions duly adopted by the Authority or a SPE, as well as any indenture of trust, trust
agreement or other instrument relating to the issuance or security of the Utility Cost
Containment Bonds.
"Financing Resolution" means a resolution adopted by the Board of the Authority
or a SPE that provides for the financing or refinancing of a Utility Project with Utility Cost
Containment Bonds and that imposes a Utility Project Charge in connection with the
Utility Cost Containment Bonds. A financing resolution may be separate from a
resolution authorizing the issuance of the Utility Cost Containment Bonds.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
determined by the Board.
"General Manager" shall mean the individual or entity selected and employed by
the Board to serve the Authority in such capacity.
"Interlocal Act" shall mean Part I of Chapter 163, Florida Statutes.
"Interlocal Agreement" shall mean this Interlocal Agreement, including any
amendments or supplements hereto, executed and delivered in accordance with the terms
hereof.
4
"Local Agency" means a member of the Authority, or an agency or subdivision of
that member, which is sponsoring or refinancing a Utility Project, or any municipality,
county, authority, special district, public corporation, regional water authority, or other
governmental entity of the State that is sponsoring or refinancing a Utility Project,
including the FGUA.
"Pledged Funds" shall mean (1) Utility Project Property, (2) until applied in
accordance with the terms of the Financing Documents, all moneys in the f unds, accounts
and subaccounts established thereby, including investments therein, and (3) such other
property, assets and moneys of the Authority or a SPE, including Revenues, as shall be
pledged pursuant to the Financing Documents; in each case to the extent provided by the
Board pursuant to the Financing Documents. The Pledged Funds pledged to one series of
Utility Cost Containment Bonds may be different than the Pledged Funds pledged to other
series of Utility Cost Containment Bonds.
"Public Agencies" shall mean any "public agency", as defined in the Interlocal
Act.
"Publicly Owned Utility" means a utility providing retail or wholesale water or
wastewater services which is owned and operated by a Local Agency. The term includes
any successor to the powers and functions of such a utility. Publicly Owned Utility shall
also include a utility providing stormwater services to the extent the Utility Cost
Containment Bond Act permits the Authority to finance Utility Projects for stormwater
purposes.
"Revenues" shall have the meaning provided therefor in the Utility Cost
Containment Bond Act.
"Single Purpose Entity" or "SPE" means a limited liability company, public
benefit corporation or other special purpose entity created by the Authority. Such SPE
shall have the powers provided herein for the Authority.
"State" shall mean the State of Florida.
"Utility Cost Containment Bond Act" shall mean Section 163.09, Florida
Statutes.
"Utility Cost Containment Bonds" means bonds, notes, commercial paper,
variable rate securities, and any other evidences of indebtedness issued by the Authority or
any SPE the proceeds of which are used directly or indirectly to pay or reimburse a Local
Agency of its Publicly Owned Utility for the costs of a Utility Project and which are
secured by a pledge of, and are payable from, Utility Project Property.
"Utility Project" means the acquisition, construction, installation, retrofitting,
rebuilding, or other addition to or improvement of any equipment, device, structure,
5
process, facility, technology, rights, or property located within the State which is used in
connection with the operations of a Publicly Owned Utility.
"Utility Project Charge" means a nonbypassable charge levied on Customers of a
Publicly Owned Utility to pay on a timely basis, as scheduled, the Financing Costs of
Utility Cost Containment Bonds. The term includes any adjustments to the Utility Project
Charge.
"Utility Project Property" means the irrevocable property right created pursuant
to the Financing Documents and the Utility Cost Containment Bond Act. The term does
not include any interest in a Customer's real or personal property but includes the right,
title, and interest of the Authority in any of the following: (1) the Financing Resolution, the
Utility Project Charge, any adjustment to the Utility Project Charge; (2) the Financing
Costs of the Utility Cost Containment Bonds and all revenues, and all collections, claims,
payments, moneys, or proceeds for, or arising from the Utility Project Charge; and (3) all
rights to obtain adjustments to the Utility Project Charge.
Whenever any words are used in this Interlocal Agreement in the masculine gender,
they shall be construed as though they were also used in the feminine or neuter gender in all
situations where they would so apply, and whenever any words are used in this Interlocal
Agreement in the singular form, they shall be construed as though they were also used in
the plural form in all situations where they would so apply.
6
ARTICLE II
THE AUTHORITY
SECTION 2.01. CREATION. The Authority Members hereby create and
establish the "Florida Utility Debt Securitization Authority", a legal entity and public body
and a unit of local government, with all of the privileges, benefits, powers and terms
provided for herein and by the Act.
SECTION 2.02. PURPOSES. (A) The purpose of this Interlocal Agreement
is to establish of the Authority in order to implement the provisions of the Act.
(B) The creation and organization of the Authority and the fulfillment of its
objectives serves a public purpose, and is in all respects for the benefit of the people of this
State, affected Local Agencies and their constituents. The Authority is performing an
essential governmental function.
SECTION 2.03. AUTHORITY MEMBERS. The Authority Members shall
consist of those Public Agencies as provided in Article III hereof.
SECTION 2.04. DURATION OF AUTHORITY. The Authority shall exist
so long as (A) any portion of the Utility Project Property is owned or received by the
Authority, (B) any Utility Cost Containment Bonds are outstanding or (C) any
indebtedness issued by any financing authority established pursuant to Section 4.05 hereof
is outstanding. At such time as the Authority no longer owns or receives any portion of
the Utility Project Property, no Utility Cost Containment Bonds are outstanding and no
indebtedness of any financing authority established pursuant to Section 4.05 hereof is
outstanding, the Authority may dissolve by majority vote of the Board. In the event of
such a dissolution, any remaining assets of the Authority shall be disposed in such manner
as shall be determined by the Board.
7
ARTICLE III
MEMBERSHIP AND REPRESENTATION
SECTION 3.01. MEMBERSHIP. (A) Membership in the Authority shall
consist of the FGUA and those Public Agencies selected pursuant to this Article III.
(B) The Authority Members shall on the date hereof consist of: the FGUA,
Collier County, Florida, and Lee County, Florida.
(C) To the extent permitted by the Act, the Authority may admit any Public
Agency to membership upon application of such Public Agency and the affirmative vote of
the majority of all Directors at a duly called meeting of the Authority. This Interlocal
Agreement need not be amended in order to admit any Public Agency as an Authority
Member. Approval of the governing bodies of the Authority Members shall not be
required to admit a new Authority Member.
(D) As a precondition to membership in the Authority, each Authority Member
shall constitute an authority created pursuant to Section 163.01(7)(g), Florida Statutes, or a
Florida municipality, county or such other Public Agency which is permitted by the Act to
be a member of the Authority. Such new Authority Member shall execute, deliver and
record a duly authorized counterpart to this Interlocal Agreement or a duly authorized
joinder agreement to this Interlocal Agreement. Authority Members may be admitted
regardless of whether any Utility Cost Containment Bonds are issued for Utility Projects
for such Authority Member.
SECTION 3.02. REPRESENTATION. (A) Each Authority Member shall
appoint one Director to act on its behalf on the Board. Each Director shall be an
individual who shall be appointed specifically by name or by position. In addition, each
Authority Member may appoint an alternate Director to serve in the absence or
unavailability of the Director.
(B) In the event the Director of an Authority Member shall resign or be removed,
such Authority Member shall appoint a new Director within thirty (30) calendar days. In
the event such Authority Member does not appoint a new Director with in thirty (30)
calendar days of resignation or removal and such Authority Member has appointed an
alternate Director, such alternate Director shall serve in the capacity as Director. In the
event such Authority Member does not appoint a new Director within thirty (30) calendar
days of resignation or removal and such Authority Member has not appointed an alternate
Director, the Board may appoint such Director who shall serve until such time as such
affected Authority Member shall appoint a new Director; provided any new Director
appointed by the Board shall be a resident of such Authority Member.
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(C) Each Authority Member, in its sole discretion, may remove its Director at
any time and may appoint a new Director to serve on the Board upon notice being given to
the Authority as provided by Section 3.06(A) hereof for resignation of a Director.
(D) No Director may be an elected official of an Authority Member. Directors
may be employees of an Authority Member.
(E) Any Director may be removed upon the affirmative vote of at least
two-thirds (2/3) of all Directors at a duly called meeting of the Authority; provided written
notice of such proposed action shall be delivered to the Authority Member of such Director
prior to said vote.
SECTION 3.03. ACTION. (A) Subject to the restrictions described in
Section 3.08 hereof, the affairs, actions and duties of the Authority shall be undertaken at a
duly called meeting pursuant to Section 3.08 hereof.
(B) At any meeting of the Authority at which any official action is to be taken, a
majority of all Directors shall constitute a quorum. A majority vote of a quorum of the
Directors present at a duly called meeting shall constitute an act of the Authority, except as
otherwise provided herein.
(C) A certificate, resolution or instrument signed by the Chairman,
Vice-Chairman or such other person of the Authority as may be hereafter designated and
authorized by the Board shall be evidence of the action of the Authority and any such
certificate, resolution or other instrument so signed shall conclusively be presumed to be
authentic. Likewise, all facts and matters stated therein shall conclusively be presumed to
be accurate and true.
SECTION 3.04. ELECTION OF OFFICERS. Once a year, and at such
other time as may be necessary to fill a vacancy, at a duly called meeting of the Board
called for the purpose thereof, the Authority through its Directors shall elect a Chairman, a
Vice-Chairman and Secretary-Treasurer to conduct the meetings of the Authority and to
perform such other functions as herein provided. At the discretion of the Board, the
General Manager (or representative thereof) may be appointed as the Secretary-Treasurer.
Said Chairman, Vice-Chairman and Secretary-Treasurer shall serve one (1) year terms
unless they resign from the Authority or such officer is replaced by the Board. Assistant
officers may also be appointed or elected by the Directors.
SECTION 3.05. AUTHORITY OF OFFICERS. (A) The Chairman and the
Vice-Chairman shall take such actions, have all such powers and sign all documents on
behalf of the Authority and in furtherance of the purposes of this Interlocal Agreement as
may be approved by resolution of the Board adopted at a duly called meeting.
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(B) The Secretary-Treasurer, or his designee, shall keep minutes of all meetings,
proceedings and acts of the Board, but such minutes need not be verbatim. Copies of all
minutes of the meetings of the Authority shall be sent by the Secretary-Treasurer or his
designee to all Directors to the Authority. The Secretary-Treasurer may also attest to the
execution of documents. The Secretary-Treasurer shall have such other powers as may be
approved by resolution of the Board adopted at a duly called meeting.
SECTION 3.06. RESIGNATION. (A) Any Director may resign from all
duties or responsibilities hereunder by giving at least thirty (30) calendar days prior written
notice sent by registered mail to the General Manager. Such notice shall state the date
said resignation shall take effect and such resignation shall take effect on that date.
(B) Any resigning Director who is an officer of the Authority shall immediately
turn over and deliver to the General Manager any and all records, books, documents or
other property in his possession or under his control which belong to the Authority.
SECTION 3.07. POWERS AND DUTIES OF THE BOARD. The Board
shall act as the governing board of the Authority and shall have, in addition to all other
powers and duties described herein, the following powers and duties:
(A) To fix the time and place or places at which its regular meetings shall be
held, and to call and hold special meetings.
(B) To make and pass rules, regulations, resolutions and orders not inco nsistent
with the provisions of the Act or this Interlocal Agreement, necessary for the governance
and management of the affairs of the Authority, for the execution of the powers,
obligations and responsibilities vested in the Authority, and for carrying into effect the
provisions of this Interlocal Agreement.
(C) To fix the location of the principal place of business of the Authority and the
location of all offices maintained thereunder.
(D) To create any and all necessary offices in addition to Chairman,
Vice-Chairman and Secretary-Treasurer; to establish the powers, duties and compensation
of all employees; and to require and fix the amount of all official bonds necessary for the
protection of the funds and property of the Authority.
(E) To select and employ a General Manager, who shall administer the affairs
and manage the staff of the Authority with Board approval, and perform all other
administrative duties as directed by the Board.
(F) To employ or hire such attorneys or firm(s) of attorneys as it deems
appropriate to provide legal advice and/or other legal services to the Authority.
(G) To amend the Authority's name, as permitted by law.
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SECTION 3.08. MEETINGS. (A) The Board shall convene at a meeting duly
called by either a majority of the Directors or the Chairman. The Directors may establish
regular meeting times and places. Meetings shall be conducted at such locations as may
be determined by the majority of the Directors or the Chairman. Notice of a special
meeting, unless otherwise waived, shall be furnished to each Director by the General
Manager not less than seven (7) calendar days prior to the date of such meeting; provided
the Chairman or, in his or her absence or unavailability, the Vice-Chairman, may call a
meeting upon twenty-four (24) hours written notice, if such officer determines an
emergency exists. All meetings shall be noticed in accordance with applicable law.
(B) Within thirty (30) calendar days of the creation of the Authority, the duly
appointed Directors shall hold an organizational meeting to elect officers and perform such
other duties as are provided for under this Interlocal Agreement.
(C) To the extent permitted under Section 163.01(18), Florida Statutes, or any
other applicable provision under Florida law relating to the use of communications media
technology to hold public meetings, the Authority may convene a meeting using such
technology provided the notice and other requirements of such provisions are satisfied.
SECTION 3.09. WITHDRAWAL OR DISMISSAL OF AUTHORITY
MEMBERS. Any Authority Member may withdraw from the Authority at any time, if
the following conditions are satisfied: (i) there shall be at least three (3) Authority
Members remaining in the Authority subsequent to withdrawal, and (ii) a certified
resolution from the Authority Member's governing body setting forth its intent to withdraw
is presented to the Authority. Upon satisfaction of the foregoing conditions, such
withdrawal shall be effective. Notwithstanding the foregoing, Collier County, Florida
may withdrawal from the Authority upon 120 days written notice to the other Members of
the Authority and upon providing the certified resolution set forth in clause (ii) herein.
SECTION 3.10. EXPENSES. The Authority may establish, from time to
time, procedures for reimbursement for reasonable expenses incurred by Authority
Members, Directors and employees, if any, of the Authority.
SECTION 3.11. LIABILITY. No Director, agent, officer, official or
employee of the Authority shall be liable for any action taken pursuant to this Interlocal
Agreement in good faith or for any omission, except gross negligence, or for any act of
omission or commission by any other Director, agent, officer, official or employee of the
Authority.
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ARTICLE IV
POWERS AND DUTIES
SECTION 4.01. POWERS. (A) The Authority shall have all powers to carry
out the purposes of this Interlocal Agreement, including the following powers which shall
be in addition to and supplementing any other privileges, benefits and powers granted by
the Act.
The Authority shall also have any additional powers conferred under the Act or
under any other applicable law, insofar as such additional powers may be necessary to
accomplish the purposes set forth herein, including, but not limited to, any or all of the
following:
(i) enter into any agreement or contract, including, but not limited to,
agreements, execute any instrument, and perform any act or thing necessary,
convenient, or desirable to carry our any power authorized by this Interlocal
Agreement.
(ii) employ agents and employees.
(iii) acquire, construct, manage, maintain or operate any building, works or
improvements.
(iv) acquire by contract, hold or dispose of property.
(v) issue debt, including, but not limited to Utility Cost Containment
Bonds, and incur debts, liabilities or obligations which do not constitute a debt,
liability or obligation of the Authority Members or Local Agencies; provided,
however, that the Authority's financing activities shall be limited to financing and
refinancing Utility Projects. Prior to the issuance of any Utility Cost Containment
Bonds, the Authority shall ensure that the applicable Local Agency has complied
with all of its obligations under the Act. The Authority or a SPE may issue Utility
Cost Containment Bonds pursuant to the Act and any other applicable laws of the
State to finance and refinance any Utility Project or any part thereof. The Utility
Cost Containment Bonds shall be issued and secured in accordance with the
provisions of the Act and Section 4.03 hereof.
(vi) adopt bylaws for the regulation of its affairs and the conduct of its
business.
(vii) sue and be sued in its own name.
(viii) engage the services of private consultants, including outside legal
counsel, to render professional and technical assistance and advice in carrying out
the purposes of this Interlocal Agreement.
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(ix) as provided by applicable law, employ and compensate counsel,
financial consultants, and other advisers determined necessary by the Authority in
connection with the issuance and sale of the Utility Cost Containment Bonds.
(x) contract for engineering, architectural, accounting, or other services
determined necessary by the Authority for the successful financing of a Utility
Project.
(xi) retain and pay the reasonable costs of consulting engineers, architects,
accountants, and other experts and consultants if the Authority determines those
services are desirable for the successful financing of Utility Projects.
(xii) receive and accept from any source, loans, contributions, or grants, in
either money, property, labor, or other things of value, for, or in aid of, the
acquisition, construction, financing, or refinancing of a Utility Project, or any
portion thereof or for the financing of working capital, or for the payment of the
principal of and interest on Utility Cost Containment Bonds if the proceeds of those
Utility Cost Containment Bonds are used for one or more of the purposes specified
in the Act.
(xiii) provide a pledge, lien or security interest in all or any portion of its
interest in Utility Project Property.
(xiv) issue, obtain, or aid in obtaining, from any department or agency of
the United States or of the State, or any private company, any insurance or
guarantee to, or for, the payment or repayment of interest or principal, or both, or
any part thereof, on any loan, lease, or obligation or any instrument evidencing or
securing the same, made or entered into pursuant to this Interlocal Agreement.
(xv) adopt resolutions, including, but not limited to, Financing Resolutions
in connection with the issuance of Utility Cost Containment Bonds, or authorize a
Single Purpose Entity to adopt a Financing Resolution.
(xvi) make such filings, applications and submissions to governmental
entities and regulatory bodies as may be necessary to comply with law and this
Interlocal Agreement.
(xvii) form a Single Purpose Entity as may be desirable for the purpose of
financing one or more Utility Projects, including, but not limited to, the planning,
development, acquisition, equipping, construction, reconstruction, reequipping,
refurbishing, operation, maintenance, management and the financing thereof, and
provide that any such Single Purpose Entity may exercise any powers of the
Authority, specified in this Interlocal Agreement or conferred under the Act or
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under any other applicable law, as such powers may be set forth in the formation
documents of such Single Purpose Entity.
(xviii) enter into other interlocal agreements or join with any other special
purpose or general purpose local governments, Public Agencies or authorities in the
exercise of common powers or to assist the Authority in performing its powers
hereunder or under the Act.
(xix) appoint advisory boards and committees to assist the Board in the
exercise and performance of the powers and duties provided in this Interlocal
Agreement.
(xx) acquire, by purchase, gift, devise or otherwise, and to dispose of, real
or personal property, or any estate therein, to carry out the purposes authorized by
this Interlocal Agreement.
(xxi) lease, as lessor or lessee, to or from any person, firm, corporation,
association or body, public or private, facilities or property of any nature to carry
out any of the purposes authorized by this Interlocal Agreement.
(xxii) to the extent allowed by law and to the extent required to effectuate
the purposes hereof, exercise all privileges, immunities and exemptions accorded
municipalities and counties of the State under the provisions of the constitution and
laws of the State.
(xxiii) invest its moneys in such investments as directed by the Board in
accordance with State law and which shall be consistent in all instances with the
applicable provisions of the Financing Documents.
(xxiv) purchase such insurance as it deems appropriate.
(xxv) do all acts and to exercise all of the powers necessary, convenient,
incidental, implied or proper in connection with any of the powers, duties or
purposes authorized by this Interlocal Agreement or the Act.
(B) In exercising the powers conferred by this Interlocal Agreement the Board
shall act by resolution or motion made and adopted at duly noticed and publicly held
meetings in conformance with applicable law.
(C) The provisions of Chapter 120, Florida Statutes, shall not apply to the
Authority.
SECTION 4.02. ANNUAL BUDGET. (A) Prior to the first date of each
Fiscal Year, the Board will adopt an annual budget for the Authority. Such budget shall
be prepared within the time periods required for the adoption of a tentative and final budget
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for county governments under general law. The General Manager shall prepare the
annual budget.
(B) The adopted budget shall be the operating and fiscal guide for the Authority
for the ensuing Fiscal Year. The Board may from time to time amend the budget at any
duly called regular or special meeting.
(C) The Authority shall provide financial reports in such form and in such
manner as prescribed pursuant to this Interlocal Agreement and Chapter 218, Florida
Statutes.
SECTION 4.03. UTILITY COST CONTAINMENT BONDS. (A) The
Board shall have the power and it is hereby authorized to provide pursuant to the Financing
Documents, at one time or from time to time in series, for the issuance of Utility Cost
Containment Bonds of the Authority for one or more of the following purposes:
(i) Paying all or part of the Cost of one or more Utility Projects,
(ii) Refunding any bonds or other indebtedness of the Authority or Local
Agency,
(iii) Assuming or repaying the indebtedness relating to Utility Projects,
(iv) Funding a debt service reserve account,
(v) Capitalizing interest on the Utility Cost Containment Bonds,
(vi) Paying costs of issuance relating to the Utility Cost Containment
Bonds, including Financing Costs, and
(vii) Any other purpose relating to this Interlocal Agreement or permitted
by the Act.
The principal of and the interest on each series of Utility Cost Containment Bonds shall be
payable from the Pledged Funds, all as determined pursuant to the Financing Documents.
The Authority may grant a lien upon and pledge the Pledged Funds in favor of the holders
of each series of Utility Cost Containment Bonds in the manner and to the extent provided
in the Financing Documents. Such Pledged Funds shall immediately be subject to such
lien without any physical delivery thereof and such lien shall be valid and binding as
against all parties having claims of any kind in tort, contract or otherwise against the
Authority.
(B) The Utility Cost Containment Bonds of each series shall be dated, shall bear
interest and such rate or rates, shall mature at such time or times not exceeding forty (40)
years from their date or dates, may be made redeemable before maturity, at the option of
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the Authority, at such price or prices and under such terms and conditions, all as shall be
determined by the Board pursuant to the Financing Documents. The Board shall
determine the form of the Utility Cost Containment Bonds, the manner of executing such
Utility Cost Containment Bonds, and shall fix the denomination of such Utility Cost
Containment Bonds and the place of payment of the principal and interest, which may be at
any bank or trust company within or without the State. In case any officer whose
signature or a facsimile of whose signature shall appear on any Utility Cost Containment
Bonds shall cease to be such officer before the delivery of such Utility Cost Containment
Bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he or she had remained in office until delivery. The Board ma y
sell Utility Cost Containment Bonds in such manner and for such price as it may determine
to be in the best interest of the Authority in accordance with the terms of the Financing
Documents. In addition to the Pledged Funds, the Utility Cost Containment Bonds may
be secured by such credit enhancement as the Board determines to be appropriate pursuant
to the Financing Documents. The Utility Cost Containment Bonds may be issued as
capital appreciation bonds, current interest bonds, term bonds, serial bonds, variable rate
bonds, taxable or tax-exempt bonds or any combination thereof, all as shall be determined
pursuant to the Financing Documents.
(C) Prior to the preparation of definitive Utility Cost Containment Bonds of any
series, the Board may issue interim receipts, interim certificates or temporary Utility Cost
Containment Bonds, exchangeable for definitive Utility Cost Containment Bonds when
such Utility Cost Containment Bonds have been executed and are available for delivery.
The Board may also provide for the replacement of any Obligation which shall become
mutilated, or be destroyed or lost. Utility Cost Containment Bonds may be issued without
any other proceedings or the happening of any other conditions or things than those
proceedings, conditions or things which are specifically required by this Interlocal
Agreement, the Financing Documents or other applicable laws.
(D) The proceeds of any series of Utility Cost Containment Bonds shall be used
for such purposes, and shall be disbursed in such manner and under such restrictions, if
any, as the Board may provide pursuant to the Financing Documents.
(E) The Financing Documents may also contain such limitations upon the
issuance of additional Utility Cost Containment Bonds as the Board may deem appropriate,
and such additional Utility Cost Containment Bonds shall be issued under such restrictions
and limitations as may be prescribed by such Financing Documents. The Financing
Documents may contain such provisions and terms in relation to the Utility Cost
Containment Bonds and the Pledged Funds as the Board deems appropriate and which
shall not be inconsistent herewith.
(F) Utility Cost Containment Bonds shall not be deemed to constitute a general
obligation debt of the Authority or the Authority Members or a pledge of the faith and
credit of the Authority or any of the Authority Members, but such Utility Cost Containment
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Bonds shall be payable solely from the Pledged Funds and any moneys received from the
credit enhancers of the Utility Cost Containment Bonds, in accordance with the terms of
the Financing Documents. The issuance of Utility Cost Containment Bonds shall not
directly or indirectly or contingently obligate the Authority or any of the Authority
Members to levy or to pledge any form of ad valorem taxation whatsoever therefor. No
holder of any such Utility Cost Containment Bonds shall ever have the right to compel any
exercise of the ad valorem taxing power on the part of any of the Authority Members to pay
any such Utility Cost Containment Bonds or the interest thereon or the right to enforce
payment of such Utility Cost Containment Bonds, or the interest thereon, against any
property of the Authority or any of the Authority Members, nor shall such Utility Cost
Containment Bonds constitute a charge, lien or encumbrance, legal or equitable, upon any
property of the Authority or any of the Authority Members, except the Pledged Funds in
accordance with the terms of the Financing Documents.
(G) All Pledged Funds shall be deemed to be trust funds, to be held and applied
solely as provided in the Financing Documents. Such Pledged Funds may be invested by
the Authority in such manner as provided in the Financing Documents.
(H) Any holder of Utility Cost Containment Bonds, except to the extent the
rights herein given may be restricted by the Financing Documents, may, either at law or in
equity, by suit, action, mandamus or other proceeding, protect and enforce any and all
rights under the laws of the State or granted hereunder or under the Financing Documents,
and may enforce and compel the performance of all agreements or covenants required by
this Interlocal Agreement, or by such Financing Documents, to be performed by the
Authority or by any officer thereof.
(I) The Utility Cost Containment Bonds may be validated, at the sole discretion
of the Board, pursuant to Chapter 75, Florida Statutes. Utility Cost Containment Bonds
may be issued pursuant to and secured by a resolution of the Board or a resolution of a
Single Purpose Entity established by the Board for such purpose.
(J) In addition to the other provisions and requirements of this Interlocal
Agreement, any Financing Documents may contain such provisions as the Board deems
appropriate.
(K) All Utility Cost Containment Bonds issued hereunder shall not be invalid for
any irregularity or defect in the proceedings for the issuance and sale thereof and shall be
incontestable in the hands of bona fide purchasers for value. No proceedings in respect to
the issuance of such Utility Cost Containment Bonds shall be necessary except such as are
required by this Interlocal Agreement, the Financing Documents and general law. The
provisions of the Financing Documents shall constitute an irrevocable contract between the
Authority and the holders of the Utility Cost Containment Bonds issued pursuant to the
provisions thereof.
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(L) Holders of Utility Cost Containment Bonds shall be considered third party
beneficiaries hereunder and may enforce the provisions hereof.
(M) The Board may enter into such swap, hedge or other similar arrangements
relating to any Utility Cost Containment Bonds as it deems appropriate.
(N) The Authority may create Single Purpose Entities to perform all or a portion
of its powers hereunder, including this Section 4.03. Reference herein, including in this
Section 4.03, to the Authority shall also include any such Single Purpose Entity created by
the Authority. Approval of the governing bodies of the Authority Members shall not be
required to create such Single Purpose Entities
SECTION 4.04. AD VALOREM TAXATION NOT AUTHORIZED. The
Authority shall not have the power to levy and assess an ad valorem tax on any property for
any reason.
SECTION 4.05. ESTABLISHMENT OF FINANCING AUTHORITIES.
The Authority Members may establish one or more financing authorities to finance or
refinance Utility Projects for Authority Members and Local Agencies. Each such
financing authority shall be established by the Authority Members and shall be governed
by an interlocal agreement substantially identical in form to this Interlocal Agreement.
Each financing authority shall have all powers provided by the interlocal agreement which
establishes it. The Authority Members shall be the members of the financing authority.
Each financing authority shall be a duly constituted legal entity and public body separate
and apart from the Authority and all other financing authorities established in accordance
with the terms hereof. No moneys, revenues or obligations of a financing authority shall
constitute moneys, revenues or obligations of the Authority or any other financing
authority. Each financing authority shall have its own budget and financial statements.
The establishment of a financing authority does not require the approval of the governing
bodies of the Authority Members. Approval of this Interlocal Agreement by the
governing body of each Authority Member shall constitute authorization and approval of
the creation of each such financing authority and the interlocal agreement pertaining
thereto. Each interlocal agreement establishing a financing authority shall be filed in each
county in which the members of the financing authority are located.
A financing authority shall not engage in any other activities other than those
contemplated in the interlocal agreement pursuant to which it is established. Such
interlocal agreement shall include restrictions on the ability of the financing authority to
merge with another entity, own or occupy real property, establish or organize subsidiary
entities, or hire employees. A financing authority shall be prohibited from guarantying or
otherwise obligating itself with respect to the liabilities, indebtedness or obligations of any
other entity or person. The Authority Members and the Directors serving as the board of
the financing authority shall have no material economic interest in the activities of the
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financing authority, or the parties participating in the issuance of the indebtedness for a
particular Utility Project.
SECTION 4.06. ESTABLISHMENT OF SINGLE PURPOSE ENTITIES.
By execution and delivery of this Interlocal Agreement, the Authority Members grant to
the Authority the power to establish and activate one or more Single Purpose Entities, for
the limited purposes of serving as the issuer of Utility Cost Containment Bonds for the
purpose of financing or refinancing Utility Projects, adopting the Financing Resolution for
the issuance of a series of Utility Cost Containment Bonds, taking other actions as are
necessary for the issuance of the Utility Cost Containment Bonds, including without
limitation, the imposition of Utility Project Charges in connection with the Utility Cost
Containment Bonds. The powers and duties of the Single Purpose Entity shall be limited
to such duties as shall be provided in the resolution of the Authority establishing the Single
Purpose Entity and the Financing Documents related to the Utility Cost Containment
Bonds to be issued by such Single Purpose Entity. The Authority Members or Directors
may be the members of the Single Purpose Entity the Board shall establish.
Single Purpose Entities established pursuant to this Interlocal Agreement shall not
engage in any other activities other than those contemplated in the Financing Resolution
and the Financing Documents. The Financing Documents for a series of Utility Cost
Containment Bonds shall include restrictions on the ability of a Single Purpose Entity to
merge with another entity, own or occupy real property, establish or organize subsidiary
entities, and hire employees. A Single Purpose Entity shall be prohibited from
guarantying or otherwise obligating itself with respect to the liabilities, indebtedness or
obligations of any other entity or person. The Authority Members or Directors serving as
the Board of the Single Purpose Entity shall have no material economic interest in the
activities of the Single Purpose Entity, or the parties participating in the issuance of the
Utility Cost Containment Bonds for a particular Utility Project.
SECTION 4.07. LIMITATION ON DEBT RELIEF. Notwithstanding any
other law, the Authority (including any SPE created by the Authority pursuant to Sections
4.05(A)(xxi) and 4.06 hereof, any financing authority created by the Authority pursuant to
Section 4.05 hereof, or any other entity created by the Authority for the purpose of
financing Utility Projects pursuant to the Utility Cost Containment Bond Act) shall not,
and a governmental officer or organization shall not authorize such entity to, become a
debtor under the United States Bankruptcy Code or become the subject of any similar case
or proceeding under any other state or federal law if any payment obligation remains with
respect to the Utility Cost Containment Bonds or indebtedness issued by any financing
authority established by the Authority. This provision shall not be modified by
amendment of this Interlocal Agreement unless the purpose of such amendme nt is to
further the purpose of this limitation on debt relief.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. DELEGATION OF DUTY. Nothing contained herein shall
be deemed to authorize the delegation of any of the constitutional or statutory duties of the
State or the Authority Members or the Local Agencies or any officers thereof.
SECTION 5.02. FILING. A copy of this Interlocal Agreement shall be filed
for record with the Clerk of the Circuit Court in each county wherein an Authority Member
is located.
SECTION 5.03. IMMUNITY. (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 Authority Members shall apply to the
officials, officers, agents or employees of the Authority when performing their respective
functions and duties under the provisions of this Interlocal Agreement.
(B) The Authority Members intend to utilize Sections 768.28 and 163.01(9)(c),
Florida Statutes, other Florida Statutes and the common law governing sovereign
immunity to the fullest extent possible. Pursuant to Section 163.01(5)(o), Florida
Statutes, Authority Members may not be held jointly liable for the torts of the officers or
employees of the Authority, or any other tort attributable to the Authority, and that the
Authority alone shall be liable for any torts attributable to it or for torts of is 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 Authority
Members intend that the Authority shall have all of the privileges and immunities from
liability and exemptions from laws, ordinances, rules and common law which apply to the
municipalities and counties of the State. Nothing in this Interlocal 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 5.04. LIMITED LIABILITY. No Authority Member shall in any
manner be obligated to pay any debts, obligations or liabilities arising as a result of any
actions of the Authority, the Directors or any other agents, employees, officers or officials
of the Authority, except to the extent otherwise mutually agreed upon, and neither the
Authority, the Directors or any other agents, employees, officers or officials of the
Authority have any authority or power to otherwise obligate any individual Authority
Member in any manner.
SECTION 5.05. AMENDMENTS. This Interlocal Agreement may be
amended in writing at any time by the concurrence of all of the Directors present at a duly
called meeting of the Authority and subsequent ratification by the governing body of each
Authority Member. However, this Interlocal Agreement may not be amended so as to
(A) permit any profits of the Authority to inure to the benefit of any private person,
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(B) permit the diversion or application of any of the moneys or other assets of the
Authority for any purposes other than those specified herein, (C) adversely affect the
tax-exempt status, if applicable, of interest on the Utility Cost Containment Bonds, or
(D) materially, adversely affect the security for any Utility Cost Containment Bonds.
SECTION 5.06. SEVERABILITY. In the event that any provision of this
Interlocal 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 Interlocal
Agreement shall remain in full force and effect.
SECTION 5.07. CONTROLLING LAW. This Interlocal Agreement shall
be construed and governed by Florida law.
SECTION 5.08. EFFECTIVE DATE. This Interlocal Agreement shall
become effective on the later of (A) the dated date hereof or (B) the date the last initial
Authority Member executes this Interlocal Agreement and the filing requirements of
Section 5.02 hereof are satisfied.
21
IN WITNESS WHEREOF, this Interlocal Agreement has been executed by and
on behalf of the Authority Members by their authorized officers or officials on this ____
day of _____________, 2017.
FLORIDA GOVERNMENTAL UTILITY
AUTHORITY
By:______________________________
Chairman
ATTEST:
_____________________________
Secretary - Treasurer
22
IN WITNESS WHEREOF, this Interlocal Agreement has been executed by and
on behalf of the Authority Members by their authorized officers or officials on this ____
day of _____________, 2017.
COLLIER COUNTY, FLORIDA
By:______________________________
Chair
ATTEST:
_____________________________
Clerk
23
IN WITNESS WHEREOF, this Interlocal Agreement has been executed by and
on behalf of the Authority Members by their authorized officers or officials on this ____
day of ______________, 2017.
LEE COUNTY, FLORIDA
By:______________________________
Chair
ATTEST:
_____________________________
Clerk